Devopoulos and Devopoulos (No 2)

[2011] FamCA 710

FAMILY COURT OF AUSTRALIA

DEVOPOULOS & DEVOPOULOS (NO 2) [2011] FamCA 710

FAMILY LAW - CHILDREN - Where all parties agree there is no effective communication - Where the parents have very different parenting styles - Where one child has a global disability - where it is in the interests of a child with such a disability to maintain a stable environment - where considerations of parental responsibility in regards to the other children be focused upon the need to shield them from destructive parental conflict and the added pressures therein.

Family Law Act 1975 (Cth)

APPLICANT: Ms Devopoulos

RESPONDENT: Mr Devopoulos

INDEPENDENT CHILDREN’S LAWYER: Duncan Holmes

FILE NUMBER: SYC 1400 of 2009

DATE DELIVERED: 2 September 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 22 - 24 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom

SOLICITOR FOR THE APPLICANT: Redman Hale Simpson

COUNSEL FOR THE RESPONDENT: Mr Hodgson

SOLICITOR FOR THE RESPONDENT: Hancock Alldis & Roskov Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Slade Manwaring

Orders

Z

1. The father use his best endeavours to ensure that Z Devopoulos born … January 1995 (Z) attend the appointment scheduled at Hospital 1 on 2 September 2011 and any further assessment by the acute mental health team and I note Dr M’s advice that that appointment is not to be seen as an alternative to the treatment that I have otherwise described in these orders. 

2. The father will do all things that he can to ensure that contact is made with the intake officer of the Child and Adolescent Mental Health Service (“CAMHS unit”) at Hospital 1 for the purposes of arranging a psychiatric assessment for Z and when that occurs the father shall provide the Independent Children's Lawyer with details about that appointment.

3. The Independent Children's Lawyer provide to the intake officer of the Child and Adolescent Mental Health Service at Hospital 1 a copy of the two reports by Dr M and the report of Dr R.

4. The father use his best endeavours to ensure that Z attends for that intake session that has been arranged with the CAMHS unit and also attend any appointments or treatments that are recommended by any professional who is providing Z with mental health services in the CAMHS unit.

5. The father also ensure that Z follow all recommendations for treatment which may involve psychological and/or psychiatric intervention including adherence to treatment with anti-depressant medication, if prescribed.

6. In the event that the psychiatrist at CAMHS unit believes that family intervention is appropriate, both parties fully cooperate with any involvement or participation requested by the treating mental health professional associated with the CAMHS unit and the mother ensure that B and P are involved if that is also requested by the treating mental health professional.

7. In the event the public health system is not available to assist Z, then the father is to do what he is able to do to obtain a referral from his general practitioner for Z to attend a private child and adolescent psychiatrist recommended by the Independent Children’s Lawyer for the purposes of that psychiatrist providing Z with ongoing intervention and treatment and the father is to do what he can to ensure that Z complies with the recommendations of that treating psychiatrist, including the taking of any medication if it is prescribed, and that the same information as provided to CAMHS be provided to the psychiatrist; and that both parties be equally liable for costs of implementing this order.

8. The father, from time to time in a timely manner, inform the mother in writing as to the progress of Z’s treatment and provide to her copies of any medical reports he receives.

9. The mother write a letter to Z indicating that she loves him, will always be there for him, that he can always contact her if he wishes and that she understands that he is currently going through a very difficult time.  The letter will also indicate to him that she will, for the time being, not attempt to intrude into his life.  The mother will deliver that letter to the father and the father will use his best endeavours to make sure that Z receives and reads what the mother has written. 

10. In relation to medical reports referred to in Order 8, neither party shall publish any of the contents of any medical report that they receive to any person other than their legal representatives and medical professionals without the other parent’s written consent.

11. Any psychiatrist treating Z is at liberty to contact Dr M at his offices to speak to him about any matter relevant to Z or any member of his family.

12. In relation to the medical report referred to in paragraph 7 of exhibit 10 neither party shall publish any of the contents of any medical report that they receive to any person other than their legal representatives and medical professionals without the other parent’s written consent. 

13. The father have sole parental responsibility in relation to Z.

14. The father give notice to the mother in writing or by email of any major decision he intends to make about Z at least 14 days prior to making such decisions, and before making the decision, consider any view expressed by the mother in writing or by email received within 14 days after the notice given by the father to the mother.

15. The mother has the right to contact any medical professional that is providing professional services to Z and any such professional is authorised by this order to speak to the mother about Z’s medical condition, prognosis, treatment and any other matter for which the professional considers it appropriate for the mother to receive information.

16. Z live with the father and spend such time with the mother in accordance with his wishes.

Parental responsibility for P and B

1. The mother have sole parental responsibility in relation to P Devopoulos born … March 1996 (P) and B Devopoulos born … March 1996 (B).

2. The mother give notice to the father in writing or by email of any major decision she intends to make about P or B at least 14 days prior to making such decisions, and before making the decision, consider any view expressed by the father in writing or by email received within 14 days after the notice given by the mother to the father.

3. The father is authorised to obtain information from B’s and P’s schools about their respective progress from time to time.

B

1. B live with the mother and spend such time with the father in accordance with her wishes.

P

1. That the mother do all acts and things to appoint a treating General Practitioner with regard to P's health and ongoing treatment, such General Practitioner to be the nominated GP and designated doctor for the purposes of referrals for P to attend upon specialists or other health professionals from time to time, and the mother to notify the father of the name, address and telephone number of such designated doctor and authorise that doctor in writing to release to the father at any time particulars of P's health or any treatment.

2. P live with the mother except when spending time with the father.

3. P spend time with the father:

   23.1.during school term on each alternate Friday afternoon from after school until the commencement of school on the following Monday, or in the event of a public holiday falling on the Monday, the commencement of school on the following Tuesday.

   23.2.on Father's Day in each and every year from 10 am to 6 pm and in the event that Mother's Day falls on a weekend when P is spending time with the father, the father to do all acts and things to enable P to spend Mother's Day with the mother between 10 am and 6 pm.

   23.3.during the Christmas school holiday period from 5 pm on P's final day of Term 4 until 5 pm on 22 December and from 10 am on 4 January until 5pm on 17 January (noting that the father’s celebrations of Macedonian Orthodox Christmas falls on 7 January in each year and his birthday falls on a date between 4 and 17 January in each year).

   23.4.during other school holiday periods, being one half of Term 1, 2 and 3 school holiday periods.  One parent will have the first week and the other the balance of the holidays, with the father having the first week in Terms 1 and 3 in even numbered years and the first week of Term 2 in odd numbered years.

   23.5.For the purpose of the preceding order, the first half of the school holidays will be taken to mean from 9am on the Saturday to 9am on the following Saturday when P is to be with his father and from after school at the conclusion of school term to 9am on the second Saturday when P is to be with his mother.

   23.6.each year from 10am on Macedonian Orthodox Easter Sunday until 7.30pm that day and in the event that Macedonian Orthodox Easter Sunday falls on the same day as Catholic Easter Sunday, P spend time with the father in even numbered years, from 10am to 4pm and in odd numbered years, from 4pm until 7.30 pm on that day.

   23.7.on P’s birthday in the event it is a weekday, from the conclusion of school until 7.30pm and in the event it is a weekend and P is not already spending time with the father from 3pm until 7.30pm and in the event that P is spending time with the father on P’s birthday, P’s time with the father be suspended from 3pm until 7.30pm.

4. P's time with the father be suspended every year on … September (being the mother's Birthday) in the event it is a weekday, from 4pm to 7.30pm and in the event it is a weekend, from 10am to 7.30pm.

5. Subject to order 28, that P's time with the father be suspended every year from 4pm on Good Friday until 10am Easter Monday.

6. At times when changeover is not at P’s school, the mother take P to the father’s home at the commencement of any time and the father return P to the mother’s home at the conclusion of his time with P.

7. Each of the mother and father shall:

   27.1.do all acts and things to ensure the child P's attendance at regular extra-curricular activities continues whilst he is in the care of that parent;

   27.2.that each party immediately (or as soon as reasonably practicable) notify the other in the event that any of the children is seriously ill or requires treatment or surgery, either medical, dental, orthodontic or optical, or any form of counselling or therapy;

   27.3.notify the other not less than seven (7) days before changing that party’s address, of such proposed change;

   27.4.notify the other not less than seven (7) days before changing that party’s telephone number, of such proposed change;

   27.5.notify the other and keep the other notified of a telephone number where the child P may be contacted in the event of an emergency;

Other orders

1. It is requested that Legal Aid NSW continue the appointment of the Independent Children's Lawyer for a period of 12 months.

2. The parties equally pay the costs of the Independent Children's Lawyer in the agreed sum of $8,400 and an amount in relation to Dr M’s attendance to give evidence in the sum of $2,475 to Legal Aid NSW within 14 days.  That money to be paid from the controlled monies account held by Redmond Hale.

3. Liberty is granted to the parties to re-apply in relation to implementation of the orders in relation to Z.

4. On the Court’s own motion, Justice Watts is disqualified from hearing the property dispute between the parties and the matter will be placed in another judge’s docket in consultation with the Docket Registrar when the report from the mother’s adversarial expert becomes available.

5. Pursuant to s65DA(2) and s62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

It is noted that publication of this judgment under the pseudonym Devopoulos & Devopoulos (No 2) is approved pursuant to s 121 (9) (g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1400 of 2009

Ms Devopoulos  

Applicant

And

Mr Devopoulos  

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The parties in this matter have three children: Z aged 16 years, and twins B and P aged 15 years. P is ‘globally delayed’ and requires significant assistance.  P has limited mental capacity, which the mother assesses at a seven to eight year old level and the father assesses at a three year old level. I will discuss this in more detail later. The father is aged 53 and the mother is 51. Since September 2009 Z has lived with the father and has spent little time with the mother; B has lived with the mother and has spent little time with the father; and P, since the interim orders of 10 August 2009, has lived with the mother and has spent 5 nights a fortnight with the father on a two week cycle, Thursday to Saturday nights in one week and Tuesday and Wednesday nights in the other week.

2. The parties are in disagreement about most things. The most startling is a difference of 14 years in when they say they were separated.  The father says the parties separated under one roof in early March 1995. The father says this is important because he alleges that he and the mother independently parented the children after 1995. The mother says the parties separated in 2009 after approximately 20 years of cohabitation. Based on credit findings below, I accept the mother’s version, though little rests on this fact. I note the twins were conceived by IVF at a time after the father asserts the parties separated.

3. The principal issues relate to what parenting orders should be made in relation to P, who has been diagnosed as being ‘globally delayed’, and what time he should spend with each of the parties. 

4. Very unusually, the parties and the Independent Children's Lawyer at the commencement of the hearing stated that it was an agreed fact that there was no effective communication between the parties about the children.  I find that such a situation is unlikely to change in the foreseeable future.

5. This is one of the worst cases I have ever had before me involving two motivated parents. It is a tragic case where two sincerely committed parents have such different parenting styles and a total inability to cooperate, leading to circumstances where their eldest child is emotionally damaged and spends time with one parent only, their daughter also spends time with one parent only, and where the parents have great difficulty co-managing the profound disability of their third child. Both parents have little insight into the part they have played in achieving this outcome.

APPLICATIONS

1. I note in relation to Z, the parties are prepared to consent to an order that the parents have equal shared parental responsibility in relation to Z’s health and medical issues and the father have sole parental responsibility in relation to other long term responsibilities.  The Independent Children's Lawyer originally opposed that an order be made and sought that the court make no order in relation to parental responsibility apart from the order I have already made creating obligations on the father to share information with the mother. This position was revised by the Independent Children's Lawyer in final submissions. 

2. The father sought equal shared parental responsibility for the younger children. Regarding time the children spend with each party, the father sought:

   7.1.In relation to Z, that he live with the father and spend such time with the mother in accordance with his wishes. The mother accepted this proposed order.

   7.2.In relation to B, that she live with parties upon an equal shared basis. In cross examination by the Independent Children's Lawyer, the father accepted that he could not maintain this application and the more appropriate order was in similar terms to that sought by him for P, but in the mother’s favour for B.

   7.3.In relation to P, that he primarily live with the father and spend alternate weekends with the mother from Friday after school until Sunday evening during school term and in relation to school holiday periods that he spend one half of his school holidays with the mother. In final submissions, the father changed his position to seek a continuance of the current interim orders in place, whereby P lives primarily with the mother and spends 5 nights a fortnight with the father on a two week cycle.

3. In final submissions, the mother has indicated that as an alternative to the order she seeks for equal shared parental responsibility for health and medical issues in relation to Z, she would seek an order be made that she have the right and responsibility to keep in communication with any medical professional providing services to Z and that those medical professionals be authorized to provide her with information about Z’s progress in terms of treatment.

4. In summary, the mother sought orders to the following effect:

   9.1.Equal shared responsibility for P and B generally but that the mother have sole parental responsibility for decisions relating to P’s health, education and extra curricular activities. Otherwise, the parents have sole responsibility for day-to-day decisions when the children are in their care.

   9.2.That the mother organise a single GP to be the designated doctor with regards to P’s health and referrals. The mother will notify the father of the designated doctor’s details and authorise that doctor in writing to release information about P to the father. She will also authorise information to be provided by P’s school to the father.

   9.3.That B live with the mother and spend time with the father in accordance with her wishes.

   9.4.That P live with the mother and spend time with the father each alternate Friday afternoon until Monday morning, provided that the school taxi service is utilised to and from school, and that P attend the activities he is enrolled in or appointments arranged. The mother also seeks P spend half the terms 1, 2 and 3 school holidays with the father. Special provisions are detailed regarding Father’s Day, Mother’s Day, Christmas holidays, Easter holidays and birthdays.

5. By final submissions on 24 August 2011, a large number of orders had been made by consent. 

6. The issues identified as still requiring determination were:

   11.1.Whether parental responsibility with regards to Z’s health care should be shared;

   11.2.Whether parental responsibility with regards to B should be shared;

   11.3.Whether parental responsibility with regards to P should be shared, or whether decisions about health care, education and extra-curricular activities, be the sole responsibility of the mother;

   11.4.The time P is to spend with the father (in term time only);

   11.5.Whether the transportation for P’s non-school changeovers should be shared; and

   11.6.Whether P’s travel to and from school should be by taxi with no exceptions.

7. At the end of the hearing, the Independent Children's Lawyer sought:

   12.1.That the mother have sole parental responsibility for P and B, and that the father have sole parental responsibility for Z;

   12.2.In relation to P’s time with the father, that P spends time with the father as sought by the mother, and in addition, that he spends a Tuesday afternoon and evening with the father in the off-week; and

   12.3.That transportation to non-school changeovers should be shared by the parties and that the father be permitted to take P to school on the days P is with him, without the requirement of the taxi service.

DOCUMENTS RELIED UPON

1. The applicant mother relied on the following:

   13.1.Case Outline document;

   13.2.Application filed 27 March 2009;

   13.3.Mother’s affidavit filed 17 August 2011

1. The respondent father relied on the following:

   14.1.Case Outline document dated 19 August 2011;

   14.2.Response filed 12 May 2009;

   14.3.Father’s affidavit sworn 19 August 2011;

   14.4.Affidavit of Ms D sworn 8 May 2009; and

   14.5.Affidavit of Ms J sworn 8 May 2009.

2. The Independent Children’s Lawyer relied on the following:

   15.1.Case Outline document; and

   15.2.Two reports of Dr M dated 15 July 2009 and 23 June 2011.

3. Evidence tendered as exhibits was also relied upon.

4. Dr M acknowledged that his second report was written without the benefit of seeing the father or Z. The circumstances in which that happened are firstly that the father rejected the first appointment upon the basis that it conflicted with tutoring which was arranged for Z during his exams. He was scheduled to be tutored in relation to a physics exam at the time in which he was supposed to be at Dr M’s rooms. The second occasion the father had a difficultly with a tooth in respect to which he sought some urgent dental attention. He, however, did not attempt to contact Dr M to inform him that he was not coming to the appointment, nor did he respond to various telephone calls that Dr M made to him on that day, nor did he ask the dental surgery he attended to attempt to contact Dr M in any way, nor did he ask Z to do this. The father had picked Z up from school prior to travelling to the dentist. Although counsel for the father referred often to the fact that Dr M’s second report contains the disclaimer “the scope of the review was limited by the lack of involvement of the father and Z. Necessarily, this review and opinion focussed on the views and experience of the mother, B and P”, it was not submitted to me that the father at any time attempted to remedy the fact that he had not seen Dr M on two occasions. While accepting the father sustained an injury to his tooth, I found the father’s explanation about why he did not ring Dr M and tell him why he was not coming on the second occasion to be without a great deal of credit.

SHORT HISTORY

1. The father was born in 1958 and is now aged 53.

2. The mother was born in 1959 and is now aged 51.

3. The parties married in 1989.

4. The child Z was born in January 1995 and is now aged 16 years.

5. The children (twins) B and P were born in March 1996 and are now aged 15 years.

6. The parties separated on 6 February 2009, in accordance with the mother’s evidence, and divorced in June 2011.

CREDIT

1. The mother gave evidence in a relatively straightforward way. There was no occasion when I had any doubt that she was attempting to answer questions truthfully. On a number of occasions she willingly made concessions not in her favour.

2. There were times during the father’s oral evidence I found myself being unable to accept his version of events. On a number of occasions, having made one unilateral statement, he modified it when presented with material which would indicate that that statement could not be sustained. I will give seven such examples:

   25.1.In 2010 the father commenced AVO proceedings against the mother. He said that he was motivated to do so because the mother had made a threat against him. In his application for the AVO that threat was expressed as “You ruined my life. I will get you.” The father initially confirmed this was the primary reason for him commencing the proceedings. In oral evidence the father embellished that version to say that what the mother had actually said at that time was “I will kill you”, she told him not to laugh, and then told him a story about a man in Croatia being stabbed in the chest at his front door by his ex-wife. Had the mother in fact said to the father “I will kill you” shortly before the father completed the application for the AVO, I am confident that the father would have quoted those words in the document (taking into account all the other allegations that he made against the mother in that document). I am comfortably satisfied that the father was simply making up words that he was ascribing to the mother in the witness box.

   25.2.In relation to P’s school camp, the father originally indicated that the reason he did not send P to his three day school camps in 2009 and 2010 was because he was concerned about P’s supervision and had he been aware that the mother was going to be at the school camp he would have allowed P to go. When confronted with the correspondence that passed between the mother’s solicitors and his solicitors (exhibit 8) the father changed his evidence to say that it was only the 2009 school camp where he said that if the mother was present P could go. The father was then shown further correspondence (exhibit 9). The effect of exhibits 8 and 9 were that some time before the second camp the father knew the mother would be there. The father then moved his position to say that unless the mother could guarantee she could at all times personally supervise P then he would not be prepared to allow P to go and that was confirmed when he was asked about his attitude to P attending the 2011 school camp. There was a clear shift in his evidence when being asked varying questions in respect to this topic.

   25.3.Thirdly, I found it difficult to accept the father’s evidence in relation to what happened on the occasion when B came to his front door. The mother’s evidence was that she had been served with an application for an AVO very shortly before she was due to collect Z to come to a family event. In accordance with advice from the police, she parked her car a distance away from the front of the father’s home. The mother recounted B’s statement to her when she returned from the home after seeking to collect Z, that her father made physical contact with her in order to restrain her from coming into the home. The father gave evidence that he saw the mother park across the street from his home by looking out an upstairs window and he saw B getting out of the car. The father says he had a conversation with Z before B got to the front door to confirm with Z that he had no arrangement to be picked up by his mother. The father says: he then had a conversation through the closed front door with B asking why she was there, refusing her entry due to his fear she would create trouble like she reportedly did a number of months prior; that B began banging the door; and that upon opening the door slightly and saying “Sweetie, go back to the car and your mother, I don’t want trouble” B became rude. I find the father’s reason for not opening the door implausible. I note the father changed his evidence about what was said when the door was shut and when it was open. I find it difficult to accept that having opened the front door to B that there wasn’t some physical restraint by the father to stop B coming into the house, given the volatility reported in the situation. I find it difficult to accept the father’s version. I accept the mother’s evidence that she parked up the street. I accept what the mother says about B reporting a version of events to her and that version to be inherently more likely.

   25.4.The mother gave evidence that the father at no time saw B perform in her singing group. The father asserted confidently that he had seen B perform however he was unable to recall where or when (even the year) or what she was wearing (it was put to him she was wearing robes). He did not know that it was called … , nor did he know how often she went to practice or where she went to practice over a two year period.

   25.5.The father originally said he did not have any doubts about the mother’s parenting ability. He was referred to paragraph 146 of his affidavit sworn 19 August 2011, which said “I have always had doubts regarding [the mother’s] ability to properly care for them. [The mother] has always been dysfunctional…” The father, when asked to explain this contradiction, said that what he said in his affidavit related to the position in 2009, not now. I asked what had changed in the last two years to create a 180 degree turnaround in his attitude to the mother’s parenting ability. The father was not able to satisfactorily give me any response to that question.

   25.6.The father also gave some curious evidence as to why he failed to consult P’s physiotherapist. It is clear in the evidence that the father was given the information about the identity of the physiotherapist. The father’s position was that he wanted to talk to the referring doctor to find out why P had been referred to a physiotherapist. He was shown a letter which stated the reason for the referral (being P’s weak pelvic floor muscles). The father stated that he wanted to speak to the referring doctor before anyone else. I found the father’s evidence about this totally unconvincing, noting he could have sought the information he required about the reason for the referral and the identity of the referring doctor from the physiotherapist and could have sought any further information through his lawyers, a channel through which most of the information was already available.

   25.7.The father believed the mother coached Z for Dr M’s first report. Given the unfavourable things Z said to Dr M about the mother in that report I just do not accept that he genuinely believes that Z was coached. If he does genuinely believe it, it shows a total lack on insight.

3. Overall, unless I indicate otherwise, I prefer the version of events given by the mother rather than that given by the father where they conflict.

DETAILED CHRONOLOGY

1. Disputed matters of a historical nature were not the subject of any detailed investigation. Consistent with my credit findings, I prefer the mother’s version where the parties disagree.

2. The father was born in Macedonia in 1958 and is now aged 53.

3. The mother was born in Croatia in 1959 and is now aged 51.

4. The parties married in May 1989.

5. The child Z was born in January 1995 and is now aged 16 years.

6. The father contends that the parties separated under one roof on a final basis in early March 1995 but I reject that assertion.

7. The children (twins) B and P were born in March 1996 and are now aged 15 years.

8. In early 1997 to 1998 the father said he commenced a part-time business from home.  The mother returned to work at an educational institution working 15 hours per week and the father said he cared for the children. The mother was made redundant on 12 September 1997. The mother denies the father cared for the children in any significant way before 2009.

9. In September 1998 P began attending X Handicapped Children’s Centre one day per week which later increased to three days per week.

10. From 1998 to 2005 the father says his sister Ms J worked as a secretary to him which allowed the father to care for the children. The mother denied the father’s sister was of significant assistance in this regard.

11. In 1999, P began attending S Therapy Centre half a day per week in addition to X Handicapped Children’s Centre and also has occupational therapy and physiotherapy at Hospital 2. B also commenced pre-school this year and Z was attending pre-school five days a week.

12. In 2002 to 2005, P attended M Education Centre five days per week.

13. From 2002 to 2008 the father said the mother undertook several part time courses at TAFE and that the father cared for children when the mother was attending these courses. The mother denies this, saying she undertook study only in 2007 and 2008.

14. In 2006 P commenced attending Primary School 1 IO Support Unit on 5 days a week. The mother wanted to do this to ease P’s transition into a larger high school. The father was aware of the decision but did not participate in the making of the decision.

15. In 2009 P commenced attending High School 1 in the OI Support Unit, where he currently attends.

16. During 2009 the mother (and Z in his interview with Dr M) said the father significantly reduced his hours and began having a greater role in the children’s lives.

17. The parties separated on 6 February 2009.

18. On 17 and 18 June 2009 interviews took place for the initial report with Dr M.

19. On 10 August 2009, interim orders were made providing:

    45.1.The parties have equal shared parental responsibility;

    45.2.The parties have sole responsibility for decisions   which are not major whilst the children are in each of their respective care;

    45.3.The children live with the Mother; and

    45.4.The children spend time with the Father on a two week cycle in week 1 from after school Thursday to 7pm Sunday and in week 2 from after school Tuesday until before school Thursday, together with special occasions (five nights a fortnight).

20. In September 2009 Z commenced living with the father full time and B commenced living with the mother full time.

21. I accept for a significant part of the relationship of the parties the father was away from the home, working in a legal role, and the mother had the primary caring role.

THE APPROACH IN CHILDREN’S CASES

1. The objects of Part VII Family Law Act 1975 (Cth) (“FLA”) are to ensure that the best interests of children are met by:

   (a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and          

   (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)  ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children

2. The principles underlying those objects (unless contrary to a child’s best interests) are:

   (a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)  parents should agree about the future parenting of their children; and

   (e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 60CA FLA provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

4. Section 60CC FLA sets out those matters which a court must consider in determining what is in the child’s best interests.

Primary considerations

The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a) FLA)

1. All acknowledged that it was in P’s interests to have a meaningful relationship with both his parents.  However in the case of a child with disabilities such as P, more time may not necessarily be the key to a meaningful relationship. A major risk of destruction of the parental relationship with P is the conflict between the parents. I find it is probably more important in this case to create a regime which eliminates for P as much parental conflict as is possible.

The need to protect Children from physical or psychological harm from being subjected to, exposed to abuse, neglect or family violence (s 60CC(2)(b) FLA)

1. The psychological harm in this case does not arise from family violence, neglect or abuse.  I find in this case it is exposure to familial conflict between the mother and father that creates the risk of psychological harm. It is probable Z’s current circumstances are largely a product of that conflict.

The additional considerations

Children’s views (s60CC(3)(a))

1. I accept the mother’s evidence that P is saying to her that he does not want to go to his father as frequently. The mother’s evidence of him saying that is corroborated by the fact that the father agrees that P is expressing anxiety now when he comes to be with him.

2. I do note the child’s expressed views may be a response to the stress and anxiety felt in reaction to the current arrangements. He is certainly showing some sort of anxiety with his picking the skin off his fingers and obsessions.

3. Given P’s effective psychological age (7 to 8 years), I place little weight upon P’s expressed views.

Relationships of the children with the parents and other persons (s60CC(3)(b))

1. P has a close and loving relationship with his mother and a relationship with his father that is loving but not as close. P would benefit from maintaining a relationship with both of his siblings, with whom he is close. The impact of Z’s influence on P is considered below.

Willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent (s60CC(3)(c), noting (s60CC(4))

1. The mother feels the father has turned Z against her and the father feels that the mother has turned B against him. There was evidence from the children in family reports that the father tried to ‘buy’ their favour. The mother admits having said things about the father on a couple of occasions in anger.

2. The father initially had difficulty explaining in what ways he encouraged Z to reunite with the mother, following his estrangement from her after a disagreement (or pattern of disagreements) about routine adolescent gripes, being respect for siblings, completion of assessment and pulling his weight around the house. Conversely, the mother indicated the ways in which she encouraged B to spend time with the father despite her insistence not to.

3. Otherwise, there is no submission by either parent that the other is failing to collect or return P at allocated times or is moulding his views to align him with either parent.

4. I note the father has indicated he is prepared to go to a therapist who would provide therapy in the nature of a post separation parenting program which would aim at providing each of the parties individually with skills to be able to deal with one another as the parents of the children and to improve their communication skills in particular.  I note the mother at this time says that she would not consider agreeing to that until there was at least some period to allow adjustment after I have made parenting orders. I note unfortunately also the parties are still in heated disagreement about their financial matters and probably until that is over there will not be any sufficient cooling to make any therapy useful. I am mindful of the Independent Children's Lawyer’s accurate submission that the current reality of the situation is that it is probable therapy will not assist the parents.

Likely effect of any change in the children’s circumstances (s60CC(3)(d))

1. Counsel for the father stresses as the central point in his submissions that a “status quo” existed for P. The father, in final submissions, fell back to this “status quo” as his proposed arrangement for P.  It was submitted that the effect of changing what had been P’s routine for the last two years is unknown.

2. I acknowledge that if P spends less time with the father he will also spend less time with Z, with whom he had a close relationship at the time of Dr M’s first report. The corollary of that of course is that P’s time with B is increasing a corresponding amount of time. Dr M in oral evidence opined that it may not be a bad thing for P to spend less time with Z, given Z’s current declining mental wellbeing and consequential behaviour. Z is not currently presenting as a positive role model in terms of school attendance. Counsel for the father suggested the necessity of a positive role model was not a concept easily transferrable to the current situation where a child with mental disability has limited potential. Dr M expressed the opinion that this attitude was entirely disrespectful of P’s disability and inaccurate and I accept this is so. I also accept on balance, the accuracy of P’s observation that Z is spending a fair bit of time in the home, consumed by video games and sleeping. Estimating the amount of time Z is actually interacting with P when he is in his father’s home there is therefore problematic.

1. The major advantage of change in circumstances is the increased stability that P would have if the mother’s proposals were to go ahead, so that his school week routine would not be disrupted by a real risk of a lack of willingness on the father’s part to follow treatment plans or encourage extra-curricular activities. Consistency is important for P’s cognitive and physical progression and resulting enjoyment of life.

Practical difficulties and expense of the children spending time and communicating with a parent (s60CC(3)(e))

1. As indicated, there is no useful communication between the parents and this is the major difficulty in P spending significant and substantial time with the father.

The capacity of each of the parents to provide for the needs of the children, including emotional and intellectual needs (s60CC(3)(f))

1. While motivated, the father has shown a lack of appropriate response to P’s condition. He has sought to look outside P’s regular doctors and therapies and has not maintained existing activities and therapies. He has thwarted P’s broader social development by refusing to allow him to attend school camp, visit the mother’s family in Wollongong and at one time (not at the date of hearing), held a view that P might work with him upon school completion rather than a workshop environment with peers of similar abilities and circumstances. The father maintains P has the capacity of a three year old rather than a seven to eight year old (which the mother has assessed) and treats him accordingly. I note the mother’s evidence that if P had the capacity of a three year old he would otherwise have to be at more supported school. Dr M agreed with the mother’s assessment of P’s abilities, and while he acknowledges his opinion is not based on any testing, is confident, based upon clinical interviews and his expertise, that the mother’s assessment is accurate. Dr M feared that the father’s assessment of P as having the ability of a three year old meant the father was not extending P; was sheltering him and stunting his cognitive development. Dr M explained that if P was encouraged to meet educational goals, develop social skills, and participate in interests and activities, he would feel a sense of competence, and the resulting “repeated self efficacy” in these acts would lead to good self esteem and a higher enjoyment of life. One example of the father not extending P was the father’s attitude to P attending school camp.  The father opposed it because of his fears about the level of P’s disability. The father’s ongoing reluctance was based on his being fearful that P would feel unsafe, would get lost and would be scared being away from home. Dr M noted that the camp was important for P’s social development and to extend his boundaries. It was also noted by the mother and Dr M in his initial report, that the father allowed and reinforced P’s obsessions, placating him rather than seeking to improve the obsession behaviour.

2. The mother also questions the father’s parenting ability in reference to his treatment of Z and B. The father has demonstrated a lack of insight in relation to B, most cogently demonstrated by the events that occurred on the occasion that B came to the house for the purpose of collecting Z for a family event (discussed under “Credit” above).  The father conceded his relationship with B was at a low level and had not spoken to her since April this year, a period of approximately 4 months. B and Z have reported preferential treatment against her by the father and in favour of her brothers. She has reported troubling incidents involving the father’s rejection of her. The father said the reports regarding the father’s treatment of her by Z were a result of the mother’s coaching. As I have said, I reject that suggestion given Z also made many adverse comments against the mother.

3. Dr M questioned both parents’ approach to Z to lead him to the point he is now, the father coddling him, making excuses for him, having Z reliant upon him, and appeasing Z’s vulnerabilities, and the mother putting undue stress on Z in relation to the familial breakdown. The father puts blame at the mother’s feet, noting that Z’s decline began when he was living with the mother and any further decline in the last two years could not be properly assessed as Dr M did not have the opportunity of assessing Z for his second report. Dr M acknowledged that the second report was written without the benefit of seeing Z, but gains insight to his current interaction with the father through P’s statements at his second interview and other independent reporting such as that from Z’s school.

4. From the father’s own evidence, I have gained insight to Z’s situation and it certainly does seem that, in a similar way to P’s obsessions, the father has placated Z in relation to his concerns, moods and desire to avoid school and friends, rather than properly manage and improve the situation.

5. The father has acknowledged that things have reached a dire stage for Z.  He has recently sought appropriate intervention. The parties heard the advice of Dr M about Z and agreed to the consent orders which I made on 24 August 2011.

6. I do accept that the mother presented as the warmer personality when I had the opportunity to observing the parents at length during the period of time they were giving their oral evidence. The mother has been shown to be highly motivated in assisting P with his difficulties and has managed this role efficiently, gaining specialised schooling, transport, health therapies and activities beneficial to P’s growth. She is also qualified in teaching children with disabilities such as P’s and is currently completing further studies in that area.

The maturity, sex, background and lifestyle of the children and parents (s60CC(3)(g))

1. P’s global developmental delay has been referred to and I take it into account.

If the children are Aboriginal or Torres Straight Islander (s60CC(3)(h))

1. This is not an issue in the current proceedings.

The attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s60CC(3)(i), noting (s60CC(4))

1. This area of consideration has been dealt with in response to the consideration of s60CC(3)(f) FLA. Both parents are highly motivated, but are in high conflict.

Any family violence involving the children or a member of the children’s family (s60CC(3)(j) and(k))

1. This is not an issue in the current proceedings. The father had sought an AVO against the wife which I have determined (in relation to the father’s credit) seems to be without proper basis.

Likelihood of order leading to further proceedings (s60CC(3)(l))

1. None of the proposals put by the parties or the Independent Children's Lawyer are more likely to lead to less litigation in the future.

PARENTAL RESPONSIBILITY

1. Section 61DB of the FLA allows me to disregard any interim order for equal shared parental responsibility when considering a parental responsibility order on a final basis. As I have indicated, the hearing proceeded on the basis that it was an agreed fact that there is no effective communication between the parties about the children. This agreed fact was solidly corroborated upon hearing the evidence of the parties.

2. Section 65DAC(3) FLA provides that if an order for equal shared parental responsibility is made, the parties are required to confer about major long-term issues and make a genuine attempt to come to a joint decision. I accept the submission of the Independent Children’s Lawyer that it is totally unrealistic on the facts of this case to suggest the parties have any capacity whatsoever of achieving that.

3. Subsection 61DA(1) FLA provides a presumption in favour of equal shared parental responsibility. Subsection 61DA(4) FLA allows the presumption to be rebutted if it is not in the child’s best interests.

4. It is not in contention that the mother has made decisions about P’s education and health without consulting the father. It emerged during the evidence that the father had done the same. He made a number of appointments for P to see various professionals without any consultation, achieved by obtaining referrals from Dr R in the first instance. Upon referrals obtained by the father, P had been taken to an occupational therapist, an ENT specialist at Sydney Suburb 2 who recommended auditory and MRI scans (which have not yet taken place) and a mental health professional.

5. While the mother accepts the need for some sort of family counselling, she did not seem to accept the possibility that the father should be involved in decision making. An arrangement was put to the mother whereby she notified the father of a decision to be made, allowed him to provide his opinion, considered his opinions and attempted to come to a resolution, and approached Alternative Dispute Resolution if no decision could be made. The mother said this could be an option but noted that medical decisions probably could not allow for such a drawn out process to occur. The father preferred shared parental responsibility, but in the event that was not deemed appropriate, he wished for a third party to make the decisions in relation to P. He would not accept the appropriateness of selecting one of the parents to have the ultimate decision making responsibility. The father’s position, which would have me appoint a third party who would make decisions to break any future deadlock, would constitute an impermissible delegation of judicial power. Notwithstanding my effort to dissuade the father from his position during cross examination, the father’s counsel in submissions again proposed this method of resolving long term disputes.  It is not viable constitutionally.

6. It is agreed that both parents exhibit different parenting styles and that is no more starkly exhibited than in their disagreement about the current effective cognitive age of P, where the father believes the child’s mental capacity to be that of a three year old and the mother considers it to be closer to an eight year old. A classic example of the difficulty in co-parenting arising from this is the father’s refusals to have P attend the school camp over the last two years, and continued reluctance in his attitude to the 2011 camp, referred to above.

7. It is clear the parties have not been making joint decisions despite the current interim shared parental responsibility orders and injunctive orders about not obtaining professional assistance without the involvement of the other. I reject the father’s position these problems can be remedied by making orders similar to the interim orders that have thus far been ignored. It is clear the parents have no effective communication. It is clear the parents’ ongoing conflict is significantly adversely affecting the children. It is clear P’s disability means that a large number of very difficult decisions will need to be made well into the future, and made in an efficient and considered manner. I therefore consider it not appropriate and not in P’s best interests to have equal shared responsibility between the parents in relation to health, education and extra-curricular activities. This responsibility will fall to the parent the child primarily lives with.

8. The mother has not sought shared parental responsibility for Z, except that she seeks shared parental responsibility in relation to Z’s health so that she may ensure the father is complying with consent orders regarding Z’s mental health treatment, and to remain informed. The mother claimed when she asked the father about Z’s recent mental health assessment she was told only to check her text, which gave the doctor’s number, from whom she could not obtain information due to confidentiality. Z has reported that the mother’s actions in seeking involvement in his life contribute to his stress and anxiety. For similar reasons as above in relation to the parents’ lack of consultation with each other presently, their heightened conflict, and the effect of that conflict on Z, it is not in Z’s best interests for the parents to have equal shared parental responsibility in relation to his medical matters. The mother has indicated that if that is my decision, it would be acceptable to her if she was given authority to approach Z’s mental health professionals for information and guidance on his progress. That order will be made. I will otherwise make an order in the father’s favour for sole parental responsibility for Z.

9. Both parents sought equal shared parental responsibility in regards to B. B spends very little time with the father, and from the evidence, the father has not very much to do with her. I refer again to the issues in the parents’ communication as already discussed, and the near-impossibility that they will be able to confer adequately to make joint decisions for B in the future. I note the plea of the Independent Children’s Lawyer about taking a ‘reality check’ on the ill-conceived and lofty notion that the parties will change their ways and be able to communicate about the children. For the same reasons as those outlined in relation to P and Z above, I do not consider equal shared parental responsibility to be in the best interests of B and decline to make that order. A sole parental responsibility order will be made in the mother’s favour, with some requirement to give notice and allow feedback about proposed decisions.

EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME

Z

1. There is no requirement to consider equal or substantial time in relation to Z and I decline to do so. The parties agree that Z will live with the father and spend any time with the mother that he wishes. I have made that order and a number of further orders to ensure there is a focus upon Z’s mental health and wellbeing.

B

1. I have not ordered shared parental responsibility in relation to B. I therefore need not consider whether she can spend equal or substantial and significant time with both parties. The parties have agreed that B will live with the mother and spend any time with the father that she wishes. Given B’s age, her declining relationship with her father and her determination not to spend time with him, I see nothing to be gained from forcing her to spend time with the father, a move which will likely impose psychological harm in an already harmful familial situation. I have made the consent order as requested.

P

1. Given that I have not ordered shared parental responsibility in relation to P, I am not required to consider the appropriateness of spending equal or substantial and significant time with both parties. Nonetheless, the proposal being made by the father and the Independent Children’s Lawyer amounts to substantial and significant time and I will consequently consider those proposals despite the absence of any legislative mandate to do so.

2. It is clear from the mother and father’s evidence that P requires routine and structure. An arrangement whereby P is exposed for prolonged periods to two different households, two different methods of behaviour management and two different ways of approaching his disability would clearly not be in his best interests. The father has shown he has been unable in the past to maintain consistency in these fields, two examples being taking P to doctors other than his regular doctors and not consulting his health professionals so that he may maintain P’s program. The mother gives further evidence about the anxiety caused by small disruptions to P’s routine including whether he wears his uniform or has it in a bag at changeovers. Both parties originally sought that P have a base household and spend time with the other party. I consider it in P’s best interests to have a home base and avoid the disruptions of equal or substantial and significant time with both parties. This is a necessity arising from his disability.

CONCLUSION ABOUT BEST INTERESTS IN RELATION TO P

1. As noted, both parents originally suggested P spends the majority of his time with them. In seeking this order and proposing P’s main household is changed, the father demonstrated his lack of insight about P’s needs for stability. By the end of the hearing, the father conceded that P should live with the mother and spend time with the father in accordance with the current arrangements. I consider it in P’s best interests to remain living with the mother, as is now agreed by the parties. This is the obvious conclusion to maintain stability for P, who is already living primarily with the mother. I adopt the opinion of Dr M that P would “benefit from a stable and consistent approach to his care, including his health, educational and social needs and activities. The mother was seen to prioritise her son’s needs.”

2. Counsel for the father’s central argument, after conceding the child should remain living with the mother, was that P is currently spending time with the father in a regular routine, which is working well for him, and to disrupt this routine could cause anxiety and instability for P. The mother said these orders were detrimental to P, citing his anxiety demonstrated by his picking skin off his fingers, his obsessions and lack of consistency in P’s speech and physiotherapy program (which must be exercised every night). The father argues that the mother has not created a compelling case to change the current arrangement.

3. I note that that there is no onus on the mother to prove that it is appropriate to change the status quo. Counsel for the father did get an admission from Dr M that there was a risk in changing the current arrangements, however Dr M went on to say there are a range of factors that need to be balanced alongside the potential effect of change. The effect of change is just one of the section 60CC factors that has to be balanced against all the other factors in the case. Dr M’s reports strongly say that there has to be structure for P that is more predictable and less anxious for him.

4. The clearing of the school week for the mother gives her the freedom to organise P’s extra curricular activities in a way that does not require negotiation with the father and is uninterrupted by the types of tensions that currently exist and the types of interruptions in the school week that currently exist. It will create a better environment in which P’s structures can be developed.

5. I find a change to the current arrangement so that P spends less time moving between warring households is likely to have a positive effect for P.

6. I am not attracted to the proposal of the Independent Children’s Lawyer who seeks an extra afternoon that the child can spend with the father. The father said in cross-examination that this could be disruptive, and that P is anxious on days when he comes to see the father, taking him overnight to settle down. I find it is not in P’s best interest to create anxiety for P in the off mid-week. The argument of the Independent Children's Lawyer seemed to be primarily based on the fact that in the next eight weeks or so the mother will be doing a course in Wollongong and she is taking P with her and having him stay with her parents while she attends her course.  This is a short term arrangement and of no great moment.

7. I will adopt the orders sought by the mother in relation to the time P is to spend with the father. He is still able to maintain a relationship with the father, and although time with the father is reduced, the corresponding lack of stress and the increased stability may well heighten the quality of that time.

CONCLUSION ABOUT PARENTAL RESPONSIBILITY FOR P

1. Given that I have concluded P should primarily live with his mother, she will have sole parental responsibility for decisions about P’s health, education and extra-curricular activities.

PROPOSED ORDERS

1. I note the father opposes order 9 (that P always be picked up by taxi) as sought by the mother and I note the Independent Children's Lawyer supports the father’s position in relation to order 9.  

2. There is no evidentiary basis for the mother’s suggestion that a taxi picking P up and taking him to his father will be less stressful for P than his father going in his own car and picking him up. I did not accept the mother’s submission that the more the taxi turns up the more comfortable P will become. In fact I find that may be very confusing for P because at the moment he understands that when the taxi comes he is going back to his mother’s and that is substantiated by the mother’s evidence that P is asking her for more yellow markings on his calendar which he understands is an indication a taxi is coming to take him back to his mother.

1. There was a small issue as to whether the mother should share transportation of P at times when changeovers are not at school. Counsel for the mother almost conceded that there could be shared transport, on the basis that the mother will deliver P to the father’s residence at those times and the father would return P to the mother at the end of P’s time with the father. There is no reason proffered by the mother to indicate why the father should be responsible for the entirety of that travel. The orders suggested by the father have the advantage of putting into P’s mind the fact that the parent he has been with is content with him travelling to the other parent.

DISQUALIFICATION

1. Given my credit findings that have been made against the father it is inappropriate for me to hear the property matter. On my own motion, I will disqualify myself from hearing those proceedings.

ORDERS

1. For the sake of clarity, I intend to combine the consent orders which I announced on 24 August 2011 with the orders I make in accordance with these reasons.  The orders are a combination of orders which have been consented to and orders that I have made consistent with these reasons, consolidated in a way which I hope the parents will find more comprehensible.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 2 September 2011.

Associate:   

Date:  2.9.2011