DONALDSON & SORRELL
[2017] FCCA 2488
•28 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DONALDSON & SORRELL | [2017] FCCA 2488 |
| Catchwords: FAMILY LAW – Parenting – dispute over parenting orders – children live with mother – what time children should spend with father – chronic inability to communicate and co-operate – evidence of family report writer – position of Independent Children’s Lawyer – final orders in children’s best interests. |
| Legislation: Family Law Act 1975, ss.60B, 60CC, 61DA |
| Cases cited: Goode & Goode (2006) FLC 93-286 |
| Applicant: | MS DONALDSON |
| Respondent: | MR SORRELL |
| File Number: | MLC 3463 of 2012 |
| Judgment of: | Judge O'Sullivan |
| Hearing dates: | 27 & 28 September 2017 |
| Date of Last Submission: | 28 September 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 28 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr McDermott |
| Solicitors for the Applicant: | James McDermott and Associates |
| The Respondent: | Appeared in person |
| Counsel for the Independent Children's Lawyer: | Ms Wiener |
| Solicitors for the Independent Children's Lawyer: | Cathleen Corridon and Associates |
ORDERS
THE COURT ORDERS THAT:
All previous parenting orders be discharged.
The children [X] born (omitted) 2008 and [Y] born (omitted) 2010 (“the children”) live with the mother and the mother have sole parental responsibility for the children.
The mother advise the father in writing of any decision she intends to make regarding health, education or religion and he be given an opportunity to respond. In the event of a disagreement the mother shall make the final decision.
The children spend time and communicate with the father as follows:
(a)so long as the father resides within 30 minutes of the children’s school, then they spend time with him from after school Monday until Tuesday morning in week 1 commencing 9 October 2017 and each alternate week thereafter and from 10:00am Sunday to Tuesday morning before school or 9:00am in week 2 commencing 15 October 2017 and each alternate week thereafter;
(b)should the father reside more than 30 minutes from the children’s school, then the children spend time with the father from after school Friday to 6:00pm Sunday evening each alternate week, provided that the father can facilitate the children’s extra curricular activities.
(c)the father be at liberty to telephone the children on two occasions per week and the mother be at liberty to telephone the children on at least one occasion during any period of consecutive nights with the father;
(d)for one half of the mid year school holidays and for two weeks during the long summer vacation, to be taken in two non-consecutive day blocks with a break of at least 7 days between the 2 blocks, provided that the father is to give the mother 28 days notice of his ability to take such holidays and his ability to take more.
(e)for Christmas as follows:
(i)in 2017 from 5:00pm 24 December to 5:00pm Christmas Day and in each alternate year thereafter;
(ii)in 2018 from 5:00pm Christmas Day to 5:00pm Boxing Day and in each alternate year thereafter
(f)on Father’s Day from 6:00pm the Saturday prior to 6:00pm father’s Day should it be a day when the children are not in his care, provided that if the children are with him on Mother’s Day then his time be suspended at 6:00pm on the Saturday preceding Mother’s Day;
(g)on the boys’ birthdays as agreed in writing, for 2 hours during a school day and in default of agreement from 4:00pm to 6:00pm and for 3 hours on a weekend as agreed and in default of agreement from 3:00pm to 6:00pm, should they not be in his care and should they be with him then his time be suspended for 2 hours on a weekday and for 3 hours on a weekend, and in default of agreement 4:00pm to 6:00pm on a school day and from 10:00am to 1:00pm on a weekend; and
(h)as otherwise agreed from time to time in writing, which shall include SMS or whatsapp.
The children be at liberty to telephone either parent when they are in the other parent’s care, at their discretion.
The time provided for in Order 4(a) and (b), as the case may be, be suspended during any term or long summer holiday period and recommence upon the same schedule as if the holiday had not intervened.
That the father be restrained by injunction from:
(a)recording the children’s telephone conversations with himself or the mother.
(b)using any form of physical discipline or chastisement on the children or either of them.
That neither parent question the children about time spent at the other parents home.
That each parent be restrained by injunction from:
(a)denigrating or criticising the other parent in the hearing or in the presence of either child or allowing any other person to do so;
(b)discussing these proceedings or any other court proceedings or any issues relating thereto with the children or either of them; and
(c)communicating with the other in any way except in writing or by SMS, or as otherwise provided in these orders.
The father advise the mother by SMS 48 hours prior to any spend time arrangement in order 4 as to whether or not he intends to avail himself of the time with the children in these orders.
The Independent Children’s Lawyer be authorised to explain to the children these orders.
That changeover for the purposes of these orders shall take place at the children’s school on school days or otherwise the carpark area of the (omitted) Petrol Station in (omitted) or as otherwise agreed.
For the purposes of 4(c) that the father purchase a non-smart mobile phone for the children and pay for all charges in respect of it and such phone shall travel with the children, and the parent with whom the boys are with shall ensure it is charged and within range and the boys shall be at liberty to use it to phone the other parent and each parent shall use it to phone the children but not after 7:00pm.
The parents set up an online communication tool such as or such other no fee charging service as may be agreed.
The children be engaged with counselling as required through CatholicCare or their local mediation centre or by referral from their doctor and such counsellor be entitled to read the two family reports prepared in these proceedings.
The father obtain a referral from his doctor for individual counselling assistance relating to his current stressors, capacity for impulse control and conflict resolution skills and for that purpose such counsellor be entitled to read the two family reports prepared in these proceedings.
The mother continue to attend upon her counsellor as directed.
The father be at liberty to attend all relevant extra curricular activities in which the children participate provided he gives the mother reasonable notice of his intention to do so.
The father be at liberty to attend the school the children attend from time to time for all activities to which parents are normally invited and he also be at liberty to correspond directly with the school and to attend parent teacher nights and to receive school reports, photos and like material at his expense if any.
The parents to attend upon Child Inclusive Family Dispute resolution at a Family relationship Service prior to issuing proceedings if in the future they experience difficulties.
The parents keep each other informed of any medications to be administered to the children or either of them prior to any changeover of the children into his/her care and advise the other as soon as possible of any health emergency affecting the children when they are in their care.
The father inform the mother of any change of residential address within 24 hours of the change taking effect.
Each party keep the other informed of his/her contact telephone number and any change thereto within 24 hours of the change taking effect.
The appointment of the Independent Children’s Lawyer be discharged.
All applications otherwise dismissed.
Pursuant to s.65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Donaldson & Sorrell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3463 of 2012
| MS DONALDSON |
Applicant
And
| MR SORRELL |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
These proceedings concern a dispute over parenting orders, as that term is defined in the Family Law Act 1975 (“the Act”), for two children, [X] born (omitted) 2008 and [Y] born (omitted) 2010 (“the children”).
The applicant in these proceedings is Ms Donaldson (“the applicant”) who is 34 years of age, works in (employer omitted) and lives in the (omitted) suburbs of Melbourne. The respondent in these proceedings is Mr Sorrell (“the respondent”) who is 41 years of age, currently lives in (omitted) and works at the (employer omitted) in (omitted) Melbourne as an (occupation omitted).
Background
The applicant and the respondent met in (country omitted) in 2005. They lived together for some time in (country omitted) as the respondent was in the (employment omitted). Subsequently, the respondent was posted overseas and the applicant returned to Australia and was later joined by the respondent.
The child, [X], was born on (omitted) 2008. The parties were married in (omitted) 2008 and decided to settle in Australia. The respondent left the (employer omitted) at or around this time. The parties bought a property in (omitted), Melbourne. [Y] was born on (omitted) 2010. The parties separated in September 2011.
Proceedings in 2012
Shortly after separation, the applicant took out an intervention order against the respondent and then the respondent (as he is now) commenced proceedings in this Court in April 2012. The applicant (as she is now) filed a response to that application in May 2012. There were final intervention orders made against both parties later that year, which expired in May 2013.
On 12 December 2012, and when both parties were represented, there were final property and parenting orders that involved inter alia placing the children’s names on the airport watch list, for the parties to have equal shared parental responsibility, for the children to live with the mother and spend substantial and significant time with the father.
Proceedings in 2014
Unfortunately, those orders didn’t quell the disputes between the parties. The applicant took out another intervention order against the respondent in April 2014. The intervention order contained a clause pursuant to section 68R of the Act, which had the effect of suspending the final parenting orders made in 2012.
The applicant then filed an application for parenting orders on 19 May 2014. The respondent filed a response on 4 June 2014. When the parties came back to Court, by that time the applicant had moved residence with the children. The respondent who remained in (omitted) had re-partnered and there was a child from that relationship.
Those proceedings concluded when final orders were made again when both parties were represented on 18 June 2014. Those orders, provided inter alia that parties be at liberty to attend at the children’s extracurricular activities, an injunction to prevent physical discipline of the children, that the children attend counselling and that otherwise the orders made on 12 December 2012 remain in full force and effect.
Recent developments
Sadly, those orders were also ineffective in quelling ongoing disputes between the parties. The Department of Health and Human Services (DHHS) became involved with the family (again) in or around October 2015. The applicant took out a further intervention order against the respondent in December 2015. The intervention order again contained an order pursuant to section 68R of the Act, which had the effect of suspending the extant parenting orders.
Shortly after those orders were made in the Victorian Magistrates Court, the respondent’s parents travelled to Australia. The respondent says, they hoped to see their grandchildren but that didn’t happen because the respondent says the applicant refused to make them available. The respondent filed a contravention application on 31 March 2016 he prepared himself alleging that the applicant had contravened the existing parenting orders.
In his affidavit filed 31 March 2016 the respondent sought the following orders:
“16. I seek that the Court:
a) Vary the Primary Order so that I have full custody of the children;
b) Compensate me for the time lost with the children as results of the breach
c) Order that the respondent pay compensation to my family that travelled from (country omitted) to see their grandchildren at 70 years of age and were unable to do so.
d) Order that the respondent be punished as the Court seems fit for the breaches of the Primary Order.
e) Order that the respondent pay the applicants legal costs associated with this application.”
Current application
The applicant then commenced these proceedings by initiating application filed 19 May 2016 seeking the following orders:
“INTERIM ORDERS SOUGHT BY THE APPLICANT
1. That paragraph 15 of the orders made on 12 December 2012 be suspended.
2. That until further order the father spend time with the children [X] born on (omitted) 2008 and [Y] born on (omitted) 2010 as follows for two hours after school on a Wednesday and for three hours on alternate Saturday as otherwise as agreed.
3. Usual order for the appointment of an Independent Children’s Lawyer.
4. That pursuant (sic) Section 11F of the Family Law Act the parties and children attend upon a Family Consultant for the purposes of child inclusive counselling.
5. That the applicant (sic) application in this proceeding and the Application – Contravention filed by the husband as Applicant be heard at the same time.
6. Usual order for a Family Report.
7. Such further or other order as to (sic) the Court seems fit.
FINAL ORDERS
8. The applicant reserves her position with respect to final orders in the proceeding pending the preparation of a Family Report.”
By that time, the applicant had moved again and was living with the children in Melbourne’s (omitted) suburbs. The current proceedings came before Judge Small for a first court date on 24 May 2016. By orders made that day, Her Honour consolidated the parties’ applications, made an order pursuant to section 68L of the Act and also an order pursuant to section 11F, and otherwise adjourned the proceedings to 18 August 2017.
Response to current application
The respondent filed a response on 8 August 2016 seeking the following orders:
“I refer to the contravention application and confoirm (sic) that I am seeking Orders that I have full custody of the children.”
However, in his affidavit filed 8 September 2017 the respondent sought the following orders:
“4. I seek that the Court:
a) That the court order of 2012 and after confirmed in 2014 stay in place for the future
b) Compensate me for the time lost with the children as results of the breach
c) Order that the respondent pay compensation to my family that travelled from (country omitted) to see their grandchildren at 70 years of age and were unable to do so
d) Order that the respondent be punished as the Court sees fit for the breaches of the Primary Order.
e) Order that the respondent pay the applicants legal costs associated with this application.”
Section 11F Memorandum
In accordance with the interim orders, the parties and the children attended a section 11F conference with a family consultant Ms D on 8 August 2016. The memorandum produced as a result provided as follows:
“Brief Background
The current dispute relates to the parenting arrangements for 8 year-old [X] and 6 year-old [Y]. The parents separated on a final basis in September 2011. There are Final Parenting Orders by consent dated 12th December 2012.
The above parenting orders allowed for the children to live primarily with their mother and spend time with their father from Monday until Wednesday in one week, and from Sunday until Wednesday in the alternate week.
The mother has inhibited the father’s time with the children since the beginning of 2016, due to reported protective concerns associated with emotional and physical abuse by the father.
There are two current Intervention Orders (IVO) reported against the father. One order protects [X] and was reportedly applied for by the police. The other protects the mother and [Y]. Mr Sorrell agreed the IVO’s without admissions for one year, provided that his time with the children was able to continue. The IVO application(s) related to a reported incident that occurred on 8th December 2015, whereby it was alleged that the father pushed [X] onto chair, resulting in a mark on his back. The Department of Health and Human Services (DHHS) and the Sexual Offenses and Child Abuse Investigation Team (SOCIT) of Victoria Police were notified. However, the allegations of risk were not substantiated due to lack of evidence.
The mother further asserted that there was a previous IVO against the father in 2014 due to similar violence towards [X], whereby the father allegedly grabbed [X] around the neck. Again, these concerns were not substantiated, however, the father was reportedly ordered to undertake a Men’s Behaviour Change Program and the children received counselling at (omitted) Family Services. The counsellor from (omitted) Family Services reportedly made a notification to Child Protection. This information has reportedly been subpoenaed, but was not read by the writer. There were no substantiated risks reportedly identified by the Department of Health and Human Services (DHHS).
Given that the mother has not made the children available for the time-spent arrangements with their father for the entirety of this year, Mr Sorrell has been visiting the children each Monday and Tuesday at their school, given this is during his Court Ordered time. He has also been taking the children’s younger half brother [A] to see them at school each Monday to maintain this relationship.
…
Future directions
Pending further assessment through a Family Report, it is recommended that the parents maintain joint parental responsibility for [X] and [Y].
That the children continue to live primarily with their mother.
Due to the claims of ongoing denigration and inappropriate discussions by the father, the children may benefit from their time with Mr Sorrell initially being supervised. It may also assist the mother’s elevated anxiety for this time to be evaluated through a Private Supervision Report, prior to the commencement of unsupervised time. In this regard, it is recommended that the children spend time with their father each Saturday or Sunday for a period of one month, as supervised by an agency such as (omitted) Family Services. In the event of a positive report, and in the absence of risk, thereafter the children’s time with their father should be unsupervised and gradually increase.
It is recommended that the parents share the cost of engaging (omitted) Family Services, and that both [A] and Ms I are able to also attend.
The Court will benefit from the appointment of an Independent Children’s Lawyer (ICL).
It will be imperative that the children and their father receive appropriate therapeutic assistance in order to rebuild their relationship. This will be best achieved through a practitioner who specialises in Family Law. The involvement of the mother in receiving similar assistance will also be critical, given her ongoing anxieties in relation to Mr Sorrell, and her role as the children’s primary carer. For example; the family attending upon a private practitioner such as Dr J, Mr V, or Ms L. Or through the parents attending upon a Parenting Orders Program at Catholic Care, and counselling through an agency such as the Family Mediation Centre. The appointment of an appropriate service may be assisted by the ICL.
The children will benefit from their father also attending a parenting program such as Tuning Into Kids (ph. (omitted)), in order to gain greater insight into the impact of his behaviour, and to develop additional skills around the children’s emotional needs.
Without admitting necessity, the father should also refrain from any use of physical punishment or excessive force during play with the children.
Both parents should refrain from discussing the parental conflict or Court involvement with the children, or from denigrating the other parent.
A Full Family Report is further recommended to evaluate the longer-term parenting arrangements and risk factors related to each parent.”
By the time of the s.11F conference, there were two further intervention orders taken out against the respondent naming the applicant and the children as affected family members. One of those orders named [X] as the affected family member. The other order named the applicant and the child, [Y], as the affected family members.
Interim orders
The parties returned to Court on 18 August 2016 after the s.11F conference and there were interim orders made by consent, as follows:
“UNTIL FURTHER ORDER
1. That all previous orders in relation to the father’s time with the children [X] born (omitted) 2008 and [Y] born (omitted) 2010 (“the children”) be suspended.
2. That the father spend time with the children as follows:
I. for a period of 4 weeks each Sunday from 12pm to 5pm supervised by (omitted) Family Services with the costs to be paid by the father and that the ICL obtain a Report from (omitted) Family Services after the 4 periods of time concludes.
II. after the 4 times spent at (omitted) Family Services and if the Report is positive the father spend unsupervised time with the children from 11am to 5pm each Sunday for a period of 6 weeks.
III. after the 6 week period concludes pursuant to Orders (II) herein thereafter the father shall spend time with the children each alternate week from 10am Sunday until before school (or 9am Tuesday) and each alternate Monday from after school (or 3:30pm) until before school (or 9am Tuesday).
IV. at such other times as may be agreed in writing between the parties.
3. That changeover take place at the children’s school on school days or otherwise the carpark area of the (omitted) Petrol Station in (omitted).
4. That the parents and children attend upon a Therapeutic Counsellor as nominated by the ICL and that the ICL be at liberty to provide the Counsellor with a copy of the Child Inclusive Memorandum dated 16 August 2016 and any other relevant documentation.
5. That the parents attend a parenting program as nominated by the ICL and provide proof of attendance and completion to the ICL.
6. That neither parent denigrate the other parent or discuss the Court proceedings with the children or in the presence of the children or permit any other person to do so.
7. That the father be restrained from the use of any physical punishment or excessive force with the children.
8. That a Family Report be prepared no later than November 2016.
9. That the Proceedings otherwise be adjourned to 2 December 2016 for Further Mention at 10am
NOTATIONS
A. It is noted that the father’s partner Ms I and son [A] may attend the father’s time with the children at (omitted) Family Services.
B. The father denies necessity of Order number 7 hereof.”
The interim consent orders suspended all existing parenting orders. There were also interim parenting orders by consent for the children to live with the applicant and to spend time in a graduated manner with the respondent. There was also an order for the preparation of a family report and the proceedings were adjourned to December 2016.
First family report
The family report that was ordered on 18 August 2016 was released to the parties on 2 December 2016 and contained the following evaluation and recommendations:
“EVALUATION
87. The current dispute relates to the living arrangements of the two children, 8 year-old [X] and 6 year-old [Y]. Central to the current dispute is the allegation of family violence against the father, along with the mother’s capacity to support the children’s paternal relationships. In this regard the parents presented discrepant information, and the children appear to continue to be embroiled within the parental dispute. There appears a degree of pressure experienced by the children, particularly [X], which appears to have created an untenable position psychologically for him. However, the degree to which each parent has contributed to the children’s difficulties appeared unclear and will likely require the testing of evidence to ascertain the validity of the parents’ views and allegations.
88. Despite their reticence, and the anxieties experienced by the children, they appear to have a positive foundation of a relationship with each of their parents. Whilst there is certainly a high degree of anxiety reported in regards to their relationship with their father, the children have not demonstrated such anxiety during the two observed periods with together with their father during assessment (both within this and the previous s11F Child Inclusive Conference). In this regard, they appeared to demonstrate a capacity for positive interaction with their father, which will need to be maintained within the parenting arrangements.
89. There is concern however, that [X] appears torn between his loyalties to both parents. He appears to have developed further anxiety since the previous s11F assessment, without further incidents of significance being noted by either parent. In this regard, there is concern that the level of anxiety demonstrated by [X] may be disproportionate to his reported experiences, thus raising concern in relation to the origins of [X]’s anxiety. Whether this has been contributed to by his experiences of both parents behaviour or primarily by one parent over the other remains unclear, particularly given the facts of this matter remain disputed and untested. In this regard, it will be imperative for [X] to receive counselling support around his family dynamic and involvement within the parental conflict. It will also benefit such professional to have a copy of this Family Report to assist [X] in developing appropriate psychological support.
90. There is also concern, that although [Y] appears more emotionally resilient than his brother, and he reported a considerably more positive view of his relationship with his father, that he may be susceptible to being inadvertently influenced by [X]’s views and his level of anxiety. Thus, mistaking [Y] for also presenting with anxiety at times. [Y]’s positive experiences with his father should be recognised and further encouraged by Ms Donaldson, rather than both boys being labelled as having difficulties in relation to paternal time. Both the s11F evaluation and this assessment did not identify any significant issues between [Y] and his father or paternal family. He appears to have a close relationship with his father, his step-mother, and particularly with his younger half-brother [A]. However, there may be added pressure on [Y] to acquiesce to [X]’s thought processes and concerns, and present them as his own. Both parents should be mindful of this.
91. Given the mother’s ongoing anxiety in relation to the children’s safety in the father’s household; the father’s behaviour appears potentially over scrutinised by Ms Donaldson. Although bearing in mind, she has raised considerable allegations of family violence that will require further testing of evidence, in relation to potential risk. This includes allegations in relation to physical violence and controlling or manipulative behaviour by the father. There has also been physical violence reported in relation to the children on more than one occasion, precipitating the need for DHHS and Police assessment. Whilst there has been no substantiation of risk by statutory authorities, the allegations of family violence will likely require further consideration by the Court in relation to any presented evidence.
92. However, despite the lack of substantiated evidence at present, the children do not appear free to have a concurrent relationship with their father without monitoring or additional emotional pressure to report back to Ms Donaldson, given her concerns about their safety. In this respect, and particularly in the absence of any identifiable risk, the mother will need to be more cognisant of the impact that her own difficulties and anxiety can potentially place upon the children.
93. The capacity for the children to maintain a positive relationship with each of their parents concurrently will largely depend on the parent’s capacity to change their fundamental belief systems about each other, and work towards creating a more conflict free and collaborative environment for the children. Until they are able to improve their communication, given their unresolved issues about the parental conflict, it will be beneficial for the parents to communicate in writing only. This should include information pertaining to the parenting arrangements or children’s needs only. Similarly, neither parent should be discussing the parental dispute or Court involvement with the children. Furthermore, [X] and [Y] should not even be aware of the days their parents are required to attend Court, in order to mitigate the children’s propensity for anxiety around the parental dispute.
94. There has been concern raised in relation to the father’s capacity to recognise and understand the children’s emotional needs, along with his impulse control. Given his (employment omitted), consideration may also need to be made towards whether the father has any unresolved mental health issues pursuant to his (employment omitted) in (country omitted). Post-Traumatic Stress in (employment omitted) at times can manifest as anger or frustration. In this regard, without admitting necessity, Mr Sorrell may wish to consider trauma counselling in order to evaluate any ongoing treatment needs psychologically or in relation to any underlying impact on his parenting. He will also need to be more mindful of not discussing his views with the children, or denigrating the mother, regardless of his belief in transparency. Without admitting necessity, it is also advised that he refrains from any form of physical discipline or chastisement.
95. Furthermore, the children will also benefit from the mother gaining additional insight into the impact of her own anxiety on the children. Whilst she presented as less anxious than in the previous assessment, she appears to continue to lack confidence in and struggles with her concerns about the father, and the perceived risk he poses to the children. Despite there being no substantiated risk by authorities, her anxiety has continued, and is likely to be inadvertently experienced by the children, if not directly.
96. At present, it would appear most appropriate in meeting the children’s psychological needs for them to maintain the current arrangements for a further period of time, before any consideration of whether the arrangements need to be altered. This will assist to ensure their relationship is maintained with their father, whilst hopefully lowering the level of stress and pressure placed on the children, given there are no large blocks of time away from their mother.
97. Until such time as the children’s anxiety in relation to their father decreases, and the paternal relationship improves, larger blocks of time away from their mother is unlikely to assist the children to maintain a meaningful relationship with their father. This being due to the additional stress or pressure this may elicit for the children (regardless of which parent is exerting such pressure).
98. However, in the event that it is found by the Court that the mother has or continues to impact upon the children’s capacity to have a meaningful relationship with their father, or her behaviour causes to maintain or elevate the children’s anxiety, then further consideration of the father’s application for a change of primary arrangements may need to be assessed.
99. On the basis of the information presented by the parties, and in the absence of any testing of the evidence, maintaining the current arrangements (or a version of) appears most conducive to the children’s needs. This has not yet been tested for longevity and the conflict between the parents continues to appear in a heightened state. In this respect, interim parenting arrangements only are recommended at this point in time.
100. Given the report writer has not assessed the mother’s capacity to relocate in the event this becomes necessary for financial social support reasons, the Court may need to further consider this in the event that she formally seeks to do so. An updated Family Report may assist in this regard if needed.
RECOMMENDATIONS
The parents appear unlikely to be able to sustain equal joint parental responsibility together, without additional conflict, and potentially impacting upon either the parent’s or the children’s emotional wellbeing. Thus, the proportion of parental responsibility is likely to require further consideration by the Court. Based on the available information, sole parental responsibility to the mother with clear parameters and guidelines about the level of disclosure and information sharing required to the father, in relation to decision making and information about the children’s health and development is likely to best serve the children’s needs.
That the children continue to live primarily with their mother.
That the Court considers time with the father remaining in line with the current arrangements as per the current Consent Orders.
In the event that the children’s relationship with their father improves, additional time with their father at their discretion is recommended, or in consultation between the parents through mediation through their local relationship service.
In the event that it is found the mother has deliberately sought to impede the children’s relationship with their father, and that this has contributed to poor mental health outcomes for the children, then further consideration of her capacity to support the children’s relationship with their father through an updated assessment may be required, in terms of the primary parenting arrangements.
In the absence of any ongoing risk to the children psychologically, that they spend half of all school holiday periods with their father in 2017.
Over the 2016-2017 Summer School holiday period, consideration of the children spending time with their father in Mornington from 29th December for one week.
There should be clear provisions for all major special occasions, including Birthdays and Christmas etc. There is no room for ambiguity in the orders at present due to the parental inflexibility.
Without admitting necessity, the children may benefit from the father attending trauma counselling, to assist any underlying impact of his (employment omitted) on his capacity for impulse control, and his parenting.
The children will benefit from both parents attending upon the Parenting Orders Program at Catholic Care (ph; (omitted)) to assist and support the parent’s to become more child focussed, and to develop better conflict resolution techniques.
The children will benefit from ongoing counselling assistance, along with family therapy with both parents (where deemed necessary), with a professional nominated by the ICL.
Subsequent to at least six to eight full months of family therapy, a Limited Issues Assessment or Updated Family Report may be able to review the family dynamics and viability of the parenting arrangements.
It is recommended that the father does not record his children’s telephone conversations, either with himself or with their mother.”
Further interim orders
When the parties returned to court on 5 December 2016, there were further interim orders made by consent, as follows:
“BY CONSENT IT IS ORDERED:
1. The Father spend time with the children [X] born (omitted) 2008 and [Y] born (omitted) 2010 as follows:-
(a) Each alternate week from 10 am Sunday until before school (or 9 am) Tuesday, commencing 11 December 2016
(b) Each alternate Monday from after school (or 9am) Tuesday, commencing 19 December 2016
(c) Otherwise in accordance with paragraph 15 (c) (e) and (f) of orders made 12 December 2012 and paragraph 16 of orders made 12 December 2012
(d) Commencing 1st term holidays 2017, one half of all term holidays as agreed in writing and in default of agreement the first week
(e) For one week in (omitted) from 28 December 2016 until 5 January 2017
(f) As otherwise agreed in writing.
2. That each parent attend upon and complete the parenting orders program at Catholic care (ph (omitted)) to assist them to become more child focused and to develop better conflict resolution techniques.
3. That the parents and the children continue to attend upon Ms J from Catholic care for therapeutic counselling and she be authorised to receive a copy of the Family Report.
4. That there be an updated Family Report by the end of August 2017.
5. That without admitting the necessity the Father be restrained by injunction from :-
(i) recording the children's telephone conversations with himself or the mother
(ii) using any form of physical discipline or chastisement on the children or either of them.
6. That neither parent question the children about the time spent at the other parent's home.
7. That the mother attend counselling (or address through her attendance upon Ms J in accordance with paragraph 3 hereof) to address her anxieties about the children spending time with the Father.
8. Each parent be restrained by injunction from :-
(i) denigrating or criticising the other in the hearing or presence of the children or allowing any other person to do;
(ii) Discussing these or any other court proceedings or any issues relating thereto with the children or either of them or allowing any other person to do so;
(iii) Communicating with the other in any way except in writing or SMS.
9. That the child [X] attend upon Ms J or other professional as recommended by her, to receive counselling support around his family dynamics and involvement within the parental conflict , and such professional be authorised to receive a copy of the Family Report.
10. That there be a final hearing for 2 days on 28 September 2017 in Dandenong.
11. That for the avoidance of doubt, the time pursuant to paragraph 1 (a) and (b) of be suspended during term holiday time in 2017 and recommence when term starts according to the same schedule as if holidays had not intervened.
12. That in addition to the week from 29 December 2016 to 5 January 2017, the father spend time with the children from 10am Sunday 15 January 2017 until 9:30 Tuesday 17 January 2017.
13. For the avoidance of doubt , the Father's time will recommence Monday 30 January 2017 according to the schedule outlined in paragraph 1 (a) and (b) herein.
14. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that mat follow if a person contravenes these orders and details of who can assist the 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.
AND THE COURT NOTES THAT:
A. The Mother accepts that if the Father does not have leave he will not be able to have term holiday time pursuant to 1(a) hereof.”
It is not controversial that, since the matter was listed for final hearing, the children have been seeing the respondent in accordance with those further interim orders, the parties have completed the courses ordered and the family therapy had only recently stopped. The applicant has also obtained yet another intervention order against the respondent naming herself and the children as affected family members.
Second (or updated) family report
The updated report ordered on 5 December 2016 was released
30 August 2017. The updated family report contained the following evaluation and recommendations:
“EVALUATION
51. This updated assessment relates to the time that the two children, 9 year-old [X] and 7 year-old [Y] spend with their father. Central to the dispute are the untested allegations of family violence against the father, which were explored in more detail in the previous Family Report, along with the entrenched co-parental conflict, and impact of such on the children’s relationships. The parents continue to present with conflicting information about past events, and they perceive the other as inflexible and obstructive. Given the entrenched nature of the conflictual parental dynamics and allegations of family violence, the children appear at risk of continued exposure to the parental attitudes, whether directly or inadvertently.
52. Again, the degree to which each parent has contributed to any difficulties experienced by the children appears largely unclear, however there remains concern associated with the father’s observed rigidity and limited insight or ownership of any potential deficits demonstrated by him. He appears to have reached a limit of tolerance regarding the parental dispute, and is potentially willing to abandon his relationship with the children, to mitigate any further involvement in the parental conflict, particularly in the event of ongoing litigation. Notwithstanding the understandable heightened stress associated with the level of parental discord and Court involvement, his decision making or threats in this regard are by no means child focussed, and serve to create additional emotional loss for the children, should he withdraw from their lives completely. Individual counselling may assist the father to appropriately deal with any unresolved emotional difficulties, stress or anxiety, to ensure he can better prioritise the needs of the children in his relationship with them.
53. Ms Donaldson appeared to present as more child focussed at interview, and more likely to be able to take on additional insight regarding her own deficits. However, she too appears fed up with the ongoing adult conflict, and her perception that she is constantly compromising to meet the father’s needs. She continues to present as anxious about the alleged history of family violence by Mr Sorrell, and holds ongoing concern associated with the father’s purported difficulties with anger or impulse control. Although her anxiety in this respect appeared more moderated than within the previous assessments, there is continued concern that she may be at risk of over scrutinising the father’s parenting or the children’s experiences with him. Despite this, she appeared genuinely encouraging of the children’s relationship with their father, and there appeared no overt evidence of undue influence from the mother on this occasion.
54. In essence the major issues and concerns of the parties remain unchanged since the original Family Report in December 2016. The most notable change however, appeared associated with the attitudes and resilience of the children. This related to the improved confidence in [X], and reported developments for him within the paternal relationship, along with the converse emotional difficulties observed in [Y].
55. The resilience observed by [Y] within the previous two assessments appeared lacking on this occasion. However, the origins of his melancholy remained unclear. In the event that a finalisation of the parenting dispute does not assist to alleviate [Y]’s developing concerns, then he will likely benefit from the parents exploring counselling assistance for him to elicit any underlying difficulties.
56. Given the entrenched nature of the parental conflict, it appears highly unlikely that the parents will be able to maintain equal responsibility for the children without additional conflict, and risk of exposure of such on the children. Consequently, the Court will need to consider whether it is more appropriate for sole parental responsibility, in order to mitigate the likelihood of protracted conflict between the parents. This would inevitably be weighted towards the mother given her primary care of the children and history of major decision making. However, consideration of sole parental responsibility would be dependent on there being clear parameters in place regarding the parenting arrangements and information that is required to be conveyed to the father for consideration. It will also assist the parents to continue to communicate primarily in writing, given their mutual apprehensions regarding face-to-face or unfettered interactions. An electronic communication tool may assist with their communication, and the maintenance of their co-parenting responsibilities.
57. The father’s circumstances appear set to change, in so far as the locality of his home. This will undoubtedly impact upon the consideration of appropriate parenting arrangements, given the extensive travel that will be required for the children both to and from school, whilst spending time with their father. This is particularly relevant given that the bulk of the father’s time with the children occurs mid-week, requiring school transport. The parents appeared to differ in their opinion of whether such extensive travel would negatively impact upon the children. However, it is the writer’s concern that the travel may become onerous for the children, and become a further factor impeding the success of the parenting arrangements, potentially causing further conflict in future for the parents.
58. Mr Sorrell appeared to lack relevant insight into the possible implications of such change on the children, particularly related to the travel requirements. Instead, he appeared primarily focussed on the positive changes needed for his relationship and home life, rather that the possible implications on [X] and [Y], or his relationship with them. Whilst he has not yet finalised the location that he will seek to relocate to, it is not likely to be advisable that the children travel further than approximately half an hour each way to school (or thereabouts). If he is unwilling to consider this, then there will likely be implications to the appropriateness of the current or proposed parenting arrangements, and the children may invariably benefit from a more structured arrangement of each alternate weekend with their father. It is doubtful however, that he will agree to this, and it is hopeful that this does not prompt him to walk away from his responsibilities as the children’s father. They need him in their lives, and will benefit from maintaining a significant and meaningful relationship with Mr Sorrell, his wife, and their brother [A], in spite of the varied home environments and dynamics between the parents.
RECOMMENDATIONS
59. In line with the previous Family Report, the parents appear unlikely to be able to sustain equal joint parental responsibility without additional conflict or further litigation. Thus, the proportion of parental responsibility is likely to require further consideration by the Court. Based on the available information, if sole parental responsibility was to go to the mother, there would need to be clear parameters and requirements about the level of disclosure and information sharing required to the father, in relation to all major decision making. It will also be pertinent that the mother keeps the father well-informed of all health, educational, developmental needs, or extracurricular activities and key events.
60. That the children continue to live primarily with their mother.
61. The proportion of time with the father will likely be dependent on where he relocates, as it will be impracticable for the children to travel to and from their school in (mitted) to the (omitted) or (omitted) area on multiple occasions during the week.
62. If the father’s residence is outside of a 30minute commute then time is recommended to occur each alternate weekend from after school Friday until Sunday evening. This being conditional upon the father’s capacity to maintain the children’s commitment to any weekend extra-curricular activities.
63. In the event the father remains in the local area, then a continuation of the current time spent arrangements with their father (or similar) will likely benefit the children.
64. That the father be at liberty to telephone the children on two occasions per week, and the mother being at liberty to communicate with the children on at least one occasion (during any period of consecutive nights with the father).
65. The children should be able to communicate by telephone with either parent at their discretion.
66. Given the father’s inability to spend half of all school holidays with the children, school holiday time with the father for one half of the mid-year break, and for one – two weeks during the long Summer holiday appears more achievable. Additional holiday time by agreement should also be considered, in the event that the father is able to seek additional leave.
67. Given the parties inability to negotiate, there will need to be concise Orders about time during all special occasions, for example Birthdays, Christmas, Mother’s and Father’s Day etc.
68. The parents may benefit from trialling an online program such as Our Family Wizard (or a similar service), which is an online or mobile communication tool regarding shared parenting and communication. Although this is a fee-paying service at $130 per year, proper use of the service will enable the parents to communicate about all facets of the children’s development without significant face-to-face or verbal contact. Another alternate service would be The children should be engaged in counselling support as required in future, with a professional with expertise in Family Law matters. For example, through their local Family Mediation Centre, CatholicCare, or by referral from their doctor.
70. Without admitting necessity, the father should consider obtaining a referral from his doctor for individual counselling assistance related to his current stressors, capacity for impulse control and conflict resolution skills.
71. The mother will benefit from maintaining her current counselling assistance.
72. Any allied health professional working with the family will benefit from a copy of both the initial and updated Family Reports.
73. The children will benefit from the father being able to attend all relevant extra-curricular activities, provided that this does not expose them to additional conflict between the parents.
74. Regardless of any IVO, the father should have liberty to correspond directly with the children’s school and attend any school related events, including parent-teacher interviews, and to receive school reports and correspondence at his discretion.
75. Any further difficulties experienced by the parties in future, about negotiating the parenting arrangements, should be initially explored through Child Inclusive Family Dispute Resolution at a local Family Relationship Service, prior to considering further litigation.”
The final hearing
On 27 September 2017, Mr McDermott appeared on behalf of the applicant, the respondent appeared in person and Ms Wiener appeared as Counsel for the Independent Children’s Lawyer.
Material relied upon and position of the parties
At the commencement of the hearing, the Court asked the parties to identify the material that they relied on. The applicant had filed a case outline which was marked as exhibit A1. The case outline set out the material that the applicant relied on.
Counsel for the applicant told the Court that his client agreed with the orders sought by the Independent Children’s Lawyer contained in a minute of orders which was handed to the Court and marked ICL1 to which it will be necessary to return.
The respondent told the Court that he relied on his affidavits filed;
8 September 2017 and 31 March 2016. The respondent had not filed a case outline. However the respondent confirmed at the commencement of the final hearing that the orders that he sought were as contained in his most recent affidavit which were:
“4. I seek that the Court:
a) That the court order of 2012 and after confirmed in 2014 stay in place for the future
b) Compensate me for the time lost with the children as results of the breach
c) Order that the respondent pay compensation to my family that travelled from (country omitted) to see their grandchildren at 70 years of age and were unable to do so
d) Order that the respondent be punished as the Court sees fit for the breaches of the Primary Order.
e) Order that the respondent pay the applicants legal costs associated with this application.”
Position of the Independent Children’s Lawyer
Counsel for the Independent Children’s Lawyer told the Court the final orders her instructor sought the Court make were as follows:
“1. All previous parenting orders be discharged.
2. The children [X] born (omitted) 2008 and [Y] born (omitted) 2010 (“the children”) live with the mother and she have sole parental responsibility in respect of the said children.
3. The mother advise the father in writing of any decision she intends to make regarding health, education or religion and he be given an opportunity to respond. In the event of a disagreement the mother shall make the final decision.
4. The children spend time and communicate with the father as follows:
a) so long as the father resides within 30 minutes of the children’s school, then they spend time with him from after school Monday until Tuesday morning in week 1 commencing 9 October 2017 and each alternate week thereafter and from 10:00am Sunday to Tuesday morning before school or 9:00am in week 2 commencing 15 October 2017 and each alternate week thereafter;
b) should the father reside more than 30 minutes from the children’s school, then the children spend time with the father from after school Friday to 6:00pm Sunday evening each alternate week, provided that the father can facilitate the children’s extra curricular activities.
c) the father be at liberty to telephone the children on two occasions per week and the mother be at liberty to telephone the children on at least one occasion during any period of consecutive nights with the father;
d) for one half of the mid year school holidays and for two weeks during the long summer vacation, to be taken in two non-consecutive day blocks with a break of at least 7 days between the 2 blocks, provided that the father is to give the mother 28 days notice of his ability to take such holidays and his ability to take more.
e) for Christmas as follows:
i) in 2017 from 5:00pm 24 December to 5:00pm Christmas Day and in each alternate year thereafter;
ii) in 2018 from 5:00pm Christmas Day to 5:00pm Boxing Day and in each alternate year thereafter
f) on Father’s Day from 6:00pm the Saturday prior to 6:00pm Father’s Day should it be a day when the children are not in his care, provided that if the children are with him on Mother’s Day then his time be suspended at 6:00pm on the Saturday preceding Mother’s Day;
g) on the boys’ birthdays as agreed in writing, for 2 hours during a school day and in default of agreement from 4:00pm to 6:00pm and for 3 hours on a weekend as agreed and in default of agreement from 3:00pm to 6:00pm, should they not be in his care and should they be with him then his time be suspended for 2 hours on a weekday and for 3 hours on a weekend, and in default of agreement 4:00pm to 6:00pm on a school day and from 10:00am to 1:00pm on a weekend; and
h) as otherwise agreed from time to time in writing, which shall include SMS or whatsapp.
5. The children be at liberty to telephone either parent when they are in the other parent’s care, at their discretion.
6. The time provided for in Order 4(a) and (b), as the case may be, be suspended during any term or long summer holiday period and recommence upon the same schedule as if the holiday had not intervened.
7. That the father be restrained by injunction from:
i) recording the children’s telephone conversations with himself or the mother.
ii) using any form of physical discipline or chastisement on the children or either of them.
8. That neither parent question the children about time spent at the other parents home.
9. That each parent be restrained by injunction from:
a) denigrating or criticising the other parent in the hearing or in the presence of either child or allowing any other person to do so;
b) discussing these proceedings or any other court proceedings or any issues relating thereto with the children or either of them; and
c) communicating with the other in any way except in writing or by SMS, or as otherwise provided in these orders.
10. The father advise the mother by SMS 48 hours prior to any spend time arrangement in order 4 as to whether or not he intends to avail himself of the time with the children in these orders.
11. The family consultant be authorised to explain to the children these orders.
12. That changeover for the purposes of these orders shall take place at the children’s school on school days or otherwise the carpark area of the (omitted) Petrol Station in (omitted) or as otherwise agreed.
13. For the purposes of 4(c) that the father purchase a non-smart mobile phone for the children and pay for all charges in respect of it and such phone shall travel with the children, and the parent with whom the boys are with shall ensure it is charged and within range and the boys shall be at liberty to use it to phone the other parent and each parent shall use it to phone the children but not after 7:00pm.
14. The parents set up an online communication tool such as or such other no fee charging service as may be agreed.
15. The children be engaged with counselling as required through CatholicCare or their local mediation centre or by referral from their doctor and such counsellor be entitled to read the two family reports prepared in these proceedings.
16. The father obtain a referral from his doctor for individual counselling assistance relating to his current stressors, capacity for impulse control and conflict resolution skills and for that purpose such counsellor be entitled to read the two family reports prepared in these proceedings.
17. The mother continue to attend upon her counsellor as directed.
18. The father be at liberty to attend all relevant extra curricular activities in which the children participate provided he gives the mother reasonable notice of his intention to do so.
19. The father be at liberty to attend the school the children attend from time to time for all activities to which parents are normally invited and he also be at liberty to correspond directly with the school and to attend parent teacher nights and to receive school reports, photos and like material at his expense if any.
20. The parents to attend upon Child Inclusive Family Dispute resolution at a Family relationship Service prior to issuing proceedings if in the future they experience difficulties.
21. The parents keep each other informed of any medications to be administered to the children or either of them prior to any changeover of the children into his/her care and advise the other as soon as possible of any health emergency affecting the children when they are in their care.
22. The father inform the mother of any change of residential address within 24 hours of the change taking effect.
23. Each party keep the other informed of his/her contact telephone number and any change thereto within 24 hours of the change taking effect.
24. The appointment of the Independent Children’s Lawyer be discharged.
25. All applications otherwise dismissed.
26. Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.”[1]
[1] Marked as exhibit ICL1.
The Court was satisfied the respondent had had the opportunity to get legal advice, understood the process that would be followed at the final hearing, and the relevant sections of Part VII of the Act. Then (and consistent with the principles set out by the Full Court in Re F: Litigants in Person Guidelines [2001] FamCA 348) the Court explained to the respondent the manner in which the final hearing would proceed and the order of calling of witnesses.
The evidence
The applicant
The applicant gave evidence and was cross-examined by the respondent and the Independent Children’s Lawyer. The applicant adopted her affidavits, the details of which I have referred to earlier. In cross-examination by the respondent, the applicant gave evidence of her involvement with both police and in the Victorian Magistrates Court in relation to intervention orders naming herself and the children as affected family members.
The applicant rejected the allegations put to her by the respondent in cross-examination that she was doing this to frustrate his time with the children. The applicant was asked questions by the respondent about why she was complaining he had not been paying child support. The applicant’s evidence was that she said she had not received any financial support from the respondent for over three years.
The applicant was asked questions by the respondent in cross-examination about why she was seeking an order for sole parental responsibility. The applicant’s evidence, was she believed this was in the children’s best interests because of the problems in communicating with the respondent, the conflict between the parties and their inability to communicate, let alone agree and that she had effectively been exercising sole parental responsibility for some time. The applicant was challenged by the respondent about incidents or issues that affected the parties many years ago now. However whilst largely of only historical interest to these proceedings, it was clear these incidents and issues continue to vex the parties.
In cross-examination by Counsel for the Independent Children’s Lawyer, the applicant was asked questions about her current working arrangements; her ability to care for the children during school hours, the history of the parties’ involvement in the intervention order proceedings and why she had sought the most recent intervention order.
The applicant was asked about her involvement in the preparation of the two family reports. The applicant was asked about concerns she had regarding the exposure of the children to conflict between her and the respondent, and allegations that she made that the children had been exposed in the respondent’s home to inappropriate communication and behaviour.
The applicant was asked about her concerns for the eldest child. The applicant gave evidence about the problems that she said the eldest child had, as a result of disputes between the parties, particularly in 2015 and 2016. The applicant was asked questions about what had happened during earlier school holidays and whether she was prepared to provide make up time because the children had missed time with the respondent. The applicant’s evidence was that she had tried to organise it, but she had been rebuffed.
The applicant was asked about her involvement in the family therapy that had been ordered. The applicant’s evidence was the last session was five weeks ago and she did not understand why it had stopped. The applicant was asked whether she had attended the Parenting Orders Program. The applicant’s evidence was that she had. The applicant was asked about her communication with the respondent when, in particular, the eldest child had been taken to hospital. The applicant’s evidence was that she had always facilitated communication with the respondent. However it was clear she had at times relied on doctors sending communication to the respondent.
The applicant was asked questions about her allegations that she had been unable to communicate by telephone with the children when they were with the respondent and whether she had had problems or was able to communicate with the respondent’s new partner. The applicant’s evidence made plain that there had been difficulties and she had no ability to communicate with the respondent’s partner, let alone the respondent.
The respondent
The respondent was called to give evidence and was cross-examined by Counsel for the applicant and the Independent Children’s Lawyer. The respondent adopted his affidavits referred to earlier. The affidavits were of limited assistance to the Court in determining what arrangements were, in the best interests of the children and largely set out the respondent’s narrative of historical events. The respondent was asked questions about whether he and his partner were, as was reported in the family reports, considering selling their home in (omitted). The respondent confirmed that they were. The respondent told the Court the property was going to auction on (omitted) 2017 and his future living arrangements depended upon what happened after that.
The respondent confirmed in his evidence before the Court that he had been contemplating moving residence, including as far away as (omitted), but he would like to move to (omitted). The respondent’s evidence made clear that he had not made a decision and his evidence was it depended upon what price was realised from the property. The respondent’s evidence made plain he would prefer to live closer to the city, but it was all rather a matter of financial reality and (omitted) or its environs (or at least a suburb of equal distance from the children’s current school) was the more likely destination.
The respondent gave evidence that he worked at the (employer omitted) in the (omitted) as an (occupation omitted) on a full-time basis and had done so for 14 months. The respondent’s evidence was he earned between $70,000.00 and $75,000.00 (gross) a year and he worked on a fixed roster Tuesday to Saturday. The respondent’s evidence was his hours of work, or his roster, meant that he could start work as early as 11 am and finish as late as 3 am.
The respondent’s evidence made plain that he believed he had limited flexibility to alter his hours to accommodate spending time with the children, in particular over school holidays and the long summer holidays. The respondent’s evidence made plain he had or would continue to try and get time off to accommodate time with the children over those periods but it was more likely than not that he would only be able to get extended time off over the Christmas long summer holidays.
The respondent was asked questions about what he understood his current liability was for child support. The respondent’s evidence made clear that he believed he was assessed only to make a payment of $187 a week. The respondent’s evidence made plain that he believed these were matters that were determined by the Child Support Agency.
The respondent’s evidence made clear he continued to be very vexed by and frustrated with events that occurred, as long ago as 2014. The respondent’s evidence before the Court was he agreed he could not communicate with the applicant. The respondent’s evidence made plain he believed he tried to be a good father to the children. The respondent agreed he had spoken to the eldest child following the release of the second (or updated) family report but said it had only been for the purposes of asking the eldest child how he could be a better father. The respondent did not appear to understand this risked further exposing and/or involving the children in the existing conflict or these proceedings and that was not in their best interests.
The respondent in his evidence denied the applicant’s claims that recently she was not aware where he had been spending time with the children. The respondent maintained the applicant was aware he was spending time with the children in the (omitted) or the (omitted) suburb region.
The respondent’s evidence before the Court, consistent with what he had told the Court at the commencement of the trial, was he believed that the final orders made in 2012 should be reinstated. However the respondent also repeatedly throughout his evidence before the Court, made what was tantamount to a threat. The respondent’s position in his evidence was to the effect that if the 2012 orders weren’t reinstated by the Court, then essentially he would walk away. The respondent said the applicant can take “full custody”. The respondent’s attitude, manifested by how he gave his evidence and even allowing for his status as an unrepresented litigant, reflected an unfortunate attitude which was tantamount to that of a petulant child.
The respondent told the Court his position was as a result of what he said had been his frustration with what had gone on over the last six years. The respondent said he may as well “call it a day”.
The respondent was asked questions by Counsel for the applicant and Counsel for the Independent Children’s Lawyer. In answer to questions from Counsel for the Independent Children’s Lawyer, the respondent’s evidence was he believed all of the allegations made by the applicant of family violence were false. The respondent’s evidence in answer to questions from Counsel for the Independent Children’s Lawyer was he believed it was the applicant’s behaviour that was at the root of the parties’ conflict.
The respondent exhibited an unfortunate attitude in his evidence, an attitude that belied his age. The respondent repeatedly in cross-examination told the Court he believed the family law system was weighted against men. The respondent repeatedly referred to claims he made of what he had been told by police as to why they had taken out the intervention orders as support for this.
The respondent told the Court that unless the 2012 orders were reinstated he would choose not to see the children. The respondent was asked questions about whether he had considered what the impact of such a decision would be on the children. The respondents’ answer reflected poorly on him as he sought to place some equivalence between that position and what had happened when he had not spent time with the children in 2015.
The respondent was asked questions about where he planned to move following the sale of the property in (omitted) and whether he intended to move to (omitted). The respondent was asked questions about whether he understood that it would be too far for the two children to travel to school if they were to travel to school coming from (omitted) after spending time with him. The respondent’s answers made clear he did not see it as a problem for the children. The respondent was asked questions whether he believed that that was an unreasonable distance to travel. The respondent at first agreed and then rejected that proposition.
The respondent was asked questions about incidents that had happened as long ago as March 2014 and the claims made by the applicant about his inappropriate communication, including via text message with her. The respondent admitted responding to the applicant’s text messages with, amongst other responses, “blah, blah, blah”. The respondent was asked what he had learned from being involved in proceedings over six years. The respondent’s reply did him no credit and was the self-absorbed and fatuous response, “You can’t win.”
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The report writer interviewed the children. At paragraph 62 of the updated report she states that [Y] reported a positive attitude to spending time with the respondent. The updated report also stated at paragraph 64 that [Y] had a positive relationship with his stepmother. At paragraph 66 the updated report stated that [Y] appeared to view the applicant positively and shared a close relationship with her. At paragraph 69 of the updated report it was noted that "[Y] appears to enjoy spending time with his father. In this respect, he claimed Mr Sorrell was a 'fun dad overall' unless they did something wrong and then he could become 'angry' which he did not like". At paragraph 70 the updated report stated that [Y] wanted to maintain the status quo and live with the applicant. [X] also expressed some views to the report writer and at paragraph 72 he stated that [X] "demonstrates significant anxiety in relation to parental time." The updated report indicated he had anxiety and concerns about spending time with his father and that he would benefit from counselling assistance. At paragraph 75 the report writer noted that [X] raised concerns about the respondent's verbal chastisement of him and when he spends time with his father "he claimed that he feels as though he is unable to be himself, and that he 'has to do everything right' to placate his father". The updated report stated at paragraph 79 "[X] does not present as having a strong foundation of trust within his relationship with his father, particularly as his parents' views were so disparate and he appeared more aligned with his mother". However at paragraph 80 of the updated report the report writer stated "upon being observed together with the father [X] did not demonstrate any anxiety and interacted positively and jovially with the father. In this regard, there appeared to be a positive bond, but one that is being impacted by the parental dispute". At paragraph 81 of the updated report the report writer indicates "[X] would like to spend each alternate weekend with his father, for two consecutive nights, without any time in the intervening week". The updated report concluded in relation to [X] that "it was clear that [X] was also able to view his father positively, and desired a more secure relationship with him. In this respect, [X]'s negative view of his father did not accord with his desire to spend regular time with him".
I am satisfied that weight should be given to the children's wishes as expressed to the report writer.
The nature of the relationship of the child with each of the child’s parents; and other persons
The updated report indicates that the applicant has a good relationship with the children and at paragraph 82 it states “…they interacted with their mother warmly and the conversation between them flowed with ease.” The observations of the report writer of the children with the respondent also appeared to be positive. The updated report states at paragraph 33 that “they all appeared to interact positively together.” Paragraph 84 states “upon Mr Sorrell entering the Court playroom, [A] immediately ran to his father and hugged him. He appeared extremely excited to see his father in this regard. [X] initiated interaction with Mr Sorrell and requested that they play football together.” Paragraph 85 further indicates that the respondent has a positive relationship with the children stating “all three children initiated positive interactions with their father in an enthusiastic and genuine manner (including [X]). This appeared to demonstrate sincerity ion their relationship with Mr Sorrell. They all left happily with their father.” The updated report further states at paragraph 88 that the children have a positive foundation of a relationship with each of their parents and that while there has been a deal of difficulties reported in regards to their relationship with their respondent, “the children have not demonstrated such anxiety during the two observed periods together with their father during assessment…they appeared to demonstrate a capacity for positive interaction with their father, which will need to be maintained within the parenting arrangements.”
I am satisfied the evidence establishes a secure and loving relationship exists between the children and the applicant. The relationship with the respondent is less so and different and whether it continues is, it appears, largely up to the respondent as the orders in exhibit R1 are clearly not in the children’s best interests.
The extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long term issues in relation to the children; and to spend time with the children; and to communicate with the children.
Historically both parents have taken (although to varying degrees) the opportunity to participate in spending time and communicating with the children. To this extent to improve the family dynamics both parents and the children have attended for ongoing counselling with the parenting orders program at (omitted) Community Services.
Unfortunately, the evidence is it is beyond argument the parents are not able to make decisions together in relation to the children.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child or other person with whom he or she has been living
I accept the report writer’s recommendation that it would not be in the children’s best interests for there to be any major change in the current parenting arrangements. The updated report indicates at paragraph 96 “at present, it would appear most appropriate in meeting the children’s psychological needs for them to maintain the current arrangements for a further period of time, before any consideration of whether the arrangements need to be altered. This will assist to ensure their relationship is maintained with their father, whilst hopefully lowering the level of stress and pressure placed on the children given there are no large blocks of time away from their mother.”
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The respondent’s work arrangements in that he is required to work on the weekends creates practical difficulties in him spending time with the children. The respondent wants time to take place during the week, however, the uncertainty about the respondent’s residential arrangements make this impractical.
The capacity of each parent and any other person to provide for the needs of the child, including emotional and intellectual needs
The updated report states at paragraph 28, that the respondent appears to lack some insight in understanding the children’s emotional needs and he appeared “focused on blaming the Mother for the current conflict, and he does not appear to have considered the psychological needs or wishes of the children.” At paragraph 29, the updated report states “the Father also appeared to lack some insight into the impact of sharing his views about the Mother’s behavior with the children… given that [X] in particular presented as a very sensitive child, Mr Sorrell will need to be more cognizant of the possible impact of his conversations with the children may have on them emotionally. The Mother suspended the children’s time with the Father after an incident in December 2015 however she denied that this was a deliberate attempt to impede the children’s relationship with the Father and instead believed she was acting in the children’s best interests psychologically.” I accept that both parents need ongoing therapy in order to meet the appropriate emotional needs of the children. The evidence is that both parents lack insight into the effect of their behavior on the children. However this is more so the case in relation to the respondent.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other relevant characteristic of the child
The evidence relevant to this factor has been referred to earlier.
If the child is an Aboriginal child or a Torres Strait Islander child
This was not a relevant factor.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each parent
The evidence is the parent’s acrimonious relationship has impeded their ability to responsibly parent the children and they have exposed the children to their own conflict and to the Court proceedings. Sadly, but presciently, the updated report at paragraph 93 said “the capacity for the children to maintain a positive relationship with each of their parents concurrently will largely depend on the parents capacity to change their fundamental belief systems about each other and work towards creating a more conflict free and collaborative environment for the children”. The evidence on this factor speaks for itself.
Any family violence involving the child or a member of the child’s family; Any family violence order
The applicant has alleged that there has been family violence. There have been innumerable intervention orders against the respondent. The applicant’s allegations of family violence were not pursued by the respondent in evidence save for blanket denials it occurred. There were allegations about physical violence and controlling and manipulative behaviour by the respondent. The updated report states at paragraph 91, “there has also been physical violence reported in relation to the children on more than one occasion, precipitating the need for DHHS and police assessment. While there has been no substantiation of risk by statutory authorities, the allegations of family violence will likely require further consideration by the Court in relation to any presented evidence.”
The fact is there have been family violence orders over a long period of time and sadly these appear to have only inflamed the conflict and driven the respondent to distraction.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
I accept the Independent Children’s Lawyer’s submission that it would be preferable to make an order that would least likely lead to the institution of further proceedings and the best way to do that and still give the children what they need is to make the interim orders final.
Consideration in light of s60CC factors
Parental responsibility
The Independent Children’s Lawyer, sought in light of the evidence that the applicant have sole parental responsibility for the children. As even the respondent acknowledged in his evidence before the Court, the applicant has, sadly, for the children’s sake had to exercise sole parental responsibility already.
I am satisfied that the parties have a highly conflicted relationship. Notwithstanding their presentation before the Court, it is concerning in the extreme that two people who are otherwise able to hold themselves out to society as functioning members of the community cannot see what their conflict is doing to their children. These people have had the opportunity to work with various therapeutic and other interventions since these most recent proceedings were commenced. That has been tried and it has failed.
An order for equal shared parental responsibility is contra indicated. To make such an order would require the Court to ignore the long history of family violence intervention orders, the dysfunctional parental relationship and to ignore the expert evidence before the Court on that issue.
In this case the evidence is that there is no civil relationship between the parties, no effective communication, no goodwill, no evidence their parenting styles are similar, no evidence they have a commitment to such an arrangement. The evidence is their relationship is characterised by mistrust, suspicion, an inability to communicate, let alone negotiate. In light of all of the evidence, I am not satisfied the parents could share parental responsibility equally in such a way that there would not be adverse consequences for the children.
Given this, the prospect of the respondent communicating and co-operating with the applicant in relation to any decisions on long term issues regarding the children’s welfare is so remote as to require in the children’s best interests the parent with whom they are living to have sole parental responsibility to avoid further conflict and provide the children with someone who with certainty can make decisions over long term issues.
It is important however, that the applicant, if the children live with her, inform the respondent before making any decisions on long term issues and consider any response. However for the children’s sake, and given the respondent’s approach, if the children are to live with the applicant she is to have the final say and sole parental responsibility.[3] Any other outcome would, I am satisfied, result in decisions just not being made properly and without argument and that would not be in the children’s best interests.
[3] See similar orders made in Andrews & Nicola (No.2) [2014] FamCA 167 at [119]; Smith & Duke [2016] FamCA 131 at [306]; Faden & Faden [2014] FamCA 1182 at [837].
Given my findings in relation to parental responsibility, the requirement for the Court to consider equal time or substantial and significant time pursuant to the provisions of section 65DAA are not triggered. As Kent J indicated in Heath & Hemming (No.2) [2011] FamCA 749, the Court should then make parenting orders consistent with the findings, the details of which I have referred to, on the relevance of the section 60CC factors, mindful that the children’s best interests are the paramount consideration.
Neither parent in this case proposed a shared care arrangement and, given what I am satisfied is not only the level of palpable antipathy each of the parents have for each other but their complete an utter inability to put aside their entrenched conflict for their children’s sake, any such arrangement would not be in the children’s best interests or reasonably practicable.
In weighing up all the relevant section 60CC factors, those which attract substantial weight in this matter are the primary considerations, the nature of the relationship with the parents and the lack of responsibility demonstrated by the parties for their understanding of their parental responsibility. In light of my consideration of those section 60CC factors, I am satisfied it is not in the children’s best interests for them to spend equal time with both of their parents or reasonably practicable. However, I am satisfied if the respondent lives within 30 minutes of the children’s current school, that the children should live with the applicant and spend time and communicate with the respondent in the terms set out in exhibit ICL1.
Be that as it may, this would not be the case, given the obvious practical difficulties that would arise in such an arrangement, if the respondent moved beyond 30 minutes travelling time from the children’s current school. In that eventuality, the children should spend what is essentially, substantial and significant time with the respondent and live with the applicant.
These children have been caught up in disputes between the applicant and the respondent since 2012. They have been exposed to repeated interviews with court experts, they have been involved in innumerable therapeutic processes, they have been caught up in investigations by police and child welfare authorities, and, perhaps not surprisingly, that has had a detrimental impact on them. It is manifestly in these children’s best interests that this conflict be brought to a close once and for all. Final orders in terms of exhibit ICL1 are more likely to be in the children’s best interests given the evidence before the Court.
It is possible that the respondent will, on reflection, regret the considered decision he made today to walk away. The respondent has demonstrated a lamentable lack of insight into the impact of his behaviour on others and a lack of an appreciation of what the impact of his threat to walk away would have on the children if he didn’t get what he wants. In perhaps the vain hope the respondent realises this is about the children and not him, I prefer, as more likely to be in the children’s best interests the orders in exhibit ICL1.
Accordingly, and for the reasons set out above, I will make orders in accordance with exhibit ICL1.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Date: 16 October 2017
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