Doolan and Lovell
[2011] FMCAfam 302
•12 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DOOLAN & LOVELL | [2011] FMCAfam 302 |
| FAMILY LAW – Parenting orders – mother undermines children’s relationships with father. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Applicant: | MR DOOLAN |
| Respondent: | MS LOVELL |
| File Number: | SYC 513 of 2010 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 14 & 15 February 2011 |
| Date of Last Submission: | 15 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 12 April 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dura |
| Counsel for the Respondent: | Ms Snelling |
| Solicitors for the Respondent: | Phillip A Wilkins & Associates |
ORDERS
That the parties have equal shared parental responsibility for the Children [X] born [in] 2003 and [Y] born [in] 2007.
Commencing from 26 April 2011, that the Children live with the Father SAVE as otherwise provided for by these Orders.
Thereafter, that the Children live with the Mother at the following times:-
(a)During school term:-
(i)In week one of each two week cycle, from 9:00am Thursday, or the conclusion of school Thursday (or 3:00pm in the event of a non-school day) whichever is appropriate, until 3:00pm Friday, or the conclusion of school Friday (or 3:00pm in the event of a non-school day) whichever is appropriate; and
(ii)In week two of each two cycle, from 9:00am Thursday, or the conclusion of school Thursday (or 3:00pm in the event of a non-school day) whichever is appropriate, until 3:00pm Monday, or the conclusion of school Monday (or 3:00pm in the event of a non-school day) whichever is appropriate.
(b)During school holidays:-
(i)For one half of each short school holiday period at times to be agreed between the parties and failing agreement for the first half of each school holiday period commencing at the conclusion of school on the last day of term and concluding at 6:00pm on the Saturday one week following;
(ii)For one half of each Christmas school holiday period on a week about basis as agreed between the parties and failing agreement commencing with the Mother for the first week in 2011/2012 and with the Mother for the second week in 2012/2013;
(iii)Commencing from the Christmas period 2013/2014 for one half of each Christmas school holiday as agreed between the parties and failing agreement commencing with the Mother for the first half in 2013/2014 and each alternate year thereafter and with the Mother for the second half in 2014/2015 and each alternate year thereafter.
That notwithstanding any other parenting orders made above, the Children spend time with each parent on special occasions as agreed between the parties and in default of agreement, as set out hereunder:
(a)With the Mother:
(i)
From 4:00pm on 25 December 2012 until 4:00pm on
26 December 2012 and each alternate year thereafter;
(ii)From 6:00pm on the day prior to Mother’s Day until the commencement of school on Monday, or until 9:00am in the event of a non-school day;
(iii)On each Child’s birthday from the conclusion of school until 6:00pm (if a school day) and for a period of 4 hours at times to be agreed between the parties (if a non school day) in the event that the Children are not already in the Mother’s care on that day.
(b)With the Father:
(i)
From 4:00pm on 24 December 2011 until 4:00pm on
25 December 2011 and each alternate year thereafter;
(ii)From 6:00pm on the day prior to Father’s Day until the commencement of school on Monday, or until 9:00am in the event of a non school day;
That the parties shall meet for the purposes of changeover pursuant to these Orders at [P] School, or such other school as the children may attend from time to time, and in the event of a non-school day shall meet at the commencement and conclusion of each period at McDonald’s [address omitted].
That the Mother be prevented and restrained from attending the school at any time the Father is required to attend the school for the purposes of collecting and/or delivering the Children to and from the school, except for the purposes of changeover of [Y] pursuant to these Orders.
That each party is restrained form abusing, denigrating or criticising the other parent in the presence or hearing of the Children, or allowing any other person to do so.
That each parent ensure that any school reports, notices or newsletters are provided immediately to each parent.
That each party provide the other with at least 14 days notice with respect of interstate travel (excluding travel to Canberra or the ACT) and 28 days notice with respect of any overseas travel, such notice to include dates of travel, intended destination and details regarding where the Children will be staying whilst away.
That the Children’s passports are forthwith delivered up to the Sydney Registry of the Federal Magistrate’s Court to be released upon the joint written consent of both parents, such consent to be provided by each parent attending in person at the Registry with appropriate photographic identification with the passports to be returned to the Registry within seven (7) days of the Children’s return to Australia.
That the Father’s Contravention Application filed 19 October 2010 is dismissed.
That the parties have liberty to apply before Federal Magistrate Altobelli in relation to the interpretation, implementation and enforcement of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Doolan & Lovell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 513 of 2010
| MR DOOLAN |
Applicant
And
| MS LOVELL |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about two children, [X] who is 6 years old, and [Y] who is 3 years old. The applicant is the children’s father. He is 32 years old. The respondent is the children’s mother. She is 39 years old. They commenced cohabitation in 2002 and ended their relationship in 2007. In fact [Y] was born after the end of the parents’ relationship. The relationship between the parents can only be described as a toxic one. There is a high level of conflict between them. The only communication seems to be by text message, and the nature of this communication, as the evidence will demonstrate, is entirely dysfunctional. During the course of the proceedings before me the parents’ proposals in relation to the children altered, and this will be discussed in more detail below.
Background
When these proceedings were initiated by the father in 2010, he initially only sought orders in relation to spending time with the children. By the time of the final hearing, however, his position was that the children should live with him, and spend time with the mother. The father also filed a Contravention Application. The mother’s position at the commencement of the proceeding seems to be that the father’s time with the children should in fact be reduced but, by the time these proceedings were concluded, and particularly when faced with the father’s Application that the children should live with him, her position seems to have moderated somewhat.
This is the second time in just over two years that the parents have needed this Court to adjudicate in relation to parenting matters. On 4 December 2008, Kelly FM made orders, and delivered reasons for judgment in proceedings between the parents. Her Honour ordered that the parents have equal shared parental responsibility, that the children live with the mother, and live with the father at certain defined times. Because of the difference of age between [X] and [Y], the arrangement for [Y] to live with the father was slightly different than for [X]. I will need to refer to her Honour’s reasons for judgment below. Even the mother’s Counsel conceded, in closing submissions, that the mother had sought to re-agitate matters before me that she had unsuccessfully agitated before Kelly FM. Indeed, Ms Snelling, Counsel for the mother frankly, and appropriately, conceded that she did not even cross-examine the father in relation to many of the allegations that the mother made against him. As Counsel explained, the allegations were based on concerns genuinely held by the mother, but in respect of matters where there was no evidence to support her concerns. In addition, many of these issues were aired before Kelly FM, and resulted in adverse findings for the mother. Ms Snelling submitted, in effect, that to cross-examine in relation to these issues would have been a waste of time. Having regard to all the evidence in this case, including the considerable volume of subpoenaed documents, I completely agree with Ms Snelling’s submission and I record the Court’s appreciation to her for not wasting the Court’s time in this regard.
As Ms Snelling quite forcefully articulated in her closing submissions, the real issue in this case after hearing all the evidence is whether it would be in the best interests for the children to experience a substantial and sudden reversal in their existing parenting arrangements. She submitted that there were a number of inherent problems in the father’s proposal to have primary care of the children including issues about lack of stability in his household, lack of clarity in terms of his capacity to actually implement a primary care arrangement, some concerns about his physical capacity to meet the needs of the children in a financial sense, and concerns about the stability of the father’s household consisting of his partner, her children, and the father’s 11-year-old daughter from the previous relationship, [Z]. By contrast, the mother was able to continue to provide stability for the children, is available for them, and had demonstrated during her evidence a genuine and renewed commitment to facilitating the father’s ongoing relationship with the children. The mother had also demonstrated a willingness to seek therapeutic assistance to deal with the issue she has in her relationship with the father, and his partner.
On behalf of the father, Mr Dura his Counsel submitted that the mother’s evidence left the Court with no confidence whatsoever about her ability to foster and encourage the children’s relationship with their father and that, in these circumstances, if the children were to be left in what he described as “a toxic household” the inevitable result would be that the children’s relationship with their father is destroyed. He submitted that the toxic relationship between the parents was primarily fuelled by the mother’s almost obsessive hate of the father and jealousy in relation to his subsequent relationship with his partner.
The evidence in this case consisted of the Affidavits of the father, and of his partner, Ms H. Both were cross-examined. The mother’s evidence consisted of her Affidavits, and she too was cross-examined. Expert evidence was provided by Dr L, a consultant clinical psychologist. He was cross-examined.
Also in evidence was the judgment of Kelly FM delivered on
4 December 2008, and the Family Report provided by Regulation 7 Family Consultant Ms L, dated 15 September 2008, which was in evidence before Kelly FM. In addition, there was a considerable volume of documents tendered in evidence including text messages exchanged between the parents, documents produced on subpoena by the children’s schools, New South Wales Police, the area health service and the children’s doctors.
The main issues emerging from the evidence include:
a)Whether there is the need to protect the children from psychological harm in the household of one of the parents.
b)The willingness and ability of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
c)The likely effect of changes in the children’s circumstances including the potential impact on them of reversing the existing parenting arrangement.
d)The capacity of each parent to provide for the children’s emotional needs, as well as their attitudes towards the children and to the responsibilities of parenthood.
After discussing the applicable law, I proposed to examine briefly the reasons for judgment of Kelly FM. I will then explore the evidence given by Dr L, the father, and the mother. All of this evidence will then be considered in the context of the considerations articulated in section 60CC of the Act. I will then, in due course, proceed to consider what orders are in the best interests of the children, having regard to the evidence before me.
Applicable Law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part 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 these objects are that (except when it is or would be contrary to a child’s best interests):
(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) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) 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;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) 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;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) 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 characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
2008 Proceedings
In the proceedings before Kelly FM the mother was the applicant, and the father the respondent. The case was heard over two days in November 2008 and Her Honour delivered reasons on 4 December 2008. It is clear from Her Honour’s reasons that the evidence before her included many examples of hostility and poor communication between the parents. There had been contravention proceedings and clear evidence that the mother had ignored the orders then in place. The mother, the father, and Ms H, gave evidence and were cross-examined.
The father had initially sought week about care for the children but modified his position so that by closing submissions he sought a graduated increase in parenting time leading up to week about shared care for [X] commencing in 2010 and for [Y] in 2011. The mother initially sought orders for the children to spend time with the father on alternate weekends being two nights for [X] and one night for [Y], but by the conclusion of the hearing she also proposed a graduated increase in the time the children spend with the father, but progressing more slowly to equal time for both children in 2012. It is clear from her Honour’s reasons that one of the father’s main concerns was that the mother had maintained a hostile and uncooperative attitude towards his role in the children’s lives which culminated in her refusal to allow him to spend time with them for a period.
It seems that the mother’s initial opposition to the children spending time with their father was based about her concerns in relation to his poor parenting skills. She alleged that the children had been exposed to drug use, excessive alcohol consumption and gambling whilst in the father’s care. Her Honour rejected the mother’s concerns as there was no evidence to support them. She found that there were no issues of risk of abuse or neglect in the care of either parent. She found that both parents had been abusive and threatening to each other in the presence of the children.
Her Honour made detailed parenting orders. Insofar as they are relevant, from October 2010 [X] was to live with her father in each intervening week from the conclusion of school Thursday until commencement of school Monday, for half of each short school holiday, and half of each Christmas school holiday on a week about basis. In relation to [Y], until October 2011, he was to live with the father each week from 9:00am to 4:00pm on Tuesdays and commencing October 2010 each alternate week from 3:00pm Thursday until 6.30pm Sunday, as well as during school holidays, but for shorter periods than was the case in relation to his sister, [X].
I note that there are interesting similarities between the case that was run before Kelly FM, and the case run before me. The father continues to maintain his concerns about the mother’s hostile and uncooperative attitude towards his role in the children’s lives and once again provides evidence of her refusal to allow the children spend time with him. His case before me is, in effect, that the mother has learnt nothing from the previous proceedings and has demonstrated an inability to change her hostility towards him. The mother’s case about the father’s poor parenting skills, and the risk to the children of being exposed to matters such as drug use, excessive alcohol consumption, and gambling whilst in the father’s care were all concerns manifested in a slightly different fashion before the Court on this occasion, but with the same result, as it turns out.
The difficulty in communication continues unabated. There is evidence before me of abusive and threatening behaviour but, unlike the case before Kelly FM, this time the evidence indicates that the source of abuse and threatening behaviour is the mother, rather than both parents.
It is a common phenomenon for parents to come before this Court and give evidence that even though they have said and done things in the past that might be considered inappropriate and not in the best interests of the children, they nonetheless indicate that they have the capacity to and will in fact change. This is often extremely important, especially in cases where a change to a longstanding parenting arrangement is proposed, but which might be averted if the Court were confident about a parent’s ability change their behaviour. Measuring change in a parent’s behaviour, in this case, is greatly assisted by reference to the 2008 proceedings. In many ways it forms a benchmark from which to measure change. The behaviour of parents since previous proceedings is often a reliable indicator of the future, particularly in terms of a capacity to change.
The Expert Evidence from Dr L
Dr L was appointed as the Part 15 Expert in this case. He is a consultant Clinical Psychologist who met with both parents, both children, as well as the father’s daughter, [Z]. He was able to observe and report on their interactions. Dr L’s report is a comprehensive one and it is important, I believe, to extract parts of his report in order to understand the orders I make.
The mother appears to have been given ample opportunity to articulate to Dr L her concerns about the father, and to explain in detail her observations of the children’s behaviour when they return from spending time with him. At paragraph 22 of his report he records the mother’s concerns that the children are being bullied by the father’s partner’s children, that the children have seen the father and his partner sleeping together, that she has observed sexualised behaviours in [Y] since then, etc. At paragraphs 23 and 24, Dr L states: -
23. I am somewhat concerned that the mother has in fact been quite intrusive in these matters. For instance she tells me that she has videotaped the children saying negative things about the father. On the tape she has the daughter making complaints about not wanting to go back to the father about hating Dad and those kinds of things, a set of behaviours that can be quite disconcerting to and quite injurious to the development of relationships between the children and their parents. The risk is one of scripting or coaching and filming provides a powerful reinforcer for such behaviour. The mother says that she has taken the children to counselling to see Mr N at [omitted].
24. It seems obvious that Ms Lovell nurses extreme antipathy towards Mr. Doolan, and is resolute in her condemnation of him without it seems nay opportunity to consider alternative views of his behaviour. Her allegations are such that if true, Mr. Doolan would be a most unsafe parent, but if not, then it exposes her to concerns about the extent to which she is so entrenched in her hostility to the father that no reasonable hope of moderation of her views can occur and the risk of her being seen as vindictive and alienating thereby grows.
There was further evidence before me about the mother recording the children, or allowing the children to be recorded, in the context of these proceedings. I will refer to that in due course. It is important to note that Dr L’s description of the mother’s views towards the father as being “extreme antipathy”.
The mother explained her position to Dr L, and this is recorded at paragraph 72 of his report:
72. Position. Ms Lovell’s position is that she wants to stop completely the contact regime such that there would be only every second weekend supervised contact. She says this would go for three months and then she would reassess to see what would be the best. However, because she assumes Mr. Doolan will be in gaol she thinks contact will cease. (I have no reason to believe that there are any events that will be likely to lead to Mr Doolan going to gaol.) She said that she wants an assessment of [Mr Doolan’s] current partner and her children, and sees them as an obnoxious influence on the whole situation.
What is particularly interesting is that the mother’s proposal for a period of weekend supervised contact was at no times a proposal that she advanced to the Court, either in her initial response, or in the final orders she proposed to the Court. Moreover, the mother proposed that she would be the one to reassess what happens after then and she was, in any event, confident that the father would be in gaol. Her case was not conducted on the basis that supervision was necessary, that parenting arrangements would need to be reviewed within a short period, or on the basis that the father might be spending time in jail.
Dr L makes the following comments about what was clearly a hypothesis for him to the effect that the children were being coached by their mother. He states at paragraph 78:
78. I talked to her about the children’s relationship with the father further. She said she doesn’t question the children, but will let the children “talk about stuff”. She said the children will come home and make complaints, but she says she doesn’t follow up with questions that are information seeking although again the fact that she quizzes the children suggests the contrary. The mother does have lots of complaints to make about the father and clearly I suspect the conversation does occur in which the children are at least primed if not actually coached to continue to make complaints about the father.
To the extent that this passage reflects Dr L’s impression of the mother, it is entirely consistent with my own impression of her, derived from all of the evidence.
The potential problem of coaching becomes evident in his interviews with the children. At paragraphs 85 and 86, he describes these interviews as follows:
85. Interview with the Children. Following the contact I had an opportunity to have a discussion with the children. However it was obvious that [Y] was not in any position to make any comments and he simply didn’t know what was going on. [X] on the other hand was able to make some comments. [X] told me that her father makes her scared because “he smacks me and makes me feel real down” (i.e. get depressed). She says he made her clean up the kitchen by herself and also made her “clean up the children’s vomit” (i.e. [Ms H]’s children’s vomit) and when I asked her how many times he had made her do this she said he had made her do it “five times”. She said she didn’t like going to sleep over at her father’s place, she says because he makes her do stuff. She also made complaints about [Z], saying that [Z] choked her and told her to lie. She tells me when she goes to the father’s house she isn’t involved with the other children and she goes next door to [Ms H]’s place and [Ms H] then simply makes them clean the house.
86. In contrast she said her Mum was fun and didn’t scream at her and she “wasn’t usually angry”, although she also seemed quite concerned about her and didn’t want to get her Mum angry. I note that I didn’t ask her whether her Mum got angry as this was spontaneous comments to me.
Pausing here, one would have thought that if the children’s accounts were to be accepted, there would be considerable alarm. However,
Dr L records at paragraph 89 as follows:
89. I asked [X] if she had spoken to her Mum about what she would be saying when she came to see me today. She said her Mum said she was going to “see Dr L and that she was to talk about what to say”. She said “may be [sic] she should tell him”, and then there was a discussion apparently about seeing the father kissing [Ms H] and then [X] spontaneously said “that was bad that (the father) shouldn’t be allowed to show emotion towards [Ms H] in front of the children”, which I thought was an odd comment for a seven year old child to make although it may well reflect concerns the mother has about the father’s relationship with [Ms H].
Dr L of course met with the father. In relation to the father’s perception of his relationship with the mother, Dr L records at paragraphs 107-108:
107. He said since the break up her harassment and rage against him has been fairly consistent. He says that she will swear at him but he would never swear back. I note that her language in the interview was quite profane in describing Mr Doolan, although she alleges her use of that language was merely to show me how Mr. Doolan reputedly talked to her. The impression I gained was that she was doing so with considerable enthusiasm.
108. These days he says he tries to avoid all that kind of stuff but he will say things to her like “f…..off” from time to time when he has had enough. He says he feels he would love just to have a reasonable communication with her for the sake of the children.
What is interesting about this issue is that I had such extensive evidence before me about the mother’s communication with the father by text message, over an extended period of time. I will discuss this further below. My impression of the evidence is that the father would indeed like to have a reasonable communication with the mother, but she makes it impossible for him to do so.
The father described his proposal to Dr L and this is set out at paragraph 132 of the report:
132. Mr Doolan’s Position. Mr Doolan wants a conclusion to these matters. He tells me he wanted an attempt at mediation but [Ms Lovell] said that he had abducted the children so as a result the mediation did not proceed, and she was able to obtain full custody on what he regards as a ruse. He says he feels anxious about the potential for the volatility in the mother and he says that when the children are with him they have a good time. His partner has two children and they get on well together. Therefore what he wants is to be able to have a reasonable level of contact with his children without the interference of volatility of the intervention of Ms Lovell. He wants the children to stop being interrogated and wants to stop them being coached. He says he doesn’t want to take [Ms Lovell] away from the children but wants the children to be able to have stability and not have to go through interrogation. He said the only reason that things are going bad is because Ms Lovell focuses so much on the children and refused to give the children space to develop a proper relationship with him.
Of course, what the father told Dr L is not, in fact, the father’s final proposal to the Court. The change in the father’s position is an important issue for the Court, particularly in terms of assessing whether he is committed to a relationship with the children that includes him being their primary carer. Indeed, the father gave evidence in chief to respond to a later comment by Dr L that the father was prioritising his relationship with his partner, Ms H, over that of his relationship with the children. The father was quite clear in asserting, however, that his focus was on his relationship with his children, his partner, Ms H, as well as her two children. In other words, he sought to explain that he was not prioritising his relationship with his partner, over that of his relationship with his children.
Dr L’s record of his observation of contact between the various parties is important. I commence by reproducing paragraphs 139-143 of the report:
139. Observation of Contact. An unexpected feature of the contact was that the father relied at [sic] [Z] to be his child support for the children as the other [sic] and father had a handover of the children on the day. I note that [Z] had t [sic] look after the children for two hours following my observation of the contact. For the two hours the children were quite happy and excited to see [Z] Throughout that two hour period the children’s behaviour with [Z] was quite boisterous and on a couple of occasions I had to calm them down. There appeared to be no problems in the children’s relationship and they all had the ability to get on with and indeed to have a good time with [Z]. At no point where there any tears, anger, irritations or wanting to leave [Z] and spent [sic] time with their father.
140. Another unexpected event in the initial observation period was that I attempted to keep separation between the families, but regrettably whilst I tried to keep [Z] separate from Ms Lovell due to timing problems in fact [Z] and [Ms Lovell] were in the same room together. I noted that each refused to recognise the existence of the other. When the mother brought the children back to have contact with the father I noticed that she changed them out of their clothes they had been in. They had been dressed exceptionally well when she brought them to see me but she had them in a much ordinary set of clothes when it was the father’s turn to take them. As the father was taking them back to his place after the termination of the contact visit Ms. Lovell didn’t want their best clothes to go back with him.
141. The contact visit was a somewhat chaotic beginning mainly because the mother came back quite late from lunch, causing problems and delays and my being able to organise things. As soon as [Y] saw his father he ran into his arms. [X] was less demonstrative but also seemed quite happy to see her father and was sitting very close to him on the floor. I noticed that throughout the contact the father was working with both children. As part of the contact the father was working with [X] on some homework that she was doing. I noticed that whenever [X] did something right the father would be positive in his response to her, saying something like good girl, and there were lots of positives through out and lots of good responding to [Y]. The children were not competitive for the father’s attention but were quite reasonable. I noticed that [X] called her father Papa and sought his attention in reasonable ways.
142. For the first half of the contact visit I had [Z] sitting out of the room and [X] kept asking where [Z] was. She had seen her earlier. I noticed that the father made no particular comments about that. [X] did engage in a lot of loud giggling and evident pleasure in the relationship and was physically touching her father and this was obvious within the first five minutes of the contact visit.
143. By the 10th minute the children were playing around and having a good time with Dad. I asked [Z] at that point to come in and she immediately engaged with [Y] who also engaged immediately back with her. [X] and [Z] were not interacting at first other than some greeting but I did note that [X] appeared slowly but surely to move closer and closer towards [Z]. [X] continued to engage with her father and was enjoying tickling game and there was lots of laughing and general good humour. Indeed it was noticeable that the contact with the father was both a much more good humoured and more giggly kind of contact than with the mother. After a couple of minutes it was noted [X] began to engage quite well with [Z] and then the father called [X] back to help him tidy up the room. [Y] was jumping on the father’s back and as a result of the father’s intervention some delay in [X]’s engagement with [Z] took place. There remained some distance between [X] and [Z]. However it was also noticeable around about the same time in this contact as with the mother’s that [X] did reveal some abrupt language towards her parent. Rather than ignoring it as the mother did, the father cautioned [X] appropriately about her language and then immediately [X] settled and by now was talking quite well with [Z]. There appeared to be no difficulties in the relationship between [X] and [Z].
What is interesting about this passage is the insight that it gives into the relationship between the children and [Z], and the relationship of both [Y] and [X] with their father.
At paragraphs 147-148, Dr L records his further interview with [X], following the observations recorded before:
147. Following the contact I had a further interview with [X] to see whether having spent some time with the father she might have altered the way in which she perceived things. Much to my surprise when I gave her the Visual Analogue Scale [X] identified [Z] as the grumpiest and most unpleasant person. Since her interaction with [Z] both during the contact visit and for the next two hours belied such an approach, I was quite concerned as to why she would do this. Clearly it appears that she had difficulties with being able to be clear about her views of [Z]. When I asked her why she had nominated [Z] as the grumpiest and most unpleasant person she said two years ago [Z] had “almost choked me”, and when I asked if she could tell me more about that she said [Z] had threatened to do something to her, although nothing had happened in the last two years that was in any way like that. To my mind there is the lack of reality to the complaint and is belied by the excellent relationship between [Z] and [X], and indicates I believe influence of Ms. Lovell’s obvious vilification of [Z] in this matter.
148. The father had been somewhat rehabilitated by [X] in her use of the analogue scale, and he was now the second most grumpy instead of the grumpiest face in the list. The mother remained neutral but interestingly when I asked her to indicate how she felt when she was with her mother she indicated the same as she did before i.e. the second happiest face but now the father was also on the same ranking as the mother. Indeed despite having placed [Z] as being the grumpiest person she knew she also indicated that the way [Z] made her feel when she was with her was the same as the way her Mum and her Dad made her feel. To some extent a significant shift in the attributions relative to spending time with the father had taken place, indicating that the initial account I got of her relationships is probably contextually driven rather than dominated by her understanding of the situation.
It is apparent from these paragraphs that Dr L had serious concerns about the mother’s influence on the children’s views, and what he described as the mother’s “obvious vilification of [Z]”.
Dr L’s formulation commences from paragraph 149. At paragraphs 149-150, he clearly articulates the risk of psychological abuse of the children by the mother:
149. Formulation. The major questions to be addressed in this matter relate to the potential for psychological abuse of the children by the mother in an attempt to alienate and disenfranchise the children from the father, or , in the alternate exposure of the children to the father’s allegedly criminal connections and substance abusing culture. Another significant issue arising is if there is a reality base to the mother’s concerns of the father being an organised crime figure with mafia associations involved in the importation and financing of drugs and a network of criminal activities who is vindictive, intimidating and using his gang to abuse her. Given the lack of collateral evidence for the mother’s claims, the alternative view suggests that the mother possesses such an intense jealousy and spite of the father that an almost semi delusional state exists which has been communicated to the children in a way that is dangerous towards them.
150. It is hard to reconcile the mother’s comments regarding abuse and derogation of the children by the father, and by the father’s girlfriend and daughter [Z] and the children’s response to the father and [Z]. To my mind an excellent relationship exists between the children and [Z], and given the length of time and boisterous nature of the play between the three children, if there were genuine tensions in that relationship such tensions would have emerged. Similarly there is no doubt a warm, loving and beneficial relationship exists between the children and the father. The mother’s manner in the interview did raise concerns about her ability to objectively assess the relationship between the children and the father, and also raise concerns about the extent to which she was frank and open with me. I found it impossible to reconcile the account she gave of the father, and his demeanour and presentation.
Dr L believes that there is a benefit to the children of having a meaningful relationship with both parents, and that the children are well attached to both their mother and father. He expresses concern about placing any weight on the views expressed by the children given the dissonance between what they were saying, and how they were actually behaving in the presence of the father during observations.
Dr L clearly had concerns about the capacity of the mother to facilitate and encourage the children’s relationship with their father.
At paragraph 153, he states:
153. The capacity of the parents to facilitate and encourage relationship with the alternate. I do not believe that Ms. Lovell has any desire to encourage a relationship between the children and their father. I am not sure why, but she appears to be spiteful about and jealous of the father, and especially his new relationship. Although she presents herself as resolved about the separation, I do not believe that she is. I believe that she actively seeks to ferment problems in the relationship between the children and their father and will continue to do so as she seems to either lacks insight into her behaviour, or simply is disinterested in changing her behaviour. Mr. Doolan does appear willing to maintain the children’s primary parental relationship as with the mother, and to that end he appears more resolved about the current situation. To my mind he under-estimates how difficult it will be for him to maintain a relationship with the children that will not continue to engage the children in the parental conflict if the status quo is retained. However, as it seems he has no wish to alter the primary residence of the children, (I assume to do would complicate his attempts to build his relationship with [Ms H] and [Z]) it remains the case that somehow or other he and Ms. Lovell will have to come to some accommodation about their relationship and how to manage the exchanges of the children. In particular, Ms. Lovell is going to have to discontinue her denigration of the father and the allegations she makes as they provide the context for the constant critical perception of the father that undermines the children’s relationship with him.
What emerges as a significant issue in this case is the impact of change on the children, particularly in terms of being separated from their mother. At paragraph 154, Dr L states:
154. The likely effect of any separation from either of the parents’ relevant persons. I have had to consider in this report whether it is in the best interests of rhe [sic] children to remain living with the mother? Given the lack of substance to her strong beliefs that the father is a criminal mastermind involved in highly dangerous activities, it does raise the potential for the mother to have a potentially delusional like state. I do not think she is delusional but has created such a mythology of abuse about
Mr. Doolan that her beliefs are extreme. It seems her mental health has been compromised earlier in the year, a period of time she seems to have recovered from. However, I continue to be concerned about the potential for psychological instability in the mother and the effect this will have on the children. To that end I think it may have to be considered that over time an increase in the amount of time the children spend with the father might be necessary. For the moment however, the children are well attached to both parents and it would be difficult for them to be separated from either parent for any length of time. There is a very close relationship between the children and their mother, and [X] seems particularly sensitive to her mother’s needs to have a close alignment with her children.It is interesting indeed that even in the context of the father’s proposal which, at the time of the report, did not involve primary care of the children, Dr L explicitly was considering an increase in the amount of time that children with the father, over time.
Dr L expresses concerns about the capacity of each parent to provide for the children’s needs. He says at paragraph 155: -
155. The capacity of each parent and other relevant persons to provide for the children’s needs. Each parents [sic] appears quite capable of providing for the material needs of their children. Despite the allegations there is no evidence the father is neglectful fo [sic] the children or exposing them to parenting risks. I think he is rather focussed on the moment on establishing his relationship with [Ms H] and to that end he in not willing to take on primary parenting responsibility. However, he seems child focussed and on his self report he is not exposing the children to any of the risks as alleged by Ms. Lovell. As indicated earlier, I am concerned that the mother’s absorption with her battle with Mr. Doolan may make her insensitive to her children’s psychological needs in as much as the children need to be distanced from her willingness to engage in derogation an conflict of the father, [Z] and his girlfriend. To that end I do have concerns about the mother, and believe that some support and counselling of the mother may be necessary. Although the mother alleges the father is aggressive and violent, and utilises his manner and his “gang” to intimidate her (and the children) I do not believe there is sufficient substance to these claims. The children show no vigilance or fear around the father, and there is no collateral to support the mother’s claims some of which do seem odd to the point of fanciful.
In relation to Dr L’s concern that the father is primarily focused on establishing his relationship with Ms H, this is at least partially offset by the father’s own evidence that he has not prioritised his relationship with his partner over that of his relationship with the children. Dr L’s observation that the father seems child focussed does seem borne out by the rest of the evidence in this case. Dr L expresses clear concerns about the mother’s insensitivity to her children’s psychological needs.
In relation to parental attitudes towards the responsibility of parenthood, Dr L states at paragraph 156:
156. Parental attitudes towards responsibility of the parenthood. Ms. Lovell and Mr. Doolan both profess to have strong supporting attitudes towards the responsibilities of parenthood. It is how these attitudes are converted into behaviours that concerns me. To my mind Mr. Doolan is seeking at this stage not to have the primary parenting role as it will interfere with the development of his current relationship, although he also acknowledges the importance the children play for Ms. Lovell and I think he also genuinely fears Ms. Lovell’s reaction should he seek to exercise a greater parenting role than the “usual package”. Ms. Lovell presents as having a proprietorial role towards her children, and to that end seems unaware of the need of her children to have a secure relationship with their father. She is quite capable of limit setting, goal setting and the like with her children, but there is some concern in my mind that she is so focussed on appearance and success that she may be overly harsh in her parenting style, and lacks some affection.
At paragraph 157, he considers the impact on the children of their exposure to parental conflict. He states:
157. The effects upon the children in the event of family violence or conflict which they may have exposed too and the consequences and effects of any actual, potential, psychical or psychological harm on them. It seems that [X] has been exposed to prior parental conflict and has become sensitive to it. Her comments indicate she has been exposed to violence from the father, although I think the critical issue is she has been exposed to a volatile family situation and her attribution of responsibility is [in] line with the wishes of he [sic] mother, rather than necessarily reflecting what has really happened. However, to the extent that a contradiction is occurring between how [X] seems to act, and what she says, it suggests that she is being exposed to psychological harm. To that end she will need to be removed from an ongoing situation that maintains this conflict. The easiest way for that to occur is for the mother to recognise her need to change (on the assumption that my assessment of the father is reasonably accurate). Both parents need to undertake courses such as parenting after separation although I believe that Ms. Lovell will need something more individualised to work though her anger about Mr. Doolan and to learn how to place boundaries around it so she does not continue to expose her children to her beliefs in such a way that they come to see their father in a distorted manner.
Clearly, he believes that [X] is being exposed to psychological harm in the mother’s household. He believes that she can be protected from this if the mother were to recognise her need to change.
Dr L’s conclusion is found at paragraph 158 where he states:
158. In conclusion I believe it is in the children’s interest to have a substantial relationship with their father, I believe it is in the children’s interests to maintain the Thursday over-night contact and on the alternate week and to have then a block of time as current from Thursday night to Monday morning. Once [Y] starts school I believe there is no need to have him return at night early as now occurs. I believe the current plan of half school holidays is also important, and I see no reason why [Y] should have less time that [X] on those occasions. The Christmas break however should be split such that the children spend no more than two weeks away from either parent at most until [Y] is aged 8 years old. Whilst the children are at the father’s place Ms. Lovell should agree not to approach the father’s or [Ms H]’s house except by agreement and for a specific purpose. There will be continuing conflict between the parents and cooperation over parenting responsibilities will be unlikely and fraught. It is in the children’s interests for the mother, in particular, to seek psychological support to help her resolve her jealous and angry approach to her former partner and to try to prioritise her children’s needs over her own. To my mind she will need more substantial support than she is likely to voluntarily seek, but it is not in the children’s interests, nor is it within Mr. Doolan’s current circumstances for the primary parenting role to be removed from the mother unless there is a deterioration in her mental health.
Dr L was cross-examined by both Counsel for the mother and father. By the time of the hearing, of course, the father’s proposal to have primary care of the children had crystallised, and that became one of the main issues in his oral evidence.
At first, Dr L’s support for the father’s proposal to have primary care was expressed in measured terms. He was asked in cross-examination by Counsel for the father whether, if the Court accepted that the father’s commitment to assume primary parenting was a genuine one, Dr L would then support his having primary care. At pages 4-5 of the transcript, Dr L states as follows: -
Yes, look, I think – I think I might. I think there – obviously the issue arises in terms of when you’re changing the primary parenting arrangements for children, particularly children of the age of [X] or [Y], it’s easier when the kids are adolescent, but when they’re still quite young children, it does – it’s a hell of a shock to the kids and a hell of an adjustment issue for the children, so you’ve got to really think about it. So, to my mind though, I think that there’s an established relationship between the children and [Z] and their father and I think that the opportunity for making that transition is there, but particularly for [Y], I think it would still be a hell of a shock, it would take a little while for him to get used to. But I think that there are reasons why you might want to consider that, one of them being that I’m, you know, I was obviously concerned in reference to [X] about the comments [X] said that were so different to her behaviour in relation to the way she related to her dad and the way in which she related to [Z] that I’m – I am concerned that the tense vilification which I believed to be taking place by the mother and the father and of the father’s daughter, [Z], such that it was actually going to cause problems for the kids over time. And so I think there are some reasons there that you might want to think about what are the advantages for the children shifting their residence.
Whilst Dr L was concerned about the impact of such a change on the children, he could understand why the Court would want to consider making such a change.
In cross-examination, Dr L confirmed that, in his opinion, the mother was intractably opposed to the father and her feelings towards him, which he described as stronger than dislike, are feelings that she cannot get beyond. In short, the mother does not understand the needs of her children in regard to their relationship with the father. He felt that the mother was unable to contain, or hide these negative feelings about the father, from the children. Her feelings towards the father extend to vilifying his other daughter, [Z]. He believed that the mother clearly lacked insight into the effect of some of her behaviours on her children, e.g., videotaping them saying negative things about the father. He stated unequivocally that this would have the impact of coaching the children.
Dr L was asked to give evidence about the impact of coaching and vilification on the children. He states at page 7 of the transcript as follows:
And if that sort of behaviour, Dr L, so far as their coaching or the influence against the children having a relationship or maintaining a relationship with their father has been going on for some time and is unlikely to let up, what ongoing effect will that have on [X] and/or [Y] and, firstly, their relationship with their father?
---Well, if they attempt a relationship with the father, the effect on the children is that they have to do one of two things. They will either end up by agreeing with the mother and therefore they start – they come to see their father in an aggressive, nasty man and their relationship with the father becomes attenuated, or they try to preserve a kind of split reality, when they’re with their mum, they agree with what mum does, and then with their dad they sort of see it in a different way. But, either way, they end up with a kind of strained relationship with one parent or another because they’re being confronted with potentially two different realities which they have to somehow or other negotiate, which is always difficult for children.
Dr L was asked to comment on whether the mother had a capacity to change so that, for example with the assistance of some counselling or therapy, she could change her views and her vilification of the father. Whilst Dr L acknowledged that it was possible, he did note that the mother’s views expressed in the present proceedings were far more extreme than appears to have been the case in the 2008 hearing. He agreed in cross-examination that the mother appeared to be exaggerating some of her allegations against the father as well as making extreme comments and allegations without any collateral support.
Dr L was specifically asked to comment on the father’s proposal for the children to have contact with their mother. He seemed broadly supportive of the proposal, though sounded this note of caution at page 9 of the transcript:
… you’re asking children to move from a primary care role from the mum to the dad. I think that the reality is that you’ve got to balance the likelihood that the mother would be extraordinary distressed if those orders were to be made and would do – and would see this as a terrible event and would be wanting to undermine any stability the children might have with the father, but at the same time, the children would have strong needs to maintain good levels of contact with their mum, and I would think that on the alternate week they probably need to have a bit more time. So it’s only the week where they have, you know, from Friday to that Monday, that’s fine, but they would probably need to have a bit more time on the alternate week.
Dr L categorically rejected the mother’s proposal for the children to have less time with their father. He then commented about the risks inherent in the Court not making orders as proposed by the mother. At page 10, he states:
Is it not the case that there’s a real risk here that unless orders are made as sought by the mother, she’s going to be seeing it as a loss and wanting to do what she can to undermine the children’s relationship with the father?
---The fear that I have is that the mother is so intractably opposed to the father that she will continue to agitate and proceed a reduction in the contact the children have with the father, you know, to a point where I think she would like an exclusive relationship with the children.
Dr L agreed that the mother’s proposal for an order for sole parental responsibility could be interpreted as part of a strategy to move towards an exclusive relationship with the children. There was little doubt in his mind that if the children remained in her primary care, they would continue to be exposed to the mother’s negative attitudes towards the father, a negativity that was plainly absent so far as the father was concerned in his attitude about the mother.
Dr L was critical of the mother’s lack of insight into the consequences for her children of her behaviour.
Dr L was of course cross-examined by Counsel for the mother and he gave some useful evidence about the nature of the therapy that the mother would need to receive in order to change her position about the father. The obstacles to successful therapy, however, was what he described at page 13 of the transcript as the “reality base to the mother’s concerns”. Indeed, he goes on to say that:
It is simply not possible nor reasonable to continue treatment for someone who makes the wild allegations, the mother does, if they are lying… and so for those reasons, I think that there needs to be some reality based work done with the mother as well as work around the impact of those allegations have and the impact of her approach to the father as visited on the children.
In further cross-examination, Dr L rejected the proposition that the mother’s presentation during the report interviews may be explained by reference to a cultural basis.
At page 16 of the transcript, he was asked to comment on the concern he expressed about the impact of change, particularly on [Y], if the existing parenting arrangement were reversed:
Well, in order to ameliorate that shock that the children, or in particular [Y], would be likely to suffer, would you consider that leaving the children in the primary care of their mother with some extensive psychological or therapeutic assistance to the mother, and reducing the opportunities for the parents to have face to face contact, would be a preferable resolution given the age and the circumstances, in particular [Y] never having lived in a household with both parents?
---I mean, I think that’s a possible scenario, particularly if all the other things that you mentioned would take place, and that is if mum was able to moderate her views and to gain insight into how she was continuing to place pressure on the children, and if you could reduce the level of face to face conflict and reduce the unnecessary problems that seem to be taking place in regards to the allegations and, you know, altercations, complaints and those kinds of things, I think if you were able to reduce all of that, then that would be to the benefit of the children and I think that if you were to have mum as the primary caregiver in a much more benign psychological environment for the children, then, yes, that would be – that also would be quite a workable situation providing the children were able to get good levels of contact with their dad.
It is interesting to note Dr L’s highly conditional support to the proposition advanced about leaving the children in the primary care of the mother.
My overall impression of Dr L’s evidence is that he moved from a position of qualified support to the father’s proposal, to, at the very least, more support. He clearly articulated the concerns about the impact of change on the children, particularly [Y], and clearly states his concerns about whether the mother has within her the internal capacity to change. I accept Dr L’s evidence.
The Mother’s Evidence
The mother’s case relied on her Affidavit sworn 3 February 2011. In it, she exhaustively records her complaints and concerns about the father, his treatment of the children, the condition in which the children returned from contact, and various other matters. She refers to a number of times when the police have become involved mainly, but not always, at her instigation. It is interesting to note that the mother’s first complaint is based on an incident that she asserts occurred on or around 31 August 2009 when [X] returned from spending time with her father reporting that she had fallen off a bike and that she was suffering pain in her arm.
There was a further incident in November 2009 involving a mark on [X]’s arm which [X] attributed to mosquito bites, but which the mother clearly attributed to some form of abuse by the father. The number of incidents reported escalates quite dramatically in 2010. Two things are significant. Firstly, the absence of any evidence about the mother’s concern in relation to the children prior to 31 August 2009. Secondly, the father files his Application on 29 January 2010. The father’s Application was prompted by his assertion that on 6 January 2010, the mother advised him that she would not make the children available for contact. The father asserts that the mother told him this was to avoid “putting my kids at risk and harm”. The mother’s actions, and the father’s response, resulted in what can only be described as an ugly and distressing incident at [X]’s school on 28 January 2010. I find it curious indeed that the mother would give no evidence whatsoever about this incident, and about her reasons for arbitrarily suspending contact at the time. I am left in no doubt that it was only the commencement of proceedings, and a number of mentions for interim hearing before me, that resulted in the mother agreeing to abide by the orders made by Kelly FM.
In any event, in the mother’s Affidavit she demonstrates a propensity to take the children to doctors after they have been with their father. Indeed, the documents produced on subpoena by Dr C, the children’s doctor, indicates that in 2010 the mother took [X] to see him 8 times, and [Y] 14 times but in circumstances where the vast majority of the complaints relating to the children are minor, if not trivial. Indeed,
Dr C’s notes are quite unremarkable and one cannot but infer the mother’s willingness to try to find, and link to the father, serious and sinister matters that are plainly absent in reality.
What is both interesting and concerning is that on 3 February 2011 the mother deposed in paragraph 52 of her Affidavit as to her continuing concern about the children being exposed to drugs, and to known criminals. She also referred to 5 of the father’s friends being recently arrested for drug-related crimes. The significance of this, of course, is the singular absence of any cross-examination of the father about these issues.
The mother was extensively cross-examined by Mr Dura, Counsel for the father. There are a number of disconcerting aspects about the mother’s evidence in cross-examination to which I will make reference below.
a)
The mother maintained the position that her proposal for the children to have reduced time with their father was in the best interests of the children even though she had had the benefit of
Dr L’s report and had already heard Dr L give oral evidence by the time she herself gave evidence. This demonstrates inflexibility, and a real lack of insight on the mother’s part.
b)She agreed in cross-examination that her proposal before the Court did not involve the children having school holiday contact with their father. Ultimately, she stated that what she meant to say is that the existing regime of holiday contact should continue and that school holidays be shared. Was this a genuine mistake in the drafting of the orders contained in the mother’s Amended Response filed 7 February 2011, or was it an example of the mother simply adapting her evidence in the face of cross-examination? I am prepared to give the mother the benefit of the doubt and accept that it was a mistake in the drafting of her Amended Response. I have some lingering concerns about whether this is, in fact, correct. Nonetheless, those concerns will be resolved in favour of the mother.
c)The mother gave evidence in cross-examination that after Court on the first day of the hearing the children were at home and comments made by both of them were video recorded by a family friend known as “Aunty D”. Those video recordings were then sent to the mother’s phone and she then on-sent them to the father. She gave evidence that these video recordings were made at her home, and that she did not know that the children were being video recorded. She agreed that the video recordings include Aunty D talking with [X] about what had happened during Dr L’s interviews, and also included Aunty D holding up what appeared to be lunch bags of grapes or fruit for someone to video record. When the mother was asked whether she was concerned about anything that she saw or heard in those video recordings, she explained that she was upset over her daughter [X] being upset. She interpreted [X]’s upset as being about not wanting to go to her father. She agreed that [X] was crying. She agreed that she held up the rotten grape bags and said to Aunty D “Can you have a look at this? I am not dreaming again. It is always rotten food in the bags.” The mother was challenged whether she spoke at all to Aunty D about the appropriateness of her conversations with [X] and the video recording. The mother explained that she had no such concerns as Aunty D is a calm lady who can calm her daughter. Indeed, she said she was proud of Aunty D.
I must say I find this an amazing incident. The recording of the children was already an issue in the proceeding, referred to in the evidence and mentioned in Dr L’s report. This event actually took place during the hearing of this matter. Even the mother agrees that [X] was upset, but the mother could see no link between what was happening and [X] being upset and she could see no reason to be critical of Aunty D for making these video recordings. When this incident is considered in the context of the other evidence in this case, the Court can only regrettably conclude that there is a poisonous environment for the children in the mother’s household whether or not the mother is there. Moreover, the mother seems oblivious to the sort of pressure that these actions might be having on [X]. It is, I must regretfully conclude, a demonstration of appalling lack of insight on the mother’s part.
d)The mother agreed in cross-examination that she did not trust the father at all. She agreed that she did not see the father as being someone who should have a role in the lives of either of the children: (transcript page 9.) I must say that when I first heard this comment I was rather surprised and my initial response was that the mother had not understood the question. Nonetheless, at page 17 of the transcript, she repeats her evidence. She does not trust the father. She does not believe that he should have a significant role in the lives of the children. At page 17, she expresses the firm belief that the father is a drug dealer, a pimp, operates a brothel, manages prostitutes, is involved in a gang and in criminal activity and has exposed the children to inappropriate sexual activity whilst with his partner. Bear in mind that the mother led no evidence whatsoever about these matters and her own Counsel frankly conceded the only evidence was the mother’s perception of these things. In any event, it is clear from the mother’s evidence that notwithstanding her own proposal to the Court, she believes that the best outcome for these children is one in which their father has no, or minimal involvement in their lives. This demonstrates a remarkable lack of insight into the needs of the children and a singular unwillingness to facilitate their ongoing relationship with the father. It makes the Court pessimistic indeed about the mother’s capacity to change views which she so passionately holds notwithstanding the absence of objective evidence to support those views.
e)The mother explained in cross-examination that what was needed before she could trust the father was for improved communication. By this stage, a written transcript of the mother’s communication with the father by text message over an extended period of time had already been tendered in evidence. She agreed that the communication with the father in this way had been inappropriate. She acknowledged that it was wrong to communicate in this way. She expressed the hope to me at page 10 of the transcript that:
In future, things like this would not happen and I know that I have to do something about that. I acknowledge that.
The mother was challenged in cross-examination about precisely when she had experienced this epiphany in realising that her communication had been wrong and that she had to do something about it. Ultimately, the mother had to concede that she had actually sought limited assistance to assist her in better communicating with the father and that, in any event, it was not getting her anywhere. What I found surprising is the mother’s explanation that she became very frustrated because the father would not communicate with her, and this caused her to become angry, and abusive and insulting in her text messages to the father. She explained that she became increasingly frustrated when the father would not respond to her text messages, but could not see why, from the father’s perspective, he might not respond to abusive and insulting text messages.
When pressed about the date on which she had experienced this epiphany in relation to her communication style, she finally conceded at page 11 of the transcript of her evidence that it was the day before. This is an interesting answer from several perspectives. The day before was the first day of the hearing, i.e., 14 February 2011. Dr L’s report had been available for almost a week and yet she attributes no part of the reason for her epiphany to Dr L’s report. When further pressed about her communication with the father, she agreed that many of her messages to him relate to threats to call the police, to call the Department of Community Services or other welfare agencies and that many of her messages are critical of the father having a relationship with Ms H and are quite insulting of her.
Regrettably, the totality of the evidence about the mother’s communication with the father, particularly by text message, creates a picture of a vicious, destructive cycle. The father would not communicate with the mother because of her abusive style of communication, so the mother gets even more frustrated and angry, and becomes even more abusive and vitriolic in her text messages to him. There is no evidence before the Court that the father adopted a similar style of communication with the mother. I draw the inference that if there was evidence about this, it would have been produced to the Court. It might even have been put to the father in cross-examination that he was likewise abusive. There was none of this evidence. This reflects very poorly on the mother in terms of her attitudes towards parenting, her capacity to support the father’s relationship with the children, and indeed it raises serious issues about the toxic environment that exists in the mother’s home.
f)It became rapidly clear from the mother’s evidence in cross-examination that her views about the father’s partner, Ms H, have been as poisonous as her views about the father. She agreed that it was only on the first day of the hearing that, with the assistance of her barrister, she became aware of the need to get professional help to deal with these issues. Nonetheless, she remains firmly of the view that the father’s partner practices black magic on the children and deliberately feeds them poisonous food in order to make them sick. She agreed that the basis of her beliefs was what other people tell her. Indeed, at page 13 of the transcript of the mother’s cross-examination, Counsel for the father said to her:
So you are listening to the community at large, gossip on the town, about what other people might believe of Ms H?
The mother responded: “Yes.” The mother denied that she had told either [X] or [Y] of her concerns in relation to black magic, but this is inconsistent with the text messages the mother sent to father about this issue, on 26 September 2010. The message in question was:
I told [X] to pray because she got black magic witch affect the kids.
The mother’s explanation in cross-examination was that she did tell [X] to pray but it had nothing to do with black magic. I do not accept the mother’s explanation in this regard. The text message is self-explanatory. Her irrational belief in this regard is consistent with many of the other irrational and exaggerated views that she holds about the father and Ms H. The mother clearly believes that Ms H is an evil person and a bad mother. Again the attitudes of the mother apparent from this evidence raise serious concerns about the issues to which I have already made reference above.
g)The mother was cross-examined about her views and response to the orders and reasons for judgment of Kelly FM. She explained that she “had to come to terms with that” (page 20 transcript). She acknowledged that Kelly FM did not believe her allegations about the father’s criminal activity and neglect of the children. The mother explained that “I let that go.” She agrees, however, that she was upset by the outcome of the case and she also agreed that her behaviour and attitude towards the father had become more intense since then (transcript page 20). This evidence is significant because it goes to the issue of whether the Court can have any confidence in the mother’s capacity to change and to react in any form of positive way to the outcome of these proceedings, whichever way it goes. The evidence does not give rise to any confidence in this regard.
h)The mother agreed in cross-examination that the father had attempted to be conciliatory towards her both in his actions at times, and in his communication with her. To use the words put to her in cross-examination, she agreed that he had extended “an olive branch” towards her. The specific example given was when he provided her with a birthday present namely a watch with the assistance of the children. She agreed, however, that she rejected it on the basis that she was convinced that he had bought it with drug money. When asked about the message that the children received when they saw her, in effect, throwing the present out on the front lawn, she could simply not articulate the impact of this on them. Indeed, she agreed that she has done this as regards toys and presents that the father has given to the children, i.e., she has sent them back.
i)There was further searching cross-examination of the mother about her understanding of the need to change, and her capacity to change her behaviour and attitudes. At page 25 of the transcript, the following exchange occurs:
Now, there’s no likelihood, is there, Ms Lovell, that moving forward in the foreseeable future, you’re going to change any aspect of your attitude towards Mr Doolan as a parent, is there?
---There will be big changes for us, yes.
I’m talking about for you?
---For me, yes.
You’re not going to change the way you deal with Mr Doolan are you?
---No, from me, I’m moving forward already.
In what why are you moving forward?
---I’m having a great time with my children at the moment.
I’m talking about the way you deal with Mr Doolan. You’re not going to change the way you deal – you behave towards him, are you?
---No.
Then at page 26, the following exchange occurs in cross-examination:
So your attitude is not going to change. You’re going to focus on your relationship with the children, is that right, moving forward?
---That’s right.
Now, if your attitude towards Mr Doolan is not going to change, it’s going to continue to send a very poor message to your children, isn’t it?
---I’d like to get change, that’s what I said from beginning.
Yes, but you just said a moment ago that your attitude towards
Mr Doolan as a parent is not going to change?---No. The way he handled the children, no.
And your attitude towards [Z] and your views of [Z] are not likely to change either are they?
---I haven’t seen [Z] for a very long time.
Right, but you still told Dr L that you saw [Z] as being a liar and a thief?
---That’s right.
There’s not a positive thing, there’s not one single positive thing you can say about Mr Doolan, is there?
---Not at this stage.
And yet, you say to the court that if you leave the children – that if his Honour leaves the children living with you on a primary basis; in other words, they spend more time with you than they do with Mr Doolan, you’re going to ensure that they continue to have a positive relationship with him?
---I’m encouraged nearly every day.
Right, regardless of your ill feeling towards him?
---That’s right.
So, are you now sending a message to your children that regardless of how bad your father is, it’s still appropriate that you see him?
---That’s right.
Why?
---He’s still your father.
Then at page 27, the following exchange occurs: -
…like I said, your Honour, I’d love to change this view about
Mr Doolan and I and I don’t want us to behave like this ever again for the children’s sake.I’m going to suggest to you, Ms Lovell, that you are not able to change your view. You can’t. You just don’t know how to change your view of Mr Doolan, do you?
---It’s hard because after I saw what happened in [X]’s school lunch was a rotten fruit, two bags of rotten food. It makes me upset when I keep reminding him, please check the bag before [X] is going to school. She’s going to school with the rotten food.
I’m going to suggest to you that as recent as 13 February, two days ago, the day before yesterday at 6.23 pm, you sent a message to Mr Doolan telling him that you were going to take [Y] off to welfare and the police?
---Yes, with the bump. He came home with a bump, your Honour.
Again, in hearing the mother’s evidence about her own capacity to change her attitudes, I had expressly considered the possibility that the mother might have misunderstood the question and that, therefore, I was misunderstanding her response. However, the three passages from her cross-examination above clearly demonstrate to me that, on the most generous interpretation of the evidence, the mother does not know whether she has a capacity to change and, perhaps on a more objective interpretation of the evidence, the mother herself concedes that she does not have the capacity to change. Again, it is revealing that on 13 February, the evening before the commencement of this hearing, she was so convinced that the father was either neglecting or facilitating the abuse of [Y] that she threatened to take the child to welfare and the police, all over a bump that he came home with. Again, the totality of the evidence leaves the Court with little or no confidence about the mother’s ability to change.
k)The mother’s cross-examination clearly demonstrated her propensity to grossly exaggerate and overreact to the perceived problems that the children have, particularly on returning from contact. She agreed that in December 2008, the day before Kelly FM delivered her reasons for judgment and made orders, she had taken the children to Dr C because of an ant bite on [Y]’s face. She agreed that the swelling has gone down but, amongst other things, she asked Dr C for the children to have blood tests for STDs. She said she did this because she believed the father was involved in a brothel. She could see no problems about ordering the children to have blood tests for sexually transmitted diseases even though, at that time, [Y] was 15 months old and [X] five years old. She also agreed that she exaggerated her allegation to Dr L that the father had abducted [Y].
l)In cross-examination, the mother was given a clear opportunity to demonstrate either that she had insight in relation to her parenting of the children, or had developed insight as a result of the evidence that she had heard. She was specifically asked at page 33 of the transcript:
What do you believe that you do wrong when it comes to parenting the children?
Her response was:
I do not believe I am doing anything wrong at this moment.
Regrettably, the totality of the mother’s evidence merely amplifies the concerns expressed about her by Dr L, rather than provides any reassurance.
The Evidence in the Father’s Case
The father, and his partner, both provided Affidavits and were cross-examined in the proceedings. The submissions made by Ms Snelling about the evidence of the father and his partner are borne out in part by the evidence. Thus, for example, the father and his partner do not appear to have identical views about the future of their respective households and how they will be melded together. I am not entirely sure how the father makes a regular living, and my impression is that from a financial perspective, he is largely dependent on Ms H when he is not working. Whilst the father has clearly given thought to the challenges associated with establishing a blended household, perhaps he has minimised the same. Nonetheless, it must be acknowledged that the children, the father’s daughter [Z], and Ms H’s other children, have already spent not considerable time together pursuant to the orders made by Kelly FM. Whilst it will be a more challenging scenario to have a family melded together on a more permanent as well as more frequent basis, I think the real issue in the case is whether the father has the capacity or has the willingness and the capacity to do so, and the extent to which he will be supported by Ms H.
I have no concerns about his capacity to provide for the physical needs of the children and indeed I did not understand the cross-examination about the sources of his income to really suggest that he lacked a capacity to provide for them. It is hard to imagine how, for example, the financial circumstances of the children in the father’s household would be significantly worse to those in the mother’s household.
The father seemed to understand the potential impacts of his proposal on [Y] but was perhaps minimising some of the challenges that both [Y], and the father will face if he comes to live with him on a permanent basis. In this regard, however, [X] and [Z] are stabilising factors based on the positive observations noted by Dr L.
One of the issues that concerns the Court is the reason for the father’s late change in proposal. It is clear that his proposal was formulated before the availability of Dr L’s report, so it could not be described as a proposal that was formulated opportunistically. Moreover, I am satisfied with the father’s evidence that he is not prioritising his relationship with Ms H, over his relationship with the children.
Ms H was cross-examined. I found her to be an impressive witness who seemed to have a realistic understanding of the challenges associated with constructing a blended household.
Section 60CC Considerations
The evidence leads me to be satisfied that both of the proposals would cross the threshold of providing the children with the benefit of a meaningful relationship with each parent. That is not the real issue in this case.
The evidence satisfies me that there is, indeed, the need to protect the children from psychological harm in the mother’s household. This is clearly not family violence for the purposes of section 60CC(2)(b), but the mother’s conduct on the evidence before me is, in my opinion, clearly abusive of the children, and certainly neglects to meet their emotional needs. Regrettably, there exists in the mother’s household a poisonous, toxic environment so far as the father is concerned. I am convinced that the mother cannot help herself in this regard. She has such a negative view about the father, his daughter [Z], his partner Ms H, and even her children, that she cannot help but convey in her household her intensely negative feelings about them. As the evidence indicates, this has enormous potential to undermine the children’s relationship with their father and, indeed, there is already evidence that the mother’s coaching of [X] has resulted in elements of that undermining taking place. Experience indicates that the potential longer term impacts on [Y] and [X] being left in such a poisonous environment involves not just the loss of their relationship with their father, but broader repercussions in their psychological wellbeing. The children’s need to be protected in this regard is, in my opinion, no different from a household where they are actively exposed to physical or psychological risks arising out of abuse, neglect or family violence.
I find that there is absolutely no evidence of the need to protect the children from any sort of harm in the father’s household. None of the mother’s allegations have ever been supported, let alone proved by the evidence. That the mother maintains her subjective, almost obsessive beliefs about the father’s engagement in criminal activities despite the absence of any objective evidence, and even though her Counsel consciously chose not to examine the father about these matters, does suggest a psychological deficit on her part.
I find that this is not a case where I should place any weight on any views that have been expressed by the children. [Y] is far too young. [X] has clearly been exposed to the undermining influence of her mother and hence anything that she is reported to have said by her mother in particular is plainly unreliable.
I find that the children have good relationships, and are solidly attached, with both parents despite the undermining influence of the mother, so far as their relationship with the father is concerned. The real risk in this case is that if the children are not shielded from this undermining influence, their relationship with the father will be undermined. It is also apparent that the two children have a good relationship with their stepsister, [Z]. Their relationship with Ms H’s children is less clear, but I have to reason to doubt what both the father and Ms H say about the relationship between their respective children.
I have no doubts about the father’s willingness and ability to facilitate and encourage a close and continuing relationship between the children and their mother. There is simply no evidence before me that would indicate to the contrary. Regrettably, there is a very significant body of evidence that suggests the mother is singularly incapable of facilitating and encouraging the children’s relationship with their father. It is the mother’s own evidence that condemns her in this regard. She does not trust the father. She has repeatedly indicated that she does not see a role for the father in the children’s lives. Her actions, and words, over an extended period of time provide clear evidence of this. The mother says that she can change her attitude and her actions, but I have no confidence whatsoever that this will be the case. She has had ample opportunity to change if she wanted to. She has already been through one hearing where many of the issues raised in this case were already raised and judicially considered. Most other parents would have learnt the lessons from the previous litigation. Most other parents would have behaved differently to avoid a repeat. Regrettably, the mother is unlike most parents in this regard. Based on the evidence before me, I have no doubt that if I were to leave the children in the mother’s primary care, they would, in time, lose their relationship with their father.
If I make the orders proposed by the father, they will, in effect, be a reversal of the existing parenting arrangements, and I am left in no doubt that this will be a significant change in the children’s circumstances in terms of a separation from their mother. This level of drastic change is not lightly implemented. In weighing up the relevant considerations in many other cases, it is the likely effect of change which is often counter-indicative of making substantial changes in children’s lives. In this case, however, one must seriously address the risk to the children in an emotional and psychological sense of being left in the poisonous environment of the mother’s household. I am satisfied that the father will do the best he can to support [Y] in particular through what I am sure would be a difficult period of adjustment. I believe that [X] will cope more than [Y] will, but even she will have some adjustment difficulties. A greater presence of [Z] in their lives will be a stabilising factor.
I am satisfied that the father has the emotional resilience and a commitment to handle these changes as sensitively as he can. In any event, the father’s proposal provides for the children to spend time with their mother every Thursday overnight to Friday, as well as each alternate weekend from Thursday morning to Monday morning. There will never be a period longer than a few days when the children will be away from their mother. She will have the opportunity to spend time with them during each of the school holidays.
I acknowledge that Dr L in cross-examination did raise the possibility of the children spending more time with their mother in the alternate week, ie, more than just overnight Thursday to Friday. I have carefully considered what Dr L says, but in the circumstances of the case decided not to adopt this recommendation. Indeed, my reasoning for not adopting this recommendation is based on some of the warnings that he clearly articulated that how the mother might cope with a decision that is adverse to what she perceives to be her interests. He suggested that the mother would be “extraordinarily distressed” and “would see this as a terrible event and would be wanting to undermine any stability the children might have with the father.” Indeed, he goes on to say that:
The fear that I have is that the mother is so intractably opposed to the father that she will continue to agitate and proceed a reduction in the contact the children have with their father.
It is these risks that, in my opinion, contraindicate the mother having more time. It just gives her even more opportunity to, in effect, live out her fantasies about the father in the presence of the children and continue to, either advertently or inadvertently, seek to poison their relationship with him. In the circumstances, I am satisfied that five nights out of 14 is sufficient time for them to be able to maintain their relationship with the mother whilst providing at least a minimal level of protection. The mother needs to clearly bear in mind that if her behaviour does not moderate, and if she continues to undermine the children’s relationship with their father after these orders are made, there is every possibility that the father will need to apply for the children’s time with the mother to be further moderated, if not suspended. Thus, overall, I am very conscious of the likely effect of the changes to the children’s lives inherent in the father’s proposal, but on balance, this consideration needs to be considered in light of the more serious other considerations to which reference is made in these reasons.
I find that there are no issues of practical difficulty and expense associated with contact in this case.
On the evidence before me, both of the parents have the capacity to provide the children’s physical needs. I am satisfied that the father will able to provide the children with a relatively stress-free home environment in which there will be plenty of interaction with other children and in which the father will be able to provide their emotional needs. I do not share the same confidence about the children in the mother’s care. She has demonstrated herself plainly inadequate in terms of protecting the children from the conflict that she has with the father, and which she persistently maintains with the father. She has very serious deficits in terms of the insight that she has about how her own actions adversely affect the children.
Whilst I do not think that cultural issues have any significant role in this case, the father is of a South American background, and the mother of Laotian background, I expect that the children will enjoy the direct and indirect benefits of the cultural heritage of both parents, lived out in the multicultural Australian society in which they live. I have no reason to suspect that either parent will seek to stifle or inhibit the children’s existing cultural connections
In the circumstances of this case, I find the father’s attitude towards the children and to the responsibilities of parenthood to be quite impressive. He has demonstrated a resilience that not many parents could demonstrate. He has tolerated sustained, high-level provocative and abusive communication from the mother, over an extended period of time. He has tolerated her multiple reports to the police, Department of Community Services and other welfare authorities. He has tolerated her poisonous invective directed towards him, his daughter, his partner, and her children. His patience and tolerance, particularly in the face of the barrages of abusive text messages is impressive. He freely concedes that he has, at times, told the mother to “fuck off”, and the circumstances of his admission indicates a level of insight as to the inappropriateness of even saying this. By contrast, by the mother’s actions, she demonstrates an irresponsible, immature and selfish attitude about the children which seems to be primarily focused on meeting her needs. To my observation, it does seem that the mother has many unresolved issues arising out of her relationship with the father, but she has been singularly unable to separate her issues and feelings about the father, from the father’s relationship with the children.
I am satisfied that there are no issues about family violence in this case.
I am satisfied that the father’s proposal is in fact the order that is least likely to lead to the institution of further proceedings in relation to the children. Indeed, if I were to make the orders sought by the mother, I am left with the lingering thought that the next round of contravention proceedings initiated by the father would not be long in coming.
Having regard to all of the evidence, and to the matters referred to above, orders need to be made in terms of that proposed by the father.
The existing orders provide for equal shared parental responsibility. The father does not seek to alter that. The mother seeks an order for sole parental responsibility, and by her actions again indicates a massive lack of insight on her part. I see no reason why the statutory presumption of equal shared parental responsibility should not apply. In particular, I have no concerns about the father failing to consult with the mother about major decisions in relation to the children.
The presumption of equal shared parental responsibility means that I need to consider equal time, or substantial and significant time. For the reasons that I have articulated above, I do not believe that equal time is either in the best interests of the children or reasonably practicable. For one thing, the level of conflict between the parents, primarily perpetrated by the mother, and the totally dysfunctional communication that exists between them, means that neither has a capacity to implement an equal time arrangement. In any event, the children need to spend less time with their mother, in order to shield them more effectively from her poisonous attitudes about the father.
In the circumstances of this case, the order proposed by the father is an order for substantial and significant time which, on balance, is reasonably practicable and is in the best interests of the children.
The New South Wales school holidays commence from the end of school on Friday, 8 April 2011. The children would be spending half their time with the father anyway. The intent of these orders is that the children move to their father’s home on a permanent basis as from the conclusion of those school holidays so that [X] may, if necessary, change school. It is by no means clear that a change of schools will be necessary for her, however.
The orders proposed by both parents were described by reference to amending the original orders made by Kelly FM. In the circumstances, it will be far clearer for the parents if I were to republish the orders incorporating the amendments proposed by the father so that all the current orders are contained in the one document.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 12 April 2011
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