Duncan and Duncan

FAMILY COURT OF AUSTRALIA

DUNCAN & DUNCAN

[2018] FamCA 18

FAMILY LAW – CHILDREN – Parenting orders – Best interests – parental responsibility – where the mother seeks the children live with her nine nights a fortnight – where the father seeks an equal shared care arrangement – where the Independent Children’s Lawyer supports the mother’s application – where the mother has a diagnosis of a major depressive disorder in partial remission – where it is the father’s case that the children may be at risk of psychological harm if the mother’s mental health deteriorates – where it is found that there is no need to protect the children from the mother – where the children want to spend more time with the mother – order that the children live with the mother nine nights per fortnight– order that the parties shall only engage or employ a carer for the children who has successfully undertaken a Working with Children Check – order that the father pay in full for the first five counselling sessions – order that following the first five counselling sessions the father pay two thirds of the cost and the mother pay one third.

Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 65DAA
Family Law Rules 2004 (Cth)

Evidence Act 1995 (Cth) s 140

APPLICANT:

Mr Duncan

RESPONDENT:

Ms Duncan

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

1858

2016

DATE DELIVERED:

19 January 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

25, 26 & 27 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr McFarlane
SOLICITOR FOR THE APPLICANT:	Melbourne Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Tulloch

SOLICITOR FOR THE RESPONDENT:

Blackwood Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Allan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Victoria

Orders

The children, B and C both born … 2008 (“the children”) live with the mother;
During school terms, the children spend time and communicate with the father as follows:
(a)     In week 1, from the conclusion of school (or 3.30pm) Thursday until the commencement of school (or 9 am) Monday, or the commencement of school (or 9am)Tuesday if Monday is a non-school day;
(b)     In week 2, from the conclusion of school (or 3.30pm) Thursday until the commencement of school (or 9 am) Friday; or
(c)     As otherwise agreed by the parties in writing.
The mother and the father continue to undertake therapeutic non-reportable counselling with Ms D in an effort to improve their parenting of the children and to improve their parental communication;
The mother and father attend upon Ms D on at least one occasion per month on dates and times as requested by Ms D and unless otherwise mutually agreed by the parents such counselling take place for a further two years;
The father shall meet the full costs of the first five consultations with Ms D and thereafter the father shall meet two thirds of the costs and the mother shall meet one third of the costs;
The parents shall provide Ms D with copies of the family report of Mr E dated 27 June 2016 and his supplementary family report dated 8 September 2017 and a copy of these orders.
The mother and the father shall only engage or employ a carer for the children who has successfully undertaken a ‘Working with Children Check’ in accordance with the Working with Children Act (2005) (Vic) and provide the other parent with proof of the issue of a working with children certificate as soon as possible

NOTATION

The father states for the foreseeable future he will maintain the current bedroom arrangements for the children and that it is his intention in the future to provide each child in his household with their own separate bedroom.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Duncan & Duncan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1858 of 2016

Mr Duncan

Applicant

And

Ms Duncan

Respondent

REASONS FOR JUDGMENT

The parents of nine year old twins C and B, bring competing applications for final parenting orders on limited issues. The children will be 10 years of age in early 2018.
The father changed his proposals during the trial. The father ultimately sought what he referred to as a “7/7” arrangement for the care of the children which included the children spending time with the parents on certain days in each fortnight during school terms. The mother, supported by the Independent Children’s Lawyer, sought a 9/5 night per fortnight arrangement in her favour during school terms.
The parenting arrangement during school terms sought by the father is as follows:
·In week one:
oMonday and Tuesday with the father;
oWednesday and Thursday with the mother;
oFriday, Saturday and Sunday with the father;
·In week two:
oMonday and Tuesday with the father (which would continue from the previous week);
oWednesday, Thursday, Friday, Saturday and Sunday with the mother.
This would provide for the children to have a block period of five nights with each parent and another block period of two nights.
The parties resolved many issues by agreement and final parenting orders were made at the beginning of the trial providing for equal shared parental responsibility for the children, travel arrangements, holiday time and special days, changeover, communication, high school attendance and non-denigration, amongst other orders.
An issue during the trial was whether the interim order should continue which provided that F, the son of the father’s partner, should not share a bedroom with the children. At the conclusion of evidence, before final submissions were made, counsel for the mother indicated that she was no longer pressing that such an order be made. The Independent Children’s Lawyer and the mother agreed with the father’s proposal that a notation be made in the orders providing that for the foreseeable future the father will maintain the current bedroom arrangements for the children and that it is his intention in the future to provide each child in his household with a separate bedroom.
The parties were married for approximately six years and separated when the children were four years old. After separation in September 2012, the children lived primarily in the care of the mother.
The children have been in the primary care of the father since July 2016 when the mother became psychologically unwell and left the children in his full-time care. Under interim orders made 8 November 2016, during school terms the children are currently living with each parent in a 9/5 night per fortnight arrangement in favour of the father.
The parents are also in dispute about the timing of when any person employed to care for the children should obtain a Working with Children Check under the State legislation.
The parties are in agreement that they should continue family therapy with Ms D, but are in dispute about whether the mother should contribute to those costs. The mother was contributing to one third of those costs pursuant to an interim order.
It is the father’s case that the family report makes no criticism of his parenting abilities and that the children have strong and developmentally important father son bonds with him. The father asserts that should the mother suffer a relapse in her mental health, there will be less impact on the children and fewer changes required in their day-to-day care if his proposals for orders are implemented. The father asserts that historically the mother has experienced episodes of poor mental health which include threats of self-harm and wanting to die. He asserts that the risk of a relapse for the mother poses a risk to the children.
It is the mother’s case supported by the Independent Children’s Lawyer that her mental health has improved, she has historically been the primary carer and is available to spend time with the children after school whilst the father relies on the services of a nanny, and that the children have expressed a wish to return to live with her and spend time with the father.
There were ultimately only three issues which remained to be determined at trial as follows:
(1)The number of days the children should spend time with each parent during school terms;
(2)Whether an order for any nanny or carer engaged by the parties should complete the requirements for a working with children check before or after the commencement of the employment; and
(3)Whether the father should be solely responsible for the payment of the continuing non-reportable family therapy.

The applications

On the first day of trial the father changed his proposal for the children to spend time with the mother during school terms. He proposed that the children spend equal time with each parent as follows:
·In week one from Monday after school until Wednesday after school with the father, and from Wednesday after school until Friday after school with the mother.
·For the weekend with the father from after school on Friday until after school on the following Wednesday.
·In week two with the mother from after school on Wednesday and for the weekend, until the following Monday (being week one) after school.
·In the event that the Court orders the father’s time with the children be for five nights per fortnight then from after school Thursday to after school on the following Tuesday in each fortnight.
The father also proposed the following orders:
·That the parents continue to attend for family therapy with Ms D and the Applicant father shall meet two thirds of the costs and the Respondent mother shall meet one third of the costs; or in the alternative that the Applicant father shall meet the full costs of the first five consultations with Ms D.
·Either party shall only engage or employ a carer for the children who is eligible to work with children pursuant to the Working with Children Act 2005 (Vic). An alternative form of drafting was also pressed in final submissions as follows:
·If either parent or their agents organises an au pair or nanny to care for the children of either of them:
othat parent shall within 5 days of such person commencing work for that party, cause an application for a working with children check in respect to that au pair or nanny to be submitted; and
oprovide the other parent with proof of submission of such application; and
oprovide to the other parent within seven days of receipt, proof of the issue of a working with children card in respect of the au pair or nanny so engaged.[1]
[1] The father’s proposed minute of order.
The mother and Independent Children’s Lawyer jointly proposed the following orders:
·The children live with the mother.
·During school terms, the children will spend time and communicate with the father as follows:
oIn week 1, from the conclusion of school (or 3.30 pm) Thursday until the start of school (or 9 am) Monday, or the start of school (or 9 am) Tuesday if Monday is a non-school day.
oIn week 2, from the conclusion of school (or 3.30pm) Thursday to the start of school (or 9 am) Friday.
oAs otherwise agreed by the parties in writing.[2]
·The mother and father continue to undertake therapeutic nonreportable counselling with Ms D in an effort to improve their parenting of the children and to improve their parental communication.
·The mother and father attend upon Ms D on at least one occasion per month on dates and times as requested by Ms D and unless otherwise mutually agreed by the mother and father, such counselling take place for a further two years or at an earlier date if Ms D forms the view that counselling should conclude earlier.
·The father shall meet Ms D’s professional costs in full save that if the mother fails to attend without reasonable excuse the mother shall pay any cancellation cost payable to Ms D.
·The mother and father shall provide Ms D with copies of Mr E’s Family Report dated 27 June 2016, supplementary Family Report dated 8 September 2017 and a copy of these orders.
·The parents shall only engage or employ a carer for the children who has successfully undertaken a working with children check in accordance with the Working with Children Act (2005) Victoria.[3]
[2] The mother's proposed minute of order.
[3] The Independent Children's Lawyer's proposed minute of order.

Background

I am satisfied on the balance of probabilities of the following background facts.
The parties married in 2006 and separated under the one roof in June 2012. On the mother’s evidence, the parties ceased living together in September 2012. The parties divorced on 1 May 2015 and both parties have re-partnered. The mother’s husband, Mr G, has one child living overseas and the father’s partner has one child, F, who is six months younger than the twins and who lives with the father and his partner.
After separation, the parties utilised parenting plans with some success and had a cooperative post separation parenting arrangement. However this ultimately broke down and the father initiated proceedings on 4 March 2016 filing a Notice of Risk stating that the children are at risk of psychological harm in the care of the mother.
Interim parenting orders were made by a Registrar by consent on 13 April 2016 which provided for the children to live with the mother and spend time with the father each alternate weekend from Friday to Monday and each alternate Thursday from after school until 7:30 pm.
In the context of the litigation and the mother becoming mentally unwell, the mother left the children in the full-time care of the father in July 2016.
The children have been living with the father for nine days per fortnight and spending time with the mother for five days per fortnight since July 2016 when interim parenting orders were made by consent.
As a result of interim orders made by Senior Registrar FitzGibbon on 3 August 2016, the parties attended for reportable family therapy with Ms D and the children lived with the father and spent substantial and significant time with the mother. The children spent time with the mother subject to her new partner or other agreed person being in substantial attendance.
Consent orders were made by Senior Registrar FitzGibbon on 8 November 2016 amongst other things implementing the 9/5 arrangement in favour of the father. The children were no longer restricted to spending time with the mother with another person in substantial attendance.
The children and F were all attending the same school until term 3 of 2016 when the twins changed schools. The children now attend H School. The mother is available to take the children to and from school and the father has employed a nanny to undertake this responsibility and to take them to extra- curricular activities. The father and his partner also take the children to and from school when their work commitments allow.
The mother has been attending consultant psychiatrist Dr J as a patient since 7 September 2015 when he diagnosed her with Major Depressive Disorder in partial remission. The mother has also been treated by a psychologist Ms K whose evidence was not challenged.

Evidence

The documents relied upon by each party are listed in Annexure A. Each of the parties and the following witnesses were cross-examined during the trial:
· The mother’s psychiatrist Dr J; and
· Family consultant Mr E

Standard of Proof

When determining what orders the Court should make, the relevant standard of proof is the balance of probabilities.[4] Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.
[4] Evidence Act 1995 (Cth) s 140.

Evidence of the father

In his trial affidavit, the father deposed to a series of events occurring from 11 July 2016 which ultimately resulted in the children remaining in his primary care. On 11 July 2016, the father deposed that he received an email from the mother attaching a letter, which read as follows:
[Mr Duncan],
Since you have obviously manipulated my lawyer into taking your side and managed to convince her to change the court order without telling me, I’m going to say that I give up.
You can have the boys full time. I will have them for the rest of the week and when you pick them up from school on Friday you are to keep them. I do not plan on picking them up from school next week or seeing them again.
I hope you are happy now. You got everything you wanted, your “perfect” little family with the children that so famously get along that they told [Mr E] that [F] abuses them. That they don’t want to spend extra time at your house but you choose to ignore that.
Don’t ever contact me again or I will take out an IVO on you.
[Ms Duncan]
The father deposed that he was due to collect the children from school as per existing orders on Friday 15 July 2016 and return them on Monday morning to school. At 9.07am on Friday 15 July 2016 the father deposed that he received a message from Mr G, the mother’s husband, indicating that he should collect the boys at a car park.
The father deposed that when he arrived in the afternoon he walked from that car park towards the school, and saw Mr G by his car dropping off boxes containing children’s toys. He saw that the boys were in the mother’s car dressed in tracksuits and thongs rather than their school uniforms. The father deposed that he had a “brief discussion” with Mr G and the mother and that Mr G indicated to the father that it was “a tough time for them and all communication should go through him”.[5] The father deposed that he asked when they would be back and the mother said that she had told him in emails, but gave no direct answer. The father deposed that he took this to mean the email sent on 11 July 2016 as outlined above.
[5] Father’s trial affidavit filed 28 July 2017, par 64.
The father deposed that he took the children home with him and that they were distraught as they had been told by their mother that she was not coming back and had not been told by the mother where she was going.
The father deposed that the children were distressed over the weekend, with the child B crying for two hours before going to sleep. He deposed that the children received some text messages from the mother over the weekend but that she did not tell them where she was or if she was returning. The father deposed that although the children were distressed they “settled quickly as they were well used to spending time” with him.
The father deposed that he ensured that he was at school to collect the children on Monday 18 July 2016 and as the mother did not collect the children, he took them home with him.
The father deposed that he received no communication from the mother or Mr G from 15 July 2016 until the mother appeared on her own behalf in Court on 3 August 2016, which was the previously adjourned date. On 3 August 2016, orders were made for the children to live primarily with the father.
The father deposed in his trial affidavit that the mother sent abusive texts to him on a number of occasions between August 2015 and February 2016. The father deposed that many of these messages contained sexually explicit references to him, his wife Ms M and the mother’s own father, along with a suicide reference on 6 November 2015 where the mother stated “You make me want to kill myself. I hate you so much”. A selection of these messages were tendered and marked as Exhibit A.

The father deposed to the mother having made suicide threats on several occasions, including a prior incident at the mother’s house on Christmas Day 2012 where the mother had scalpel blades in her hand and was threatening to cut herself with them if the father took the children to visit the paternal grandparents which the father deposed had been arranged prior. The father deposed that the mother said that he was not to take the children, and that she would use the scalpel blades if he took the children. The father deposed to removing the children from the room, calming down the mother and persuading her to come to the home of the paternal grandparents along with the father and the children.
The father deposed that the mother has “a pattern of behaviour, including angry outbursts, suicide threats, and threats of and actual “dumping” the children” on him and believes that due to these past behaviours, there is an unacceptable risk that such incidents may happen again in the future.
Although his proposal changed during the trial, in his trial affidavit, the father deposed that he sought to retain the 9/5 arrangements in his favour as per the interim orders made on 8 November 2016 as the children are affected by transitioning from one home to another. The father further deposed that each past change has “undone” good routines for the children and has caused them to make further adjustments.
The father deposed at great length to the daily routines for the children while living with him in his trial affidavit. The father deposed that he has encouraged the children’s involvement in extracurricular activities and they participate in the following activities:
· “Scratch club” on Tuesday nights, which is a programming and coding club;
· Language study on Saturday mornings.
The father further deposed that he has also enrolled the children in an after school maths extension course on Wednesday afternoons.
The father deposed that the children’s extracurricular activities are “particularly disrupted” and that on the mother’s proposal, a day that is split between the two parents on a fortnightly basis “becomes difficult to manage especially when the time and location may be difficult for the other parent”. The father further deposed that he has found that “the children tend to associate an activity with one parent and are reluctant to do that activity with the other parent”.

Cross-examination of the father

The father was cross-examined about the mother’s concerns outlined in her trial affidavit where she lists incidents which have occurred between F and the children. The father maintained that he had not witnessed those events and that he had a “healthy scepticism” about any reports made by nine-year-olds about something that another child had done to them. He was prepared to concede that the episode at school on 3 August 2015, where F had pushed B off a chair and caused B to bump his head on some shelving leaving him with a large lump on his head, had occurred and that he had been so concerned that he took the child to the doctor.
The father maintained that the children were not bullied at home and that he did not tolerate any violence at home. When asked if he thought the issue between the children was a big deal, he responded that whatever he did the mother would not be happy unless he divorced his partner or his partner moved out. He stated that he was concerned about what the children had reported to the family consultant about him not doing what the teachers do with F because it didn’t match what happens at home.
When asked about what active steps he had taken to intervene as recommended by the family consultant in the first report, he maintained that he was taking active steps and that he subsequently spoke with his cousin who is a child psychologist about the “1 to 3 magic approach” to discipline. He stated that he also spoke to the family therapist Ms D.
When the father was cross-examined about maintaining a separate bedroom for F, he maintained that such an order would be too inflexible if he proposed to move residence or renovate in the future. He agreed that his current residence comprised a five bedroom penthouse and that ideally he planned for each child to eventually have their own bedroom. When asked whether the separate bedroom had assisted in improving the relationship between F and the twins he reiterated that his intention is to give all three boys a separate bedroom.
The father conceded that the mother had not undertaken any work outside the home between 2008 and 2012 when the mother’s income tax returns were produced, and that her primary role had been the care of the children with whom she had a close bond. He also conceded that the mother had not worked outside the home since separation in 2012. This concession was made after his initial response to the question whether the mother predominantly cared for the children from birth, which was “by a small margin”. In response to questions about the children’s comments about the mother to the family consultant that it was easier to talk to her and that she listens a bit more, the father stated that the children “know how to push mum’s buttons” and that this meant the mother was more compliant.
During cross examination, the father conceded that the children had told the report writer in the second report that they wanted a lot more time with the mother and stated that “I came back with 7/7” as an updated arrangement in line with the children’s views referring to the father’s final proposal for parenting orders outlined earlier.
The father stated that this proposal effectively meant that the arrangement would be 2/2/5/5 with four changeovers in a two week period.
The father stated that he proposed this arrangement because he believed that a simple week about arrangements required “too much cooperation”, and instead believed that having fixed days in a fortnight (the father having Monday and Tuesday every week) required less cooperation.
The father stated that the emotional upheaval was drastic when the mother changed the residency of the children, and that he had proposed this new “7/7” arrangement to counter this, because he believed the level of change was not as substantial.
The father maintained that the main conflict in an equal time arrangement would be the extracurricular activities in which the children are involved each afternoon after school. The father stated that anything that happens “on a Tuesday night” for example requires agreement, which is why he seeks to have the children for the same nights each week with his “7/7” arrangement to minimise conflict over these activities, stating during cross examination:
…anything that is a reoccurring event on a weekday, be it her work or the boys extra-curricular activities or the boys activities at school even, for example they are dong piano lessons during the school day, then requires both parents to agree on something so there is a piece of conflict there.
When questioned by counsel for the Independent Children’s Lawyer as to whether the father’s proposal created more conflict than a week about arrangement due to the additional two changeovers, the father stated that a changeover was a “different type of problem”, and that he wanted more changeovers and less block time.
When asked about an arrangement of 6/8 by the counsel for the Independent Children’s Lawyer, the father stated that 6 nights is not “immediately attractive” due to conflict the boys experience with a one night stay and then changeover. This seemed to be in direct contrast with his earlier evidence regarding the desirability for more changeovers to facilitate his “7/7” arrangement.
During re-examination, the father again confirmed that changeovers had been “testing” and it was his goal to minimise the conflict that the children experience. The father stated that in his “7/7” arrangement, while there were two extra changeovers, this left two changeover days and five non changeover days.
The father conceded however that the second conflict and “pragmatic difficulty” is “more about days of the week when one week they are at one parent’s house and the other week the other parent’s house”. The father stated that this was a bit about organising help from a nanny, as in the event of a 7/7 arrangement he will seek help from a nanny, but in a 5/9 arrangement he does not need that help. The father stated that he wanted to organise help “every Monday… instead of every second Monday”.
In response to questions about the advantages of the mother being available to take the children to and from school, the father stated that he thought that this would prevent the mother from undertaking more work which would not be good for her mental health. The father said that he prefers to “spend time with the boys when I can spend it with the boys” instead of doing things like dropping them to school, which he said is why he makes arrangements for au pairs to drive them around. The father said that due to his work he needs to “budget” his time and arrange when he can spend “involved” time with the children.
The father raised technical difficulties with the Working with Children Check application process. He acknowledged that it was appropriate for any of the carers he engaged to obtain a certificate but pointed to the difficulties in the delay which might arise in the application process as being the reason why he proposed that the certificate be provided after the carer was engaged.
The father conceded in cross-examination that there were numerous adjustments required when his partner and F moved in to live with him. He gave evidence of a short conversation he had to prepare the children where he told them that he loved Ms M and that she and F would be moving in. The children were about seven years old at the time and had shared one bedroom since they were born. He stated that at about the same time the au pair also moved into the home and moved into the children’s bedroom and that the children moved into a larger bedroom with F. He agreed that F had previously been an only child and had his own bedroom.
The father was not prepared to concede that he made any significant changes around the discipline arrangements at home after reading the first family report where the children had expressed their wishes for the father to grapple with the conflict between them and F.
In cross-examination the father confirmed that he believed that the complaints of the children about F in May/June 2016 were overstated. Although stating that he did alter some things as a result of reading the first report of the family consultant, the father maintained that all the time he was well and truly aware of the allegations made by the mother and had been putting boundaries in place including discipline and rewards and having ongoing discussions every month with the children.
The father when cross-examined by the Independent Children’s Lawyer conceded that the mother’s mental health was not the trigger for him initiating the proceedings and that he was comfortable with the children being in the care of the mother for seven days in an equal shared care arrangement. The father confirmed that his Initiating Application sought a 6/8 arrangement in favour of the mother and that his real concern was about predictability and routine for the children.
The father conceded that B had experienced problems with bedwetting approximately 2 years ago which had continued until recent times but that he was now predominantly dry after a specialist had been consulted and bedwetting alarm had been used. When asked about the last time that B wet the bed he stated that it was three or four weeks ago.
The father reluctantly conceded that when the children had told the family consultant in the first report that they wanted to spend more time with the mother that the children were spending about four nights per fortnight with him. This was in reference to B telling the family consultant that he would like to see dad “about the same as now”.[6]
[6] Family Report prepared by Mr E dated 27 June 2016, par 6.6.
The father conceded that the children had spent a lot of time in his care over the last 14 months and yet that they had told the family consultant in the supplementary report that they wanted to spend more time with the mother.
When cross examined about the cost of family therapy with Ms D, the father stated that he wanted the mother to have “skin in the game” so she invested in the sessions instead of just “talking and talking and talking and not getting anywhere” which he maintained was an issue in the past. The father stated that he wanted the mother to “act efficiently” so that there is an incentive for her to be productive. The father stated that he did not want to “provide a blank cheque” for therapy, even as a goodwill gesture.
The father conceded that his tax return indicated an income of $350,000 – $400,000 annually. He stated that he was paying $300 as a two third share for the sessions of family therapy. When put to him that the payment of $7,200 over two years for the family therapy would not be a lot of “skin in the game” in his situation, he responded that his income would be “negative” in the future.
In re-examination he explained that he is running a “start-up business” and that he will lose $500,000 and will have to “eat into” his assets. He stated that his income tax will “show something like $350,000 per annum”.

Evidence of the mother

The mother deposed in her trial affidavit filed 11 August 2016 to the reasons behind her decision for the children to live with the father in July 2016. The mother deposed that her mental health had significantly deteriorated over the previous 6-12 months as a result of the family law dispute and the ongoing litigation.
The mother deposed that she became unable to cope with the litigation and thought at the time that “giving” the boys to the father was the best decision for her mental health, and would end the conflict between her and the father which had been a cause of distress for the children.
The mother further deposed that with the benefit of hindsight and improved mental health, it is obvious to her that she was not thinking clearly at that time and is deeply regretful of the decision she made to place the children in the ongoing care of the father and the distress that action caused the children.
The mother deposed to difficulties in the 12 months leading up to the decision to change the living arrangements of the children. The mother deposed to having been diagnosed with postnatal depression in 2008, and having continued to suffer depression since that time, suffering low mood, low self-esteem and sensitivity to acute emotional stress. The mother deposed to feeling threatened and bullied by the father saying that he would use her depression against her in court proceedings.
The mother deposed to two occasions since separation that she reacted to acute emotional distress by alluding to suicide, such times being the Christmas Day incident in 2012 and a further incident on 14 and 15 August 2015.
During this incident, on 15 August 2015, the father deposed that the mother sent him a series of text messages stating the following:
Pls [sic] keep the boys next week… Tell them mummy loved them… Hope you are happy now… Well now you can have them forever… I told you keep the boys… You want me dead well you are about to get your wish[7]
[7] Father’s trial affidavit filed 28 July 2017, par 50.
The father deposed that the mother attempted to contact him four times by telephone over the space of a few minutes which he could not answer as he was driving. The father deposed that he was concerned for the mother’s wellbeing and contacted the police to have her assessed.
The mother deposed that the children were not present during either incident.
The mother deposed that she has suffered from depression throughout her relationship with the father, and has suffered suicidal ideation but has not self-harmed or acted in any way on her negative thoughts. The mother deposed that during the relationship and after separation, the father left the boys in her primary care and did not take any steps to indicate he considered the boys were at risk in her care.
The mother deposed that she was the primary carer of the children from the time they were born until they were eight and a half years old. She deposed that the children frequently tell her that they miss her and miss living with her, and are delighted to get home with her and excitable and energetic when they see Mr G, and do not misbehave when they return to her care.

Cross-examination of the mother

The cross-examination of the mother by counsel for the father continued the theme of the father that the mother had abandoned the children by leaving them with the father in July 2016. Despite the fact that the father maintained that the children were not at risk in the care of the mother for an equal shared care arrangement, the mother was cross-examined extensively about her physical and mental health suggesting that it was likely that she would suffer a relapse of her depression in the future.
This was entirely at odds with the father’s proposal that the parents share equally in the care of the children and the father’s approach had the same punitive quality which became apparent in his attitude towards the mother throughout his cross-examination. This cross-examination extended to counsel for the father posing questions to the mother about her response to surgery which she had for her hip when she was aged 14 and the fact that her gait had been affected by the surgery.
The mother was cross-examined about threats that she had made to harm herself at Christmas 2012 and August 2015 when she sent a series of text messages to the father and he called the police. The mother was not prepared to concede that the children had witnessed the 2012 incident and maintained that the children were upstairs at the time playing with their toys which they had received on Christmas morning. She maintained that the children did not come downstairs.
The mother of was cross-examined by counsel for the father about a series of selected text messages sent to the father by the mother between June 2015 and March 2016. (Exhibit A) The mother conceded that many of her text messages were inappropriate, contained swear words and demeaning terms referring to F and the father’s partner Ms M. She apologised for those emails and maintained that the tone of the emails was in response to the father’s verbal abuse of her in telephone conversations and in person. She did not concede that the tone of her text messages to the father constituted bullying by her.
The mother also conceded that she made a statement to police on 22 October 2016 as a result of her complaint that the father had breached an interim intervention order which she obtained in his absence on 10 October 2016. Exhibit C comprised a copy of the mother’s application for an intervention order and the interim intervention order made 10 October 2016 which named the mother and the children as affected persons and noted that there was no family law order applicable. In addition, Exhibit C comprised a photograph and the statement made to police by the mother on 22 October 2016 about three text messages sent by the father to C whilst the children were in her care. The interim intervention order has the usual exception for family law orders.

Evidence of consultant psychiatrist Dr J

In a report dated 7 April 2016, Dr J noted that the mother continued to attend his private practice as an outpatient approximately monthly and that her diagnosis remained that of major depressive disorder currently in partial remission. He noted that the mother was undergoing psychotherapy and prescribed antidepressant medication.
He noted that he was aware that in July 2016 the mother had withdrawn from legal proceedings concerning her seeking “custody” of her children. He noted that he saw the mother regularly around that time including eleven days before and four days after the court appearance in question. He recorded that the mother:
…was reporting increased frustration and distress with the legal process and more particularly with what she saw as her former partner’s use of the process in a deliberately vexatious manner. This led to her feeling hopeless and experiencing fear that if the situation were to continue at that level, she would not be able to cope. In the weeks after withdrawing she was able to step back, take a two week break with her current partner and reconsider her position, ultimately deciding to re-contest the custody

Further in his report he provided the following opinion:
During this period, [the mother] was able to discuss the situation appropriately and show insight about her own emotional state. I did not see at any stage, her develop an actual relapse of Major Depressive Disorder, with reduced capacity for logical thinking or abnormal behaviour. I would characterise it as a period of situational crisis, where she was certainly at risk of proceeding to relapse of medical illness but was able to avert that outcome.
He concluded that since the period in mid-2016, the mother has maintained a stable psychological state, “even showing some degree of further improvement”. He noted that the mother is prone to “flat” mood at times without any impairment of functioning (or safety concerns), consistent with major depressive disorder being largely in remission. He noted that she had been prescribed an antidepressant but had ceased the use of medication in February 2017 “in preparation for attempting to get pregnant”.
In a later report dated 3 August 2017, Dr J reported that the mother has continued to attend to see him averaging approximately monthly, and that he had no reason to believe she has ever failed to comply with prescribed medication. He reported that since the period in mid-2016, the mother has maintained a stable psychological state, even showing some degree of further improvement, having returned to work and married her current partner.
Dr J noted that the mother acknowledges on two occasions she told the father she wanted to die but that she had no intent to commit self-harm and no planning or actual steps taken in that direction.
Dr J reported that he had not directly observed the mother’s interactions with her children however he “can say that her reports to me about what she does with them when they are in her custody and her general understanding of their needs remain appropriate and consistent”. Dr J further noted that he had never been in the position to observe any behaviour of the father nor received any reports from third parties and so was not expressing any agreement with the mother’s concerns in that area.
Dr J concluded that he had “no reason to recommend that the mother is unable to provide a safe and appropriate environment for her children when they are in her care”.

Cross-examination of Dr J

During cross-examination, Dr J confirmed that he sees the mother once a month and that the mother has a diagnosis of a major depressive disorder in partial remission. Dr J predicted that the mother would suffer from depressed moods throughout most of adult life, and that she would most likely remain in a low grade chronic state at a level that would “impair enjoyment but not impair adult life”.
Dr J was of the opinion that the mother had experienced “an acute episode as a result of ongoing conflict and distress” and that this can be part of the symptoms of major depression, but can also be symptoms of a crisis. Dr J stated that there can often be a cause of major depressive disorder that is recurrent and variable, and that major episodes may be separated by years with a lower grade depressive state in between, with some periods of remission.
Counsel for the father questioned Dr J during cross-examination about whether a depressive episode could be triggered by a psycho-social stressor, to which Dr J responded that this varied between patients, with some individuals having specific psycho-social triggers and others developing relapses without any specific trigger.
When pressed by counsel for the father as to whether a stressor could be chronic pain or the stress of parenting, Dr J conceded that chronic pain would be a potential significant trigger, however noted that the mother has had chronic hip pain throughout her life and has had care of her children throughout her life and has not had relapses of major depression on a frequent basis. Dr J stated that he did not think that these were “acute” issues and that the mother’s past patterns do not include those issues having easily triggered major depression. Dr J noted that repeated episodes have not been caused by those issues thus far and they are therefore not likely to cause repeated episodes.
Dr J stated that he had “understood the fight and conflict was a stressor more than the children themselves” regarding the mother’s episode of major depression. He further stated that “any changes in parenting arrangements are not one or the other” in that any “change in any direction has demands” and a psychological impact on the parties. He stated that it was not as black and white as changing arrangements to facilitate or prevent any potential issues with the mother’s mental health.

Evidence of the family consultant, Mr E

Mr E prepared an initial family report dated 27 June 2016 (“first family report”). Mr E is a psychologist registered in Victoria since 1988, who holds a Bachelor of Arts with Honours in Psychology, a Bachelor of Laws and is a member of the Australian Psychological Society. His expertise was not challenged.
At the time of the initial report the parenting arrangements were that the children lived with the mother and spent time with the father each alternate weekend from Friday to Monday, and each alternate Thursday from after school until 7.30pm, with the father permitted to telephone the children at 7.00pm each Tuesday night.
In his first report, Mr E concluded that the children have primary attachments to their mother and also strong and developmentally important father-son bonds with their father. He reported that both children told him consistently on the three occasions he met with them that they would prefer to live with their mother and go visit or stay with their father.[8]
[8] Family Report prepared by Mr E dated 27 June 2016, par 8.3
Mr E stated in the first report that the children’s relationship with their parents and their views and wishes should be reflected in arrangements for their care, and recommended equal shared parental responsibility, the children to live with the mother and to spend substantial and significant time with their father. Mr E reported that an appropriate recommendation for a final parenting arrangement to achieve this would be for the children to stay with their father from after school Thursday until after school Monday fortnightly; and from after school Thursday until after commencement of school Friday in the alternate week.
Mr E prepared an updated supplementary family report dated 8 September 2017 (“the supplementary report”).
In this supplementary report, he confirmed that the children have their primary attachment with their mother and also strong and developmentally important father-son bonds with the father.
He noted in the supplementary report that the children were more settled in their new blended family with the father, however they continued to report some problems there and in their interactions with their nanny. Mr E reported that he had a clear sense that these comments served mainly to reinforce their expressed wishes to have more time in their mother’s care.
Mr E reported that the children’s wishes were expressed clearly and consistently and for age appropriate reasons, and that he had no sense that they represented any sort of balancing or alignment.
In his first family report, Mr E reported both children having clear views that were consistent during all three visits. He reported that B told him that he wanted to “stay with Mum…And I’d like to go to see my Dad about the same as now”.[9] He stated his reason for wanting this arrangement was due to the “problem with F…He hurts me…He pushed me off the chair… And he gets us into trouble by telling us funny things to make us laugh when we’re supposed to be going to sleep”.[10]
[9] Family Report prepared by Mr E dated 27 June 2016, par 6.6.
[10] Ibid, par 6.7.
During a later meeting, Mr E reported in the first report that B further told him that “it’s not all the time…It’s just sometimes when we go…He picks on me the most…It’s worse at school, but the teachers do something.”[11] When Mr E told B that the father had said the problems had improved, B stated “It’s better but only a really little bit…Dad should do something like the teachers do…it should be no-one hits anyone”.[12]
[11] Ibid, par 6.8.
[12] Ibid, par 6.8.
During his first conversation with C, Mr E reported in the first report that he found it a little more difficult to engage with him, however he still maintained strong views. Mr E reported that C told him that he wanted the arrangements “Like it is now…or maybe don’t see Dad so much”.[13] He reported that C told him that “F…he hurts us…both of us…Dad should tell him off…but he doesn’t really do much…he just says: ‘You boys stop’ and that”.[14]
[13] Ibid, par 7.1.
[14] Ibid, par 7.1.
At the time of the second report the parenting arrangements were those made by the Senior Registrar on 8 November 2016. They were that the children live primarily with the father and spend time with the mother from Thursday to Monday each alternate week and from Thursday to Friday in the other week.
In the supplementary family report Mr E reported that when asked if he would like the current arrangements to stay the same, B was animated in telling him “No, I don’t want it to stay like it is… I want more with Mum… I want a lot more with my Mum… That’s what I want, not like it is”.[15] He further reported that his reasons were that:
Well, [Ms N] is a bit mean… And she picks us up… And I am still having some fights with [F]… Not fights really, more like he makes fun of me”[16]
…
“At my Mum’s place, I get more of an option about what to do… Like about when I have to do things, and about dinner”[17]
…
“And I suppose I miss her a fair bit too”[18]
[15] Family Report prepared by Mr E dated 8 September 2017, par 6.3.
[16] Ibid, par 6.4.
[17] Ibid, par 6.5.
[18] Ibid, par 6.6.
Mr E reported that on speaking with the child C, the child began his conversation with him very purposely, telling him that he had:
…thought about it a fair bit…and I want to change it back… I want it to be mainly with Mum and go to see Dad sometimes… I want lots more time with Mum, not just a little bit.[19]
[19] Ibid, par 7.1.
When C was asked for his reasons as to why he felt that way, Mr E stated that C responded that it was “…just easier to talk to Mum…she listens a bit more!”.[20]
[20] Ibid, par 7.2.
Regarding the mother’s mental health, Mr E stated in his supplementary family report that all the medical and psychiatric information available to him about the mother suggested she had recovered substantially from her episode of major depression that she suffered in mid-2016. He noted that her treating practitioners could see no impediment to her ability to exercise effective parenting.
Mr E noted in the supplementary family report that the mother’s decision in July 2016 to leave the children in their father’s care, and the father’s preparedness to step into the breach are, was emblematic of both parents’ willingness and ability to put their children’s needs first and was an appropriate and child focused response to the situation.
Mr E concluded in his supplementary family report by recommending that the parenting arrangements he had previously recommended be adopted, with the children to live with their mother and spend time with their father from after school Thursday until after school Monday fortnightly and from after school Thursday until after school Friday in the alternate week.

Cross-examination of the family consultant

In cross-examination by the Independent Children’s Lawyer, the family consultant was clear that the main basis of his recommendation in the supplementary family report was the wishes of the children and that the boys both expressed that they wanted to spend more time with the mother with whom they had a primary attachment. He emphasised that they had matured quite a lot by the time of the supplementary family report and were significantly more mature.
In cross-examination by the mother, the family consultant agreed that the wishes of the children went beyond a desire and included their emotional state. He agreed that the primary attachment for the children was with the mother and that this was reported in the first family report and also applied at the time of the supplementary family report. When asked about the father’s “7/7” proposal he agreed that it did not provide for more time with the mother and agreed that it was not in accordance with the wishes of the children.
The family consultant stated that he felt that the 9/5 arrangement is a very good one, in that it blocks a major component of time, reduces changeovers to a minimum, gives each parent some weekday time and ensures the children are only away from the other parent for short periods. The family consultant stated that a further benefit is that the 9/5 arrangement is predictable and easily explained as a routine for the children.
Regarding the question of whether the mother had influenced the children’s views, Mr E stated in cross-examination:
In the sense that one or other parent had overwhelmed what the children want to the extent that they couldn’t tell me what they wanted – I had no sense of that.
When questioned about his interviews with the children, Mr E stated that during interviews, the children were very comfortable to express their feelings and opinions, and these were stronger in favour of having more time with the mother. Mr E stated that he felt this was for reasons “relating to their emotional life” and was very satisfied that these views were not influenced by the mother either by explicit intervention or extraneous factors like subconscious balancing or feeling the need to take sides. Mr E stated that the children showed a “greater affective bond with their mum” and that this was why he made the recommendations in his report. He stated that he believed the two boys “form their primary attachments with their mother”.
Mr E further stated that the boys had “relative maturity for their age” and were “autonomous little units”, and because of this there could be an adverse impact in not doing what is in accordance with their wishes. He stated that in the event orders were made that were not in accordance with their wishes, damage could be caused to their relationships.
When questioned on the father’s proposal of “7/7” time, Mr E stated that with that arrangement, some of the strongest advantages of shared or “half” time are lost if the arrangement is not week about. Mr E said that the strongest advantage of a shared time arrangement is that it is not as disruptive to children, however the parties need to be able to communicate, cooperate and be flexible to make it work, “otherwise the kids become the meat in the sandwich”.
Mr E further stated:
The real problem.. is that it is not just geographical space that the children traverse…you are asking them to traverse an emotional space…if there is too radical a difference… it can be really pragmatic things … young kids who can’t take a third party perspective, they favour one household over the other”.
Mr E concluded his evidence by commenting on the suggestion put to him by counsel for the father that the potential for the mother experiencing another major depressive episode was a reason for the children to spend more days with father. He responded that he did not “see how that is addressed remotely by the number of days…I can’t see how tweaking the number of days one or other parent has with the kids addresses that problem”. He stated “we don’t stop people who have mental health problems from loving or caring for their kids”.

Evidence of psychologist Ms K

The mother filed two reports of her psychologist, Ms K dated 23 March 2016 and 2 August 2017. The father did not seek to cross-examine the psychologist and accordingly this evidence was unchallenged.
In Ms K’s first report, she reported that the mother initially presented to her when she was referred in 2009 due to post-natal depression, and that the mother has continued to experience depression since. Ms K reported that although the mother has experienced suicidal ideation at times, she expressed strongly her intention to never act out these thoughts, due to her strong feelings of love for her children and the impact these actions would have on them.
In Ms K’s second report, she reported that in July 2016 the mother had been experiencing severe depression; however since January 2017 the mother has experienced an elevation of mood and less depression, and has been assessed on the Beck Depression Scale on 20 June 2017 with a score of 9.5 (minimal depression). Ms K reported that the mother’s mood has lifted particularly since her marriage in 2017 and her involvement in employment. She reported that the mother has developed greater self-awareness, is able to calm herself better when distressed and has become significantly more confident about herself as a parent.
Ms K reported that she had seen the mother with the children briefly on two occasions, and the caring she showed at those times reflects the love and caring she has expressed repeatedly when talking about them in her counselling sessions.
Ms K reported that there had been numerous discussions between her and the mother in which the mother has initiated discussion about parenting in counselling sessions, to ensure she is handling the children’s behaviours in the best way possible. She reported that these discussions reflected a mother who wants to protect and “do the right thing” for her boys. Ms K reported that she believed the mother has been mindful of protecting them from much of her own emotional turmoil, and stated that the mother tells her she has tried diligently to keep them removed from the conflict.

Findings

I accept the evidence of the mother concerning her mental health and the unchallenged evidence of her psychologist, Ms K who provided two reports dated 23 March 2016 and 2 August 2017. I accept Ms K’s evidence that in July 2016 the mother was experiencing severe depression for which she obtained treatment. I accept the evidence of Ms K that she has been treating the mother fortnightly and weekly according to need. I accept her evidence that the mother proposes to continue to consult her regularly but less frequently than fortnightly if her condition continues to improve.
I accept Ms K’s evidence that since January 2017 the mother has experienced “an elevation of mood and less depression. She was assessed on the Beck Depression Scale on 20. 6. 17 with a score of 9.5 (minimal depression).”[21] I accept the evidence of Ms K that the mother’s mood has lifted and that particularly since her marriage in 2017 and her involvement in employment. I accept her evidence that the mother has developed greater self-awareness, is able to calm herself better when distressed and has become significantly more confident about herself as a parent. I accept the evidence of the psychologist that the mother’s mood has been more stable than in the past.
[21] Affidavit of Ms K filed 11 August 2017, Annexure AG5.
I accept the evidence of Ms K in her first report dated 23 March 2016, that she has not witnessed in conversation, or had concerns of any risks to the children when in the care of the mother.
I accept the evidence of the psychiatrist, Dr J as outlined earlier that since the period in mid-2016, the mother has maintained a stable psychological state even showing some degree of further improvement and that he had “no reason to recommend that the mother is unable to provide a safe and appropriate environment for her children when they are in her care”. I accept his diagnosis of the mother as having a major depressive disorder in partial remission. I accept the evidence of Dr J that the mother’s chronic hip pain throughout her life has not been a trigger for major depression. I accept his evidence that relapses have not been caused by those issues thus far and they are therefore not likely to cause repeated episodes.

In closing submissions, counsel for the father conceded that it was clear from the family consultant’s evidence that the children want to spend extra time with the mother. I accept the evidence of the family consultant about the children’s views as outlined previously when he interviewed them on several occasions including at home between June 2016 and September 2017. The children clearly want to spend more time with the mother. I accept his evidence about their level of maturity having progressed and that they were relatively mature for their age. I accept his evidence that at the time of both family reports when he interviewed the children that there was no evidence of the children being overwhelmed by either parent at all in their views.
I accept his expert opinion in terms of his recommendations outlined earlier. I accept his expert evidence that he tested the views of the children and that the reasons they seek further time with the mother is related to their “emotional life”. The family consultant was firmly of the view that the father’s proposal for the children to spend equal time with each parent was not in the best interests of the children for various reasons, but particularly because the father’s proposal did not take into account the desire of the children to spend more time with the mother and in fact by failing to take into account their views the father’s proposal might be detrimental in the long-term.
The reality here is that the mother is available to collect the children from school having regard to her part-time employment commitments whilst the father generally relies upon nannies whom he employs because of his work commitments. The children have also indicated that they would prefer to spend time with the mother than with the nanny.
I accept the evidence of the family consultant about what the children have told him about their relationship with F improving to some extent. I accept that the father will attend to these issues and the parties have agreed to a notation regarding the bedrooms because it is not practical to include in parenting orders stipulations about bedrooms in these circumstances.
The father’s proposals here are for equal shared care of the children during school terms, whilst the mother and the Independent Children’s Lawyer propose a 9/5 night per fortnight parenting arrangement in favour of the mother during school terms. On those proposals neither party can sustain any argument that the children are at risk of family violence in the care of the other parent. Both parents have re-partnered and are in stable relationships with their new partners.
I find that the children will benefit from both parties participating in ongoing family therapy with Ms D. I find on the evidence of the father that he anticipates a reduction in his income but his tax return revealed an income of approximately $350,000 – $400,000 per annum. The mother’s income is approximately $20,000 per annum and she has savings of $70,000.

The Relevant Law

These proceedings are brought under Part VII of the Act. In making any parenting order, the child’s best interests are the paramount consideration mandated under s 60CA of the Act.
What orders are in the best interests of the child must be determined in a way that is consistent with the objects and the underlying principles set out in s 60B of the Act.

Determining the child’s best interests

Section 60CC of the Act sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in the child’s best interests.

Section 60CC(2) Primary Considerations

The primary considerations are:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the primary considerations greater weight must be given to the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.[22]
[22] Family Law Act 1975 (Cth) s 60CC(2A).
The father’s case is that the children may be at risk of psychological harm if the mother’s mental health deteriorates. On the evidence of consultant psychiatrist Dr J and all the evidence in the trial I am not satisfied that there is a need to protect the children from the mother. The father’s own case incorporates the proposal for equal shared care of the children during school terms. The father does not assert that the mother is a risk to the children generally.

Section 60CC(3) Additional Considerations

The additional considerations are listed in section 60CC(3) of the Act. I have taken into account only those considerations which are relevant to the facts and circumstances of this case.

Section 60CC(3)(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

Although the children are only nine years of age, they are turning ten in early 2018, and their views are deserving of some weight and particularly in circumstances where they have expressed concerns about being bullied by another child who is a member of the father’s household. The children have consistently raised the issue of conflict in their relationship with F. The children have expressed this concern to the family consultant when the first family report was prepared and also the supplementary family report. There have been incidents reported at school when the children attended the same school as F.
The children have also expressed to the family consultant a wish to spend more time with the mother and to live in her house. The children also have expressed a preference to spend time with the mother rather than with the nanny employed by the father.
The family consultant in his supplementary family report emphasised that the children have matured quite a lot since the earlier report and were significantly more mature. He also emphasised in cross-examination that it was important to take into account their views because it must be considered that the impact of parents failing to act on the children’s wishes could do damage to their relationship.

Section 60CC(3)(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)

There is no issue that the children have a close and loving relationship with both parents and this was supported by the evidence of the family consultant.

Section 60CC(3)(c): the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child

There is no evidence that the parents have failed to take the opportunity to participate in making decisions about major long-term issues in relation to the children or to communicate and spend time with them.

Section 60CC(3)(ca): the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

There was no evidence to suggest that either of the parents have failed to fulfil their obligations to maintain the children.

Section 60CC(3)(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

On the evidence of the family consultant the children would prefer the proposals of the mother and Independent Children’s Lawyer. I accept the evidence of the mother’s psychiatrist Dr J and the family consultant and the unchallenged evidence of psychologist Ms K. There was no evidence that the children would suffer any adverse effect upon a change in the parenting arrangements and the family consultant emphasised that the mother was the primary attachment figure for the children.

Section 60CC(3)(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

There were no particular submissions directed towards this consideration and there was no evidence of any practical difficulty or expense with either party’s proposals.

Section 60CC(3)(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

On all the evidence both parents have the capacity to provide for the needs of the children including emotional and intellectual needs and the evidence of the family consultant was that both parents are child focused.

Section 60CC(3)(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;

The increased maturity of the children on the evidence of the family consultant is significant in terms of their views but the evidence of the family consultant was that the wishes of the children went beyond a desire and included their emotional state. There were no other factors concerning the lifestyle culture and traditions of the children which are relevant for the additional considerations under s 60CC(3)(g) of the Act.

Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

As a result of the decline in the mother’s mental health, the father has taken primary responsibility for the children at a difficult time in July 2016. He has been a responsible parent. The mother has also been a responsible parent in recognising her limitations when she believed that her mental health was in jeopardy.

Section 60CC(3)(j): any family violence involving the child or a member of the child's family;

Historically both parties have made allegations that family violence has been directed by the other parent towards them. These issues were not particularly addressed in the submissions of the parties because the proposals of each party provide for the children to spend either equal time or substantial and significant time with the other during school term.
Historically there have been a number of incidents between F and the children where they have been in conflict and the children allege that F has bullied them. An issue of concern for the children is their relationship with F. When the children attended the same school there were incidents at school which involved B receiving a bump on his head when F pulled a chair away from him .
The relationship between the children improved when the children changed schools and interim orders were made for the children to have a separate bedroom from F after 8 November 2016.
Whilst difficulties adjusting to living as a blended family are not uncommon, the family report writer stated that the difficulties between the children and their stepbrother need to be taken seriously and addressed directly by the father while the three boys are in the care of the father and his partner.[23]
[23] Family Report prepared by Mr E dated 29 June 2016, par 8.7.1
Whilst the issues between the children and their stepbrother have reduced in frequency and severity since they no longer attend the same school and the children do not share a bedroom with F, the children continue to report issues between them and F.
However I am satisfied on all the evidence that the father is aware of these issues between the children and F and will take steps to address this. The parties agreed to the Notation in the orders referred to earlier and the mother did not press her application for an order to be made regarding the children having a separate bedroom from F for practical and sensible reasons.

Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter

On 20 May 2016 the father and his new partner each applied for an intervention order against the mother and both applications were resolved without any findings being made. The father listed both children as affected family members on his application.[24] The matter was settled by the mother providing a 12 month undertaking on 17 June 2016. This undertaking included for her to stay at least five metres away from F.[25] The undertaking expired on 16 June 2017.
[24] Mother’s trial affidavit filed 11 August 2017, par 73.
[25] Father’s trial affidavit filed 28 July 2017, par 75.
On 10 October 2016 the mother made an application for an intervention order against the father, a copy of which is annexed to her trial affidavit filed 11 August 2017 and marked as Annexure KD7. The mother also listed the children as affected family members in the order. The mother ultimately withdrew that application in March 2017 after an interim order had been made in the absence of the father.[26] The mother asserted that the interim order provided her with some respite. The father had not been served with the mother’s application when the interim order was made and her evidence before the Magistrate was no doubt untested. I do not draw any inferences from the fact that an interim intervention order was made in these circumstances.
[26] Ibid, par 82.
The relevance of the undertaking given by the mother and the interim intervention order obtained by the mother in the absence of the father recede into the background in circumstances where both parties no longer assert that the children are at risk in the care of the other parent.

Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant;

It is encouraging here that the parents have agreed to a number of final parenting orders including equal shared parental responsibility for the children, school holidays and special days. This demonstrates an additional improvement in the post separation parenting relationship since July 2016 which has no doubt been assisted by the family therapy.

Equal time and substantial and significant time

As outlined earlier the parties agreed to final parenting orders providing for equal shared parental responsibility for the children. Under s 65DAA(1) of the Act if a parenting order provides that a child’s parents are to have equal shared parental responsibility, 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.
Section 65DAA(2) provides:
(2)Subject to subsection (6), 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;
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.
Whether the children should spend equal time with each parent is at the heart of the dispute here. However I place considerable weight on all the evidence of the family consultant which satisfies me that equal time would not be in the best interests of the children for the reasons he outlined which were largely based on the views of the children over a considerable period of time during which they have matured. I also accept the evidence of the family consultant that the children’s primary attachment figure is the mother. I therefore consider it is in the best interests of the children to spend substantial and significant time with the father and live with the mother.

Conclusion

I am satisfied for all the reasons outlined earlier having regard to my findings that it is in the best interests of the children to make parenting orders in accordance with the proposals of the mother and the Independent Children’s Lawyer with the exception of the issue about the payment for the costs of family therapy.
There was no issue that the parties should continue to have family therapy with D but regarding the payment for that therapy I accept that the mother has the capacity to make some contribution. The father has a significantly higher income than the mother. However I accept his evidence that his income is likely to be reduced in the future. Accordingly I propose to make an order that the father shall meet the full costs of the first five consultations and thereafter the father shall meet two thirds of the costs and the mother shall meet one third of the costs.
I find that it is in the best interests of the children that should either party employ or engage a nanny or permanent carer for the children that it is appropriate for the employee to have successfully undertaken a working with children check in accordance with the Working with Children Act2005 (Vic). This is for practical purposes to ensure that any person to be engaged in the long term care of the children has the appropriate qualifications before undertaking that employment.

I certify that the preceding one hundred and seventy-two (172) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 19 January 2018.

Associate:

Date: 19 January 2018

Annexure A

Documents relied upon by the applicant father:

Amended Initiating Application filed 25 May 2017;
Trial Affidavit of the Applicant filed 26 July 2017;
Responding Affidavit of the Applicant filed 17 August 2017.

Documents relied upon by the respondent mother:

Further Amended Response filed 9 June 2017;
Summary of Issues in Dispute filed 16 June 2017;
Affidavit of Ms Duncan filed 11 August 2017;
Affidavit of Ms K, psychologist filed 11 August 2017;
Affidavit of Dr L filed 11 August 2017;
Affidavit of Dr J filed 11 August 2017 and 22 September 2017;
Family Report prepared by L dated 27 June 2016;
Supplementary Family Report prepared by L dated 8 September 2017.

Documents relied upon by the Independent Children’s Lawyer:

Family Report prepared by L dated 27 June 2016;
Supplementary Family Report prepared by L dated 8 September 2017.

[2018] FamCA 18

19 January 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Costs

Intention

Remedies