Dyne & Dyne (No 3)
[2023] FedCFamC1F 1094
•18 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dyne & Dyne (No 3) [2023] FedCFamC1F 1094
File number(s): SYC 5928 of 2020 Judgment of: ALTOBELLI J Date of judgment: 18 December 2023 Catchwords: FAMILY LAW – PARENTING – Final – Where there is high conflict and no trust between the parents – Where the older children have lived with the father and the younger children have lived with the mother – Where the oldest child killed a pet and the Court finds both parents failed to adequately manage this issue – Both parents seek primary care of all four children – Where the expert and the Independent Children’s Lawyer propose equal time – The Court determines equal time is not in the best interests of the children nor reasonably practicable pursuant to s 65DAA of the Family Law Act 1975 (Cth) (“the Act”) – Where the ultimate conclusion about the children’s best interests is a “least worst” determination – It is ordered the children live with the father and spend significant and substantial time with the mother – Where an order for parenting coordination is sought pursuant to s 13C of the Act – Where the Court has made the order for parenting coordination after considering seeking the advice of a nominated family consultant pursuant to s 11E of the Act. Legislation: Family Law Act 1975 (Cth) ss 4, 4AB, 11E, 13C, 13D, 60B, 60CA, 60CC, 61DA, 64B, 65DAA Cases cited: Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Association of Family and Conciliation Courts “Guidelines for Parenting Coordination” (2005) 44(1) Family Court Review 164
Johnston, Janet et al, In the Name of the Child: A Developmental Approach to Understanding and Helping Children of Conflicted and Violent Divorce (Springer Publishing Company, 2nd edition, 2009)
Parker, Anna and Wilson, Mark, “Parenting Coordination: A New Option for High Conflict Families?” (2013) 23(3) Australian Family Lawyer 32
Division: Division 1 First Instance Number of paragraphs: 259 Date of last submission/s: 14 September 2023 Date of hearing: 6–9 March 2023; 13–14 September 2023 Place: Sydney Counsel for the Applicant: Ms Giacomo Solicitor for the Applicant: Parks Family Law Counsel for the Respondent: Ms Druitt Solicitor for the Respondent: Michael Jokovic & Associates Counsel for the Independent Children's Lawyer: Ms Ryan Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
SYC 5928 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DYNE
Applicant
AND: MR DYNE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
18 DECEMBER 2023
THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility for the children, W born 2009, X born 2011, Y born 2014 and Z born 2016 (“the children”).
2.Within 48 hours of these orders, the Applicant mother (“the mother”) is to do all acts and things necessary to cause the children, if not already in the father’s care, to commence living with the Respondent father (“the father”).
3.Conditional on the father engaging in therapy in accordance with these orders, the children live with the father.
4.Conditional on the mother engaging in therapy in accordance with these orders, the children spend time with the mother each alternate week from the conclusion of school on Wednesday until the commencement of school the following Monday.
5.For the purposes of the 2023 Christmas school holidays, the children are to spend time with the mother each alternate week from 3.00 pm on Wednesday (commencing 27 December 2023) until 9.00 am on the following Monday.
6.From the Term 1 2024 school holidays and thereafter, the children spend time with the parties during school holidays as follows:
(a)With the mother for the first half in even numbered years commencing on the last day of the children’s attendance of the school term or 3.00 pm and concluding at 5.00 pm on the closest mid Saturday point of the school holiday period, and in odd numbered years from 5.00 pm on the closest mid Saturday point of the school holiday period until before school or 9.00 am on the first day of the children’s attendance of the new school term; and
(b)With the father for the second half in even numbered years commencing at 5.00 pm on the closest mid Saturday point of the school holiday period and concluding before school or 9.00 am on the first day of the children’s attendance of the school term, and in odd numbered years commencing from after school or 3.00 pm on the last day of the children’s attendance of the school term and concluding at 5.00 pm on the closest mid Saturday point of the school holiday period.
7.The children spend time with the parents on special occasions as follows:
(a)With the mother on the weekend of Mother’s Day each year from 5.00 pm on Saturday until 10.00 am on Sunday;
(b)With the father on the weekend of Father’s Day each year from 5.00 pm on Saturday until 10.00 am on Sunday;
(c)With the father in 2023 and each alternate year thereafter from 12 noon on Christmas Eve until 12 noon on Boxing Day;
(d)With the mother in 2024 and each alternate year thereafter from 12 noon Christmas Eve until 12 noon on Boxing Day; and
(e)At any such other times as is mutually agreed between the parties.
8.For the purpose of changeover not occurring at school, the father shall deliver the children to the mother’s residence at the commencement of her time and the mother shall deliver the children to the father’s residence at the commencement of his time.
Therapy
9.In accordance with the recommendations of the Single Expert Report prepared by Dr H dated 31 March 2022 (“Dr H’s Report”), the father shall continue to engage Ms P of Q Psychology to work with the father to address the following:
(a)The recommendations for the father as set out in Dr H’s Report;
(b)Strategies to ensure that the children spend time with the mother in accordance with the orders;
(c)The impact of the children making their own decisions as to their care arrangements;
(d)Address the children’s concerns that the mother and/or her home is unsafe in a child focused way; and
(e)Appropriate communication with the mother.
10.In accordance with the recommendations of Dr H’s Report, the mother shall continue to engage a child psychologist, Dr R, to work with the mother to address the following:
(a)The recommendations for the mother as set out in Dr H’s Report;
(b)Ways to ensure that the children spend time with the father in accordance with these orders;
(c)The impact on the children making their own decision as to their care arrangements;
(d)Addressing the children’s concerns that the father and/or his home is unsafe in a child focused way; and
(e)Appropriate communication with the father.
11.Within 14 days of the date of these orders, the mother and the father shall each do all things necessary to appoint Ms S to provide therapy and support to X.
12.Within 14 days of the date of these orders, the mother and the father are to do all things necessary to cause their respective psychologists as nominated herein to each nominate one psychologist each for the purpose of providing therapy and support to W, Y and Z and the parties shall within a further seven days select one psychologist from the two nominated and in the event that the parties cannot agree then the Independent Children’s Lawyer shall make the nomination which shall be binding on the parties.
13.The parties have leave to and are ordered to provide a copy of Dr H’s Report to their, and the children’s, treating psychologists along with a copy of these reasons for judgment.
Parenting Coordinator
14.Within 14 days of the date of these orders, the parents shall do all things, sign all documents, and make such payments necessary to engage Dr T, or such other parenting co-ordinator as agreed (and failing agreement as nominated by the Independent Children’s Lawyer) (“the parenting coordinator”) from U Organisation and each parent shall be equally liable for the parenting coordinator’s costs.
Other
15.During school terms when the children are living with the other parent, for a period of 12 months following the date of these orders, the parties shall:
(a)Not communicate, or attempt to communicate with the children (except whilst they and either of the children are at a school function); and
(b)Block the children’s mobile phone numbers on their mobile phone so that they cannot receive calls or messages from the children.
16.Each parent shall be and is hereby restrained by injunction from physically disciplining, hitting or striking the children, or allowing, causing or permitting any third party from physically disciplining, hitting or striking the children.
17.Neither parent shall themselves denigrate, nor allow any third party to denigrate, the other parent, members of the other parent’s family in the presence or hearing of the children.
18.Each parent shall be and is hereby restrained from:
(a)Discussing these proceedings with the children or in their presence or hearing;
(b)Showing the children any documents relating to these proceedings;
(c)Questioning the children in relation to their views or preferences concerning their living arrangements or the time they spend with the other parent; and
(d)Encouraging the children to express particular views or preferences in relation to their living arrangements or the time they spend with the other parent.
19.The parents shall communicate via the Our Family Wizard application.
20.In the event of any of the children suffering a medical emergency requiring medical attention while living with either parent including hospitalisation:
(a)The other parent is to be notified as soon as practicable;
(b)The other parent is to be provided with the full details of the practitioner or medical facility upon which the child or children has attended as soon as practicable; and
(c)The medical practitioner or facility is to be advised that both parents have access to the child’s or children’s medical records and that information relating to the child is to be shared with the other parent upon request.
21.Each parent shall keep the other informed of the following:
(a)Any medication prescribed for any of the children and the administration of it;
(b)The name and address of any school, training and other education facility attended by the child and any change to those details; and
(c)Their residential address and contact details and notify the other of any change within 48 hours.
22.Each parent shall give all consents, sign all documents and do all thing necessary to ensure that the other parent can obtain the following from the children’s school at their own cost:
(a)A copy of all school reports, progress reports and photo order forms;
(b)Notification for activities that they may decide to attend, such activities being those that parents are ordinarily entitled to or invited by the school to attend;
(c)Notification of parent/teacher nights and the school is informed that it is the desire of both parents to attend such events; and
(d)In the event of any of the children being taken from school for an emergency, remedial or correctional treatment, that both parents be informed as soon as practicable.
23.From the date of these orders, each parent shall be at liberty to attend school events for the children, being special events that parents are ordinarily invited to attend, including but not limited to sports days, assemblies, and parades.
24.The property aspect of this matter is listed for case management hearing on 13 February 2024 at 9am.
Independent Children’s Lawyer
25.The Legal Aid Commission of NSW is requested to extend the appointment of the Independent Children’s Lawyer for a period of 12 months following the making of final orders and shall thereafter be discharged.
26.Within 48 hours of these orders, the Independent Children’s Lawyer is requested to meet with the children to explain the effect of these orders.
THE COURT NOTES THAT:
A.For the purposes of these orders, parenting coordination means:
A child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting orders by facilitating the resolution of their disputes in a timely manner, educating parents about children's needs, and making recommendations within the scope of the Court order or appointment contract.
B.The role of the parenting coordinator in this case includes, but is not limited to:
(a)Assisting the parents with the implementation and operation of the orders including consultation about decisions to be made in the exercise of equal shared parental responsibility;
(b)Educating each of the parents regarding the impact of parental conflict on the children’s development;
(c)Assisting the parents with negotiation and communication skills and anger management;
(d)Mediating parenting concerns that each parent has with an aim to reach a mutually agreed resolution in the children’s best interests;
(e)Making recommendations ancillary to the above; and
(f)Such other matters as the parents agree.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dyne & Dyne has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders that the Court has made in relation to the children, W aged 14, X aged 12, Y aged nine and Z aged seven (“the children”).
BACKGROUND AND PRELIMINARY FINDINGS
The mother is the applicant in this matter (“the mother”) and she is 44 years old. She is currently employed as a part-time educator. The father is the respondent in this matter (“the father”) and he is 46 years old. He was the Director of his own company though the company is now being liquidated. The parties commenced their relationship in 1998, were married in 2004 and separated on a final basis in April 2020. The father has re-partnered and is now in a relationship with Ms V who describes herself as an executive assistant. They are currently engaged and plan to marry in 2024. The mother seems to be in a new relationship with Mr AA who describes himself as working in transport. Neither of them seem willing to confirm this is a long-term relationship. However, it is clear Mr AA frequently spends nights at the mother’s home with the children.
Soon after separation in July 2020, the parties were able to agree on a parenting plan which saw the children living with the mother nine nights per fortnight and the father five nights per fortnight. Both parties allege the children did not want to live with the other parent so they were unsuccessful in implementing the parenting plan in the long term. The mother alleges that due to the father retaining the two older children, X and W (“the older children”), she filed an interim application. On 14 October 2021, interim orders were made by a Senior Judicial Registrar for the older children to live with the father and spend time with the mother for five nights per fortnight, and for Y and Z (“the younger children”) to live with the mother and spend time with the father for five nights per fortnight. On 23 June 2022, orders were made for the parties to commence family therapy. W refused to spend time with the mother in accordance with the interim orders in May 2022 and X refused to spend time with the mother in October 2022.
On Friday 17 February 2023, the father retained the younger children and the mother filed an urgent Application in a Proceeding seeking an ex parte recovery order and suspension of time with the father. For reasons that will be discussed further below, a recovery order was made by the on-call Judge on the Court’s After Hours Service on Saturday 18 February 2023 and the Australian Federal Police attended the father’s home to collect the younger children and return them to the mother that day.
On Monday 20 February 2023, the mother’s solicitor emailed chambers to press the remainder of her interim application in relation to the suspension of time with the father. The application was listed for interim hearing before the Senior Judicial Registrar on 24 February 2023 who made several restraints against the father from allowing the older children to facilitate the changeover of the younger children, being in the presence of the younger children when they are having video communication with the mother and attending upon medical appointments with the younger children. The Senior Judicial Registrar otherwise confirmed the interim orders made 14 October 2021 remained in full force and effect.
The matter was listed for final hearing for three days commencing 6 March 2023 (“the March hearing dates”). The parties were given an additional day but they were still unable to finish the evidence, so the matter went part-heard. On the last day of the March hearing dates, the parties submitted interim consent orders for the older children to spend time with the mother each Sunday for daytime only at a park. Further orders were made for the younger children to communicate with the father each Tuesday and Thursday night as well as spending time with him each alternate weekend.
The matter was listed for a further two days of final hearing on 13 and 14 September 2023 (“the September hearing dates”). In updating affidavits filed for the September hearing dates, both parties depose to the spend time with arrangements not being carried out in accordance with orders. The older children attend the visits with the mother on Sundays but leave early almost every time. The parties are in dispute as to the reason why. The father states it is because of the children’s lived experiences of abuse by the mother and the mother states it is because the father is not supportive of a relationship between her and the children.
It is clear the parties’ relationship was a tumultuous one. Both parties make allegations of family violence perpetrated by the other including emotional, financial and physical abuse and make many accusations about each other’s parenting capacity. However, there are a few key events in this family’s life that the parties refer to. The way in which the parents managed these events is of concern to the Court. The events are summarised below but will be discussed in more detail throughout these reasons for judgment:
(1)The mother sprayed disinfectant spray on X’s skin infection sore under his armpit;
(2)W killed the family’s pet with an object at the mother’s home;
(3)X identified as female for a period of over one year and now re-identifies as male;
(4)W has self-harmed and X has had suicidal ideations;
(5)Y has initial signs of a mental health disorder;
(6)Y has had bruises and carpet burn (which the father alleges is a result of the mother dragging Y cross the floor); and
(7)X and Z have had a skin infection and Z’s infection was so severe that she needed to be hospitalised for several days.
It is clear from the evidence of all parties that the high level of conflict, distrust, and lack of communication between the parents, especially in relation to the above key events, has had detrimental impacts on all the children’s mental health and wellbeing. The totality of the evidence enables the Court to conclude that both parties have no insight into how their behaviour negatively effects the children and blame each other for the children’s poor mental health, which only makes the children worse. The prognosis for the parental relationship, and for the parenting of these children, is very poor. There are no good options in this case and the Court will need to do the best it can in the circumstances.
THE EVIDENCE
In support of her case, the mother relies on the following documents:
(a)Sixth Amended Application for Final Orders filed 17 February 2023;
(b)Her affidavit filed 15 February 2023;
(c)Her affidavit filed 20 February 2023;
(d)Affidavit of Dr R filed 15 February 2023;
(e)Affidavit of Mr AA filed 28 February 2023;
(f)Case outline filed 27 February 2023;
(g)Her updating affidavit filed 8 September 2023;
(h)Updating affidavit of Mr AA filed 12 September 2023;
(i)Additional written submission regarding parenting coordinator received 22 September 2023; and
(j)Various documents tendered during the proceedings, marked as Exhibit A1–A20.
In support of his case, the father relies on the following documents:
(a)Fifth Amended Response to Initiating Application filed 6 February 2023;
(b)His affidavit filed 17 February 2023;
(c)Affidavit of Ms V filed 15 February 2023;
(d)Case outline filed 28 February 2023;
(e)His updating affidavit filed 8 September 2023;
(f)Updating affidavit of Ms V filed 8 September 2023;
(g)Updated Minute of Order received 14 September 2023;
(h)Aide Memoire regarding parenting coordinators received 21 September 2023; and
(i)Various documents tendered during the proceedings, marked as Exhibit R1–R17.
In support of their case, the Independent Children’s Lawyer relies on the following documents;
(a)Case outline filed 5 March 2023;
(b)Minute of Order received 14 September 2023;
(c)Written submission regarding parenting coordinators received 22 September 2023; and
(d)Various documents tendered during the proceedings, marked as Exhibits ICL1–ICL4.
THE PARTIES’ PROPOSALS WITH RESPECT TO TIME
The Court will set out the parties’ respective proposals in relation to live with and spend time with arrangements, as at closing submissions.
The mother’s proposal is set out as several different scenarios based on the Court’s findings:
(1)Her first proposal is in the event the Court finds that the father has alienated the children from the mother. In this case, she proposes that she have sole parental responsibility for all the children; the children live with her; and spend no time with the father for the first three months. Thereafter, the children are to spend time with the father each alternate weekend and half of the school holidays.
(2)If the Court does not make the finding in (1) above, the mother proposes that the parties have equal shared parental responsibility, the children live with her and spend time with the father each alternate weekend and half of the school holidays.
(3)If the Court finds that it is not in W’s best interests to live with the mother, she proposes the parties have equal shared parental responsibility, X, Y and Z live with the mother and W live with the father. She proposes that the children spend each alternate weekend and half of the school holidays with the non-primary parent such that all of the children spend each weekend and school holidays with each other.
(4)Finally, if the Court finds that it is not in W and X’s best interests to change residence, then she proposes that they remain living with the father and Y and Z remain living with her. She further proposes that the children spend each alternate weekend and half of school holidays with the non-primary parent such that all of the children spend each weekend and school holiday periods with each other.
On 14 September 2023, the mother also handed up a Minute of Order in the event the Court orders an equal time arrangement. In summary, she proposes that the younger children spend time with the father in a graduated regime and the older children spend time with her in a graduated regime until they reach equal time.
At the conclusion of the March hearing dates, the father proposed that he have sole parental responsibility for the children, the children live with him and spend time with the mother each alternate weekend on Sunday from 10.00 am to 4.00 pm. In his Minute of Order received 14 September 2023, he now proposes that the children spend time with the mother from 10.00 am on Saturday to 4.00 pm on Sunday each alternate weekend.
In her Minute of Order received 14 September 2023, the Independent Children’s Lawyer proposes the parents have equal shared parental responsibility and that the children live in an equal time arrangement with the parents. She proposes that the younger children immediately move into a week about arrangement and the older children begin living with the mother each alternate weekend and graduate into a week about arrangement. This is in line with the expert Dr H’s (“the Expert”) recommendations.
THE APPLICABLE LAW
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as “the Act”). In determining parenting matters under Part VII of the 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.
(Emphasis in original)
At the very core of Part VII of the Act 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.
(Emphasis in original)
If the presumption applies, the Court is 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)Subject to subsection (6), 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) 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.
(3)For the purposes of subsection (2), a child 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.
…
(Emphasis in original)
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court 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).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(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 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;
(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;
(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)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;
(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.
(Emphasis in original)
The definition of family violence is found in s 4AB of the Act, reproduced below:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n 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".
A little later in the judgment the High Court said:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
EXPERT EVIDENCE
The Expert has prepared a Single Expert Report on 31 March 2022 (“the Report”). The children were assessed on 9 February 2022 and the parents were interviewed on 9 February 2022 and 2 March 2022. Further, Ms BB prepared a Child Inclusive Assessment on 12 October 2021 (“Child Inclusive Assessment”). The parents and the children were interviewed on 29 September 2021.
The Report ultimately recommends that the children would benefit from being in an equal care arrangement with the parents, with changeovers occurring on Monday afternoons after school and for half of the school holidays. The Expert furthers that equal shared parental responsibility be confirmed as it would be psychologically beneficial to all parties, but most especially to the children (paragraph 115 of the Report).
MAJOR ISSUES TO BE DETERMINED
X’s gender identity
X expressed a wish to be identified by female pronouns and to wear female clothing in 2017. In 2018, the mother sent an email to friends and family announcing that X was transgender. X wore the girl’s school uniform for the part of 2018 and for part of 2019. At paragraph 111 of his trial affidavit, the father states X told him in 2020 that he is not transgender anymore and no longer identifies as a girl. The father then deposes to a conversation occurring in 2021 where X states that he does not mind which pronouns are used to describe him (paragraph 113 of his trial affidavit). Presently, X identifies as male and prefers the pronouns he/him.
The chronology shows that when X reverted to preferencing male pronouns, X did not advise the mother directly of his wishes, nor did the father. The father deposes that X asked him not to tell the mother because “she’ll get really, really angry and she will make [him] pay for even asking about it” (paragraph 111 of his trial affidavit). Instead, the mother was advised by W that “no, [X] is a boy now” and “that is what he wants” but X did not specifically tell her this at any point (paragraph 24 of the Report).
The Report states at paragraph 105 that “both parents appeared to do what they believed was best for their son at that time and with the knowledge and advice that they were given” even though “such a transition would have been something that neither parent had prior experience with”. The Court will find both parents had the best of intentions for X’s ongoing welfare.
In relation to the history of X’s gender identity, the father critiques the mother for mishandling this issue and causing emotional harm to X. His case is firstly that the mother unnecessarily accelerated changes upon X’s first disclosure in 2017 even though the father expressed a concern about “rushing” things (paragraph 46 of the Report). Further, he states that when his parents (“the paternal grandparents”) found it difficult to use the right pronouns, the mother refused to allow them to see the children and he did not see his parents for 18 months. Secondly, the father makes allegations that when X’s position on his gender changed back, the mother rigidly maintained female pronouns for X. In Exhibit A16, the father is recorded as telling NSW Police in early 2023 that “[X] was being coerced into pursuing a transgender agenda by the mother despite him refuting the idea”.
The Expert refers to the mother’s somewhat inflexible decision-making in relation to X’s gender identity turmoil as a reason for the significant decline in their relationship. Whilst both parties did the best they could, the mother lacked the requisite fluidity that would be expected when dealing with an eight-year-old child making lifelong decisions about his gender identity (paragraph 106 of the Report). The Court does not agree with the Expert’s assessment in this regard and as will be seen below, the father’s actions and attitudes were less than optimal.
The Expert details an example where the mother continued to use the pronouns she/her for X despite knowing that X was being referred to he/him again after being at the father’s home. The Expert states at paragraph 106 of the Report:
Noting that, it was evident that [Ms Dyne] has at times been somewhat inflexible in her decision-making regarding [X’s] gender identity turmoil…There is no indication that [Ms Dyne] has done this with the intent of causing harm, however it appears that she may have taken the advice of the sole professional with whom she consulted as the only possible outcome, rather than trusting her own judgement and also listening to the wants and needs of her child. The decision to remove the children’s paternal grandparents from their grandchildren’s lives due to their confusion surrounding the use of the correct pronouns for [X] is an example of this, as is her decision to continue to use she/her to refer to [X] whilst in her home, knowing that [X] was being referred to as he/him after the two-month extended period living in his father’s home. To steadfastly hold onto the feminine pronoun, shows a lack of flexibility and insight, which has led to the significant fracture in her relationship with [X] at the present time…
However, counsel for the mother submitted that the father is retrospectively viewing the history contrary to the facts. Exhibit A2 is an email exchange between the parents in 2018 after they attended on a gender counsellor called Ms CC. After receiving some literature about gender, the mother sends an email to the father stating “I don’t expect you to just to follow my lead on this, but I think it would be good if the two of you had some time for him to answer your gentle, respectful questions” to which the father responds “Of course I’ll talk to him…I’m trying to manage this process in a way that gives him plenty of freedom to explore who he is and give him the ability to rollback decisions too”. Exhibit A4 is an email from the mother to family and friends in relation to X’s gender transition that states “we don’t know what this means for him at this stage or whether this will be a permanent or short-lived expression of who he is”. When it was put to the father that the mother was echoing the father’s position in Exhibit A2 about having the option available for X to roll back, the father responded “I don’t think it’s quite the same thing” (Transcript 7 March 2023, p.160 line 24). Further, when it was put to the father that the mother is speaking to friends and family on behalf of herself and him, he responded “she is speaking on behalf of me, but it’s not necessarily my opinion” although soon after he conceded that the contents of the email were also his views at the time (Transcript 7 March 2023, p.161 line 12).
Exhibit A18 includes an email from the father to the mother in mid-2019 where he states “You have done an amazing job of handling this” in relation to X’s gender identity. Despite his allegations that the mother had “rushed” X’s gender transition, it is clear this was not his position as at mid-2019. The father conceded in cross-examination that in mid-2019 he thought the mother was doing an amazing job and he would not have been able to handle it as well as she did. The father was then asked whether he purposely did not tell the Expert about this as he wanted to leave an impression that the mother was pushing X to identify as female, and he denied this. In cross-examination, the Expert agreed that Exhibit A18 is inconsistent with the impression he received from the father (Transcript 13 September 2023, p.13 lines 8–20).
Further, in relation to the issue of the paternal grandparents, Exhibit A3 is an email from the father to the paternal grandparents stating “until you can confirm for me that you’ll address [X] as she/her/hers, then I’m not willing to subject her to that negativity and shaming…”. When the father was asked about this in cross-examination, he stated that the mother threatened him the marriage would be over if he did not “back her thoughts on [X]” which is why he sent this email to the paternal grandparents. However, Exhibit A3 is quite clear that it was the father, not the mother, who told the paternal grandparents that he would cut off contact with all of the children if they did not use correct pronouns. It is also clear from paragraph 106 of the Report copied above that the Expert believes it was the mother’s sole decision to remove the paternal grandparents from the children’s lives. In cross-examination, the Expert stated that if the Court finds the father was an active agent in the decision to remove contact with the paternal grandparents, but now he places sole blame on the mother, then he finds this “deeply troubling” (Transcript 13 September 2023, p.15 lines 33–39).
Exhibit A9 is subpoena material from Child and Adolescent Mental Health Services and includes interviews with X in early 2021 after he threatened self-harm and indicated he held suicidal ideations. The school subsequently made a mandatory report. In early 2021, X attended upon the interview with the mother. X (when interviewed alone) is recorded as saying that he “feels like both a boy and a girl and does not want to identify one way or the other”, is “open to either gender pronoun” and he is “not feeling pressured by either parent to identify a particular way”. This is consistent with paragraph 24 of the Report where the mother expresses her previous confusion regarding X’s gender as he wanted to be called they/them, then said he wanted to be he and her, then was told by W to refer to X as he, then X proceeded to come home and wear a girl’s outfit. The father also agreed that that is an accurate reflection of what X was feeling at that time. However, the father did not accept X’s statement that he did not feel pressured by either of his parents to identify a particular way. He also did not accept that X was telling the truth when he said that he denied feeling unsafe, scared or at risk of harm when residing with either parent (Transcript 8 March 2023, p.226 lines 27–43).
In early 2021, X attended on the interview with the father. Exhibit A9 continues to state that he “started to cry when it was acknowledged that his parents separated a few months ago”. The father is recorded as saying that he is concerned the mother is pushing X to wear the female school uniform, that he wants to have the children “as much as they want to spend with” him and that he has concerns about the level of care the mother provides the children including that they regularly have food poisoning and constipation. In cross-examination, he did not accept that he was using the opportunity with the clinical psychologist to complain about the mother’s parenting. He also states in Exhibit A9, “she’s petrified of being around me because I’ve outed her as a narcissist”. The clinical psychologist concludes that X is experiencing “suicidal ideation in the context of a family system in crisis…that [X] likely feels enmeshed in” and “[the father] was not open to considering that [X’s] predicament was due to parental conflict or that the children may feel split between the parents”. In cross-examination, the father seemed to concede that X’s predicament was due “in some part” to the parental conflict but refused to accept that it was the primary reason. Presumably, the father wishes to place primary blame on the mother’s “mis-gendering” for X’s suicidal ideations. The father is further recorded as disclosing to the clinical psychologist that he had swapped “controlling and overbearing parents” with a “strong controlling wife with narcissistic tendencies” and that the mother will struggle as a parent as the “children grow up and start to push back” as she is a “covert narcissist”. It is significant that in a mental health assessment being done of X as a result of his suicidal ideations, the father is taking it upon himself to make these unnecessary claims about the mother. Indeed, the Expert agreed with this.
In cross-examination, the Expert agreed that the father gave him the impression that the mother acted without listening to what X wanted. Counsel for the mother asked whether it is of real concern that the father is seeking to paint the mother in a bad light with such a significant issue surrounding X. The Expert agreed that is very concerning as it enables all blame to be attributed externally, “glory or correctness or rightness to be owned wholly” by the father and, the net result of him being able to put forward a really vindicated stance. The Expert furthered that it is not only concerning for X to be influenced by the father’s “vindicated stance” but also W who is standing by and seeing his younger brother distressed and hearing the father blame the mother for it. Further, the Expert stated the fact that the father did not tell the mother when X reverted to preferring male pronouns and left it up to W, further entrenched W’s parentified role (Transcript 13 September 2023, p.16 lines 22–28).
The Court finds that the mother was doing the best she could in the circumstances. The father did not tell her X identified as male. X did not tell her he identified as male. The mother cannot and should not be criticised in the manner the father describes her. She is clearly not “coercing [X]” into pursuing a transgender identity. It is most likely that in the beginning, both parties did the best they could in a situation they have never dealt with before, with the mother being more proactive than the father. She cannot be faulted for this. As the relationship and the communication between the parties broke down, they both dealt with the situation poorly. X was clearly going through a difficult period of time, but the father chose to prioritise the parental conflict rather than discuss the issue with the mother and coparent effectively to manage X’s emotions. Instead, the father pushed W into a parentified role in having to inform the mother about such an important issue as regards to X’s identity. The mother was put in a situation where she did not have all the necessary information and she was being blamed by not only the father but also the older children who had been influenced by him. At a time when X desperately needed his parents to be both attuned to his needs and aligned in their support of him, they both failed in their own ways. The Court believes this was mainly because the parents were not able to contain and manage the conflict between them without this conflict contaminating both X and W.
X and Z’s skin infection
The mother deposes to the incident where she sprayed disinfectant spray on X’s ski infection from paragraph 59 of her trial affidavit. She states that over the Christmas school holidays in 2021 when they were in Town DD, she observed X to have irritated skin, but no general practitioner would agree to see him due to COVID-19. Photos of the lesion on X’s skin were in evidence and show a nasty looking sore. The mother then organised a telehealth consultation with a general practitioner who advised that the sore sounded like a skin condition and cream was recommended. She attempted to go to the chemist but it was closed. She then deposes as follows:
I had some [antibacterial spray]. On the back of the bottle […] are the words "Effective against athlete's foot"…I sprayed [X] who said that the spray stung a bit and so I washed it straight off. Immediately following being sprayed [X] went out [to do an activity] and otherwise did not complain about the sore. I did not observe the spray to inflame the sore or irritate the skin.
The mother attended the chemist the next day and obtained the cream but it did not resolve the issue. She states that upon their return to Sydney, she took X to a doctor who diagnosed a skin infection. In early 2021, the mother sent an email to the father explaining about X’s skin. Exhibit R2 is a picture of the disinfectant spray. In cross-examination, the mother also conceded that she put tea-tree oil on the sore on the same day. The email of early 2021 was in evidence (Exhibit A7). The first sentence reads “[X] has an awful looking infection […].” A few sentences later she once again describes it as “awful”. She explains that the doctor prescribed an antibiotic, indeed describing it as “a high dose”.
In relation to this incident, the father states that the mother is the one that did not want to take X to the local doctor as she was concerned about COVID-19 so “she sprayed it with [antibacterial spray]. [X] apparently went through the roof, screaming in pain” and then the mother “punished him and said he couldn’t go [to do an activity] with his grandfather” (paragraph 56 of the Report). The father states that this was the event that made the older children say they did not want to live with the mother anymore. Whilst the present focus remains on the incident in question, the father’s palpable propensity to place blame on the mother is noteworthy. The father describes X’s reaction as “screaming in pain”, and W corroborates this in what he told the Expert at paragraph 77 of the Report.
The Report states that when the mother was questioned, she appeared to minimise the significance of the burn (paragraph 30). In cross-examination, the Expert stated that the mother’s actions were “stupid” and “reckless” and will become a family story that is repeated, but the mother needs to be able to “step up each time…and laugh and say, ‘yes, gee that was stupid’ and take responsibility” (Transcript 13 September 2023, p.34 lines 28–35). It is quite clear that whilst the Expert believes this event was reckless, he does not believe it gives rise to a risk of harm in the mother’s care. The Court notes the Expert’s evidence but is more guarded.
In cross-examination, the Court also formed the impression that the mother was minimising the significance of her actions. When asked whether the spray probably caused X pain, she responded “He said it was stingy, yes. I wouldn’t say pain. I would say discomfort but I feel like we sorted it out pretty quickly”. It is more likely that X’s reaction was more acute as is suggested both by the father and W. Whilst the Court accepts that the mother did not intentionally cause X harm, her total lack of insight in relation to this issue is deeply concerning. The photographs of the spray can were in evidence. The label clearly says “Surface Spray Disinfectant”. The product is described as “Hospital Grade” thus suggesting its strength. It also states “Eliminates Odours” thus suggesting its purpose. The instructions on the reverse side explains that the purpose of the product is “odour neutralisation” and then there is a warning in bold uppercase “HARD SURFACE DISINFECTANT ONLY, USE ONLY AS DIRECTED”. With respect to the Expert, his description of the mother’s actions as being reckless is an understatement in the circumstances. In any event, the mother’s recklessness, combined with her lack of insight becomes a potentially dangerous combination which could, in certain circumstances, present a risk of harm to the children. As will be seen, this is not the only incident which creates concerns about a risk of harm to the children in the mother’s care.
The issue of the skin infection was raised again in relation to Z. In early 2022, Y and Z returned to the father’s care after 12 days as he and the older children were isolating due to COVID-19. That night when the father asked Z to get into the bath, she screamed in pain. This is when he noticed the infection all over her body and it was especially bad in certain areas (paragraph 215 of his trial affidavit). Upon hearing the screams, W and X ran into the bathroom and, according to the father, became visibly distressed by what they saw. The father arranged a telehealth call with a doctor that night and obtained a prescription for ointment and oral antibiotics. However, he realised the treatment was not working fast enough as Z was in too much discomfort.
The next day, the father took photographs of Z’s infection and took her to EE Hospital emergency where she was then hospitalised for five days. The father deposes that the doctor with predominant care of Z stated that as her infection is so bad, she needed to make a mandatory report to the Department of Communities and Justice as it had not been given proper medical attention in a timely manner (paragraph 221 of his trial affidavit). The Court is sceptical about this assertion. If a mandatory report had been made, evidence of this could have easily been adduced. It was not. Moreover, what hospital records were adduced contain no reference to a mandatory report.
The photographs the father took of Z’s infection and the discharge summary of the hospital became Exhibit R4. The summary of care states “Issues of admission. 1) [skin infection with bacteria].” A description follows: “[Z] presented with a three day history of worsening skin lesions. There were lesions on [various parts of the body] all resembling [a skin infection], and there was severe [symptoms] suggestive of bacterial infection. There was associated [symptoms], but no history of vomiting, diarrhoea or fevers”. The discharge summary shows that the child had a skin infection around her body but a particular area was diagnosed as another condition.
The mother was extensively cross-examined about this. The mother was asked whether she knew how serious the skin infection can be by the time Z had the infestation. The mother responded, “I’m not sure that it’s serious. I think it can be”. This is a confusing response given the graphic and disturbing photographs contained in Exhibit R4.
She gave evidence that Z did not have lesions to that extent when the child was in her care and when she saw her skin infection the night before, she had “three small spots […]”. Further, when she was questioned about W and X’s response, her answer was not to respond to the children’s distress but to critique the father’s reaction as to why W and X had time to run into the bathroom and the children were not immediately taken to the hospital. She furthered “if it was that bad I think I would have done more” (Transcript 6 March 2023, p.60 lines 0–5).
In so many ways the mother’s response in cross-examination depicts in stark terms the dilemma confronting the children. Rather than focus on the distress of the children, and perhaps empathise with them, the mother sought to deflect any blame from herself and attribute blame to the father. The Court rejects her criticism of the father. The extent of Z’s condition would have been quite traumatic for all persons involved at the time of discovery.
The mother was then asked whether she knew that the other diagnosed condition is a serious issue. She responded that she does not know much about it, and she did not do any further research about the condition.
Exhibit R5 is a series of messages on the Our Family Wizard application in early 2022 in relation to this event. In early 2022, the mother sent a message to the father stating “…I forgot to let you know that [Z] has school sores […]. It got away from us a bit…and also didn’t see it…”. The impression formed by the Court from this message is that the mother believed that Z was suffering from a skin infection. She was clearly aware that there was a skin issue on Z. This is inconsistent with her next statement that she “didn’t see it” and there is an acknowledgement that, whatever Z’s condition was, it was out of control: “It got away from us a bit…”. The mother’s own message to the father at 8:05 pm on that day suggests to the Court that in cross-examination she was minimising the extent of her knowledge about Z’s condition.
The father responded the next day with a detailed description of how bad the infection was and where it had spread to including that the infection “is really bad and is completely out of control with many weeping and red raw sores all over her body where the skin is peeling off”. The father expressed deep concern to the mother “…that this infection got so out of control and that you didn’t notify me in advance before I picked up yesterday”.
The mother responded to the father “Yes you’re right, that is exactly how [the infection] presents…the [medication] will sort it…It should clear up within three days if you apply the cream a few times daily”. She also apologised for not giving to the father “…my usual handover notes, I think I was sick before I tested positive”. The Court takes this as a tacit concession that there was information about Z that needed to be communicated to the father when she came into his care. Despite the detailed, indeed graphic, description of Z’s sores, clearly the mother continued to believe that it was simply a skin infection.
In his next message, the father then advised the mother that he had taken Z to the hospital and described what occurred including that the doctor had advised him that Z was suffering from more than just a skin infection and that further tests were being undertaken.
The mother responded the next day “Yes, the hospital called me and let me know the situation. Their version of events seems to differ somewhat from yours”. This last comment clearly connotes lack of trust in the information the father had given to her and was exaggerating Z’s condition to place blame on her parenting. The lack of empathy about Z in the mother’s communication, indeed seeming indifference, is hard to understand especially after the mother acknowledged that the hospital had communicated with her. The fact is that Z was quite ill and had to be hospitalised for five days.
The Court holds concern about the mother’s answers in cross-examination in relation to this issue and Exhibit R5. If her version of events is accepted and she truly did not know how bad Z’s condition was when she left her care, the mother has now seen the photographs and the discharge summary. She had an opportunity to self-reflect on how she could have handled the situation better or, at the very least, show some alarm or distress at the amount of pain Z was in. She did not. The mother’s lack of empathy, the missed opportunities to reflect on how she managed the situation and her lack of insight, all concern the Court. The worst-case scenario of neglect of the child cannot be excluded.
The father was also cross-examined about this event. The medical notes of the telehealth appointment he had with the doctor on the night Z returned to his care became Exhibit A15. It states, “back from mother; brother positive COVID; has [skin infection] […]; some spots […]”. At paragraph 218 of the father’s trial affidavit, he explains that the telehealth consultation with this doctor was by telephone, and that it occurred at 10.00 pm. He was not challenged about this in cross-examination. It was an audio consultation, not an audio/video consultation. It follows, therefore, that the doctor was reliant on a lay description of Z’s condition rather than an examination of Z.
Counsel for the mother put to the father that the doctor’s description was nowhere near what is presented in the photographs and is actually closer to what is described in the mother’s message on the Our Family Wizard application. The father responded that he did provide the full description of how extreme it was to the doctor, but he believed that the doctor only wrote an abbreviated version in their notes. It is only later that night that the father messages the mother that “[Z’s] condition has become even worse” so he had taken Z to the hospital. Therefore, counsel for the mother put to the father that when Z came into his care on that day in early 2022, her skin infection was actually quite mild (in line with the mother’s version of events) and only became severe later that night. Counsel contended that due to Z’s underlying skin condition, the infection got out of control and worsened quickly. The father disagreed with this in cross-examination. The father’s explanation for the somewhat minimalist description of Z’s condition in the doctor’s notes is entirely plausible. The doctor did not examine Z. Counsel for the mother’s contention, in reliance on the doctor’s record, is implausible and is not accepted by the Court.
In evidence are the two sets of photos taken on both dates in early 2022. The father denied that the reason he took them was for the sole purpose of litigation and to make the mother look bad. The Court was not provided with an alternative reason as to why the father took those photographs in the manner that he did. In the context of this matter, it is quite likely that the father took the photographs for the purpose of placing blame on the mother.
The Court must comment on the photographs contained in Exhibit R4. They are disturbing and severe. The Court is deeply concerned that a child had been left to get to this point. The Expert stated in cross-examination that he was “deeply disturbed at the amount of discomfort that child must have experienced with sores of that severity” and stated that “inevitably, [he] would reach a point of saying that has got to be considered neglect at best and abuse at worst” (Transcript 13 September 2023, p.52 lines 12–27). The Court will need to consider whether Z’s skin infection reflects a level of neglect that indicates there is a risk of harm in the mother’s care.
However, the Court must also comment on the negative effect on the child of having these photos taken by the father. Z is photographed from the back and she is bent over so that the cheeks of her bottom are spread and the sores are more visible. Then there are a series of photographs of different parts of her body using flash photography. The inference of evidence‑gathering and sheer opportunism is inescapable. This is another example where the father has prioritised the parental conflict over the needs of the children.
If this were the only event which raised concerns about the mother’s ability to care for the children adequately and proactively, it could be excused as simple inadvertence and lack of insight. When the issue in relation to Z is viewed through the lens of what happened to X, the Expert’s opinion that the events demonstrate “neglect at best and abuse at worst” becomes much more plausible.
W killing the family’s pet
It is an undisputed fact in these proceedings that W confessed to the mother about killing the family’s pet. The mother deposes about this event in paragraph 162 of her trial affidavit. She states that in about mid-2022, W seemed to be “falling apart” and genuinely distressed on a regular basis. At around this time, the neighbours started complaining about the family’s pets escaping and the family’s relationship with the neighbours deteriorated. One afternoon, W dropped a “block” on one of the pets and killed him. She then deposes that W immediately told her what happened, and he was in a state of shock and distress. They stayed up late talking, hugging and crying and W asked the mother not to tell the father even though she alleges that she suggested talking to the father and working it out together as a family. Then, at paragraph 165 of her affidavit, she states that W told the father about the pet in mid-2022 and the father responded to W that the mother had “grossly mishandled the whole situation”. Three days later, the father advised the mother that W no longer wanted to spend any time with her.
At paragraph 95 of the father’s affidavit, he deposes to this incident. He states that initially W told him that he “found one of the [pets] dead” and soon after this, W began running away from the mother’s house and “begging” to stay with him. The father was confused as to why W kept running away from the mother’s house, but the mother replied that she would “leave him to divulge what occurred”. He then states that in mid-2022, W was deeply distressed and said he had something to tell the father, but he was scared how the father would react because the mother had told him the father would be “really angry” and “severely disappointed” in what he had done. W disclosed that he had killed the pet by “smashing it to death with [an object]”. The father then told W that the mother should have told him as soon as she found out, rather than make him feel scared. Further, W allegedly told the father that the mother “threatened” she would tell his school counsellor and said “things have a way of getting out at schools and then all your friends will know what a horrible thing you have done”.
The Court will firstly deal with the undisputed fact that W killed the pet with an object. This is concerning behaviour by a child which, in the Court’s experience, likely shows how deeply distressed and mentally unstable he was, and may still be. It could not have been more obvious that W needed professional help and needed his parents to communicate effectively and handle the situation together. On both parents’ versions of events, they failed to do this. The more obvious failure is by the mother when she did not tell the father what happened and instead left it up to W to disclose the information. The father failed when W disclosed the event to him and his immediate reaction was to tell W how the mother had mishandled the situation. This is yet another situation where the parties were unable to prioritise the children over their parental conflict.
The Court would have appreciated more evidence on the potential significance of this incident on W and, indeed, the broader family unit. Killing a pet presents, prima facie, as a violent act of cruelty, but what is not known is how that can be reconciled with what is already known about W. For example, in context, could it signal either current or future propensity towards other violent acts? Could it be part of a yet unidentified pattern of conduct? Is it a manifestation of some underlying behaviour of W? Does it mean that he is desensitised to violence? Could this violence graduate into even more serious acts of violence? Could it signal exposure to historical violence in other contexts, whether in the home, or at school? What is clear to the Court is that W is a vulnerable child.
When the mother was cross-examined about this incident, she stated:
Right. And you actually never told the father what [W] had told you, did you?---No.
No. Now, do you see that that’s a failure of your parental responsibility?---No.
So tell me how is it that you don’t think that’s a failure of your parental responsibility, given that it happened where you were living and you say he told you immediately after it happened. How does that – the fact that you don’t communicate this to the father, how is that not a failure - - -?---I don’t think - - -
- - - of your parental responsibility?---I don’t think [Mr Dyne] and I had the sort of relationship where I could have told him something like that and it could have been dealt with in a really healthy way where we could have worked to support [W]. And I was still – it took me a long time – I – I still don’t actually have all the answers about what happened because [W] went soon after that.
(Transcript 6 March 2023, p.76 lines 26–40)
The Court observes that the mother’s admission to the effect that she and the father do not have “…the sort of relationship where I could have told him something like that and it could have been dealt with in a really healthy way…” is entirely consistent with the totality of the evidence from both parents and demonstrates the impracticality of equal shared parental responsibility.
When the father found out about this incident and asked the mother on the Our Family Wizard application when the pet died, the mother refused to tell him. In relation to this, the mother gave evidence as follows:
HIS HONOUR: How come?---I think I didn’t actually know the actual date. I also didn’t think it was important. It had happened within a week or two. It – it was more I was just, sort of – I don’t know – focusing on what next, I suppose. I – I don’t know why. I don’t know why.
(Emphasis added)
The Court observes that the mother’s admission that she did not think the date that W killed the pet was important once again shows her lack of insight and understanding. This is important evidence that should have been communicated to the father at the earliest time, notwithstanding the child’s request to the contrary.
At paragraph 95(r) of his trial affidavit, the father deposes to sending the mother an email in mid-2022 stating:
I am not withholding [W] from spending time with you, but I hope you can agree that until we can put some safety measures in place, including getting him the chance with a Psychologist for a diagnosis about what is going through, my lawyer advised me that it would be best for his well-being that he remains in my care, where he has been most stable and hasn’t had any of these kinds of episodes. I will keep you posted with my progress in finding him an appointment, I am doing everything I can to find one as soon as possible…
The father then deposes to taking W to FF Medical Centre to obtain a Mental Health Plan from Dr GG who found a psychologist to see W as soon as possible, Mr HH. The psychologist’s letter to Dr GG and emails between the father and the psychologist were marked Exhibit R16. The letter is dated mid-2022 and states that W “reported experiencing high levels of stress, difficulty concentrating, fatigue, irritability, problems with emotional regulation, self-harm, reduction in appetite, lack of enjoyment of activities and persistent fear and worry when staying at his mother’s house”. It further states “none of these difficulties were present when staying at his father’s house”. The letter concludes that he supports Dr GG’s recommendation that “it is not currently safe for [W] to stay with his mother”. The Court notes Dr GG’s “recommendation” was not in evidence. An email from the psychologist to the father the following month states that W “has still been experiencing some stress recently, even though it has been much reduced since staying at your house” although he is “worried about his siblings when they go” to the mother’s house.
At paragraph 169 of her trial affidavit, the mother deposes that she “did not then and do not now believe that [Mr HH] was in any way experienced enough to deal with” the family dynamic and the psychologist made those conclusions without meeting her and without reference to Dr H’s report or any existing orders.
The mother stated that although she arranged for W to see a psychologist he never actually attended and she could not recall whether she had asked him why he had done it. The mother’s evidence is troubling particularly as it is clear she has still not reflected on her decision not to tell the father. Further, the mother manifested an attitude of indifference about W intentionally killing a pet animal. The parents needed to work together to immediately provide W with the psychological help he needed, especially as the mother’s evidence is that she was unable to discuss the matter further with W as he kept running away to the father’s home. The strong impression from the mother’s evidence is that she was defensive about her management of this issue and sought to minimise its significance.
The problematic nature of the relationships the parents have with the children leaves the Court with few options, none of which are seemingly optimal.
Opportunity To Participate In Making Decisions
Both parents have shown a high level of motivation to participate in making decisions about the major long-term issues in relation to the children. However, the Expert finds that the father had made multiple unilateral decisions regarding the children’s schooling of which the mother did not have the opportunity to express her views, and recommends such actions need to cease (paragraph 124 of the Report).
Whilst the nature of the parental relationship would seemingly make equal shared parental responsibility problematic, the parental relationship would, this Court finds, make sole parental responsibility even more problematic. On a scenario where the children live with the father, giving him sole parental responsibility would almost inevitably lead to arbitrary decision making and minimalist, superficial consultation. The Court recognises that equal shared parental responsibility could lead to disrupted and dysfunctional decision-making. Again, the Court is left with few workable options on the facts of this case.
Likely Effect Of Change
If the children are placed into the father’s primary care, this will be a significant change in circumstances for the younger children, who have always been in the primary care of the mother. The Expert states that if this is to occur, it is likely that the younger children will be “highly distressed by such an outcome” as they have strong bonds with the mother. The Expert is clear that such an outcome is likely to be unnecessarily negative and there is “no indication arising from the current assessment that this outcome should be considered by the Court” (paragraph 127 of the Report).
Further, when considering whether the children should be placed into the majority care of the mother, this will be a significant change for the older children. The Expert states that due to the ages and current fractured relationship that the older children have with the mother, it is likely they will continue to do what they have in the past and run back to the father’s home (paragraph 128 of the Report). Both children have a history of absconding, and as such, it is not recommended that this arrangement be put into place due to the physical risk. The Expert also wishes to inform the Court that the older children are acutely aware of the mother’s proposal and are absolutely opposed to it. When considering the impact on the younger children, although they are comfortable in the mother’s care, the Expert warned against placing restrictions on their time with the father.
Due to these reasons, the Expert recommended an equal time arrangement. However, the Court has already determined that this is not appropriate in the circumstances. The Court recognises the Expert’s concerns about all of the children living with the father, indeed the concerns may be greater than the Expert has stated. The reality for the Court, however, is that it has few options. If the younger children do live with the father, it would be a significant change in their lives, but they are returning to a life together with the entire sibling unit, which is a strengthening and supportive factor for them. Living with the father is not inconsistent with continuing to have a meaningful relationship with the mother.
Practical Difficulty and Expense
There were no practical difficulties or expense identified in this matter.
Parental Capacity
As to the capacity of the parents to provide for the children’s needs, the Report identifies concerns with the mother, but not the father. The Expert states that there are no concerns with the mother’s willingness to provide for the children’s needs but identifies that she lacks the insight and self-reflection about her parenting style to appropriately understand the impact it is having on the older children.
However, the Expert conceded in cross-examination that he was overly influenced by the father’s claims during interview and seems he was misinformed. The Expert accepted that both parents equally lack parental capacity, insight and ability to self-reflect.
The Court has traversed many instances where both parties have failed to prioritise the children’s needs over the parental conflict. Further, the Court has identified some issues with the mother’s ability to deal with the children’s medical needs in an appropriate manner. Perhaps of greatest concern is the realisation that therapy has been attempted unsuccessfully. The prognosis for an improvement on parenting capacity is poor. Again, the Court is left to do the best it can under the circumstances.
Maturity, Sex, Lifestyle and Background
With respect to X, it is evident that he has had a period of questioning his gender but has since expressed his clear view that he wanted to be known as a boy. However, the Expert urges the parents to be mindful that X may not have ultimately decided on his preferred gender or sexuality (paragraph 134 of the Report). The Expert recommended that both parties attend upon a Clinical or Child Psychologist experienced in gender identity and family law matters to learn the best way in approaching X. He encourages the parties to begin constructively working together in assisting X with these difficult decisions, rather than letting these issues become another source of conflict between them.
Parental Attitudes
The Court believes there is little need to traverse the evidence once again about the profound lack of insight that each parent has about how their own actions and behaviours have had, and arguably continues to have, a profound impact on the welfare of the children. The Court is left with few good options.
Family Violence Allegations
Both parties report instances of family violence having occurred between them, with the mother making allegations of emotional and financial abuse in earlier affidavits, and then physical violence in later affidavits (paragraph 103 of the Report). The father also makes allegations of family violence, reporting being subjected to controlling behaviours and physical violence by the mother.
The Expert did not make any recommendations in light of these allegations, nor was he cross‑examined in relation to this. None of the parties made any submissions in relation to the family violence allegations between the parents and there was limited cross-examination of the parties, if any, on this issue. The Court’s impression is that these allegations are historical and are not determinative.
Order Least Likely to Lead to Further Proceedings
The Court accepts that there is a high prospect of further litigation in this matter. It is left with a profound feeling of helplessness as it believes that even the most prescriptive orders may not, as a practical matter, work in this case because of the nature and dynamics of the parental relationship. Once again, the Court can only do the best it can given the facts before it.
PARENTING COORDINATION
All parties proposed orders for parenting coordination, obviously reflecting the reality of the highly complex dynamics in this case, and the complexity of the challenges facing this family in the future. The agreed order proposed by the Independent Children’s Lawyer is that: “The parents shall engage [Dr T], or such other parenting co-ordinator as agreed, from [U Organisation] and each parent shall be equally liable for [Dr T’s] or such other agreed parenting coordinator’s costs”.
The Court sought written submissions about the proposed role of the parenting coordinator, and the Court’s jurisdiction to make such an order. All parties filed submissions.
A fundamental preliminary issue is defining and understanding the service known as parenting coordination. Only the father’s submissions addressed this issue and advanced the definition of parenting coordination adopted by Anna Parker (as she then was) and Mark Wilson in “Parenting Coordination: A New Option for High Conflict Families?” (2013) 23(3) Australian Family Lawyer 32. The source of this definition appears to be a publication by the Association of Family and Conciliation Courts (AFCC) entitled “Guidelines for Parenting Coordination” (2005) 44(1) Family Court Review 164 (“2005 AFCC Guidelines for Parenting Coordination”). The definition of parenting coordination proposed is:
…a child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children's needs, and with prior approval of the parties and/or the court, making decisions within the scope of the court order or appointment contract.
Whilst the definition is a helpful starting point, it is important to realise its limitations. Its genesis is clearly North American where family law jurisprudence allows for aspects of judicial power to be delegated to a non-judicial officer. As Parker and Wilson acknowledge in their article, the High Court’s decision in Harris v Caladine (1991) 172 CLR 84 means that it is very unlikely that judicial decision-making power could be validly delegated to a parenting coordinator. No order could be made under the Act which delegates judicial decision-making power to a parenting coordinator, and no contract between the parties to the orders made under the Act and a parenting coordinator could possibly enlarge that. For all practical purposes in Australia, as a matter of law, the role of the parenting coordinator is to make recommendations, and not make decisions. As will be discussed below, this Court does not believe that s 13D of the Act enlarges the role of the parenting coordinator so that a consequence of failure to comply with the recommendation can be reported to the Court.
The Court accepts that in certain circumstances, and notwithstanding the legal limitations identified above, parties could agree to be bound by recommendations made by the parenting coordinator as a matter of contract, but their only enforceable right would be to enforce the contract. The Court doubts that it would have jurisdiction in relation to that contractual dispute as it would not be a matrimonial cause for the purposes of s 4(1) of the Act.
The Court also accepts that not all issues about aspects of parenting children that confront judges, and parenting coordinators, are justiciable issues, that is, an issue proper to be examined in a Court of law. Arguably, if the issue is not a justiciable issue, then there can be no exercise of judicial power in relation to the issue. This may well be the point made by Parker and Wilson in their article where they suggest that issues may be so trivial, unimportant, and/or routine, that it does not involve an exercise of judicial power. The metes and bounds of what is a justiciable issue is imprecise, and depends on the circumstances of each child, in each case. This Court doubts whether the boundary of a justiciable issue is defined solely by reference to the issue in dispute (for example, whether changeover is at McDonalds in suburb X, or in suburb Y), but rather by the context of that issue and the impact on the child.
A workable definition for present purposes would thus need to exclude any reference to making decisions. Thus, parenting coordination for the purposes of the Act might be defined as:
…a child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting orders by facilitating the resolution of their disputes in a timely manner, educating parents about children's needs and making recommendations within the scope of the court order or appointment contract.
Definitions per se are sometimes not effective in communicating the role of the parenting coordinator. Thus, for example, the American Psychological Association Guidelines on Parenting Coordination describes the underlying principle of parenting coordination intervention as:
a continuous focus on children's best interests by the Parenting Coordinator (PC)…working with high conflict parents….PC is designed to help parents implement and comply with court orders or parenting plans, to make timely decisions in a manner consistent with children's developmental and psychological needs, to reduce the amount of damaging conflict between caretaking adults to which children are exposed, and to diminish the pattern of unnecessary re-litigation about child related issues.
Janet Johnston, Vivienne Roseby and Kathryn Kuehnle, In the Name of the Child: A Developmental Approach to Understanding and Helping Children of Conflicted and Violent Divorce (Springer Publishing Company, 2nd edition, 2009) make the following observations about parenting coordination at pages 246–249:
·It is a service for separated and divorced families who need ongoing help in jointly managing their parenting practices and responding flexibly to the needs of their children during their developmental changes and sometimes throughout their entire growing up years.
·Parenting coordinators function as family assessors, educators, facilitators, conflict managers, and coordinators of the child’s life in a parallel parenting situation.
·Following more than a decade of development of this service, parenting coordination has emerged as an important adjunct to family courts in a number of jurisdictions.
·It is generally believed that parenting coordinators are appropriate for chronic litigants and entrenched custody conflicts emanating from serious psychopathology and personality disorders and parents who have parenting deficits; and
·Appointing a parenting coordinator is not appropriate as a routine response to the difficult, high conflict cases in which the family crisis is acute but temporary.
The mother submitted that the role of the parenting coordinator in this case would be as follows:
a. To assist the parents with the implementation and operation the orders.
b.To educate each of the parents regarding the impact of parental conflict on the children’s development.
c.To assist the parents with negotiation and communication skills and anger management.
d. To mediate parenting concerns that each parent has with an aim to reach a mutually agreed resolution in the children’s best interests.
The submission made by the Independent Children’s Lawyer about the role of the parenting coordinator was consistent with this. The Court accepts this description of the role but notes that it is not included in the proposed order. This Court believes, however, that it will be beneficial to the parents and the children, and to the efficacy of the order, if there was a statement of role of the parenting coordinator, with the provision for an expansion of the role as agreed by the parents. This will be incorporated in the final order to be made.
Based on the totality of the evidence before the Court, it is satisfied that the present case is suitable for the appointment of a parenting coordinator.
The proposed order for a parenting coordinator nominates a specific person. The Court assumes that the parties are satisfied both that that this is a suitable person, and that the terms of engagement are appropriate. In future cases, however, it would assist the Court to have a Curriculum Vitae so that it may satisfy itself that the proposed service provider is appropriate.
The 2005 AFCC Guidelines for Parenting Coordination is a very helpful document that contains guidelines about important issues such as: competence of the parenting coordinator, impartiality, conflict of interest, multiple roles, confidentiality, mandated reporting laws, scope of the authority, professional best practice, informed consent, fees and costs, communication and record-keeping, decision-making, safety and capacity, and a host of other practical issues. As litigants and their lawyers consider parenting coordination, this document may well be a very useful tool.
The best interests of the child will remain an important consideration for the Court, even if it is not mandated as a consideration in either making the order appointing a parenting coordinator. It is clearly in the best interests of the children in this case that a parenting coordinator be appointed.
Both contended that the Court’s power to make an order appointing a parenting coordinator was found in s 13C of the Act which states:
13C Court may refer parties to family counselling, family dispute resolution and other family services
(1) A court exercising jurisdiction in proceedings under this Act may, at any stage in the proceedings, make one or more of the following orders:
(a) that one or more of the parties to the proceedings attend family counselling;
(b) that the parties to the proceedings attend family dispute resolution;
(c) that one or more of the parties to the proceedings participate in an appropriate course, program or other service.
Note 1: Before making an order under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (see section 11E).
Note 2: The court can also order parties to attend, or arrange for a child to attend, appointments with a family consultant (see section 11F).
(2) The court may suggest a particular purpose for the attendance or participation.
(3)The order may require the party or parties to encourage the participation of specified other persons who are likely to be affected by the proceedings.
Note: For example, the participation of children, grandparents or other relatives may be encouraged.
(4)The court may make any other orders it considers reasonably necessary or appropriate in relation to the order.
(5) The court may make orders under this section:
(a) on its own initiative; or
(b) on the application of:
(i) a party to the proceedings; or
(ii) a lawyer independently representing a child’s interests under an order made under section 68L.
It was submitted that the relevant paragraph was s 13C(1)(c), namely an appropriate course, program or other service. There are no statutory guidelines about appropriateness, thus leaving courts with a wide discretion which should be exercised by reference to the evidence in the case. This Court is satisfied that parenting coordination “is an appropriate course, program or other service.” Specifically, it is a service. The Court is also satisfied that this is in the best interests of the children.
The Court was referred to three decisions of Division 1 single judges, and three decisions of Division 2 where parenting coordinators have been appointed:
Division 1 decisions:
a.Danton & Brockett (No 2) [2022] FedCFamC1F 708
b.Trausch & Trausch [2023] FedCFamC1F 318
c. Maloof & Kagan [2023] FedCFamC1F 119
Division 2 decisions
d.Umaru & Maletta (No 2) [2023] FedCFamC2F 478
e.Eggleston & Hackett [2022] FedCFamC2F 1383
f.Gill & Ingram [2022] FedCFamC2F 109
The Court notes that s 13D of the Act prescribes consequences of failing to comply with an order under s 13C. It is important not to misunderstand the purport of this section. The focus is on a party’s failure to comply with an order of the Court, not any recommendation that might be made by a parenting coordinator. Section 13D therefore, can only be invoked if the parties fail to comply with the order made by the Court.
Section 11E of the Act is also highly relevant. It states:
11E Courts to consider seeking advice from family consultants
(1) If, under this Act, a court has the power to:
(a) order a person to attend family counselling or family dispute resolution; or
(b)order a person to participate in a course, program or other service (other than arbitration); or
(c) order a person to attend appointments with a family consultant; or
(d)advise or inform a person about family counselling, family dispute resolution or other courses, programs or services;
the court:
(e) may, before exercising the power, seek the advice of:
(i)if the court is the Federal Circuit and Family Court of Australia--a family consultant nominated by the Chief Executive Officer; or
(ii)if the court is the Family Court of a State--a family consultant of that court; or
(iii)if the court is not mentioned in subparagraph (i) or (ii)--an appropriately qualified person (whether or not an officer of the court);
as to the services appropriate to the needs of the person and the most appropriate provider of those services; and
(f) must, before exercising the power, consider seeking that advice.
(2)If the court seeks advice under subsection (1), the court must inform the person in relation to whom the advice is sought:
(a) whom the court is seeking advice from; and
(b) the nature of the advice the court is seeking.
The Court notes that s 11E(1)(f) requires the Court to consider seeking the advice referred to in s 11E(1)(e) of the Act, before exercising the power to make an appointment of a parenting coordinator. Curiously, paragraph (f) is in mandatory terms (must…consider), but the obligation to seek advice in paragraph (c) is discretionary. Thus, before an order can be made appointing a parenting coordinator this Court must consider seeking the advice of a family consultant nominated by the Chief Executive Officer (s 11E(1)(e)(i)).
At the time these reasons for judgment were being drafted, the Court ascertained that the Chief Executive Officer had not, in fact, nominated any family consultant for the purpose of providing advice. This meant, therefore, that the Court could not for the purposes of paragraph (f) consider seeking that advice, as there was no one authorised to give that advice. As a result of representations made by my chambers, however, a family consultant was duly nominated. Accordingly, the Court was thus able to consider seeking that advice but decided it was unnecessary to do so on the facts of this case as it was so clear to the Court that parenting coordination was appropriate.
Whilst it is not directly relevant in this case, it is important to explore the nature of the obligation that is prescribed in paragraph (f), namely that the Court must, before exercising the power, consider seeking that advice. The language is clear. The exercise of the power, in this case to appoint a parenting coordinator, is conditioned on the Court considering whether “that advice” should be sought. Firstly, “that advice” refers to paragraph (2)(i), that is advice from a family consultant nominated by the Chief Executive Officer. Secondly, the obligation of the Court to “consider” is expressed in mandatory terms (must…consider), and the nature and content of this obligation has been the subject of judicial determination. For example, in s 65DAA of the Act, the Court must consider the matters referred to in (1)(a), (1)(b) and (1)(c). In Tibb & Sheean (2018) 58 Fam LR 351 at [82], the Full Court held that “consider” means “to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of” a particular matter. As the Full Court explained at [86], this must depend on the circumstances of the individual case.
In the helpful submissions provided by the parties on the parenting coordination issue, the Court was referred to a number of decisions from both Division 1 and Division 2 of the Court. The Court was not able to discern from these judgments that the relevance of s 11E had been considered, and thus may not have undertaken the judicial process mandated by that section.
The Court believes that, in some cases, an alternative power that would enable the making of an order appointing a parenting coordinator is in fact s 64B of the Act. This is the section that defines, in non-exclusive terms, what a parenting order may deal with. Section 64B(2) states that a parenting order may deal with one or more of the following which apply, or may apply, in the case of parenting coordination:
(d)if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e) the communication a child is to have with another person or other persons;
(h) the process to be used for resolving disputes about the terms or operation of the order;
(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
If the parenting coordination order can be made as a parenting order under s 64B, some of the present technicalities surrounding an appointment under s 13C are overcome. Section 60CA would apply to the making of the parenting coordination order i.e., the best interests of the child must be the paramount consideration. From a drafting perspective, the alignment of the terms of the order to the provisions of s 64B(2) itself would strengthen the intention to bring the orders within the scope of that section.
In this case, the Court is concerned, however, that the order as proposed is partially descriptive, rather than being prescriptive. For example, there is no time provision; the word “engage” does not identify what, exactly, the parents need to do; and there is no provision governing the inability of the parents to agree to a named parenting coordinator. This can be easily cured by amending the proposed order in the following terms:
1.Within 14 days of the date of these orders, the parents shall do all things, sign all documents, and make such payments necessary to engage Dr T, or such other parenting co-ordinator as agreed (and failing agreement as nominated by the Independent Children’s Lawyer) (“the parenting coordinator”) from U Organisation and each parent shall be equally liable for the parenting coordinator’s costs.
The Court will also make the following notations to assist:
A.For the purposes of these orders, parenting coordination means:
A child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting orders by facilitating the resolution of their disputes in a timely manner, educating parents about children's needs, and making recommendations within the scope of the court order or appointment contract.
B.The role of the parenting coordinator in this case includes, but is not limited to:
(a)Assisting the parents with the implementation and operation of the orders including consultation about decisions to be made in the exercise of equal shared parental responsibility;
(b)Educating each of the parents regarding the impact of parental conflict on the children’s development;
(c)Assisting the parents with negotiation and communication skills and anger management;
(d)Mediating parenting concerns that each parent has with an aim to reach a mutually agreed resolution in the children’s best interests;
(e)Making recommendations ancillary to the above; and
(f)Such other matters as the parents agree.
ORDERS
Having regard to the totality of the evidence and my reasons above, orders will be made that the parties have equal shared parental responsibility, and the children live with the father for nine nights per fortnight and spend time with the mother for five nights per fortnight.
School Holidays
In relation to the Christmas school holidays 2023/2024, the mother proposes the children spend time with the parents in a week about regime. Her rationale for this is that her proposal for equal time (which has not been granted) would have only been in place for a short period of time. Thereafter, she seeks half of each school holiday period.
The Independent Children’s Lawyer proposes the children spend time with the mother for the first half and the father for the second half in even numbered years and vice versa in odd numbered years. Counsel for the Independent Children’s Lawyer submitted that this was the best option when trying to limit the number of high conflict changeovers.
The father proposes no specific time for school holidays other than for the children to spend time with the mother on Christmas Day in even numbered years and Boxing Day on odd numbered years.
The mother’s rationale that the new arrangement will only have been in place for a short period of time is valid. The Court will order that the 5/9 arrangement continue throughout the 2023/2024 Christmas school holidays. Thereafter, the Court will adopt the Independent Children’s Lawyer’s proposal for half of each school holidays in block periods to limit changeover outside of school.
Special Occasions
All parties sought specific orders for time on special occasions such as Mother’s Day and Father’s Day and the parents sought orders for time on Christmas Day. The father seeks that the children spend time with the mother on Mother’s Day from 10.00 am until 4.00 pm. The Independent Children’s Lawyer seeks that the children spend time with the parents from 3.00 pm or after school on Friday until before school or 9.00 am on Monday and the mother seeks from 5.00 pm on Saturday until 10.00 am on Sunday on the weekend of Mother’s/Father’s Day. Counsel for the mother submitted the rationale for this is to recognise that the children will want to spend time with the father’s new partner on Mother’s Day and there are also male figures on the maternal side (such as the maternal grandfather) that the children might want to see. Counsel for the father did not make any submissions in relation to this issue. The Court accepts the mother’s rationale and orders will be made in line with her proposal.
Changeover
For the purposes of changeover, the father sought an order that the parent whose time is concluding is to deliver the children to the home of the parent whose time is commencing, if not occurring at school. The mother proposed a similar order.
The Independent Children’s Lawyer sought an order in the opposite arrangement, namely that the parent whose time is commencing shall collect the children from outside the residence of the other parent.
Counsel for the mother submitted that her proposal sends a message that the spends time arrangement is an agreed position because one parent is delivering the children to the other parent’s home, rather than taking them home. The Court agrees and this order will be made.
Therapy
All parties sought an order that the father continue to engage Ms P for therapy and the mother continue to engage Dr R for therapy. These will be made.
The mother and the Independent Children’s Lawyer sought an order that the mother and the father’s psychologists provide two recommendations for child psychologists to support the children with therapy. The father sought an order that Mr HH be engaged to support W and Ms S be engaged to support X. Counsel for the father submitted that they already have a therapeutic relationship, and it should not be disturbed. He then sought an order that a psychologist be nominated for each of the younger children. His counsel submitted that in the parties’ experience, therapists do not usually take on both children. Counsel for the mother and the Independent Children’s Lawyer did not make any submissions in relation to this issue.
It is clear all the children need therapeutic intervention. The mother deposes to not believing Mr HH is experienced enough to deal with the family dynamic and the Court has traversed this chronology in [74]–[75] of these reasons. The Court is of the view that in the context of this matter, it is likely that therapists have been weaponised in order to advance the parties’ cases. It is in the best interests of W if he is able to have a fresh start with the conclusion of these proceedings with a new therapist recommended by another psychologist. The mother did not raise any objection to Ms S through her counsel in closing submission or in her affidavit. Orders will be made that X continue to see Ms S.
Orders will also be made in line with the father’s proposal for separate psychologists to be recommended for the children.
Other
The parties propose similar ancillary orders in relation to mutual restraints against denigrating the other parent, physically disciplining the children or discussing these proceedings with the children or in their presence. The Independent Children’s Lawyer further seeks orders that each parent be restrained from questioning the children in relation to their views or preferences concerning their living arrangements or the time they spend with the other parent and encouraging the children to express particular views or preferences. These orders will be made.
The parties are agreed that they will continue to communicate via the Our Family Wizard application.
The father seeks an order that the children be allowed to always retain in their possession their personal mobile phones and be provided privacy by each parent when communicating with the other parent. Both parties have complained of this very thing in the history of these proceedings and it is likely that this will provide an opportunity for the children to be further weaponised. The Court will order that for a period of 12 months whilst the children are adjusting to the new parenting regime, the parties be restrained from contacting or communicating with the children while they are living with the other parent. In order to enforce this, the Court will order that the parents block the children’s mobile phone numbers on their mobile phones so they cannot receive calls or messages from the children.
The Independent Children’s Lawyer and the mother seek orders that each parent is to keep each other informed of the children’s medical information and give all consents such that each parent can obtain schooling information. They also seek an order that the parents be at liberty to attend school events for the children. No submissions were made by the father’s counsel opposing these orders. These orders will be made.
These are proceedings in which the parties will be benefitted greatly by the appointment of the Independent Children’s Lawyer being extended. The Independent Children’s Lawyer has proposed that her appointment be extended for a further 12 months and this order will be made. The Independent Children’s Lawyer is also requested to explain the effect of these orders to the children within 48 hours of the orders being made.
I certify that the preceding two hundred and fifty-nine (259) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 18 December 2023
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