Edmunds and Edmunds

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDMUNDS & EDMUNDS

[2015] FCCA 1655

Catchwords:
FAMILY LAW − Whether children’s time with father should be reduced because of his mental health − whether mother should have sole responsibility for education and health.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 60CC, 60DA, 65DA, 65DAA, 65DAC

Goode & Goode [2006] FamCA 1346
Chappell & Chappell (2008) FLC 93–382

Applicant:

MR EDMUNDS

Respondent:

MS EDMUNDS

File Number:

DGC 1885 of 2011

Judgment of:

Judge Phipps

Hearing dates:

25 & 26 May 2015

Date of Last Submission:

26 May 2015

Delivered at:

Dandenong

Delivered on:

19 June 2015

REPRESENTATION

The Applicant:

Appearing on their own behalf

Solicitor for the Respondent:

Ms Borger

Solicitors for the Respondent:

Belleli King & Associates

Counsel for the Independent Children’s Lawyer:

Mr Kent Hughes

Solicitors for the Independent Children’s Lawyer:

Robert Halliday & Associates

ORDERS

That all previous parenting orders are discharged.
That the children X born (omitted) 2000 and Y born (omitted) 2004 live with the mother.
That the mother have sole responsibility for making decisions in relation to the children’s:
(a)Education (both current and future); and
(b)Health.
That other than as set out in paragraph 3 the mother and father have equal shared parental responsibility for the children.
That the children spend time and communicate with the father as follows:
(a)In a three-week cycle:
(i)the first week from after school Friday to 5.00pm Sunday;
(ii)in the second week from after school Thursday to before school Tuesday;
(iii)in the third week from after school Monday until 7.30pm.
(b)For half school holidays as agreed and if not agreed the first half;
(c)On Father’s Day when not occurring on a weekend when the children would not normally be spending time with the father from 10.00am until 6.00pm;
(d)On the children’s and father’s birthdays when not occurring at time a children would normally spend time with the father on a school day from after school until 6.30pm and on a non-school day from 10.00am to 3.00pm;
(e)From 5.00pm Christmas Day until 5.00pm Boxing Day in 2015 and each alternate year thereafter;
(f)From 5.00pm on Christmas Eve to 5.00pm Christmas Day in 2016 and each alternate year thereafter.
That the children’s time with the father is suspended as follows:
(a)On Mother’s Day from 10.00am;
(b)On the children’s and mothers birthdays on a school day from after school until 6.30pm and on a non-school day from 10.00am to 3.00pm;
(c)From 5.00pm Christmas Eve to 5.00pm Christmas day in 2015 and each alternate year thereafter;
(d)From 5.00pm Christmas Day to 5.00pm Boxing Day in 2016 and each alternate year thereafter.
That paragraph 5(a) is suspended during all school holidays.
That the father undergo a drug and alcohol counselling course as nominated by the Independent Children’s Lawyer for a period of not less than six months and attend not less than six sessions during that period.
That the mother and the father are restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of the children or either of them and from permitting any other person to do so.
That the parties are restrained by injunction from discussing these proceedings with or in the presence of the children or permitting any other person to do so.
That the order appointing the Independent Children’s Lawyer is discharged.

IT IS NOTED that publication of this judgment under the pseudonym Edmunds & Edmunds is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1885 of 2011

MR EDMUNDS

Applicant

And

MS EDMUNDS

Respondent

REASONS FOR JUDGMENT

Introduction

The father, Mr Edmunds and the mother, Ms Edmunds, have two children X born (omitted) 2002 aged 13 and Y born (omitted) 2004 aged 11. The dispute is about how much time the children should spend with the father and to some extent whether parental responsibility for education and medical matters should be solely with the mother. The significant issue is the father’s mental health and how that might affect his care of the children.
The mother and the Independent Children’s Lawyer each filed an outline of case. The father, who was self-represented, did not. In the outline of case both the mother and the Independent Children’s Lawyer propose that the mother have sole parental responsibility.

Proposals

Both parties and the Independent Children’s Lawyer propose that the children live with the mother. The father and the Independent Children’s Lawyer propose that the children spend time with the father:
a)In a three-week cycle:
i)in the first week from after school Friday to 5.00pm Sunday;
ii)in the second week from after school Thursday until before school Tuesday;
iii)in the third week the children shall remain with the mother during the weekend;
b)For half school holidays as agreed;
c)On Father’s Day if not a spend time with weekend from 10.00am to 5.00pm.
The Independent Children's Lawyer proposes that the father undergo a drug and alcohol counselling course as nominated by the Independent Children’s Lawyer for a period of not less than six months and attend not less than six sessions during that period and proposes injunctions restraining the parties from denigrating each other and from discussing the proceedings in the presence of the children. The parties do not oppose these orders.
The mother proposes that the children spend time with the father;
a)Each alternate weekend from after school Friday until 5.00pm Sunday;
b)Each alternate Wednesday;
i)on a non-school day from 10.00am until 8.00pm;
ii)on a school day from after school until 8.00pm;
c)On Father’s Day when not occurring on the weekend the father would not normally have care of the children from 10.00am until 6.00pm;
d)On the children’s birthdays;
e)From 5.00pm Christmas Day until 5.00pm Boxing Day 2015 and each alternate year thereafter;
f)From 5.00pm Christmas Eve until 5.00pm Christmas Day 2015 and each alternate year thereafter;
g)From 6.00pm Good Friday until 10.00am Easter Monday 2016 and each alternate year thereafter.
The mother proposes the children’s spend time arrangements with the father be suspended for purposes of the children spending time with the mother as follows;
a)On Mother’s Day from 10.00am;
b)On the children’s birthdays;
i)if occurring on a school day from 11.00am until 3.00pm on the next non-school day if such time is not time the children are in the care of the mother;
ii)if occurring on a non-school day from 11.00am until 3.00pm and such time is not time the children are in the care of the mother;
c)On the mother’s birthday;
i)if occurring on a school day from 11.00am until 3.00pm on the next non-school day if such time is not time the children are in the care of the mother;
ii)if occurring on a non-school day from 11.00am until 3.00pm if such time is not time the children are in the care of the mother.

Background

The father was born on (omitted) 1959 and is aged 55 years. The mother was born on (omitted) 1962 and is aged 53 years. The parties commenced their relationship in 1998, cohabitation in (omitted) 2000 and married on (omitted) 2001. They separated under one roof on 5 March 2010 and the mother left the home with the children on 1 May 2010.
The parties agreed on consent orders made on 12 September 2011 which provide for the parties to have equal shared parental responsibility for the children and they spend equal time week about with each parent with changeover after school on Friday.
The equal time arrangement continued until 26 December 2012. There was an incident between the father and Ms K, his current partner, on that day which involved police intervention. The father says that he had become depressed, a long-term problem. Following that incident the arrangements for the children changed so that they spent almost every weekend with their father and the weekdays with their mother.
10 March 2014 was a public holiday so that that weekend, commencing on 7 March 2014 was a long weekend. The mother considered the children should return to her on the Sunday night whereas the father considered the time should extend to the Monday night. She went to the father’s house. There was a physical confrontation. The mother hit the father a number of times and the father at the very least pushed her or “walked” her out of the house. The mother says she was assaulted and thrown down. The police were called. The children stayed with the father. Both mother and father made statements to the police.
The children returned to the mother’s home. On the weekend of 23 March 2014, the children were returned to the mother on the Monday morning. The children then by agreement, spent time with the father during the Easter school holiday period commencing on 4 April 2014. He did not return the children. The mother says she spoke to Y on the telephone and when the mother said you were supposed to be home on Friday, Y replied that they were old enough to make their own decisions.
The father filed this Initiating Application on 17 April 2014. The parties attended a conference pursuant to s.11F of the Family Law Act 1975 (Cth) on 8 July 2014 and following an oral report by the Family Consultant, I made interim orders that the children live with the mother and spend time with father:
a)In a three-week cycle;
i)in the first week after school Friday to 5.00pm Sunday;
ii)in the second week from after school Thursday to before school Tuesday;
iii)in the third week the children shall remain with the mother during the weekend;
b)for half school holidays as agreed and if not the first half;
c)on Father’s Day if not a spend time weekend from 10.00am to 5.00pm.
The orders included a suspension of spend time during school holidays and orders for time at Christmas.
These orders have remained in place until now.

The father

The father has an extensive criminal history. He says he was brought up in a criminal family and became a safe breaker. His convictions include armed robbery, burglary and theft. In (omitted) 1998 he was convicted of manslaughter and on appeal his sentence was reduced to 7 years imprisonment with a non-parole period of five years. He served the minimum period of five years. At the time of the appeal he had been imprisoned about three years and seven months and so his release was about a year and five months later.
The father says he completed two degrees while he was in prison and reformed his life. After prison he was employed by (employer omitted), then (employer omitted), then (employer omitted) when it took over (employer omitted). He says he was then head hunted back by (employer omitted) as (position omitted), a senior position. He went up to board level and remained employed, including a period of employment by the receiver, until the company went out of existence. He says senior management knew of his criminal record. He has had employment since but he says that someone told the employer of his criminal record and currently he is unemployed.
The father has several convictions since the parties separated. On 8 September 2011 he was convicted of burglary and going equipped to steal. On 28 March 2012 he was convicted of contravening a family violence interim order. On 28 June 2013 he was convicted of possessing a controlled weapon, contravening a family violence safety notice and unlawful assault. On 5 June 2014 he was convicted of possessing a controlled weapon, unlawful assault and contravening a Family Violence Safety Notice. The father says none of these convictions were for serious matters. None resulted in in him going to prison although one was a sentence of two months’ imprisonment wholly suspended. The father says that they cannot have been serious because with his record he would have been imprisoned. He has a current charge of obtaining money by deception which he is defending.
The father acknowledges that he has a history of depression and numerous attendances on his doctor. A letter from his doctor Dr T dated 27 January 2015 states:
I have been treating Mr Edmunds for the last 4 years. He has had intermittent depressive episodes. This is likely a result of the separation from his ex-wife and lack of access to his children. He was treated with antidepressant but was unable to tolerate them so he has not taken any antidepressants the last few years. He has also seen the psychologist Ms T in the past for his depression. I have not known Mr Edmunds to be a violent person and he has not shown any tendency to show any aggression. His mental state is quite stable currently. I have met both his children X and Y and both have presented well. I have no concern about Mr Edmunds’s capacity to look after his children’s need.
The father’s medical history shows that he attended Dr T on 1 May 2015. The notes state that he is under a lot of stress with impending court cases. He had a severe pounding frontal headache last PM, had to use more Endone and hence needed another prescription. The notes say “can not function without endone”.
The medical history shows frequent attendances with similar notes to that of 1 May 2015. As well as Endone he has been prescribed Valium and Oxytocin. As well as his depression, he had a motor bike accident with pain killers prescribed. The father says that he received a prescription for Endone on 1 May 2015 and filled it. He last took Endone about four weeks before the hearing. He acknowledges that Endone is addictive. The concern about drug use seems to be about prescription drugs rather than illicit drugs.
The applicant has a partner, Ms K, who the husband accepts as a strong stabilising influence in his life. She and the mother are able to communicate and the children get on well with her.
The father said that while initially he wanted the children to have equal time with each parent, he now considers the current arrangement was the right one.
He, like the mother, says that the parents have no ability to communicate. When asked about the requirement to communicate which an order for equal shared parental responsibility would require, and particularly the need to communicate on education and health matters, his response was that the mother makes the decisions anyway.

The mother

The father acknowledges that the mother is a very good mother. The family consultant, Mr S says in his report that she “appeared to have a very good grasp in terms of understanding of the children and their personalities, and overall appeared to be quite child focused”.
At the time of the family report, the mother’s proposal was that the time remain the same with the addition of some time on the alternative Monday night. In other words, she was then proposing what is now the father’s proposal.
She now considers the time should be restricted to alternate weekends of two nights with no holiday time because of what she sees as shortcomings in the father’s care for the children when they are with him and the father’s mental state.
The child X was diagnosed in grade 1 with Asperger syndrome. The father does not accept this and took the child, without the mother’s knowledge, to another paediatrician who the father says considered that he did not have this diagnosis.
The child X was referred to a psychologist Ms F in November 2012. Mr S in the family report refers to a report from her dated 22 October 2014:
This report notes that X was diagnosed with Asperger Syndrome in 2007. Psychologist Ms F notes in her report that X “continues to present with behaviour that is consistent with this early diagnosis particularly with regard to emotional self-regulation and deficits in social communication skills” (P.2 of the above report). The report continues and notes that X is in the 97^th percentile in terms of intelligence and that “the results of this assessment indicates X has cognitive abilities in the very superior range with a full Scale IQ of 135”. The report concludes that “educating students who fall in the very superior range of cognitive functioning can have its own challenges combining this with the child who also has a diagnosis of Asperger Syndrome makes this even more complicated”.
The mother says that X’s behaviour is such that he will lash out at other children. She says he lashes out at Y on a regular basis. He will sometimes pull her hair and punch her in the arm. Prior to this year he had three one-day suspensions at school because of behaviour and recently in early May a three-day suspension. The mother continues to take him to see the psychologist.
The father does not accept that the child has Asperger Syndrome or any other diagnosable psychological condition, a matter of concern to the mother.
She says that the children come home missing school items. She says that regularly school uniforms, school shoes and X’s locker key have not come back with the children. She says the children are not doing homework when with their father. She has started three communication books. The first one was returned on a few occasions with handwriting she knew to be the father’s partner. After a couple of months it did not come back and she sent a new one which lasted only a few weeks and then she sent the third communication book which was not returned at all.
A further concern of the mother is that Mr S in the family report recommended that the time remained the same but only upon the father producing a report as to his current emotional/mental health status, and that he has completed a Parenting Separation program.
The mother alleges abuse and violence by the father during the relationship. Given the history of proceedings and the children’s time with the father since then the relevance of the fathers behaviour is as background to his history of depression. He acknowledges this history. He acknowledges there was the incident at Christmas 2012, when his partner called the police, they removed him from the house and obtained a family violence intervention order. His partner’s description of that event is referred to later.
The incident in April 2014 on either party’s view amounts to family violence but other than as background, and as evidence of the poor relationship between the parents, it does not assist in the significant issue of the father’s mental health and his ability to care for the children.

Family report

The family report is dated 10 November 2014. The report writer describes his interview with the father as “an extremely challenging task”. The writer describes the father as combative and bellicose and that his conversation was peppered with expletives. The report writer temporally halted the interview because of the father’s rudeness. The report writer says he was attempting to point out that the father and mother do not seem to be a good fit for the requirements for shared care arrangements and the father swore at him. When the report writer attempted to locate the father later he had left leaving a note.
The report writer concedes that the father’s behaviour may have been attributable or contributed to it by the fact that he had been working that night so had a lack of sleep. The report writer describes his interview with the husband as unproductive.
In contrast Mr S describes the mother as “a settled, polite and very reasonable person”. She said her marriage to the father was characterised by fluctuating mood swings and depression on the father’s part. She said that inevitably this led to her being abused physically and emotionally, something she states in her affidavit material.

Mr S says that the mother indicated very clearly that she would be prepared to maintain the current time and agree to a slight increase with an evening meal on Monday in every fourth week. She said she had absolutely no contact with the father and transportation and communication was largely done through Ms K, the father’s partner. The mother spoke very positively about Ms K.
Mr S observes that notwithstanding her concerns about her ex-husband, it was never the mother’s intention to stop the children spending time with their father. She pointed out her willingness to engage in a shared care regime as indicative of willingness to engage in reasonable and cooperative parenting. Mr S says she maintains that this is not possible given her ex-husband’s erratic, aggressive behaviours, fuelled by ongoing mental health issues. She conceded there had been some months when the father’s attitude towards her had been reasonable and they had been able to communicate with parenting arrangements appearing to have progressed smoothly. She stated these periods did not last very long. Mr S assesses the mother as quite child focused.
Mr S interviewed Ms K briefly by telephone. She had intended to attend the interviews but was taken ill at the last minute. She described what she said happened in the 2012 Christmas early morning. She described the father as “having a bit of a mental breakdown”. She said he wanted to go for a drive, she took the keys away and he became extremely difficult and agitated and she called the police for assistance who arrested him when he resisted. Mr S says that she was “able to convey a sense of being able to remain involved as a third party to assist the communication and child related issues and processes that could not be otherwise facilitated by the parties”.
Mr S describes both children as happy and jovial. Both told Mr S they felt comfortable and safe in each parent’s care. They both described the altercation between their parents in April 2014 when both described their mother as assaulting their father. X stated he was “very sad, I was upset with mum”.
X told Mr S that he “lives with both” his parents but much preferred it when he lived equally with each parent. Asked why he stated that it was fair to both parents. He was very clear he loved both his parents equally.
Y said she currently lives with both parents, and added “it’s a little bit unfair because mum has us more. When we did the one week and one week it was fairer”. She said there were no problems living with her mother and the same with her father.
Mr S was unable to conduct observation sessions of the children with each parent because the father had left. He says that casual observations conducted of the children in the presence of their mother were unremarkable and indicate a warm and secure parent-child relationship.
In this evaluation Mr S says it was difficult to assess issues relating to the father’s overall mental health. He says notwithstanding this that there is sufficient information provided for him to have some serious concerns about the father. This underlies the qualification to Mr S’s recommendation that the current regime of time be maintained. This includes that the father provide “a report from his doctor or other treating professional as to his current emotional/mental health status, and whether or not he suffers from depression or other mental health condition that may compromise his capacity to adequately meet the children’s needs”.
The other qualifications are that the father provide evidence that he is not using any illegal drugs by a drug screen and that he complete a Parenting After Separation program.

Consideration

The pathway through the relevant provisions of the Family Law Act 1975 (Cth) is described by the Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346. I have set out the parties proposals, the agreed matters and the principle issue.
The relevant provisions of the Family Law Act 1975 (Cth) are s.60B which describes the objects and principles of the children’s provisions, s.60CA which provides that in making a parenting order the best interests of the child are the paramount consideration, s.60CC which sets out the best interest considerations, s.60DA which contains a presumption that it is in the best interests of the children that there be equal shared parental responsibility and s.60DA which sets out the requirements when an order for equal shared parental responsibility is made. The requirements are that the court must consider whether equal time is in the best interests of the children and reasonably practicable or if not equal time substantial and significant time.
I will deal with the relevant additional best interest considerations first. The first is the views of the children having regard to their age and stage of maturity. Mr S says:
The wish of both children for an equal shared care arrangement appears to be borne out of a sense of fairness and love for both parents, which one understands from the child’s perspective. However, in this instance it cannot be acted upon due to the constraints and limits outlined above. It is the view of this writer the children in this instance whilst intelligent and pleasant individuals do not possess sufficient maturity, wisdom or knowledge about (the) shortcomings of that parental relationship to make any decision about the future parenting. Suffice to say that the children love both of their parents and wish to have a relationship with both.
Mr S then referred to the parents’ agreement on the current level of time. He says he has a mixed feelings about the current proposal. He says that on the one hand the parents are in agreement but there are some real concerns regarding the current level of functioning of the father. He concluded by saying:
As such, while this writer is generally in agreement and of the view that the children should spend time with both of their parents there must also be some endeavour on the part of Mr Edmunds to produce certain evidence to indicate his current level of functioning.
At the hearing I was informed by counsel for the Independent Children’s Lawyer that he had recently interviewed the children and their views about the time they should spend with each parent remain basically the same as those expressed to Mr S.
The children are aged 13 and 11 so their views must be taken into account. The qualification Mr S makes to the parties’ then agreement relates to the father not the children’s views. Equal time is not proposed by either parent or the Independent Children’s Lawyer and so the children’s views must be looked at relevant to the parties’ proposals. The children do not want their time reduced and that must be taken into account.
The next additional consideration is the relationship of the children with each parent and other people in their lives. From the evidence of the parents both children have a strong, secure relationship with each parent. The father acknowledges that the mother is a good mother and Mr S provides a strong assessment of her relationship with the children and attitude to parenting them. The mother acknowledges the children need to spend time with the father. Her concern is his depression and what she sees as the shortcomings in his care of the children particularly during school time.
As to other persons, the father’s partner has a good relationship with the children. The mother acknowledges the father’s partner’s role in providing the necessary communication concerning the care of the children.
The next additional consideration may be summarised as the extent to which each parent has participated in the care of the children. Since separation the mother has cared for the children. The father initially spent equal time until Christmas 2012. After that that there was limited time until the commencement of these proceedings. Since then there has been the substantial time under the current orders. The father is unemployed, paying limited child support, which means that the cost of caring for the children is with the wife.
The next additional consideration is the likely effect of any change in the child’s circumstances. The dispute between the parties is whether the children’s time with the father should remain as it is or whether it should be restricted to two nights weekend time. Given the views expressed by the children they would at least be disappointed if their time with their father was restricted. This might affect their relationship with each parent, but it cannot be stated any higher than a possibility.
There is no practical difficulty or undue expense involved in the children spending time with their father since the parties live reasonably close to each other.
The next additional consideration is the capacity of each of the child’s parents, and other persons to provide for the needs of the children, including emotional and intellectual needs. This is a significant issue raised by the mother and by Mr S. The father has a history of depression and difficult behaviour associated with that depression. The mother’s description of the father’s behaviour is to some extent corroborated by the discussion by telephone Mr S had with the husband’s wife Ms K.
Ms K described the 2012 Christmas early morning intervention by the police to Mr S. She said she was not assaulted. Her characterisation was that the father “was having a bit of a mental breakdown”. Asked to describe what she meant she described the father as “very fidgety” and “wanted to go for a drive”. Fearing for his safety Ms K took his keys away and he became extremely difficult and agitated. She called the police for assistance.
Mr S in his report says that it was difficult him to assess the father’s past history of depression and other issues relating to his overall mental health. It was not possible to obtain a complete psychosocial history of the father due to his erratic and uncooperative presentation and premature departure. Mr S said that there was sufficient information for him to have serious concerns about the father and serious concerns about his capacity to function and perform his parenting obligations in a manner that provides an optimal level of care for the children.
Mr S recommended that the current spend time arrangements should continue but conditional on the following:
1. That Mr Edmunds provides a report to the ICL from his doctor or other treating professional as to his current emotional/mental health status, and whether or not he suffers from depression or other mental health condition that may compromise his capacity to adequately meet the children’s needs
2. That Mr Edmunds provides evidence that he is not using any illegal drugs via a drug screen.
3. That Mr Edmunds should complete a Parenting After Separation program with an accredited non-government agencies.
Mr S then says that if the father does not comply with these requirements he undergo a forensic psychosocial assessment, to be conducted by Dr S and the results provided to the Independent Children’s Lawyer. He recommends that until that happens time should be alternate weekends from Friday after school until Sunday 6.00pm only.
The father has provided the letter from his general practitioner which the Independent Children’s Lawyer accepts as meeting that condition laid down by Mr S. The mother and Mr S do not. The father has not completed a Parenting after Separation program. At the hearing he produced a letter from Relationships Australia Victoria which is headed “Name On Waiting List”. The letter says:
The above named man has contacted this office on 27 January, 2015 expressing an interest in our Men’s Separation and Parenting course.
He has registered to be on the course which will commence on Tuesday, 26th May, 2015. This course runs each Tuesday evening for four weeks between 7.00pm and 9.00pm and concludes on 16th June, 2015.
Possible excessive use of Endone remains an issue for the mother. The doctor’s letter suggests that is not happening. There is no suggestion that the father obtains prescriptions for Endone from any source other than his own doctor. Thus, a medical practitioner who knows the father is monitoring his condition. The Independent Children’s Lawyer proposes an order, agreed to by the parties, that the father undertake a drug and alcohol course. This is some safeguard in this respect.
Mr S said in evidence that he did not consider the father had complied with the conditions he laid down. Time should be the two night weekend time only until the psychosocial examination had taken place and the father has completed the Parenting after Separation program.
Arguably the father has complied with the first of the conditions. The doctor who provided the letter is his treating doctor. Arguably the father should have enrolled in the Parenting after Separation program earlier but he has now done so and says he intends attending. Confidence in him doing so is reinforced by the influence his partner, Ms K, has over him and because the father must be aware that in any future dispute about the children’s time with him proof of his attendance at the course will be important.
In this case, relevant with this consideration about the father’s capacity to provide the children’s needs is the consideration whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings. If the time is reduced to two nights on alternate weekends, the father then completes the Parenting after Separation cause and then undertakes the psychosocial assessment, he can then assert that circumstances have changed and the time should be increased. Given the lack of communication between the parties and the mother’s doubts about the father’s ability to care for the children there would be a likelihood of further proceedings. This would not be in the children’s best interests.
The consideration about further proceedings is relevant to the parental responsibility dispute. When an order for equal shared parental responsibility is made pursuant to s.65DAC, the parties are required to make decisions about major long-term issues jointly and to consult and make a genuine effort to come to a joint decision about that issue. In Chappell & Chappell (2008) FLC 93–382 The Full Court of the Family Court of Australia said that in circumstances where there is a strong likelihood of deadlock between the parties a proper application of this consideration to not apply the presumption of equal shared parental responsibility in s.65DA.
Deadlock is unlikely between the parties. The father’s evidence is that the mother makes the decisions anyway and he has accepted that situation. While it might be unlikely there will be further proceedings about educational and health matters an order for equal shared parental responsibility would require the parties to consult. They do not communicate at all. The children’s best interests are not met by placing an obligation on the parents, particularly the mother, to do something which they cannot do. It places on them, particularly the mother, an unnecessary obligation in their care of the children.
I have referred to the issue of family violence already and that so far as any allegations of family violence by the father are concerned it is now relevant as background to the issue about his mental health and his depression. With orders in place I am satisfied there is no risk of the children being exposed to family violence.
The two primary considerations must be taken into account. Both children have a strong meaningful relationship with each parent. That exists under the present regime which suggests that leaving things as they are would maintain this level of the relationship. The mother’s proposals for reducing the time is based on her concern about the father’s mental state and his care for the children, not on his relationship with the children.
The second of the primary considerations is the need to protect the children from harm. Mr S and the mother have concerns about the state of the father’s mental health and the mother has concerns about his use of Endone. The concerns have to be acknowledged but I do not consider they are at such a level that it puts the children at risk of the type harm covered by this consideration. Their relevance is how they affect the father’s ability to provide for the needs of the children.

Conclusion

The views of the children are that they do not want the time reduced. Mr S says his view is that the children do not possess sufficient maturity, wisdom and knowledge about the shortcomings of the parental relationship to make any decisions about future parenting. He went on to say “Suffice to say that the children both love their parents and wish to have a continuing relationship with both. In this regard the writer’s supports this sentiment.”
These views of Mr S were in the context of the father then proposing equal time and the children saying it is what they want, and the mother that she was prepared to agree on the current level of time with an increase on the Monday afternoon to time after school. The mother’s change is based on which she perceives as the father’s behaviour and care of the children since. Mr S will continue to support the current level of time if the father meets the conditions proposed.
Arguably the father will shortly have met the conditions proposed by Mr S. He has produced a report on his mental condition from his medical practitioner and shortly should have completed the Parenting after Separation course. Orders could be made that reduce the time to two nights on alternate weekends until the father has completed the course and completed the psychosocial assessment. That would either require interim orders or final orders with conditions with a significant possibility of further proceedings.
The children have a strong relationship with each parent. I am satisfied their views must be taken into account. The concerns raised by Mr S about the father’s capacity to care for the children and his mental health may be met. Any concerns they are not are balanced by the benefit to the children of bringing these proceedings to an end with orders that are least likely to bring about further proceedings. The orders proposed by the father and the Independent Children’s Lawyer are in the children’s best interests.
The proposed orders will include an order for equal shared parental responsibility except for medical and education matters. That means s.65DAA may apply. That requires the court to consider whether equal time, or if not equal time, substantial and significant time is in the child’s best interests and reasonably practicable.
Neither party proposes equal time. The proposed orders meet the requirements of substantial and significant time contained in the section. The proposals are reasonably practicable because of where the parties live and they have the capacity to communicate sufficiently for the proposed orders, even although communication is between the mother and the father’s partner.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 19 June 2015

[2015] FCCA 1655

19 June 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness