FOGLE & GIRDWOOD

[2019] FCCA 3268

FEDERAL CIRCUIT COURT OF AUSTRALIA

FOGLE & GIRDWOOD [2019] FCCA 3268

Catchwords:
FAMILY LAW – Parenting – parental responsibility – mother’s mental health issues – father’s capacity to encourage children spending time with mother – best interests of the children.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Applicant: MS FOGLE

Respondent: MR GIRDWOOD

File Number: MLC 867 of 2012

Judgment of: Judge Mercuri

Hearing dates: 3 & 4 April 2019

Date of Last Submission: 4 April 2019

Delivered at: Melbourne

Delivered on: 15 November 2019

REPRESENTATION

Counsel for the applicant: Mr Blank

Solicitors for the applicant: Hume Riverina Community Legal Service

Counsel for the respondent: Mr Wilkinson

Solicitors for the respondent: KPW Lawyers

Counsel for the Independent Children's Lawyer: Ms Southey

Solicitors for the Independent Children's Lawyer: Joliman Lawyers

ORDERS

1. All previous parenting orders be discharged.

2. The parties have equal shared parental responsibility for the children X born … 2010 and Y born … 2011 (“the children”).

3. The children live with the mother as follows:

   (a)During school terms, each alternate week from after school or 3:30pm Thursday to before school or 9:00am Wednesday, commencing the first Thursday following the making of these orders, such time to be suspended during all school holiday periods and during Easter;

   (b)At Christmas, notwithstanding any other order, from 10:00am Christmas Eve to 3:00pm Christmas Day in odd numbered years, and from 3:00pm Christmas Day to 5:00pm Boxing Day in even numbered years;

   (c)For half of all school term holiday periods as follows:

   (i)From after school on the last day of term until 5:00pm on the middle Saturday in odd numbered years; and

   (ii)From 5:00pm on the middle Saturday until before school or 9:00am on the first day of the new school term in even numbered years;

   (d)For half of the long summer school holiday periods, from after school on the last day of the school year until 5:00pm on the middle day in odd numbered years, and from 5:00pm on the middle day until before school or 9:00am on the first day of the new school year in even numbered years;

   (e)During Easter when it does not fall during the school holiday period, from after school or 3:30pm on Easter Thursday to 5:00pm on Easter Saturday in odd numbered years, and from 5:00pm on Easter Saturday to before school or 9:00am on Easter Tuesday in even numbered years;

   (f)On the mother’s birthday and each of the children’s birthdays if the children are not already in her care, from 3:30pm or after school to 6:00pm if a school day and from 1:00pm to 6:00pm if a non-school day;

   (g)On Mother’s Day from 9:00am to 5:00pm in the event that the children are not ordinarily in the care of the mother; and

   (h)At such further or other times as may be agreed to between the parties from time to time in writing (including via text message).

4. The children live with the father at all other times.

5. Notwithstanding any other order, the children shall be in the care of the father as follows:

   (a)At Christmas, from 10:00am Christmas Eve to 3:00pm Christmas Day in even numbered years, and from 3:00pm Christmas Day to 5:00pm Boxing Day in odd numbered years;

   (b)For half of all term school holiday periods, from after school on the last day of term until 5:00pm on the middle Saturday in even numbered years and from 5:00pm on the middle Saturday until before school or 9:00am on the first day of the new school year in odd numbered years;

   (c)During Easter, when it does not fall during the school holiday period, from after school or 3:30pm on Easter Thursday to 5:00pm on Easter Saturday in even numbered years, and from 5:00pm on Easter Saturday to before school or 9:00am on Easter Tuesday in odd numbered years;

   (d)On the father’s birthday and each of the children’s birthdays if not already in the care of the father, from 3:30pm or after school to 6:00pm if a school day and from 1:00pm to 6:00pm if a non-school day; and

   (e)On Father’s Day from 9:00am to 5:00pm in the event that the children are not ordinarily in the care of the father.

6. The parent who does not have the children in their care shall communicate with the children by telephone and electronic means between 6:00pm and 6:30pm each Tuesday and Thursday, with the parent who does not have the children in their care to telephone the other parent’s landline telephone number, mobile or Skype/FaceTime account, the other to ensure that their telephone is switched on and in a mobile service area and the other parent to provide all reasonable assistance to the children to facilitate the communication.

7. Changeover shall take place at school and if not a school day at McDonalds Town A or as otherwise agreed between the parents in writing (including via text message).

8. The parents each keep the other informed at all times of any significant medical injury or illness affecting the children or either of them when in the care of each of them including providing the other parent with details of any doctor or hospital that the children may attend upon along with details of any treatment administered.

9. The parents each keep the other informed at all times of their current residential address and contact telephone number, and notify the other within 48 hours of any change to same.

10. Each parent be restrained by injunction from:

    (a)Insulting, belittling, abusing or otherwise denigrating the other parent or a member of their immediate household in the presence or hearing of the children or either of them;

    (b)Discussing these proceedings or either of the children’s living arrangements in the presence or hearing of the children or either of them;

    (c)Showing the children or either of them any document associated with these proceedings; and

    (d)Permitting any other person to do anything prohibited under this order.

11. The parents be permitted by these orders to:

    (a)Participate in all usual parent/child school activities to which parents are invited;

    (b)Receive or access from each of the children’s schools information and documents in relation to the children (including but not limited to reports, letters, photographs and the like); and

    (c)Discuss all matters pertaining to the children’s education, health and wellbeing with their school and medical and like practitioners and the costs, if any, of such information shall be paid by the parent requesting the information.

12. Each parent forthwith and within 14 days attend upon their general practitioner for a review as to their current mental health functioning, and follow all recommendations given by their general practitioner, including but not limited to attending on any psychologist or counsellor as they may be referred to by their general practitioner for such a period as may be recommended.

13. Each parent forthwith and within 14 days contact Region B Family Care for a referral to parenting support services, to assist each of them with developing strategies to manage the child X’s behaviour and reluctance to spend time with the mother, and follow all lawful directions given by any such service.

14. Each parent have leave to and shall provide within 7 days a copy of the following documents to their general practitioner and any psychologist or counsellor they may be referred to pursuant to orders 12 and 13:

    (a)The family report of Dr C dated 22 August 2018;

    (b)A copy of these orders; and

    (c)The addendum report of Dr C dated 4 September 2018.

15. The Independent Children’s Lawyer have leave to and shall provide within 7 days a copy of these orders to the children’s school.

16. The Independent Children’s Lawyer be discharged one year from the date of these orders.

17. Pending her discharge, the Independent Children’s Lawyer have liberty to apply on an urgent basis with respect to the implementation of and/or compliance with these orders.

18. Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

(A)Pursuant to section 62B of the Family Law Act 1975 (Cth), information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(B)Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ALBURY

MLC 867 of 2012

MS FOGLE

Applicant

And

MR GIRDWOOD

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter involves parenting arrangements for the children X born … 2010 (“X”) and Y born … 2011 (“Y”) (“the children”).

2. At the time of the hearing, the children were both living with the father and had been doing so since they were both very young.  The mother sought an order for a change of residence and a moratorium on the father’s time for a period of four months to allow the children to settle in her care.  The mother also sought an order for sole parental responsibility.

3. The father opposed the mother’s application.  He sought orders for equal shared parental responsibility, that the children live with him and spend time five nights per fortnight with the mother.

4. The Independent Children’s Lawyer sought orders essentially consistent with those sought by the father although in a single block of time each fortnight.

Background

1. The parties were in a relationship from 2002 to 2011. 

2. The mother alleged that the father was both physically and verbally violent during their relationship.[1]  Both parents have a history of drug and alcohol use.

   [1] Mother’s trial affidavit affirmed 19 and filed 20 March 2019 at paragraphs [8] and [10].

3. At the time of separation, the mother was pregnant with Y.  Her evidence is that she asked the father to care for X on a temporary basis until she had given birth at which time X would return to the mother’s care. [2]  However, prior to Y’s birth, the father moved to Town H with X.  The mother then moved to Town H after Y was born. 

   [2] Mother’s trial affidavit affirmed 19 and filed 20 March 2019 at paragraph [9].

4. The mother says that following a violent incident between herself and the father in January 2012, she returned to City J.  She then commenced court proceedings seeking orders for X to live with her and Y.  In March 2012, interim orders were made:

   a)for X to continue living with the father and to spend time with the mother; and

   b)for Y to continue living with the mother and to spend time with the father.

5. Shortly thereafter, the father returned to City K. 

6. It is common ground that in July 2012, the Department of Health and Human Services (“DHHS”) issued an application in the Children’s Court resulting in Y being placed in the care of the maternal aunt, Ms D and X remaining in the care of the father. 

7. DHHS’ involvement in relation to X continued until October 2012, at which time orders were made in the Federal Magistrates Court (as it then was) for X to live with the father and spend supervised time with the mother.  DHHS’ involvement in relation to Y subsequently ceased and in April 2013, further interim orders were made for X and Y to live with the father and to spend time with the mother at a contact centre.[3]  At this time, X was not yet three years old and Y was less than 18 months old.

   [3] Interim orders made 3 April 2013 in the absence of the mother.

8. In October 2013, orders were made for a family report and the matter was listed for a final hearing.  A family report was subsequently prepared by Ms E and following its release to the parties, final orders were made by consent of the parties on 14 April 2014 (“2014 consent orders”).

9. The 2014 consent orders provided for the father to have sole parental responsibility, for the children to live with the father and to spend supervised time with the mother.[4] 

   [4] Orders 2, 3 and 7 of the final orders made 14 April 2014.

10. They also provided that the mother could apply to the court to seek to vary those orders upon providing certain evidence about:

    a)her mental health;

    b)completion of an anger management course;

    c)completion of parenting courses;

    d)her living arrangements; and

    e)at least six negative supervised drug screens.[5]

    [5] Order 9 of the final orders made 14 April 2014.

11. The mother now seeks to vary the 2014 consent orders.

Evidence

1. The mother relied upon her trial affidavit affirmed 19 March 2019.  She also gave evidence in these proceedings and was subjected to cross-examination.

2. Similarly, the father relied upon his trial affidavit also affirmed on 19 March 2019.  He too gave evidence and was subject to cross examination.

3. The court also received evidence from:

   a)Ms F, a child and youth counsellor who was engaged by the father to provide support to X; and

   b)Dr C, a clinical and forensic psychologist who prepared a family report and addendum report dated 22 August 2018 and 4 September 2018 respectively.

4. There is a significant dispute between the parties about a number of facts relevant to their relationship with each other and with the children.  What is not in dispute however, is that:

   a)both parents suffer from a range of intellectual limitations;

   b)the mother has a history of mental health difficulties;

   c)the children also have various cognitive difficulties; and

   d)both parties have a history of drug and alcohol use.

5. The mother’s evidence, which I accept, is that from 2014 until 2016, she made efforts to increase the time she spent with the children.[6]

   [6] Mother’s trial affidavit affirmed 19 and filed 20 March 2019 at paragraphs [20] to [39].

6. In about early February 2016, after she had been refused legal aid funding to pursue additional time with the children, the mother suffered a mental health relapse,[7] which I will discuss further below. 

   [7] Mother’s trial affidavit affirmed 19 and filed 20 March 2019 at paragraph [32].

7. It would be fair to say that throughout this period, the father attended to the children’s daily needs. 

8. It is also not in dispute that on 4 December 2017, after a hearing in the proceedings in this court, the father was assaulted in a carpark.  He believed that the mother was responsible for that assault and sought and obtained an interim intervention order against her.  Ultimately, he withdrew that application. The mother has at all times denied any involvement in this assault.[8]

   [8] Mother’s trial affidavit affirmed 19 and filed 20 March 2019 at paragraphs [42] to [51].

9. From February 2018, orders were made for the children to spend unsupervised time with the mother, initially on a fairly limited basis of a few hours each week increasing over time.[9]

   [9] Interim orders made by consent of the mother and Independent Children’s Lawyer dated 19 February 2018.

10. It is also not in dispute that time progressed well pursuant to these orders until April 2018 when X started to refuse to spend time with the mother.  The mother’s own evidence in relation to this was as follows:

    a)on 9 April 2018 whilst spending time with her, there was an incident in which the mother applied head lice treatment to X’s hair;

    b)X became extremely distressed and would not allow the mother to remove the head lice treatment from her hair; and

    c)the mother returned X to her father’s care with the head lice treatment still in place (“the head lice incident”).[10] 

    [10] Mother’s trial affidavit affirmed 19 and filed 20 March 2019 at paragraph [56].

11. Following the head lice incident, X started to refuse to spend time with her more often, although there were some occasions when she did spend time with the mother.[11] 

    [11] Mother’s trial affidavit affirmed 19 and filed 20 March 2019 at paragraphs [57] to [59].

12. It is common ground that Y continued spending time with the mother throughout this period although there were some occasions when he refused or said that he did not wish to attend. 

13. It is also not in dispute that:

    a)after the orders were altered by consent in September 2018 providing for the children to spend increasing time with the mother up to five nights per fortnight, X increasingly refused to spend time with the mother and would often run away from her when she came to collect her from school;

    b)the mother would often contact the father on these occasions and ask him to come and collect X as she was refusing to come home with the mother and generally, the father would then attend at the school and take X with him;[12] and 

    c)there were a number of incidents at the mother’s home in about October and November 2018 when X said things to the mother along the lines of ‘you’re not my mother’, ‘you don’t want us’, ‘you want another man’, ‘you hurt my dad’, ‘you’re dumb’ and the like.[13] 

    [12] Mother’s trial affidavit affirmed 19 and filed 20 March 2019 at paragraph [93].

    [13] Mother’s trial affidavit affirmed 19 and filed 20 March 2019 at paragraph [90].

14. X’s refusal to spend time with the mother continued to escalate over November and December 2018. 

15. It is also common ground that during her time with the mother on 31 January 2019, X repeated some of the comments outlined above and further said that the mother had killed the paternal grandmother (who had died in … 2018).  The mother conceded that she became very upset at these comments and, while washing the dishes, she threw a plastic cup at the curtain and told X to go to her room.[14]  X became distressed, started crying and went to her room. 

    [14] Mother’s trial affidavit affirmed 19 and filed 20 March 2019 at paragraphs [90] and [91].

16. Perhaps not surprisingly, following this incident, X continued to refuse to spend time with the mother. 

17. In addition to detailed evidence about how time with the children has progressed since the making of the 2014 consent orders and more recently since the commencement of these proceedings, the mother also gave the following evidence:

    a)she denied the father’s allegations that she has men at her home;[15]

    [15] Mother’s trial affidavit affirmed 19 and filed 20 March 2019 at paragraph [115].

    b)in response to the claim that a person known as ‘Mr G’ is a friend of hers and visits the home, she denied knowing anyone by this name;[16]

    [16] Mother’s trial affidavit affirmed 19 and filed 20 March 2019 at paragraph [116].

    c)she has undertaken numerous drug screens all of which have been clear of illicit substances;[17]

    [17] Mother’s trial affidavit affirmed 19 and filed 20 March 2019 at paragraph [119].

    d)she continues to engage with a psychologist approximately once per month;[18]

    [18] Mother’s trial affidavit affirmed 19 and filed 20 March 2019 at paragraph [120].

    e)she continues to engage with the family violence team at Medical Clinic;[19]

    [19] Mother’s trial affidavit affirmed 19 and filed 20 March 2019 at paragraph [121].

    f)she has undertaken the following programs and courses:

    i)Triple P Program, completed 16 November 2017;

    ii)Wings Group Program, completed February/March 2018;

    iii)Tuning Into Kids Program, completed February/March 2018;

    iv)Building Better Bridges program, completed Term 2, 2018;

    v)Bringing Up Great Kids program, completed 27 August 2018;

    vi)Depression and Anxiety Recovery program, completed 9 October 2018;[20] and

    g)her current living arrangements.[21]

    [20] Mother’s trial affidavit affirmed 19 and filed 20 March 2019 at paragraph [126].

    [21] Mother’s trial affidavit affirmed 19 and filed 20 March 2019 at paragraphs [127] to [133].

Dr C

1. Dr C interviewed each of the parties and X.  He did not interview Y due to his young age.

2. In observing the children with the father, Dr C noted:

   The children appeared to be quite happy to see their Dad and they were affectionate to him.  The children are clearly low functioning.  Interestingly enough in the observation the father was surprisingly passive…[22]

   [22] Family report prepared by Dr C dated 22 August 2018 at paragraph [57].

3. When interviewing X, Dr C noted:

   (X) said when she saw her Mum at the school she didn’t want to go to her mother’s house and she felt like staying with her father.  … X told me she did not want to see her mother today because she ‘isn’t very nice to me and because I don’t like her because again she was mad to my Daddy.’  It was thus with some surprise that I was able to engage X in seeing her mother without a huge amount of reluctance when that opportunity arose.[23]

   [23] Family report prepared by Dr C dated 22 August 2018 at paragraph [59].

4. Dr C further noted that although X was initially reluctant to spend time with her mother and some of her anxiety may have reflected the father’s obvious anxiety, her reluctance:

   clearly eroded within a minute and she gave her mother a cuddle.  Y was quite affectionate towards his mother and as noted within seconds X’s behaviour became cheerful and positive.  She put back on her magic hat and wig and started playing with the wand.

   … Contact with the children and their mother was interactive and appropriate.[24]

   [24] Family report prepared by Dr C dated 22 August 2018 at paragraph [60].

5. Dr C expressed concern as to whether comments made by the father were at the heart of X’s reluctance to spend time with her mother.  He noted:

   I suspect that the things that the father says to her, despite the changeovers occurring at school, may well trigger her not wanting to see her mother.  It is likely that X goes to school in an anxious frame of mind because the father is anxious about the children spending time with their mother.[25]

   [25] Family report prepared by Dr C dated 22 August 2018 at paragraph [62].

6. In conclusion, Dr C formed a fairly adverse view of the father.  He relevantly concluded:

   Mr Girdwood presents as an odd man who appears to be quite obsessive and controlling and somewhat paranoid.  …I think that he has chosen to demonise Ms Fogle and to place all the difficulties that he has experienced in his life on her.  He avoids taking responsibility for any of the misfortunes that have befallen him, and to my mind has sought to create a myth of being ill treated to compensate for his self destructive behaviours.

   … His children are at risk of a folie a famille condition by attempting to inculcate his children with his paranoid beliefs.  As a consequence his daughter is professing to dislike her mother but it was clear from my observations of her behaviour with her mother that she in fact has an excellent relationship with her if she can only get space from the father’s anxiety and control to enjoy her relationship with her mother.[26]

   [26] Family report prepared by Dr C dated 22 August 2018 at paragraphs [104] and [105].

7. In relation to the mother, Dr C made the following observations:

   Ms Fogle presents as a woman who is emerging from a life long deep and chaotic psychiatric crisis.  It has caused her to act in terrible ways and it has damaged her capacity to parent her children in the past.  It has caused her to be involved in unwise and dysfunctional relationships with men, violent relationships and drug and alcohol affected relationships.

   … However, Ms Fogle impresses as a woman who has gained some insight into her behaviour, who has taken a hard road to make significant adjustments and alterations to her behaviour.  She has benefited from the psychotherapy she has engaged in and also with the psychiatric support she has sought and is compliant with.  Currently she presents as a woman who is stable and capable of providing a reasonable level of parenting to her children although it must be noted that her parenting skills have not been tested since her improved functioning began to kick in.[27]

   [27] Family report prepared by Dr C dated 22 August 2018 at paragraphs [106] to [107].

8. In relation to the children, Dr C made the following observations:

   Both X and Y are intellectually disabled children.  Y in particular presents as having a severe communication disturbance and I am quite worried about how that might pan out as he approaches his school years.  X appears to be a delightful girl despite the fact of her intellectual disability and the difficult living condition that she has had to endure, despite the father’s likely problematic behaviour.  I acknowledge he appears to have cared for her adequately over the years.[28]

   [28] Family report prepared by Dr C dated 22 August 2018 at paragraph [108].

9. Dr C ultimately concluded that whilst the father has provided adequate care to the children, he appears to be incapable of promoting a positive relationship between the children and their mother.[29]  In particular, Dr C formed the view at the time of preparing his report, that the father’s fixed adverse views about the mother and his anxiety about the children spending time with her, would be picked up by the children.[30]  Moreover, he expressed concern about the children being able to distinguish between fact and fantasy given their own developmental issues adding to their inability to separate their own experiences of their mother from the views expressed by the father.[31]

   [29] Family report prepared by Dr C dated 22 August 2018 at paragraphs [117], [124].

   [30] Family report prepared by Dr C dated 22 August 2018 at paragraphs [127], [129].

   [31] Family report prepared by Dr C dated 22 August 2018 at paragraph [112].

10. Dr C prepared a supplementary report on 4 September 2018. Following receipt of this report, orders were made by consent of the parties on 18 September 2018 for the children’s time with the mother to increase quite quickly to five nights a fortnight (“the September 2018 consent orders”). 

11. As is evident from the chronology set out above, the time between X and the mother after the making of the September 2018 consent orders has been problematic, with X demonstrating increasing resistance to spending time with the mother.

12. In the course of Dr C giving evidence, it became apparent that the mother had not disclosed to him that she had had a number of mental health relapses in particular in 2016, 2017 and mid-2018.  When the mother’s medical records relating these issues were put to Dr C, he conceded that whilst it was important to contextualise the behaviour in terms of its severity, relapses of that nature would be of moderate concern.[32] However, he went on to say:

    My greater concern would be if she was unable to regulate her mood and unable to have some insight into what she was experiencing, talk it through with the psychologist and emerge from it.  …You would expect fluctuation in her mood.  You would expect fluctuation in her thought processes from time to time.  But so long as she stays in control of them and is able to seek help for them and able to deal with them, I have less concern than I would have had… had I been seeing her prior to 2017.[33]

    [32] Transcript page 176.

    [33] Transcript page 176 at lines 31 to 40.

13. It is noted that the mother has not filed any material about her current mental health state.  In the absence of this information, Dr C went on to say that in the context of:

    a very severe and debilitating psychological presentation, mental illness personality disorder… I thought… she… was emerging from… if there are indication that… there’s too much fluctuation in her presentation – I don’t know if one episode represents too much fluctuation.  But if there was too much fluctuation in her presentation, then, yes, there would be some concern about that.[34]

    [34] Transcript page 177 at lines 19 to 25.

14. In discussing X and her feelings and reactions towards her mother, the following exchange occurred with Dr C:

    Dr C:… at the time that I spoke to X, she was very much in the frame of mind that her mum was hurting her father… what she was indicating (to the CHIPS worker) was simply that there was no emotional involvement… with her mum, but again indicating that Dad was the central figure in her life.

    …the core similarity is the central role that the father plays in X’s understanding of her mother.

    Her Honour: …What do you mean “the central figure is her Dad” in the way she perceives her mum?

    Dr CSo there are two issues.  Firstly, and my observations, when I went to get the children to take them to mum, the father jumped.  He was startled and he looked extremely anxious, which I thought probably reflected the fact that he is extremely anxious about the children having any kind of contact or relationship with their mother.  … he’s able to communicate that through non-verbal means with the children.  The second one is that I believe the father has systematically attempted to incorporate the children into his belief that the mother is the sole cause to all the problems he has in life and that he has done that in a very deliberate fashion.[35]

    [35] Transcript page 178 at line 43 to page 179 at line 44.

15. It is evident both from Dr C’s assessment and from the other evidence presented in this matter that both parents and each of the children have limitations which:

    a)in the case of the parents, impacts their ability to parent; and

    b)in the case of the children, impacts their ability to cope with the limitations that each of the parents brings to their parenting.

16. In addition, the children have had a disrupted relationship with the mother as a result of the circumstances which led to the making of the 2014 consent orders and the limited time spent with the mother between 2015 and 2018.

17. Ultimately, the question for this court is, acknowledging all of these limitations, what arrangements are in the best interests of these children moving forward.

18. When asked whether he could support the mother’s proposal for sole parental responsibility, a moratorium on the father’s time for four months and then a slow reintroduction of time with the father, Dr C said:

    That’s a really, really, really hard question.  I think it would depend very much on your view about whether there was any likelihood that mum and dad could cooperate.  …Mum is not… a person who is very flexible or adroit in her thinking process.  She’s fairly concrete.  I think she loves her kids and all those things, but I think she will find it hard to respond to the emotional distress that X will feel.  X similarly has intellectual difficulties, cognitive difficulties, that prevent her from being able to problem solve in an easy way.  So she will … respond very viscerally, very emotionally to that situation.  There would need to be substantial in-house support.  Mum would not be able to cope with that just on using her own resources.  She would need a good level of support … who could coach her and advise her on how to respond to what would be quite a strong reaction from X…

    …to be perfectly honest, in the absence of something like that, it would be a very difficult situation for mum and X to ever... form a proper relationship.[36]

    [36] Transcript page 182 at line 40 to page 183 at line 27.

19. When it was put to him that in the course of these proceedings, the father had come to realise that the mother was in fact not responsible for the various assaults on him over the years, Dr C expressed some hesitance in accepting this.  Dr C relevantly said:

    … I believe the father had a fixed and entrenched belief.

    … I don’t think that he is capable of changing that belief.  …if he says he has changed that belief, I would need… clear evidence that he was talking to the children about the good things that the mother has done and apologised to the children for… (the various things he had told them about the mother).[37]

    [37] Transcript page 184 at lines 27 to 33.

20. When the contact centre notes were put to him which recorded that the father had on occasions clearly encouraged the children to spend time with the mother, Dr C said:

    I’m more than happy to be wrong …if it turns out that… dad is capable of greater flexibility and greater insight than what I’ve assessed him as then, yes I think that would be great, because that would be the best outcome for the children.  They have two parents that they can move between reasonably easily with the love and care and a feeling of support from both.[38]

    [38] Transcript page 185 at lines 1 to 8.

21. Dr C also suggested that the parents would benefit from:

    a)mediation facilitated by a parenting expert to address things such as routines, strategies for changeover, telephone calls and to help address the unintentional hostility they had for each other; and

    b)in the case of the mother, she would benefit from a parenting support person to provide her with coaching particularly on how to diffuse situations and avoid escalating situations.

22. In expanding on the notion of mediation, Dr C said:

    I think it’s always therapeutic and beneficial for children if they can actually see their parents are cooperating. …it would be very therapeutic for X to see her parents talking to each other nicely. Talking sensibly and cooperating.  …there’s a lot of water under the bridge for these two people.  But if they are able to find a way to... talk to each other in a decent and civil way as they’ve done in their texts and to be able to be together and the children see them together and to see them cooperating that would be immensely helpful to the children.[39]

    [39] Transcript page 188 at lines 30 to 43.

23. The mother raised concerns about:

    a)the father’s capacity to support the children’s relationship with her; and

    b)the father’s mental health given his paranoid thinking, particularly in relation to her role in the various assaults he has suffered over the years and his fixation on her alleged relationship with men, especially a person called ‘Mr G’.

24. It is on this basis that the mother sought an order for sole parental responsibility, a change of residence and a moratorium of four months on the children’s time with the father.

25. As stated, notwithstanding his concerns about the father’s ability to support the children’s relationship with the mother, Dr C expressed significant concerns about the mother’s proposal. His view was that if this court found that the father’s conduct amounted to alienation, there would still need to be some time with the father, even if on a supervised basis, because otherwise the children would not be able to cope with a change which resulted in no contact with the father. 

26. He relevantly said:

    I think they will have a great deal of difficulty in doing that and because X already believes that her mum… has tried to hurt her dad… she will need reassurance that her dad’s okay.[40]

    [40] Transcript page 194 at lines 2 to 5.

27. When it was put to him that the current arrangements were not working, Dr C added:

    …if you’ve given it your best shot and it’s not working then X is going to need some substantial time where she’s not disturbed by being… triggered by her father about negative thoughts about her mum.  But at the same time (there) has (to be) some capacity to see her dad so that she’s reassured that he is okay.[41]

    [41] Transcript page 195 at lines 16 to 19.

28. When asked to comment on the impact on X of granting orders in the terms sought by the mother, Dr C said:

    …X won’t understand.  …she doesn’t have mental flexibility… So it will be pretty traumatic for her.  That’s why I wanted to maintain some connection with her dad because she will be very worried and scared about what’s going to happen to her dad.  I think on the strength of my interview with her that she genuinely believed that her mum was dangerous to and had tried to hurt her dad and if she’s stuck with her mum and she can’t see her dad she will start to fear that something bad is happening to her dad.  …it will be very traumatic for her… because her primary attachment is to her father and… you break the primary attachment and then that has… implications for the child’s sense of security in the world even though she does have some relationship with her mum.  But I think it’s a bit worse for X because she has a genuine fear of her mum built up by the things that dad has said and so… she’s not only going to be struggling with object loss and the sense of loss of her dad but she will be struggling with a fear that something bad will happen to her dad.[42]

    [42] Transcript page 196 at lines 10 to 29.

29. For his part, the father raised concerns about the mother’s mental health and stability in light of her history of suicidal ideation.  Notwithstanding these concerns, the father says that the parties have demonstrated an ability to communicate appropriately to deal with the children’s refusal (particularly X) to spend time with the mother and proposed that the parents have equal shared parental responsibility, that the children remain living with him and spend time with the mother on a 5/9 basis.

30. In relation to the father’s mental health issues and his capacity to support and encourage a relationship with the mother and the children, particularly X, it was put to Dr C by counsel for the mother that, whether intentionally or not, if the father’s entrenched views about the mother were not altered, this would create an ‘archetypal alienation environment.’[43]  In response, Dr C said:

    Well… it has been put to me that the father has made some changes in the commentary that he has made and I have to accept that there have been some changes.  Whether that’s because the father’s aware that he needs to lighten up… or he will lose the children or whether it’s because he has genuinely got insight into the need to help the children develop a healthy relationship with their mum I don’t know.  But on the whole my view was the father had an entrenched irrational belief structure and that that was unlikely to change.  And in that context the consequence of that is that by incorporating the children into that belief structure an alienation kind of situation was occurring.  If the father has got some insight into that and he has made some change then the alienation context is eroding.  But… when I saw the family …I thought it was likely to be a very difficult change to achieve.[44]

    [43] Transcript page 193 at line 9.

    [44] Transcript page 193 at lines 12 to 23.

Ms F

1. In May 2018, the father arranged for X to obtain some counselling support from Ms F.  His evidence is that this was in response to X’s ongoing refusal to spend time with the mother following the head lice incident.

2. Although she had not filed an affidavit in these proceedings, the Independent Children’s Lawyer sought and was granted leave to call Ms F to give evidence about her involvement with X and the circumstances of her engagement. 

3. Ms F stated that she had been working as a child and youth counsellor at the relevant time, although she had ceased that employment by the time she gave her evidence at trial.[45]  She also gave evidence that she holds an Advanced Diploma in Child and Adolescent Psychology and a Diploma in Youth and Child Counselling and that she was undertaking a Masters in Mental Health.[46] 

   [45] Transcript page 14 at lines 39 to 43.

   [46] Transcript page 15 at lines 1 to 3.

4. Ms F gave evidence that:

   a)she had been working in the area of child counselling for some two to three years;[47]

   b)she was engaged by the father to work with X in about May or June 2018;[48]

   c)she agreed to undertake eight sessions with X although she ultimately only conducted six sessions;[49] and

   d)the sessions ceased because the father had not paid her for her services to date and also because she said she formed the view that X no longer required ongoing counselling.[50] 

   [47] Transcript page 15 at lines 5 to 6.

   [48] Transcript page 15 at line 12.

   [49] Transcript page 15 at lines 14 to 15.

   [50] Transcript page 15 at lines 17 to 23.

1. It was apparent from her evidence that Ms F held a fairly dim view of the father and his parenting ability.   For example, Ms F was critical of the father’s questions when he initially contacted her to explore whether she might be able to assist X, in particular the extent of her connections in the local community.

2. Ms F’s evidence was also that in the initial session, the father gave her the following information:

   He said that they had been fighting over custody for many years… they were about to get into another custody battle, and he didn’t want the kids going back to their mother because she had numerous drug problems, bikie affiliations, didn’t know if she was prostituting for drugs, other really cruel things, and that X was really, really scared to go to (her) mother, and that’s why he wanted me to work with X.[51]

   [51] Transcript page 16 at lines 7 to 12.

3. When he was asked about this first meeting, the father stated that he gave Ms F a background to the situation, including that he had heard that the mother had bikie affiliations and had previously used drugs.[52]  He denied saying that the mother had been prostituting herself for drugs although he did say that was what he had been told.[53]  The mother relied upon these statements as evidence that the father denigrated her in the presence of the children.

   [52] Transcript page 110.

   [53] Transcript page 111 at lines 34 to 38.

4. When asked why he mentioned these matters, the father said that Ms F had asked him whether the mother had any problems with drugs and he provided that information in response.[54]   The father’s evidence was also that he had this conversation privately with Ms F and not in the presence of the children.[55]

   [54] Transcript page 111 at line 40 to page 112 at line 2.

   [55] Transcript page 109 at line 36 to page 110 at line 2.

5. Ms F also gave evidence that after the first couple of sessions, she formed the view that X was indeed happy to go with her mother and that she did not have any fear of her mother.[56]

   [56] Transcript pages 16 and 17.

6. Ms F further stated that at the end of the second session, she prepared a written report of her observations of X which she provided to the father.[57]  In that document (which is included in Exhibit A), she noted X’s reference to ‘the bad man’ and X and Y being scared when staying at their mother’s home.[58]  Ms F stated that when she gave this report to the father, he said that he could not rely on it in the proceedings because X was not spending overnight time at the mother’s home.[59]

   [57] Transcript page 17 at lines 31 to 32.

   [58] Exhibit A, pages 1 and 2.

   [59] Transcript page 18.

7. Ms F stated that these comments made by the father led her to question X’s statements about what happens at night, given it was apparent that X only spends overnight time with the father.[60] 

   [60] Transcript page 18.

8. Ms F also gave evidence about some drawings that X did in later sessions.  She said that when asked to draw her experiences in her father’s home, X drew a picture of her and Y using only black texta.  This drawing, according to Ms F, contrasted with other pictures which X had previously drawn in bright colours indicating something negative about how X felt in her father’s home.

9. Ms F also said that when asked about this, X indicated that she felt sad and when asked why, she said “I’m not allowed to say”.[61]

   [61] Transcript page 19.

10. Ms F said that in the last three sessions that she spent with X, she formed the view that X was a very happy little girl but one “just dying for affection and company and someone to play with” which, according to Ms F, she was not getting at home with her father.[62]

    [62] Transcript page 20 at line 12.

11. Ms F added that she could not see anything in X’s presentation which indicated that she was fearful of her mother.[63] 

    [63] Transcript page 21 at lines 26 to 36.

12. On either the fourth or fifth session, the father spoke to Ms F about her possibly also seeing Y as he was concerned that something might be ‘going on with him’.  In relation to this, Ms F gave the following evidence:

    It would have been around the fifth session that Mr Girdwood started telling me that there was more going on with Y and that he... had started talking about wanting me to see Y…

    …

    …around the last session that he said ‘Well, I think Y is being interfered with by mum’s boyfriend.’[64]

    [64] Transcript page 21 at lines 42 to 43.

13. Ms F said that she had a quick chat with Y and told the father that if he believed there was an issue with Y, he needed to report it to the appropriate authorities.[65]

    [65] Transcript page 21 at line 45 to page 22 at line 7.

14. Ms F also gave evidence that shortly after the fifth session, the father started sending her messages by phone and email, which were not related to X or Y, including messages about the football, drug screens which he had undertaken and the like.[66] 

    [66] Transcript page 22 at lines 11 to 39.

15. The father gave evidence that he did ask Ms F to see Y once he became aware that Y may have had dealing with a person called ‘Mr G’ whilst at the mother’s home.  He said that he just wanted Ms F “to make sure (Y) was okay.”[67]

    [67] Transcript page 121 at line 2.

16. Ms F saw X six times between 18 May and 27 July 2018.

17. On balance, I have been cautious in relying upon the evidence given by Ms F.  It is clear that she had a dim view of the father, perhaps both at the time he initially engaged her, but certainly by the end of her sessions with X.  It is clear from her evidence that a dispute ensued about the father’s failure to pay her fees in a timely manner and also his ongoing contact with her after the sessions had come to an end.

18. I accept the father’s evidence that he took X to see Ms F in an attempt to help X spend time with her mother and deal with any anxieties she might have surrounding that time. 

19. I find that the father sought the assistance of Ms F to help X’s time with her mother progress more positively.  This is consistent with the fact that following the head lice incident on 9 April 2018, X refused to spend time with her mother.  In this context, I am satisfied that the father, quite appropriately, sought assistance for X. 

20. I do not accept that the father was trying to gather evidence against the mother.  Had he been intent on avoiding the child having any time with the mother, he would have been more likely to simply do nothing rather than seek out a counsellor for X.  In about May 2018, when he sought Ms F out and started taking X to see her, X was refusing to spend time with the mother. 

Observations of the parties

1. It is apparent that notwithstanding their own issues, both parents love these children.  It is also apparent that the mother has suffered as a result of the minimal time that she has been able to spend with the children and feels distressed by the fact that X has continued to refuse to spend time with her since the making of the September 2018 consent orders. 

2. There is a lack of trust between them and both parents have had difficulty in working out how best to overcome the challenges they face in progressing the children’s relationship with the mother. 

3. I find that the father does have fixed views and holds concerns about the mother’s capacity to care for the children and keep them safe.  In the course of cross-examination, he often referred to things that he had heard about the mother or about others that she associated with.  Whilst he conceded that he did not know whether these things were true, he acknowledged that he repeated these claims for example, to Ms F and to the contact centre supervisors. 

4. It is also apparent that until fairly recently, the father also strongly held the view that the mother was involved in or behind a number of assaults on him over the years.  At the hearing, he indicated that he no longer holds this view in the absence of evidence.  It is nevertheless apparent that he did hold that view for a long period of time.  Notwithstanding this, I accept that the father now understands that there is no evidence to suggest the mother was involved in these attacks. 

5. I accept the father’s evidence that he does support the children having a positive relationship with their mother.  The evidence is that Y has continued to spend regular and frequent time with the mother.  Although X has been more resistant, she has spent some time with the mother and on the basis of the totality of the evidence, I am not satisfied on the balance of probabilities that any remaining resistance is due to the direct or indirect actions of the father. 

6. The father acknowledged the mother’s positive changes and her attempts to re-establish a relationship with the children and become involved in their lives. 

7. Notwithstanding her criticism about the father’s failure to support X’s relationship with her, the mother acknowledged that the father has been actively involved in ensuring that the children received the necessary supports to assist them, in light of X’s ADHD diagnosis and Y’s learning difficulties. 

8. At Exhibit G are the notes taken by the contact centre which effected changeover between the parents.  Those notes indicate that:

   a)X began to refuse to spend time with the mother after the head lice incident;

   b)on 21 April 2018, the father (and paternal grandmother) tried to encourage X to spend time with the mother and told her that the mother wanted to see her and that she would have fun with the mother;

   c)the father made similar comments on 28 April 2018;

   d)on 12 May 2018, X went with her mother;

   e)similarly on 16 June 2018, both children went with the mother; and

   f)on 2 July 2018, the contact service notes record that the father said to X ‘are you going with Mum? She misses you and she loves you.’ X said yes and both she and Y went with the mother.[68]

   [68] Exhibit G.

9. The contact service notes also reveal that on a number of occasions when X refused to go with the mother, the father did not say anything and on a couple of occasions, he simply asked if X was going with the mother or with him.  Whilst ideally it would have been preferable for the father to have more actively encouraged X to go with her mother, particularly in circumstances where she had been refusing to spend time with the mother for some time, such comments are not entirely unreasonable and certainly do not rise to the level of ‘alienation’. 

10. Similarly, it is clear that on a number of occasions, particularly in late July/early August 2018, the father made some comments in front of the children at changeover which he ought not to have made.  Again however, these comments, whilst not ideal, do not rise to the level of alienation.  Rather, I find that they are statements made by a father who is finding it difficult to support his daughter in spending time with her mother, in circumstances where the relationship between mother and daughter has remained fragile for a variety of reasons, many of which were beyond his control. 

11. What is apparent from a review of the contact centre notes is that Y displayed no hesitation in seeing or spending time with the mother, clearly enjoyed his time and spent it happily with her, often returning with a smile on his face. 

12. The father gave evidence that he does not speak negatively about the mother in the presence of the children.  Rather, he says that he speaks highly of the mother.[69]  This is not entirely consistent with the contact service notes which contain some comments about the mother which appear to have been made in the presence of the children at changeover, although they are not directly derogatory of her.  These comments, as noted above, have to be balanced against the comments made by the father seeking to encourage X to spend time with the mother.

    [69] Transcript page 131.

13. In relation to the father’s belief about the mother’s involvement in the assaults on him, he gave the following evidence:

    What I believed then about these attacks I don’t believe now.  There’s not enough evidence to… back it up so I can’t say that… I did believe it…

    Well there’s no evidence that it’s Ms Fogle’s fault, that she’s behind it and so… I made a decision about it… and I’ve let a lot of… things go.[70]

    [70] Transcript page 138 at lines 37 to 45.

14. When asked about when the shift in his view occurred, the father indicated that it occurred in the course of these proceedings.  He said that when it was ‘looked at’ by

    everyone that runs these courts and… the experts… if there’s nothing there there’s nothing there.  I can’t keep thinking that this is Ms Fogle’s fault if… there’s no evidence to back it up… at the start that’s what I thought, but now I don’t.  You know, I’ve completely changed the way I think, actually.[71]

    [71] Transcript page 139 at lines 24 to 28.

15. The father agreed that his change of heart in this regard did not occur prior to his interview with Dr C, as he mentioned his views about the mother’s involvement in the assaults to Dr C.[72] 

    [72] Transcript page 141 at lines 23 to 40.

16. In terms of his encouragement of X’s time with the mother, the father said:

    …And we’ve made it quite clear to her that there is no such thing as a team.  We are both her parents.  We both love her.  …I’ve never ever stated anything other along these types of things.  I’ve really tried my hardest with X… I haven’t stopped trying.  …I’ve put a lot of effort into this with X.  And I believe now she’s starting to go again and because she went last weekend, and Ms Fogle rang me.  So I didn’t answer the phone because I thought, well, if she can’t get in contact with me, you know, she was going to drop X off at the police station.  And I thought, well if I don’t contact, she will pan out …And she stayed the whole weekend.  And I picked her up from school on Monday.  … I’ve tried a lot of different strategies… to make this work for Ms Fogle.[73]

    [73] Transcript page 165 at lines 35 to 47.

17. Whilst the father might be criticised for not encouraging X to spend time with the mother on occasion, the mother has not sought to address X’s refusal in any meaningful way.

18. For example, the mother gave evidence that on 11 October 2018:

    a)she went to collect the children from school as per the 2014 consent orders, however X ran away from her;

    b)she followed X some of the way but then returned to the school and called the police; and

    c)shortly after, she received a text message from the father asking her to collect X who was at his house.[74]

    [74] Mother’s affidavit affirmed 19 and filed 20 March 2019 at paragraph [78].

19. A similar incident occurred on 7 February 2019 following which the school called the father to collect X.[75]

    [75] Mother’s affidavit affirmed 19 and filed 20 March 2019 at paragraph [93].

20. The mother deposed that on 1 March 2019, she herself texted the father to come and collect X who was refusing to go with her.[76]

    [76] Mother’s affidavit affirmed 19 and filed 20 March 2019 at paragraph [95].

21. To her credit, she tried a different approach on the following occasion:

    On Thursday 14 March 2019, I was able to collect both children from school.  It took being at school until about 5:00 pm for X to come home with me.  I was determined that she was coming with me, and I just kept talking to her about the things we would do when we got home, and over the weekend, for her to come with me.  Over the weekend, all X kept saying to me was ‘I want to go to Dad’s” and “You’re not my mum”.  I kept telling X that I am her mum, that I love her, and that she will be going to dad’s on Monday.[77]

    [77] Mother’s affidavit affirmed 19 and filed 20 March 2019 at paragraph [97].

22. In the course of cross-examination, the mother conceded that she had not sought any professional advice from her psychiatrist or psychologist as to how she might address X’s resistance to spending time with her[78] or, importantly how she might manage X’s resistance if the court were to order a change of residence as sought in her application.[79]

    [78] Transcript page 79 at lines 28 to 46.

    [79] Transcript page 102 at lines 1 to 4.

23. When asked by counsel for the Independent Children’s Lawyer what strategies she might employ to facilitate X spending time with in the future, the mother said ‘well I’ve done parenting classes’.[80]  The following exchange then occurred:

    [80] Transcript page 105 at line 2.

    ICL:…If her Honour makes an order for the children to come and live with you and… an order is made for you to pick them both up from school on the day the orders are made …thinking about recent events with X at school running away from you, let’s say you get to school to pick her up and she runs away; what are you going to do?

    Mother:Sit there and just wait for her.

    ICL:Are you going to call (the father)?

    Mother:Not straight away.

    …

    ICL:So what are you going to do?

    Mother:Just sit and wait and be patient with her.

    ICL:…Is that the extent of your plan?

    Mother:Yes.  That’s what I’ve been saying to myself.  That I’m going to sit, be calm, wait for her.  Yes… just made a decision that… yes, I’m going to sit and wait as long as it takes.[81]

    [81] Transcript page 105 at lines 8 to 35.

DHHS report

1. A report was produced from the Department of Health and Human Services pursuant to section 69ZW of the Family Law Act 1975 (Cth).[82]  In that report, it is noted that the children were both interviewed in June/July 2017 in relation to allegations that they had been exposed to family violence.  Relevantly, neither child disclosed that they had been exposed to or witnessed any family violence in the father’s home. 

   [82] Exhibit H.

2. The remainder of the report relates to DHHS’ substantive involvement with the family in 2012 and 2013 and the circumstances which led to the removal of Y from the mother’s care, which is discussed above.

3. The report contains the following protective assessment:

   There has been a total of 12 Child Protection reports received in relation to X… and Y… dating back to 2011…

   Throughout this time, the parents have not been in a relationship and what is apparent is that the children have been moved between parents, and had limited stability in relation to their care arrangements.  The children have also been exposed to conflict between their parents in relation to custody and contact matters, which is likely to have an impact on their emotional and psychological well-being.  There have been multiple allegations raised about the parenting capacity of both Mr Girdwood and Ms Fogle including issues around their mental health, substance misuse, family violence, and general parenting capacity.  It is clear to the writer of this report, however, that Mr Girdwood has previously been assessed as the more suitable primary caregiver for these children.  This information is based on an assessment undertaken by Child Protection in 2012/2013 and it is possible that Ms Fogle has made some gains in relation to her capacity to safely parent the children…[83]

   [83] Exhibit H.

Issues

1. At the heart of this case are the following issues:

   a)whether the father is encouraging a relationship between the children and the mother;

   b)whether the children are at risk of harm in the care of either parent;

   c)in light of these factors:

   i)where the children should live; and

   ii)how much time should the children spend with the non-resident parent.

Does the father support the children’s relationship with the mother?

1. The mother’s position at trial was that the father has ‘alienated’ X from her.  In closing submissions, the mother’s counsel stated:

   “Parental alienation” can arise from either deliberate conduct by a parent to persuade the child that the other parent is scary, unsafe or similar. It may be deliberate or done indirectly and without intention, but where the person doing it does not have the insight to realise that what they are doing can cause harm.[84]

   [84] Mother’s written submissions filed 31 May 2019 at paragraph [48].

2. The mother relied upon the following observations by Dr C in support of her submissions regarding alienation:

   …my observations, when I went to get the children to take them to her mum, the father jumped.  He was startled and he looked extremely anxious, which I thought probably reflected the fact that he is extremely anxious about the children having any kind of contact or relationship with their mother.  …and he’s able to communicate that through non-verbal means with the children… I believe that the father has systematically attempted to incorporate the children into his belief that the mother is the sole cause of all the problems he has in life, and that he has done that in a very deliberate fashion.[85]

   [85] Transcript page 179 at lines 37 to 44.

1. I note that Dr C conducted his substantive assessment and report in August 2018.  That was some 12 months prior to trial.  The assessments occurred at a time when the father understandably had some concerns about the mother’s capacity to care for and protect the children from harm.  It was not long after that the children commenced spending more time with the mother pursuant to the September 2018 consent orders.

2. Whilst I accept Dr C’s observations of the father’s conduct, and I also accept that the father’s behaviour may have impacted on X’s level of comfort in the mother’s care, this is one piece of evidence before the court.  There is also evidence in the contact centre notes that the father had, on some occasions, encouraged X to spend time with the mother.  Moreover, the mother herself gave evidence that on occasions when X refused to go with her after school, she would personally contact the father to come and collect X.

3. I accept that X has been resistant to spending time with the mother.  However, I do not accept that this resistance can be explained solely by reference to any anxiety the father has displayed about the children spending time with the mother or the father’s conduct more generally. 

4. I am compelled to consider the additional evidence of the head lice incident which occurred in April 2018 when X became visibly distressed and the further incident in January 2019 when the mother conceded that she threw a cup of water and ice in frustration at the window, causing the ice to fall on the ground.  I find that each of these incidents have also contributed to X’s refusal to spend time with the mother.

5. In all of the circumstances, I do not accept the mother’s submission that X’s refusal is directly attributable to the father’s conduct towards the mother.  I find that whilst the father had concerns about the mother’s capacity to care for the children, he nevertheless did what he could to encourage X to spend time with the mother.

6. It is also noteworthy to mention that the father arranged for X to attend upon Ms F to assist her to spend time with the mother.  Whilst ultimately this relationship did not continue and Ms F developed an overwhelmingly negative view of the father, Ms F’s own evidence confirmed that the father wanted her to help X to spend time with the mother. 

7. It is also relevant that the mother’s relationship with Y has largely progressed without incident.  This is not consistent with the submission that the father is either directly or indirectly failing to support the children’s relationship with their mother.

8. On balance, having regard to the totality of the evidence, I am satisfied that the father does support the mother’s relationship with the children.

Risk of harm in either parent’s care

1. In closing submissions, the Independent Children’s Lawyer stated:

   both parents present a risk of harm to the children and it is a matter of balancing the different concerning matters presented by each party.[86]

   [86] Independent Children’s Lawyer’s written submissions filed 1 May 2019 at paragraph [6].

2. In the case of the mother, she failed to disclose the significant mental health difficulties she has faced during the period from 2016 to 2018 in her trial material, particularly in circumstances where her mental health was a significant concern in the past.

3. In the case of the father, whilst I am satisfied that he is prepared to and has supported the children’s relationship with the mother, he clearly still has concerns about the children in her care. 

4. Whilst both parents have limitations, they both love the children and there is no evidence that the children have been exposed to any unacceptable risk whilst spending time with either parent since 2018. 

5. Notwithstanding X’s refusal to spend significant time with the mother since April 2018, the evidence before the court is that when X does spend time with the mother, it is generally positive.  Further, Y has a close and loving relationship with his mother.  It is clear that both children have a close and loving relationship with the father.

6. On the basis of the totality of the evidence before me, I am satisfied on balance that the children are not at risk in the care of either parent, provided that they remain engaged with appropriate community supports. 

Live with and spend time arrangements

1. For the reasons set out below, on balance, I have formed the view that it is in the children’s best interests for them to continue living with the father and spend substantial and significant time with the mother. 

2. I am also swayed by the Independent Children’s Lawyer’s submission that she continue to monitor the situation for a period of 12 months.  I am satisfied that this would be in the children’s best interests as it strikes the right balance between the concerns the Independent Children’s Lawyer continues to have in relation to both parents and the importance of finalising this litigation for the family. 

3. The Independent Children’s Lawyer’s proposal is similar to the father’s save that the Independent Children’s Lawyer proposes that the mother spend time with the children for a block of five nights a fortnight from after school on Thursday to before school the following Wednesday, as well as for half of all school holiday periods and special occasions. 

4. Given the difficulties with changeover for X at the moment, there is some merit to limiting the number of changeovers.  For this reason, on balance, I prefer the Independent Children’s Lawyer’s proposed orders to those sought by the father.

Best interests of the child

1. Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:

   (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)….

   (4)…

2. Section 60CA of the Act provides that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

3. Section 60CC(1) of the Act relevantly provides that:

   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).

4. The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.

5. Subsection 60CC(2A) provides that:

   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).

6. I will address the relevant considerations in order.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

1. Both parties concede that it is of benefit for the children to have a meaningful relationship with both parents.  The father’s proposal would see the children continuing to live with him while spending significant and substantial time with the mother.

2. The mother’s case however, is premised upon the father not supporting the children’s relationship with her and therefore, at least in the initial term, she seeks a change of residence.  Although initially, the mother sought a moratorium on the father’s time with the children, at the conclusion of the hearing, the mother slightly altered her position, having regard to the evidence given by Dr C. 

3. The mother’s ultimate position was that:

   a)for the first four months, the father’s time with X should be limited to telephone time two times a week and for a maximum of two hours per week to be supervised; and

   b)time gradually increase over the following three months culminating in X spending time with the father each alternate weekend and on special occasions. 

4. For the reasons discussed and having regard to the totality of the evidence, I am not satisfied that the mother’s proposal would be in the children’s best interests and indeed, at least in relation to X, it may have detrimental implications.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. As discussed above, both parents have displayed limitations in their parenting capacity throughout the children’s lives.  The father however, has looked after the children since they were both placed in his care from April 2013. He has not only attended to their physical needs, but has also engaged with appropriate specialist resources to address some of their learning and psychological needs.

2. The mother conceded that she has suffered from poor mental health at various times in the past.  She also conceded that she has continued to suffer relapses in 2016, 2017 and 2018.  The mother deposed that she is currently seeking help from a psychologist although no evidence was adduced with respect to her current mental health. Notwithstanding this, I accept the mother’s evidence that she is currently obtaining support from appropriate professionals to address her mental health concerns. 

3. I am satisfied that both parents have taken significant positive steps to address their respective alcohol and drug issues.  Whilst their relationship may have been marred by family violence, I am satisfied that they are now able to communicate effectively about the children’s needs. 

4. The father’s evidence clearly reveals that he suffers from significant anxiety about the children in the mother’s care.  He would benefit from support to address these concerns so as to avoid imparting that anxiety on his children, even if indirectly and unintentionally.  I have made an order to that effect.

5. It is of concern that there is no current independent evidence about the mother’s current mental health.  I note that the father does not raise the mother’s mental health as a reason to exclude her from the children’s lives.  Rather, he points to the recent relapses suffered by the mother and the fact that her relationship with X will be more successful if she continues to live with him and he continues to supports her in re-establishing her relationship with the mother.  There is some force to this submission. 

6. Given the mother’s lack of a clear plan as to how she would logistically implement any orders for X to live with her, I agree with the father’s submission that it is more likely that if ordered to live with her mother at this point in time, X is likely to abscond. 

7. Y clearly has a strong bond with both his parents and a loving relationship with both his mother and father.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. In cross examination, the mother stated that neither child has expressed a desire to live with her on a full time basis. 

2. Given the children’s ages and their own intellectual disabilities, their views carry less weight than they might otherwise do. 

3. I have nevertheless had regard to the fact that irrespective of the difficulties that X has experienced in spending regular and frequent time with the mother, Y has been able to settle into a positive relationship with his mother.   

Section 60CC(3)(b) the nature of the relationship of the child with:

(i)         each of the child’s parents; and

(ii)    other persons (including any grandparent or other relative of the child)

1. This has been discussed above.  The mother, to her credit, has worked hard to re-establish her relationship with the children and to improve her parenting capacity. 

2. There is still significant work to be done in relation to her relationship with X; however, having regard to the totality of the evidence, I am satisfied that her relationship with X is likely to develop in a more positive and constructive way if X continues to live with the father and spend significant and substantial time with the mother.

3. As discussed, Y has a positive relationship with both parents.

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i)         to participate in making decisions about major long-term issues in relation to the child; and

(ii)    to spend time with the child; and

(iii)  to communicate with the child

1. As discussed above, the father has taken the lead in looking after the children and has attended to their physical, emotional and educational needs.  He has sought assistance and support for the children as and when required.  As the parent with whom the children have principally resided since infancy, he has taken the opportunity to spend time and communicate with them.

2. The circumstances which led to the mother not living with the children are discussed above and I do not propose to repeat them.  The 2014 consent orders provided that when the mother had addressed a range of concerns, she could seek to revisit those orders.[87]  The mother has attempted to revisit the living arrangements for the children since September 2017.

   [87] Order 9 of the final orders made by consent on 14 April 2014.

3. She has sought to be more actively involved in the children’s lives and in decision making about their long term interests. 

4. She has also taken significant steps to address the concerns which led to the making of the 2014 consent orders in the first place.

5. Whilst the mother conceded that she has struggled over that time and suffered a number of relapses, she continues to be engaged with psychological and other supports to ensure that she can manage her mental health and is able to spend time and communicate with the children.

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

1. I refer to and repeat the comments I have made in paragraphs 157 to 161 above.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)         either of his or her parents; or

(ii)        any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. If the father’s proposal is accepted, the children will continue to have the stability of living with him and the added benefit of spending significant and substantial time with the mother. 

2. By contrast, the mother’s proposal would represent a significant upheaval for the children from their current living arrangements. 

3. The evidence of Dr C in this regard is of particular relevance.  Dr C was less than supportive of the father, but still maintained that it was imperative for X to have some contact with the father if she were to live with the mother for reassurance. 

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. In circumstances where X has continued to resist spending time with the mother and where the mother has not provided any evidence of what she would do to ensure that X did live with her if her proposal were accepted, the court is concerned that adopting the mother’s proposal would, in effect, be setting her up to fail. 

2. The court is simply not satisfied for example, that if the mother’s proposal were adopted, X would even go with the mother.

3. It is difficult to see how the mother’s proposal could be implemented practically, even if I were to accept that ultimately, it is in these children’s best interests to be living with her.

Section 60CC(3)(f) the capacity of:

(i)         each of the child’s parents; and

(ii)    any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

1. I have addressed the parents’ capacity to meet the children’s needs above.  Despite each parent’s limitations, the father has adequately provided for the children to date and the mother has demonstrated that she has taken some steps to address the concerns which existed at the time of the making of the 2014 consent orders limiting her time with the children.

2. I have indicated that the father would benefit from some counselling to assist him to deal with his ongoing anxiety about the children in the mother’s care.  The mother too would benefit from some further support to allow her to deal with the challenges of strengthening her relationship with X into the future.

Section 60CC(3)(g)           the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. I have addressed these matters above. 

Section 60CC(3)(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;

1. This factor does not apply in this case.

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

1. As indicated, X has resisted spending time with her mother particularly since about April 2018.  It is important for the father to continue to support the child’s relationship with the mother. 

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

1. The parties have each made allegations of family violence against the other. 

2. The father previously alleged that the mother has been involved in or responsible for various assaults on him.  During the hearing, he accepted that the mother was not involved, given the absence of any evidence to support her alleged involvement. 

3. Notwithstanding this history, recent communication between the parties about the children have been respectful, child focused and limited to matters concerning the children.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

(i)         the nature of the order;

(ii)    the circumstances in which the order was made;

(iii)      any evidence admitted in proceedings for the order;

(iv)   any findings made by the court in, or in proceedings for, the order;

(v)     any other relevant matter

1. There are no current family violence orders in place in relation to these parties.

Section 60CC(3)(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

1. The 2014 consent orders were made in circumstances where the mother presented with various challenges impacting her parenting capacity, and it was expressly contemplated that the mother might seek a review of those orders once she had taken steps to address those challenges. 

2. I accept the mother’s evidence that she has taken positive steps to address her mental health challenges.  Whilst it is clear that the mother has suffered further relapses, she is seeking ongoing support in this regard. 

3. Time between the mother and Y appears to be progressing well.  As stated above, X continues to resist spending time with her mother, although it is hoped that once these proceedings come to an end, this relationship will improve with the ongoing support of both parents.  Despite her resistance, X has spent some time with the mother.

4. Orders which provide for the mother to have regular and consistent time with the children are least likely to lead to ongoing litigation.  On the other hand, the mother’s proposal is more likely to lead to further disputes, particularly given X’s resistance to spending time with the mother.  Moreover, as noted by Dr C, if X were to be precluded from spending any time with the father, she is likely to become more distressed and concerned given her belief system about the father being at risk of harm from the mother or her associates.

5. In all of the circumstances, I find that the father’s proposal is least likely to result in ongoing litigation.

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

1. There are no other factors which require consideration.

Equal shared parental responsibility

1. Section 61DA of the Act provides as follows:

   (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 … has engaged in:

   (a)...

   (b)family violence.

   (3)     …

   (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.

2. The father seeks orders for equal shared parental responsibility.  The mother seeks an order for sole parental responsibility.

3. For the reasons set out above, I am satisfied that notwithstanding their history, these parents have recently demonstrated an ability to communicate with each other in a child focused manner. For example, when she has not been able to collect X from school, the mother has occasionally texted the father and he has responded appropriately.

4. It is in these children’s best interests for their parents to have equal shared parental responsibility.  To the extent that there has been a history of family violence, it is quite historical. 

5. I am not satisfied that the circumstances of this case warrant the rebuttal of the presumption of equal shared parental responsibility.

Equal or substantial and significant time with each parent

1. Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of section 65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent.

   Substantial and significant time

   (2)… if:

   (a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; 

   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.

2. In this case, the mother’s proposal would see a moratorium on the father’s time with the children for the first four months.  For the reasons set out above, this is neither warranted nor practicable in the circumstances.

3. I am satisfied that it is in the children’s best interests for them to continue living with the father and spend substantial and significant time with the mother, in accordance with the father’s proposal. 

4. The parents live in the same town and therefore it is reasonably practicable for the children to spend regular and significant time with the mother.  In the case of X, it might take some time for her to get used to spending more time with the mother, however, with the father’s support and with time, this should settle down.  As noted above, the parties have, notwithstanding their past, demonstrated an ability to communicate effectively. 

5. In circumstances where the father now accepts that the mother was not involved in any assault on him, it is hoped that once this litigation reaches its end, the parents’ capacity to communicate as well as the father’s anxieties will improve. 

Conclusion

1. For each of these reasons, I make the orders in the terms sought by the Independent Children’s Lawyer set out at the beginning of these reasons. 

I certify that the preceding one hundred and ninety-four (194) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date:              15 November 2019