Gabbard & Kelleher
[2021] FCCA 363
•26 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Gabbard & Kelleher [2021] FCCA 363
File number(s): BRC 3130 of 2019 Judgment of: JUDGE CASSIDY Date of judgment: 26 February 2021 Catchwords: FAMILY LAW – children – final orders – where one child has special needs – where there is significant conflict between the parents – where the father raises concerns over the mother’s ability to adequately care for the special needs of one of the children – where the mother says the father is coercively controlling – where no current risks identified in either household – where the children have primarily resided with the mother. Legislation: Family Law Act 1975 (Cth) s 60CC. Number of paragraphs: 137 Date of last submission/s: 4 February 2021 Date of hearing: 1 – 4 December 2020 and 4 February 2021 Place: Brisbane Solicitor for the Applicant: McInnes Wilson Lawyers Counsel for the Applicant: Mr Slade-Jones Counsel for the Respondent: Mr Hanlon Solicitor for the Respondent: Queensland Legal Practice Solicitor for the Independent Children's Lawyer: Legal Aid Queensland Counsel for the Independent Children's Lawyer: Ms Lyons ORDERS
BRC 3130 of 2019 BETWEEN: MR GABBARD
Applicant
AND: MS KELLEHER
Respondent
ORDER MADE BY:
JUDGE CASSIDY
DATE OF ORDER:
12 FEBRUARY 2021
THE COURT ORDERS ON A FINAL BASIS:
1.That the children Y born in 2017 and X born in 2014 (‘the children’):
(a)Live with the mother; and
(b)Spend time with the father each alternate weekend from after school/kindy Friday until before school/kindy Monday commencing on Friday, 5 March 2021.
2.That the mother have sole parental responsibility for the major-long-term decisions for the children.
3.That for the purpose of exercising her sole parental responsibility, the mother shall:
(a)Inform the father in writing of any major long-term decision to be made;
(b)Allow him seven (7) days to respond in writing; and
(c)Make the decision after considering his response and provide the outcome to him within 24 hours of a decision being made.
4.Commencing once Y has started Grade one (1), the children shall spend time with each parent during Queensland school holidays on a week-about basis, commencing with the parent whose weekend falls after the end of the school term.
5.That changeovers occur at the children’s school/kindy and when changeovers cannot occur there, they shall occur at the Contact Centre, with the costs of any supervised changeover to be shared equally between the parents.
6.Where the Contact Centre is not available (eg during special days), the changeover shall occur at a McDonalds Restaurant, nominated by the non-resident parent, which is approximately equidistant between the parent’s residences.
7.That during changeover and any other time the parents interact with each other, neither parent shall:
(a)record these interactions,
(b)discuss adult matters, such as disputes regarding parenting arrangements,
(c)denigrate the other parent or use abusive language towards the other parent.
8.That the children shall communicate with the parent they are not with at 6pm each Wednesday and each alternate Friday (when with the resident parent), by Facetime, with the resident parent to initiate the call to the non-resident parent.
Medical Treatment
9.That both parents will inform the other parent of any medical emergency, serious illness, hospitalisation or accident involving the children as soon as practicable and shall inform the other parent of the treating hospital/medical practice involved with the children.
10.That the mother will inform the father in relation to X’s medical care of the following additional information:
(a)Any appointments made with any health or welfare practitioners, with both parents at liberty to attend appointments with the father to attend by telephone,
(b)Any medication prescribed to X, the practitioner who prescribed it and the details of administration of that medication,
(c)Any relevant testing or test results that the father may not be aware of.
11.This Order operates as an authority for any professional care provider of the children, including school, hospital, doctor, therapeutic or welfare professional, to release any information concerning the care, welfare and development of the children to either parent at their request.
Special Days
12.The children shall spend time during the Christmas period, being from 8:30am Christmas Eve until 8:30am on 27 December, with the father in even numbered years and with the mother in odd numbered years.
13.The children shall spend time during the Easter period, being from 8:30am Good Friday until 8:30am the Tuesday after Easter Monday, with the mother in even numbered years and with the father in odd numbered years.
14.The children shall spend time with the parent they are not living with on their birthdays as follows:-
(a)Should the birthday fall on a weekday, from 3:30pm or after school/kindy until 5:30pm, and
(b)Should the birthday fall on a weekend, from 1pm to 5pm.
Other Matters
15.That both parents keep each other informed of their contact details including residential address, telephone number and email address and they shall inform the other parent of any change within 48 hours.
16.Should either parent seek any documentation in relation to the children, including school photographs or reports, the requesting parent shall be responsible for any associated costs.
17.The parents shall not denigrate the other parent or their family in the presence or hearing of the children and shall not expose the children to any person denigrating the other parent or their family.
18.The parents shall communicate about non-urgent matters regarding the children via the Our Family Wizard app.
19.In the case of an emergency or urgent medical issue, the parents shall communicate by text and phone.
20.That both parents are permitted to attend the children’s medical/allied health appointments, day care centre and school, pursuant to the guidelines of the organisation/centre with the father to attend medical/allied health appointments by telephone.
21.That the parents attend on a qualified Parenting Co-Ordinator, for a period of at least 12 months, to specifically assist with their management of X’s medical needs, with the costs of the Co-Ordinate to be shared equally.
IT IS NOTED:
A.That pursuant to section 65DA(2) of the Family Law Act1975 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 “Parenting orders – obligations, consequences and who can help” and these particulars are included in these Orders.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Gabbard & Kelleher is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE CASSIDY
INTRODUCTION
This is a very difficult matter involving two young children X born in 2014, he is six years old (herein ‘X’) and Y born in 2017, he is three years old (herein ‘Y’ or collectively with X ‘the children’).
The parents are in dispute about all the issues relevant to the decision.
The decision is complicated by the illness that X suffers from:
X is a 6-year-old boy. He has complex medical needs and requires a high level of care. His current diagnoses are as follows:
1. A rare medical disorder which is related to a number of health and developmental issues
2. Global Developmental Delay
3. Autism (Level 3 – requiring Very Substantial Support)
4. Epilepsy
5. Vision impairment
6. Pre-disposition to develop Hypoglycaemia.[1]
[1] Case Outline of the Independent Children’s Lawyer filed 23 November 2020 at page 6.
Mother’s Proposal
The mother’s proposal was for the children to live with her and she have sole parental responsibility. The time the children were to spend with the father was alternate weekends and half of all school holidays as well as special days.
There were various specific issues orders also sought.
Father’s Proposal
The father’s proposal was in effect a mirror of the mother’s proposal. He specifically sought an order that a condition of his sole parental responsibility order was that he would consult with the mother in relation to the decisions, consider her position and inform her of his decisions.
Independent Children’s Lawyer’s Proposal
The Independent Children’s Lawyer’s position at the conclusion of the trial was that if I find the mother poses an unacceptable risk of harm from failure to treat X’s medical conditions then the children should live with the father and he should have sole parental responsibility. The children spend time with the mother each Wednesday from after school or 3:30pm until 5:30pm and each alternate Saturday and Sunday from 9:0am to 5:00pm with changeovers at the Contact Centre.
There were orders for special days and various specific issues orders.
If the father poses an unacceptable risk of harm to the children because of domestic violence then the mother should have sole parental responsibility and the children should live with the mother and spend alternate weekends with the father. Again there were holidays and special days provided for in the proposal.
The third position was if neither parent poses an unacceptable risk of harm than the court would need to assess the parents considering the relevant s60CC factors in the Family Law Act 1975. I note the orders the Independent Children’s Lawyer tendered provided for the children to live with the father in that circumstance.
BACKGROUND
The mother and father began living together in 2006. They married in 2011. The separation occurred on 4 June 2018. The parties divorced on 19 November 2019.
Parenting arrangements
There is no dispute the mother remained at home with the children while the parties were living together and the father worked. He was self-employed and ran his own company. When the parents returned to Australia from overseas I accept both parents were involved in the care of these children.
Post-Separation Parenting Arrangements
The family report writer provided a summary of the parenting arrangements post separation:
Following separation in May 2018, the children and mother left the former matrimonial home. The father alleges the mother did not allow him time with the children until 12 June 2018 when the parents attended mediation. The parents reached an agreement at mediation for the children to spend time with the father for short day time visits up to three times per week.[2]
[2] Family Report filed 31 October 2019 at page 7.
From 3 July 2018 until 29 July 2018 the father withheld X and the father proposed the mother’s time with X be supervised by the paternal uncle.
After a Department of Children, Youth Justice and Multicultural Affairs (herein ‘the Department’) investigation, the child X as returned to the mother’s care.
Between October and December 2018:
… the parents had agreed to X spending up to 3 nights a week with the father, with Y spending similar day times and returning to the mother’s care to sleep.
On 25 March 2019 the father filed his Initiating Application and interim orders were made on 28 March 2019 after the matter was listed urgently. The interim orders provided for the children to live with the mother and spend time with the father in Week 1, from 12noon Wednesday until 5pm Friday and in Week 2, from 9am Wednesday to 5pm Thursday...
The mother filed her Response material on 30 August 2019 and the father s Application was heard on 4 September 2019. Consent orders were made on this day increasing the children’s time with the father to time in Week 1, from 8:30am Wednesday to 5pm Friday and in Week 2, from 8 30am Friday to 5pm Sunday[3]
[3] Ibid at page 8.
Education History of the Children
There have been some disputes about where X should attend school. He attends School B at the moment. He will move to a school closer to where he resides at the conclusion of this trial.
The mother enrolled Y in Kindergarten C in 2021. The mother did not consult the father prior to enrolling the child.
Health and Special Needs of the Children
X
X is a special needs child. He has been diagnosed with a rare medical condition. The testing by Dr E, provided the following results:
Testing identified a pathogenic (disease causing) variant.[4]
[4] Affidavit of Mr Gabbard filed 4 November 2020 at annexure -2.
This diagnosis was made in 2019.
The NDIS Review Report dated 25 April 2020 summarises the child’s disabilities:
Impairment
Effect on X
Rare medical disorder
X has a rare medical disorder which has only recently begun to be described in the literature. He was given this diagnosis by Dr E at the Clinic at Hospital V. As such, much is yet unknown about the impact this condition will have upon X over the course of his life.
Autism Spectrum Disorder (ASD)
X has been Diagnosed with an Autism Spectrum Disorder. The Diagnostic and Statistical Manual of Mental Disorders (DSM-5) defines as Autism Spectrum Disorder as:
A. Persistent deficits in social communication and social interaction across multiple contexts
B. Restricted repetitive patterns of behaviour, interests, or activities
C. Symptoms must be present in the early developmental period
D. Symptoms cause clinically significant impairment in social, occupational, or other important areas of current functioning
E. These disturbances are not better explained by intellectual disability (intellectual developmental disorder) or global developmental delay X was diagnosed with ASD - Level 3 by his Paediatrician (Dr. F)
Functionally this means that:
• X finds it very difficult to understand others when they are speaking, especially if their message is remote or abstract
• X finds it very difficult to express his needs, thoughts and feelings, and
• That X requires familiar communication partners who can read his subtle cues and signals and who know his daily routines
• X has limited social communication skills
Significant Communication Impairment
While X is highly motivated by social interaction and has made some significant progress with his communication (especially in the past 6 - 12 months) he still has severe delays in communication skills. These significant delays are apparent in Expressive Language (i.e. ability to express needs to others) and Receptive Language (i.e. ability to understand others).
When X is medically well, calm and alert he is able to understand verbal instructions (especially those given my familiar communication partners) and respond verbally in single words, phrases and some sentences.
However, when X is unwell, tired, overwhelmed by his sensory environment, or when he has suffered a seizure, his communication skills significantly decrease and he has difficulty expressing even his most basic needs, or understanding the verbal communication of others.
Severely limited Daily Living Skills
X needs support in all areas of daily functioning. These difficulties are directly related to his rare medical disorder and ASD.
This means that:
• Due to his disability, X requires intense 1:1 supervision throughout all the routines and activities of daily life. It is never safe to leave X alone. This hypervigilance places an extreme burden upon Ms Kelleher and Mr Gabbard and places X at risk of loss of relationships due to his disability.
• X is almost completely dependent on Mr Gabbard and Ms Kelleher to ensure· his health, safety and hygiene.
• X has a limited diet and only eats a small range of foods
Hypotonia
X has hypotonia (low muscle tone), this means that: o He has difficulty maintaining postural tone
o He gets tired very easily, and,
o He has significant difficulty performing gross and fine
motor tasks
X has a large number of medical professionals assisting with his care:
Doctor
Specialty
Current/Non-Current
Dr G
GP
Current
…
Home Doctor Service
GP
After Hours
…
Dr H
Neurologist
Current
Dr M
Paediatrician/Geneticist
Current
Dr K
Paediatrician
Hospital V
Current
De L
Gastro
Hospital V
Current
Dr M
ENT
Current
Dr F
Paediatrician
Hospital V
Current
Dr E
Geneticist
Hospital V
Current
Cr N
Ophthalmologist
Current
…
Dr O
Sleep paediatrician
Current
…
Dr P
Child Psychologist X
Current
Dr Q
Child Psychologist Y
Current
Physiotherapist
Current
Occupational Therapist
Current
Dietician
Current
Y
Y does not have the special needs that his brother has although there is a question about whether he has autism. This will no doubt have to be investigated by the parent who has sole parental responsibility for the boys once the judgment is handed down.
Domestic Violence
The Independent Children’s Lawyer in her case outline summarised the applications in this matter made by the parents for Domestic Violence Orders:
In June 2018 the mother filed an application for a Protection Order against the father. Shortly thereafter, the father filed a cross-application. These applications were withdrawn on the provision of undertakings.
On 15 September 2020 the mother applied for a Protection Order against the father. A Temporary Protection Order is in place and the matter is listed for hearing.[5]
[5] Case Outline of the Independent Children’s Lawyer filed 23 November 2020 at page 8.
The father filed an application on 15 January 2021. The father sought this order in circumstances where the issues he sought to agitate were the very issues he was raising in the hearing before me:
Firstly, I was advised to immediately make an application by Senior Constable Ufrom Place J police station. My child is medically vulnerable. Ms Kelleher's reactions and behaviours are becoming more erratic and unpredictable. At times she seeks medical attention but then she does not when it doesn't suit her. My son suffers from epilepsy and she has not reported a seizure in over two years. I have reported seizures on a daily and almost weekly basis. If my son requires urgent attention I am not confident Ms Kelleher will be in a position to make a responsible decision and take decisive action. Her recent behaviour at hospital was extraordinary and placed everyone involved in a stressful situation. This was particularly stressful because my son had complications post-surgery and Ms Kelleher was more intent on gaining a reaction than listening to the staff. Senior Constable U from Place J police station asked me twice about her mental health and I am concerned. My son told me she set the house on fire on New Years Eve. I have no further Information about this but I am obviously concerned. At the most recent handover she threatened to take the children away without handing them over. She refused to provide essential information with regard to visitors staying with her during the recent COVID pandemic and my children are currently not at school so there is nobody to monitor my children when they are with her. A number of doctors and therapists have now stated they believe she is at risk and in the ongoing family court hearing the ICL has sided with our case and also believes the Mother is in a position of risk.
The conditions sought by the father in the order are:
… the premises to which the respondent is not to come or approach are
•The aggrieved’ s place of residence
•The aggrieved’ s place of employment
•The place the aggrieved is currently staying
•Place where the aggrieved frequents, namely:
…
Do you want to prohibit the respondent approaching the aggrieved – yes
…
Give reasons
She approaches me unexpectedly and it causes the children to become stressed and terrified. Whenever they see her they run and hide behind me because they think she I going to take them away from me.
…
Do you want to prohibit the respondent from contacting the aggrieved or asking someone else to contact the aggrieved – yes
…
Give reasons
I wish for Ms Kelleher to contact me with regard to the welfare of our children. I do not want to hear from her numerous times each week with repetitive questions which are irrelevant to our children.
…
Do you want to prohibit the respondent’s presence at or in a place associated with any child… - yes.
..
Give reasons
School B, Hospital V, all medical appointments for the children. I will ensure she is included via phone. Kindergarten in Suburb W – Her attendance at these places incites conflict and this causes severe trauma t my youngest child. She has admitted that he hits her, bites her, runs away from her and screams at her.
The father’s behaviour at separation was coercive and controlling behaviour and is set out at paragraphs [81] – [87] of this judgment. The recent Domestic Violence Order application filed by the father is also of concern because it seeks to litigate the very issues I am hearing and determining. Furthermore, the allegations about the mother’s mental health in that application have not been raised in the father’s evidence although he raised them with the Family Report Writer.
However, I accept the family report writer’s observations as set out in paragraph [87] of this judgment.
RISKS IN THE MOTHER’S CARE
The father alleges that the child X is at risk in the mother’s care because she is not appropriately caring for his special needs associated with his medical conditions.
Seizures and Failure to Administer Tegretol
Tegretol is a medication prescribed to prevent seizures. The father’s case is the mother has failed to give the required doses of Tegretol to the child in the past. It is not a current complaint.
On 8 April 2018 the child was prescribed Tegretol after he was diagnosed with epilepsy. On 12 April 2018 Dr H records in a letter to Dr Z, the child’s GP:
Since his last visit, X had an episode necessitated a (sic) visit to the Hospital V. He was commenced on Tegretol which the parents gave only for a few days and then ceased.
Today I reiterated the need for ongoing medication and I have recommended to recommence him on Tegretol 40mg twice a day and to be increased to 80mg twice a day after a week. I will review him in my clinic in three months time. In the interim if there are any concerns please feel free to contact me.[6]
[6] Affidavit of Mr Gabbard filed 4 November 2020 at annexure -8.
On 14 May 2018 Dr Zs notes record:
Recorded on: 14/05/2018
Discussion with mum re: letter
Has opted not to give him tegretol for seizures rather using a natural oil extract not THC for seizures – discussed and recommended as oil not supported by eideence (sic) to utilise tegretol – aware can cause side efffcts (sic) on itian (sic) however likely (sic) to tolerahce (sic) and risk of untreated epilepsy and generalised seizures exist.
Opted to keep appointment wit (sic) hspecialist (sic) and discuss use of oil vs tegretol.[7]
[7] Ibid at annexure -9.
On 21 May 2018 Dr Zs notes record:
Thank you for seeing X, 3 yrs for an opinion and management regarding depressed GCS for the past few ys (sic). He has a history of partial seizures under Dr H at…,
Prescribed tegretol however from what I understand not started. Hwe (sic) has been on THC based CBT oil and this was ceased late last week when he became unwell. He has a history of moderate global developmental delay under care Dr J at hospital. He was born at term and at day 7 had lost 25% weight and was hypernatraernic, uncertain if this is related to developmental delay. He is not vaccinated as of yet.
On examination was very drowsy and awoke with stimulation, however very briefgly (sic) afterwards glazed over and had reduced consciousness, he responds to physical stimuli. He appears to make sounds however his language skills are impaired. He had no neck stiffness… largely unremarkable and chest examination is normal with resp rate of 24 and deep sighing breaths (BSL 4.7), abdomesn (sic) soft and nin (sic) tender (sic) and BS normal. I could identify no rashes on exmposed (sic) parts but not examined nappy area. I am uncertain if he has a virus or potentially moultiple (sic) complex partial seizures to account for his presentation.[8]
[8] Ibid.
The mother took the child to Dr Z. The father was still living with the family at this time and had to leave the home to attend work so he left it to the mother to take the child to the doctor to obtain medical assistance. The mother did this. The father’s criticism of the mother is she should have presented the child to the hospital earlier. I note the father could have done this if he considered it necessary given he was still residing in the home with the child.
The hospital notes regarding the child’s medication record:
CARBAMazepine (sic) 100mg/5ml oral suspension, 40mg, 2ml Oral, TWICE a day. Not taking: commenced roughly 8 weeks ago and ceased after a week as concerns re ataxia and drowsiness.
Unknown Cannabis Product, 2 Drop(s), Oral, TWICE a day. Not taking: Ceased 17/5/18…
Mum doesn’t not (sic) know what the name of the company is, bottle is at home, husband away no-one at home to check.[9]
[9] Ibid at annexure -11.
The father reported concerns of the mother not providing medication to the child for epilepsy. The mother was in the home with the father until separation on 4 June 2018. I note that the period of time from April to June when the father raises concern about the mother not giving the child Tegretol he was residing in the home with the mother and the child.
On 22 June 2018 a notifier reported concerns to the Department. Ms R recorded notes of a telephone conversation with Dr Z:
Dr Z felt that Ms Kelleher can be resistant as a client and doesn’t have a good rapport with the medical professionals as she has a different view on modern medicine….
Dr Z reported that Ms Kelleher spoke to him about Tegretol and that she had withdrew after one week…
Dr Z reported that if X is not taking Tegretol, there would be the potential for his seizures to escalate to more significant seizures such as tonic clonic seizures. These types of seizures place X at risk of brain function impairment if he were to experience them on an ongoing basis. Dr Z is aware that the Tegretol is “being pushed by the child paediatrician”.[10]
[10] Ibid at annexure-14.
Dr H reviewed the child on 3 July 2018. In a letter to Dr Z, Dr H notes:
I reviewed X, a 3 year old boy with both his parents, at Brisbane Child Neurology on Tuesday, 3 July 2018. His father indicted that X maybe having ongoing seizures manifesting as behavioural arrest lasting for 20 secs to 1min, whereas his mother reported that she has not witnessed any episodes recently.
I note that his serum tegretol level was sub-therapeutic. Xs mother reported that he had missed the dose of medication the previous night because she ran out of the supply. I reiterated the importance of giving the medication daily.
We discussed the potential role of Overnight EEG monitoring but at this stage I have recommended complying with the medications as a first step. If despite taking medications regularly he has ongoing seizures then we may have to adjust the dose of medication or trial him with other medication and potentially do further investigations.[11]
[11] Ibid at annexure -18.
The father’s evidence is he was provided with a full bottle of Tegretol on 2 July 2018. He says this is evidence the mother was not administering the Tegretol.
That pharmacy records at annexure 19 of the mother’s affidavit filed 10 March 2020 show evidence of the purchase of a bottle on 8 April 2018, the bottle the father gives evidence he purchased. There was another bottle purchased on 27 June 2018 according to the pharmacy records.
The Department records in relation to the notification on 22 June 2018:
It should be noted that whilst Mr Gabbard reports Ms Kelleher to have been the driving force behind the decision to supplement the Tegretol for cannabis oil, Mr: Gabbard was also residing in the household at the time and despite reportedly agreeing with the advice of medical professionals that X needed to be taking the Tegretol, he did not do more to ensure that August was receiving it and seemingly allowed Ms Kelleher to administer only cannabis oil.
…
Ms Kelleher's Understanding of X's Need for Medication:
Ms Kelleher's decision to supplement X's medically prescribed course of treatment, Tegretol with a substance reported to be cannabis oil does not appear to be rooted in any disbelief on Ms Kelleher's part in modern medicine, as expressed by Mr Gabbard.[12]
[12] Ibid at annexure -20.
On 5 July 2018 the father spoke to the Ms R of the Department and raised concerns about the mother not administering Tegretol.
The Department interviewed the mother on 11 July 2018. The record of interview notes:
On 11 July 2018 Departmental officers attended Ms Kelleher’s home and engaged in converstion regarding X’s medication. Ms Kelleher admitted to supplementing X’s Tegretol medication with cannabis oil she purchased from a market for a period of time (she could not provide an estimation of this period of time). Ms Kelleher advised she made this decision due to X suffering bad side effects from the Tegretol such as lethargy or hyperactivity as well as not having a clear understanding of Tegretol. Ms Kelleher denied that she is against modern medicine and whilst she does have a view there is place for alternative treatments such as fish oil, this does not necessarily override modern medical options if she is well informed. Ms Kelleher advised that since this time, X’s treating doctors have spoken to her further about Tegretol and Cannabis oil and she now understands that Tegretol is the more effective treatment option for X. This has also been reinforced to Ms Kelleher by her reports that X has not experienced a seizure since recommencing on the Tegretol. Ms Kelleher advised she was agreeable to sending the father a video recording of her morning and evening administering the medication to X to satisfy him that he is receving the medication whilst in her care and she has advised him of that. MS Kelleher’s home was observed to have the necessary provisions for X and she became teary, when discussing not currently having contact with X due to being in Mr Gabbard’s care and reflecting on X’s medical and developmental challenge, indicative of her positive attachment towards him. Ms Kelleher appeared genuine in her responses and spoke of there being ongoing control and threatening in her relationship with Mr Gabbard, initiating her decision to leave the relationship. Ms Kelleher worries that Mr Gabbard is using her initial decision to use cannabis oil rather than Tegretol against her and as a means to paint her as a bad mother.[13]
[13] Ibid at annexure -22.
The mother has provided video footage of her administering the Tegretol to X since this investigation by the Department.
I do not accept the submissions of counsel for the father that the mother had not given the child Tegretol until on or around 3 July 2018.
Conclusion
The evidence supports a finding that:
(1)The parents stopped the Tegretol shortly after starting it because of concerns about the child’s reaction to the drug.
(2)The medicine was recommenced shortly after stopping it but the mother was still supplementing the Tegretol with cannabis oil. This conclusion is supported by the evidence of the prescriptions that were filled for the child on 8 Aril 2018 and 27 June 2018.
The mother from about 28 July 2018 videos herself administering the dose of Tegretol to the child morning and night.
I am fortified in coming to this conclusion because there is no evidence of the child having any serious seizures after Dr H informed the parents of the importance of administering the drug on 12 April 2018.
Furthermore the father was living in the home until early June and he does not give evidence of not giving the medication during that period other than the initial time when the parents stopped the medication.
Dr H was a witness in the trial. He was cross-examined by the father’s counsel. The doctor did not raise any concerns about the mother’s failure to give the child the medication for epilepsy. There was a further notification to the Department on 1 March 2019:
Notifier contacted the Regional Intake Service on the 01 March 2019 and provided the following information:
•The mother has refusing (sic) to provide X with his medication
•Notifier states that X has been hospitalised a number of times
•Notifier believes that the mother is not adhering to the child’s medication schedule.
•Notifier provides that Ms Kelleher… gone down the alternative therapy route… no way of telling how she is managing X’s epilepsy
•Notifier is aware that X was dehydrated.[14]
[14] Tendered Documents from Hospital V marked exhibit 4 in the proceedings at page 94.
The records show:
The information does not indicate a level of significant and demonstrable harm to the subject child/ren AND the notifier was unable to provide any information which warrants further investigation by the department in relation to harm or risk of harm to the subject child/ren.
It is acknowledged that the notifier has expressed concerns in relation to the mother not administering the child’s medication which may result in the child experiencing increased seizures AND it is noted that this is in the broader context of the mother having previously been non-compliant and exploring alternate treatment options such as CBD Oil. Further checks were conducted with the Hospital V (see attached s159 response) and it was cautioned that although the child’s blood test returned a Carbamazeine level of 3.9mg/L which is below the Auslab reference range of 6-12, the following considerations were noted:
•The level was taken in the context of a vomiting illness, and likely the gastrointestinal absorption of the medication may have been affected.
•Product information (PI) available from MIMS indicates that the therapeutic range at a steady state is 4-12mg/L, for which this level is only just out of reference range.
•The sample was taken as a random level and as carbamazepine peak level is reached between 4-24 hours post dose it is unclear if the medication had reached its peak level at the time of collection.
•The medication is uptitrated slowly to effect (with respect to seizure control) and blood levels are not typically used to adjust dose. In the absence of the private Neurologist history/plans with respect to his medications, it is difficult to interpret a random sample result.
•Elimination half life of carbamazepine after repeated doses averages 16-24 hours according to the PI.
•Subtherapeutic levels of carbamazepine would increase X’s risk of breaththrough (sic) seizures. No increased frequency is documented during the admission.
With regards to the child’s medical needs being neglected, it is noted in the response from the hospital that X has presented to Hospital several timed since the last Child Safety investigation for various ailments which have included: review for minor head injury, metabolic keto-acidosis, upper respiratory infection, vomiting and diarrhoea, and assessment at the Hospital, and Dr H (Neurologist) privately.AS per the information reported in previous intakes, it is evident that the family and the child are well supported in the community by numerous professionals AND at the time of finalising the concerns, it appears that the child’s basic care and medical needs are being met, acknowledging that both parents have a responsibility to care for X and seek medical treatment should they feel it necessary…
Given that there is nil independent medical confirmation of the mother failing to administer the child’s medication AND there have been no increase in seizures noted which would further evidence the likelihood of the mother failing to adhere to medical advice, a child concern report will be recorded in order to maintain a record of current concerns. It is envisaged that the child will continue to be monitored by his treating team and worries reported as appropriate, a referral to FaCC has not been completed at this time.[15]
[15] Tendered Documents from Hospital V marked exhibit 4 in the proceedings at page 101.
This investigation, which was some months after the first investigation by the Department does not lend any support to the father’s allegation the mother is not providing the child with the appropriate doses of the anti-epilepsy medication.
Immunization
The mother was not supportive of vaccinating the children initially. Judge Middleton made a consent order on 4 September 2019 amended 10 September 2019 that provided:
3. That within 7 days the mother attends on Dr S and obtains the proposed immunisation schedule for both children.
4. That within 14 days the mother provides the proposed immunisation schedule to Dr J, X’s treating Paediatrician.
5. That once Dr J has approved the immunisation schedule, the immunisation of the children shall commence forthwith and both children shall complete the immunisation schedule, in the absence of an emergent issue and/or advice from the child, X’s, treating Paediatrician.
6. That in the event that Dr J does not approve the immunisation schedule proposed then all parties shall adhere to the alternate immunisation schedule proposed by Dr J.
7. That both parties shall adhere to all treatment recommendations and directions of Dr J, including but not limited to new proposals for treatment of X.
The mother was very resistant to the immunization despite very firm advice from medical specialists that supported the need for X in particular to be immunized:
Contacted by Nurse Practitioner from Queensland Specialist Immunisation Services due to ongoing conflict between parents regarding immunisation of X.
NP advised there were Family Law Court orders in place that allowed both parents to provide consent for medical procedures and on two occasions, mother had attended Immunisation Clinic appointments and obstructed X from receiving his vaccinations. NP advised X had a medical history which left him at risk of rapid deterioration if he becomes unwell placing him at an increased risk of harm compared to peers without co-morbidities.
NP also advised mother is aware of risk to X following multiple discussions.
Lengthy discussion with the CPFMS team and advice was as follows:
•Father should be encouraged to pursue court orders allowing him to vaccinate X, despite mother’s objections.
•In the event that father is unwilling to do this, or the risk t X is deemed too imminent to await court proceedings, a report to Child Safety may be warranted due to his increased risk compared to peers.
•QSIS should discuss this matter with the Hospital V Legal team to determine if the Health Service is able to vaccinate with paternal consent, despite mother’s objections.
NP advised she would discuss the level of risk X would experience if he was to await his father to proceed matters through the Family Law Court and father would be encouraged to pursue legal documentation from the Court, authorising vaccination.[16]
[16] Affidavit of Mr Gabbard filed 4 November 2020 at annexure -25.
Nurse Practitioner wrote to X’s treating doctors:
I write today as I have concerns that X's mother is obstructing our service delivering care to X. There· have been two occasions within the last week that X's father has brought X to the Immunisation Centre (2g) requesting vaccination for X. X's father was assessed as having the legal capacity to provide the consent and was assessed as acting in X's best interests. There were no identified legal orders that prevented X's father providing this consent. On both occasions X's mother arrived and prevented vaccination from occurring.
I have discussed with CPFMS my concerns that X's mother is obstructing care. They have suggested that the father pursue court orders to support compliance with vaccinations. However, a child safety report could be warranted if it was demonstrated that X was at increased risk of harm (compared to his peers) as a result of his mother obstructing care.
As his primary treating Physicians what are your thoughts around his health risk due to his underlying medical conditions if he were to remain unvaccinated and contract a vaccine preventable disease? Do you feel these health risk warrant a child safety report?[17]
[17] Ibid at annexure -28.
I consider this failure by the mother to promptly vaccinate X posed a risk to the child. I note however by the time it came to court in October 2019 the mother had consented to the vaccination.
Failure to Seek Medical Attention
The father’s case is the mother has failed to seek appropriate medical attention for the child.
On 18 October 2018 the child had a serious illness where he was suffering from ketoacidosis. This illness will resolve as the child gets older. It relates to X not being able to tolerate overnight fasting as well as other children. The treatment is corn syrup that releases glucose overnight. A symptom of the disorder is vomiting. The parents have anti-nausea wafers. They are told to bring the child to hospital if he vomits twice.
The father raises a concern expressed by Dr T a social worker about the mothers parenting. I can make no finding on the basis of annexure -29 of the father’s Affidavit filed 4 November 2020.
The evidence is hearsay on hearsay. It also records:
Thinks children are at risk of harm through neglect – nil new concerns and is considering if new (sic) makes a new report to child safety.
The evidence does not support a finding the mother failed to seek medical attention for X. I accept the father has presented with the child at hospital from time to time but the evidence has the mother involved in those hospitalisations.
Hearing
The parents had a disagreement about how to proceed with testing the child’s hearing. It seems the mother believed there was a further test needed prior to the test to be done under anaesthetic.
I am not able to make any findings adverse to either parent.
Attending Unnecessary Medical Appointments
The father’s evidence is:
To be clear, my concern with Ms Kelleher facilitating medical treatment is not that she commits sins of omission versus commission or vice versa. Rather, she does both- she doesn’t seek medical assistance when she needs to, and does seek medical attention when she doesn’t need to. I believe that she doesn’t understand what is important and appropriate and what isn’t.[18]
[18] Affidavit of Mr Gabbard filed 4 November 2020 at paragraph 78.
Dr S has stopped treating the child no doubt because of the conflict the parents demonstrated to the doctor.
The mother was, it seems making weekly appointments for X. I note this is likely to be unnecessary and a risk because of COVID-19 and the need to keep X away from a risk of infection.
It however has to be seen in the context of the father’s extensive list of complaints or concerns about the mother’s care for X.
The Child’s Recent Seizure Activity
The father’s evidence is that the child is continuing to have seizures and that the mother does not notice these. The evidence the mother gave under cross-examination seems to support the father’s position in that when the nature of the seizure was described to her the mother conceded this activity had occurred in her home.
The father’s evidence is:
On 18 September 2020, we received the results of X’s sleep study. I attended on Dr H in person and Ms Kelleher by phone. The results showed constant seizure related activity than the study X had in 2019. Prior to revealing these results to Ms Kelleher and I, Dr H asked Ms Kelleher if she had noticed any seizure related activity to which she emphatically responded “no”. Once Ms Kelleher terminated the phone call, Dr H questioned me again regarding Ms Kelleher’s compliance with medication administration. He asked me to procure a blood test because it was his view that it was unusual for a child to return an EEG test result like X’s if he was receiving the medication. Dr H said if the blood test returned a sub-therapeutic result, he would immediately make a child safety notification against Ms Kelleher. Dr H also stated that I was the only parent observing seizure related activity, which meant Ms Kelleher was either not able to recognise them or had chosen not to report them.[19]
[19] Ibid at paragraph 90.
Dr H was available to give evidence. He was cross-examined by the father’s counsel but these points the father makes were not put to Dr H.
Dr H’s evidence did not raise concerns about either parent.
He conceded he cannot assess the doses of medicine being given to the child by the parents. The doctor conceded the seizure activity is relevant to the dosage of medication.
Dr H’s evidence with respect to an EEG was:
If it is absolutely clear that a patient is having seizures, then we may not do – do an EEG to confirm the same, but if it is not clear whether someone is having seizures, then we may perform an EEG with the aim to capture the events.
And to be clear, it wasn’t clear because of the conflicting reports of the parents; is that correct? That’s correct.
Right. The father says that the results of the EEG and the sleep test showed constant seizure activity; is that right? There is difference between seizure activity and epileptic activity. So children with epilepsy can have a normal EEG in between seizures. That means it is a reflection of how active the epilepsy is. That doesn’t necessarily mean they are having seizures, so X’s EEG done in September showed increased frequency of activity especially during sleep, but we did not capture any seizures as such during ... almost 12-hour recording.
Dr H’s evidence about the seizure activity was:
… Sticking to what you do know, Dr H – I mean that with no disrespect, so I should clarify. Sticking to what you do know, you do know the results of the EEG; what you don’t know is which of the parents’ report is more accurate. So sticking to what you do know, I will ask this simple question: is it likely that the child is exhibiting seizure activity in both parents’ household? It would be – it would be quite uncommon to someone having seizures for three days and then all of a sudden not having seizures for next three days. It is possible either way that one parent is under-reporting and/or other parent is over-reporting. I won’t be able to differentiate between what is – what is true.
The doctor conceded he has no reason to doubt what the mother and father were telling him about the child’s seizure activity.
I am not able to make a finding of risk to the child in the mother’s care on the basis of her failure to note seizure activity in circumstances where the medical evidence does not support such a finding.
Conclusion
The evidence does not support a finding the mother is an unsafe parent in relation to X’s medical issues. There is no evidence other than the admission by both parents that they ceased the use of epilepsy medication at the beginning of the child’s time on the medication. The medical evidence does not support a conclusion the mother has failed to administer the relevant drugs for epilepsy.
I accept the mother was hesitant to immunize the children and this posed a risk to X in particular. However the Court order was a consent order by the parents to immunize the children.
The child’s seizure activity is not noticed by the mother according to the father. The evidence is not conclusive on this issue when Dr H’s evidence is considered.
RISKS IN THE FATHER’S CARE
The mother’s case is that the father’s controlling behaviour amounts to domestic violence.
The Separation
The father sent an email to the rental manager on Monday 4 June 2018 at 10:30am that said:
Good morning,
I have word that my wife (Ms Kelleher) has applied for a property with you using my business account details.
You should be aware that we currently have a financial commitment and a rental agreement at Place D and this costs us $950 per week. Ms Kelleher is not employed and I have absolutely no idea how I am going to be able to finance this application and pay rent on both properties. She has not discussed it with me. We have very little cash flow as it stands. I assume she used my business account as evidence of finance.
Sorry, I know this is probably quite awkward. It most certainly comes as a shock to me.
Cheers,
Mr Gabbard.[20]
[20] Affidavit of Ms Kelleher filed 10 March 2020 at annexure 1.
On 4 June 2018 the father also withdrew $5,000 from the party’s joint account and left just $160 in the account for the use of the mother and children.
The mother had no access to any other funds at that time, she was not an Australian resident and was not entitled to Centrelink, single parenting payments or carers allowance. The mother relies on her parents to make payments for her and the children.
From 3 July 2018 until 29 July 2018 the father unilaterally withheld X from the mothers care in circumstances where the child had only been apart from the mother for one day prior to this. The father required the mother’s time with X to be supervised by himself and his brother.
The father raised that the mother has serious mental health problems. There has been no evidence to support this position at trial. This is very troubling behaviour.
These behaviours are very concerning. However, the constant exchanges between the parents about the children can be seen as arising out of a desire to care for the children. The Family Report Writer observes:
While this assessment is obviously unable to determine the facts of the violence alleged by each parent; it is my opinion that while the allegations of both parents could certainly be described as violence, they could also be described as illustrative of the lack of trust and co-parenting relationship, and indicative of the readiness of both parents to assume the worst about one another.[21]
[21] Family Report filed 9 November 2020 at paragraph 122.
I am not able to make a finding of domestic violence that would pose a risk to the children on the evidence.
Dr S
Dr S was the General Practitioner treating X. She has refused to continue to treat him. Her reasons for doing so are set out in the fathers affidavit filed 4 November 2020 at paragraph 109:
On 18 September 2020, Dr S sent a letter to Dr J to also advise him she would no longer be treating X and Y. The recent subpoena documents of Dr J, evidence that Dr S stated “I am writing to advise you that unfortunately I have had to end my therapeutic relationship with X and his brother Y. The lack of consensus between his parents Mr Gabbard and Ms Kelleher had negatively impacted on my ability to effectively treat the children and I have recommended that they mutually agree to engage another general practitioner. I understand that the children do have a long term relationship with a GP in Suburb W.”
This evidence supports the need for only one parent to have responsibility for X’s medical needs.
The Maternal Grandparents
The father raises a concern the maternal grandmother has unconventional views about medical issues. This may be the case but her evidence was she supported X being treated by conventional medical practitioners. I accept she lives with the mother and the children from time to time in the home the grandparents purchased to house the mother and the children.
The Mother’s Unilateral Decisions
I accept the mother’s unilateral decision to relocate the children to their current residence that is a significant distance from where the father lives in Suburb W and up to 45 minutes from the Hospital V.
However, the maternal grandfather gave evidence they purchased the home to provide a home for the mother and the children. The evidence he gave was that the cost of the property was a significant factor in choosing the location. The inner city properties near Suburb W where the father was renting were higher than he could afford.
Y’s Behaviour
The father’s evidence is:
In the past eight month’s Y’s behaviour has seriously declined. I do not consider Y’s behaviour to be the result of one parent's conduct. I am concerned Y’s behaviour is deteriorating as a result of the high degree of parental conflict between Ms Kelleher and I which stems largely from medical decisions relating to X. I have repeatedly raised this with Dr P.[22]
[22] Affidavit of Mr Gabbard filed 4 November 2020 at paragraph 105.
Dr Q has been engaged by the parents to assist them in managing Y’s behaviour. I note Dr Q records:
… He was articulate and child focused in his discussions. Informal observations of him interacting with X and Y shown (sic) that he displayed a high level of affection, patience and parenting ability with the children. He was attentive, kind and highly attuned to their needs. Mr Gabbard reported that he was extremely concerned regarding the behaviours exhibited by Y and was worried regarding the impact of the separation and current time arrangements on his functioning. He reported concerns that Y’s difficulties were linked to co-parenting conflict, inappropriate time arrangements, and his attachment style with his mother. Mr Gabbard indicated that he is not willing to continue to watch Y in the state of heightened distress that is currently occurring and wished to seek options to improve the current situation…
Ms Kelleher presented reserved, non-direct at times and paced in her processing speed. Informal observations showed that she was attentive to the children, however at times she was not attuned to their behaviours or the appropriate impact of their actions on those around. The children were less controlled and managed in her care at my office. Ms Kelleher presented as patient and kind towards each child. Ms Kelleher presented as concerned regarding Y’s displayed behaviours, however offered minimal suggestions regarding what may be contributing to his difficulties. She did often mention that she felt Y was on the Autism Spectrum which maybe (sic) the reason he is experiencing the reported difficulties in his behaviours, and the emotional regulation and adjustment issues during change.
Both parties confirmed that there is a lack of an effective and respectful co-parenting relationship with each blaming the other for highly inappropriate behaviours at change over in the presence of the children including ignoring the other parent, saying “fuck off” and giving each other “the finger”.
Dr Q offers five possible reasons for Y’s distress post separation. These are:
(1)Adjustment issues to an inappropriate time arrangement. This Dr Q discounts.
(2)The impact of high level conflict. Again, she suggests this fails to explain certain aspects of the problem.
(3)The presence of Autism Spectrum Disorder. Again, this was not a satisfactory explanation.
(4)The undermining of a hierarchical attachment figure. This again does not explain satisfactorily the behaviours reported by the mother and father.
(5)Attachment distress. This theory is based on the child’s preferential attachment to his father.
The expert does not give any opinion that would define the reason for Y’s distress.
I note however she has been engaged as a therapist and both parents agree to this being an ongoing arrangement.
Dr Q in her report notes:
Based on the information presented, it appears that the current time arrangement is not working for Y and causing escalated distress. This would lead to consideration of an alternative time arrangement which would also need to take into consideration the apparent inability for the parents to establish an effective co-parenting relationship. I recommend ongoing treatment for Y to investigate further any ASD tendencies, provide emotional regulation techniques and support his adjustment to time arrangements moving forward. I am happy to continue to provide treatment to support this family moving forward.
THE LAW
Primary Considerations
Turning firstly to the application of the primary considerations set out under ss.60CC(2) and (2A):
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
…
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I have no doubt there is a benefit to these children having a meaningful relationship with both parents. There is no doubt both parents have been very actively involved in the care of the children.
The unfortunate situation for these children is that the conflict between the parents is so significant no party is advocating for any order that approaches a shared care arrangement. Rather the children will have a primary carer and a very part time other parent on any view of the orders sought by all the parties.
The question of whether the mother poses an unacceptable risk to the child X is considered in paragraphs [29] – [80].
The mother alleges the children are at risk in the father’s care because of the domestic violence she alleges he commits against her. I refer to paragraphs [81] to [87].
Additional Considerations
In this matter I consider the additional considerations that are relevant to be as follows:
The Children’s Views
This consideration is set out in s.60CC(3)(a) as follows:
(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;
Y was three years old when he expressed a preference to live with his father. X has very limited capacity to express a view. Consequently this factor is of no assistance in coming to my decision.
Children’s Relationship with Significant Persons
This consideration is set out in s.60CC(3)(b) as follows:
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
There is no doubt the children have an attached relationship with both parents. They have both been very actively involved in the care of these two children.
The children live with their maternal grandparents and their mother. The father told the Family Report Writer:
Despite his concerns, Mr Gabbard expressed a view that the boys should spend “lots of time” with their maternal grandparents, as both maternal grandparents can teach the children “lots of awesome things”. He reported a view that the children have developed an attachment to their grandparents; and that they have offered significant support to Ms Kelleher.[23]
[23] Family Report filed 9 November 2020 at paragraph 32.
The Family Report Writer did not see the children for the second report. She did not consider it necessary. Her opinion in the first report about the children’s relationship with the parents was:
Overall, in my opinion, it appears that the children share close relationships with both parents, and would benefit from maintaining and further developing these relationships.[24]
[24] Family Report filed 31 October 2019 at page 37.
The Parenting and the Discharge of Parenting Responsibilities
In the circumstances of this case, it is convenient to deal under this heading with a number of considerations listed in s.60CC. I consider, under this heading, the following paragraphs of s.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;
Both parents have made unilateral decisions in relation to the children. The father’s case is that the mother retained the children for some days shortly after separation and he did not see them.
The father retained X for several weeks in July 2018 and only returned him to the mother’s care after the Department were involved.
X has a need for very significant medical care and the parents have been involved in decision making for X. Both parents and the Independent Children’s Lawyer seek sole parental responsibility for the resident parent. I accept this is an appropriate order. The conflict that occurs between these parents is not in the children’s best interests.
(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;
The parents receive very substantial financial support for X from the National Disability Insurance Scheme (‘the NDIS’).
The father works part time and can support the children.
The mother does not work and is not entitled to any benefits because she not an Australian national. However her parents have supported her and the children. This support has included purchasing a home where she and the children are able to reside.
(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
I have no doubt that the parents individually are able to care for the emotional and intellectual needs of the children. The concern I have is the conflict the parents engage in seriously compromises the emotional needs of the children.
The family report writer observes:
In my view it is astonishing that the parents appear to completely believe and agree that Y’s changeover behaviours are the result of the toxic nature of changeovers, and yet despite this, have failed to make any changes which have been effective at reducing the obviously harmful impact on the children.[25]
[25] Family Report filed 9 November 2020 at paragraph 124.
This is in the context of the father reporting to the family report writer:
Mr Gabbard described the changeovers of the children between the children as “pretty horrific”…
… afternoon changeovers as “pretty bad” with Y engaging in very serious and sustained tantrums and self-harming behaviour; which involve him screaming, kicking, hitting and head-butting his parents, punching his own face, scratching himself, banging his head, hiding from his mother, throwing things, and locking himself in his room prior to leaving for changeovers. Mr Gabbard reported that X is also visibly upset at changeovers, but is much easier to manage than Y. He reported a concern that X will soon learn to copy Y’s behaviours.[26]
[26] Family Report filed 9 November 2020 at paragraph 34-35.
This view is confirmed by what the parties told Dr Q at paragraph [94] of this judgment.
The family report writer opines:
It appears to me that each parent is likely to be experiencing confirmatory bias, which is an unconscious tendency to believe information which supports one’s existing beliefs; and disregard, or find alternate explanations for, information that challenges those beliefs. It also finds people more likely to interpret ambiguous information in a way that supports their existing belief, and sees people able to maintain their beliefs even in the face of contrary evidence...
This is of particular concern due to the likely impacts on the children as a result of the parents holding persistently negative views about one another It is widely accepted that there is a clear and undeniable link between parental views, actions and behaviours; and children’s outcomes. Until children reach an age at which they may question their parents’ knowledge and authority; children tend to accept and adopt the views, opinions, and rationales of their parents.[27]
[27] Family Report filed 9 November 2020 at paragraph 131-133.
Effect of Any Changes in the Children’s Circumstances
Section 60CC(3)(d) of the Act requires the Court to consider:
(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;
The children have always lived primarily with their mother and the family report writer in her first report opined in relation to the mother’s proposal:
Such an arrangement would provide the children with the benefit of stability and consistency of routine, and one primary care-provider.[28]
[28] Family Report filed 31 October 2019 at page 46.
Unfortunately the parents and the Independent Children’s Lawyer no longer advocate a shared care arrangement.
I consider the children remaining in the mother’s primary care offers them the benefit of stability and consistency of routine.
Parental Responsibility
All the parties in this matter agree that the resident parent should have sole parental responsibility. I agree with their positions because the conflict these parents have engaged in is not child focused and a single decision maker is in the children’s best interests. I will require the resident parent to inform the other parent of decisions and take their views into account before making a decision.
I do not therefore need to consider equal time or substantial and significant time.
Who should be the Resident Parent
Family report writer records:
Unfortunately, despite the clear benefits to the children of a shared-care arrangement, and my previous optimism that the children would manage such an arrangement; the high levels of conflict and mistrust between the parents appear to have made such an arrangement too harmful to the children to be recommended at this time.[29]
[29] Family Report filed 9 November 2020 at paragraph 156.
The expert records:
In the event the Court finds that neither parent poses a risk to the children, this assessment finds the benefits to the children in the care of either parents to be finely balanced, and is unable to identify clear reasons to suggest the primary care of one over the other.[30]
[30] Ibid at paragraph 160.
I am not able to find that the mother poses a risk to X because of a failure to attend to his health needs. Although I note she was slow to immunize the children in circumstances where it was recommended and she did not wish for X to have antibiotics in circumstances where it was recommended.
I am not able to find the father poses a risk to the children because of issues of domestic violence. However his conduct at separation leaving the mother without funds and notifying the Real Estate agent to not rent a property to the mother were serious acts of coercive control in circumstances where the mother was not entitled to any benefits because she was not an Australian citizen.
Furthermore, I was concerned about his recent Domestic Violence Order application that sought to totally exclude the mother from the children’s schools and all medical appointments.
I am left in a situation where the mother has been the primary carer for ten nights per fortnight and the father has had four nights per fortnight.
While I accept family report writer expressed an opinion the children may have a primary attachment to both parents the mother’s home is where they have primarily resided.
The children will benefit from stability and consistency of routine if they remain with their mother.
I consider the matter is finely balanced but the children should remain with their mother because of the stability and consistency of routine.
I certify that the preceding one hundred and thirty-seven (137) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cassidy. Associate:
Dated: 25 February 2021
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