GABLES & GABLES
[2020] FCCA 1780
•3 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GABLES & GABLES | [2020] FCCA 1780 |
| Catchwords: FAMILY LAW – Children – dysfunctional parenting relationship – four children – oldest child alienated from father – expert evidence – parenting capacity – expert evidence – change of primary care considered – best interests of children – parallel parenting. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG, 61DA, 65D, 65DAA. |
| Cases cited: Goode & Goode [2006] FamCA 1346 Muldoon & Carlyle (2012) FLC 93-513 Baghti & Baghti & Ors [2015] FamCAFC 71 Goldman & Goldman [2018] FamCAFC 65 |
| Applicant: | MS GABLES |
| Respondent: | MR GABLES |
| File Number: | ADC 2985 of 2013 |
| Judgment of: | Judge Kelly |
| Hearing dates: | 24-27 February, 5 March 2020 |
| Date of Last Submission: | 5 March 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 3 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms I Green |
| Solicitors for the Applicant: | Phillips Green & Associates |
| Counsel for the Respondent: | Ms J Miller |
| Solicitors for the Respondent: | Boylan Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms M Ross |
| Solicitors for the Independent Children's Lawyer: | CN Family Law |
ORDERS
The child X
That all previous parenting orders are discharged in relation to the child X born in 2007.
The mother have sole parental responsibility for the long term care welfare and development of the child X provided that:
(a)the mother consult with the father in writing prior to making any significant decision in relation to X’s care, education, health, welfare and development;
(b)the father respond to the mother in writing within seven (7) days, setting out his views on the issue in question; and
(c)the mother consider the father’s response before reaching her decision and then notify the father in writing of her decision.
X live with the mother.
X spend time with the father at such times as may be agreed between the parties in accordance with X’s wishes.
The father is permitted to send cards, letters or gifts to X and the mother shall ensure these items are given to him and encourage X to acknowledge the father’s gesture.
The father and X communicate by telephone or other electronic means in accordance with X’s wishes.
The children B, C and D
All previous parenting orders in relation to the children B born in 2008, C born in 2010 and D born in 2011 (“the children”) are discharged as and from Monday 13 July 2020.
Thereafter the father have sole parental responsibility for the long term care, education, health, welfare and development of the children B, C and D provided that:
(a)the father consult with the mother in writing prior to making any significant decision in relation to the children’s care, education, health, welfare and development;
(b)the mother respond to the father in writing within seven (7) days, setting out her views on the issue in question; and
(c)the father consider the mother’s response before reaching his decision and then notify the mother in writing of his decision.
The children’s living arrangements in the father’s primary care
The children live with the father from 12noon on Monday 13 July 2020 until the conclusion of school on Friday 16 October 2020.
The mother deliver the children to the father’s home at 12noon on 13 July 2020, unless otherwise directed by the Independent Children’s Lawyer.
The mother provide the children with sufficient clothes and personal effects to allow them to settle into the father’s care, provided that these items are returned to the mother in good order and repair upon the children commencing time in her care.
B, C and D spend time with the mother as follows:
(a)all time is suspended for a period of four (4) weeks after the children come into the father’s care, other than by way of supervised video or telephone calls facilitated by Ms E in the course of family counselling;
(b)thereafter each alternate weekend from the conclusion of school Friday until the commencement of school Monday commencing Friday 7 August 2020 for the remainder of the third school term;
(c)for the first half of the September/October 2020 school holidays from the conclusion of school on Friday 25 September until 5.00pm on Saturday 3 October 2020.
The mother telephone the children B and D on their respective birthdays, to exchange a birthday greeting.
The children’s long term parenting arrangements
Commencing fourth term 2020 the children live equally with each parent as follows:
(a)in the mother’s care each alternate week commencing Friday 16 October 2020 from the conclusion of school or 4.00 pm until the conclusion of school or 4.00pm on the following Friday;
(b)in the father’s care each alternate week commencing Friday 9 October 2020 from the conclusion of school or 4.00pm until the conclusion of school or 4.00 pm on the following Friday;
Each party has parental responsibility for the children’s day to day care, welfare and development while the children are in that parent’s care.
School holiday parenting arrangements
The week about parenting regime continue during all future short school holidays and during the Christmas 2020 school holidays.
Thereafter the children live with each parent for one half of the Christmas school holidays each year as follows:
(a)commencing in 2021 and each alternate year thereafter:
(i)with the mother for the first week of the school holidays from the conclusion of school on the last day of term until 4.00pm on the following Friday and for two consecutive weeks commencing at 4.00pm on the third Friday and concluding at 4.00pm on the fifth Sunday; and
(ii)with the father at all other times;
(b)commencing in 2022 and each alternate year thereafter:
(i)with the father for the first week of the school holidays from the conclusion of school on the last day of term until 4.00pm on the following Friday and for two consecutive weeks commencing at 4.00pm on the third Friday and concluding at 4.00pm on the fifth Sunday; and
(ii) with the mother at all other times.
Special Occasions
The following orders override the usual parenting orders set out above.
The children spend time with each parent on special occasions as may be agreed between the parties and in default of agreement as follows:
(a)with the father from 12noon Christmas Eve until 3.00pm Christmas Day 2020 and each alternate year thereafter and from 3.00pm Christmas Day until 3.00pm on Boxing Day in 2021 and each alternate year thereafter;
(b)with the mother from 3.00pm Christmas Day until 3.00pm on Boxing Day in 2020 and each alternate year thereafter and from 12noon Christmas Eve until 3.00pm Christmas Day in 2021 and each alternate year thereafter;
(c)with the father from 9.00am until 5.00pm on Father’s Day each year;
(d)with the mother from 9.00am until 5.00pm on Mother’s Day each year;
(e)with the mother on the mother’s birthday from the conclusion of school until 7.30pm;
(f)with the father on the father’s birthday from the conclusion of school until 7.30pm;
(g)with the mother on each of the children’s birthdays from the conclusion of school or 3.00pm until 6.00pm in the event the children would otherwise have been in the father’s care on that day;
(h)with the father on each of the children’s birthdays from the conclusion of school or 3.00pm until 6.00pm in the event the children are in the mother’s care on that day;
(i)with either parent on such other special occasions as may be negotiated between the parties and confirmed in writing.
That handovers take place with the relevant parent collecting the children from school when appropriate.
The parties endeavour to use separate entrances to the school grounds when the father is collecting B, C and D and the mother is collecting X.
For all other handovers the father will deliver the children to the mother at the commencement of their time in her care and the mother will deliver the children to the father at the commencement of their time in his care provided each party does not enter the other party’s property during handover, unless specifically invited.
Communication
Electronic communication between the children and the other parent occur only when initiated by the children in which case each party facilitate the children contacting the other parent via telephone or Skype (or equivalent) at a reasonable time.
The parties communicate by text message in relation to information regarding immediate issues regarding the children, including any delay in handover, or any urgent information regarding the children’s health and welfare.
The parties shall communicate via an agreed Co-parenting App such as Our Family Wizard to exchange information regarding the children’s general wellbeing, care, health and activities.
Each party ensure that all communication with the other parent is conducted in a polite and respectful manner.
Each party keep the other informed of their residential address and mobile phone number and notify the other parent within seven (7) days of any change of these details.
Health issues
Each party keep the other advised in relation to any of the children’s health issues and provide details of medical practitioners, specialist doctors, allied health professionals or therapists attended by any of the children.
Each parent is permitted to contact any of the above mentioned health professionals providing treatment to any of the children.
Each parent keep the other advised in relation to any medication or treatment that is prescribed for any of the children.
Each party notify the other as soon as possible, by text message or telephone call, in the event any of the children, including X, are admitted to hospital for a medical emergency.
Both parents are permitted to attend at the hospital facility where the child or children is receiving treatment, provided that the father’s attendance is subject to X’s wishes at that time.
Counselling support
The Independent Children’s Lawyer request Ms E to prepare a Transition Plan to support the children B, C and D adjust to the father’s primary care and the eventual introduction of week about care, noting Ms E may consult with Ms F in this regard.
Thereafter the father at his sole expense facilitate the children, B, C and D continuing in family therapy with Ms E directed to:
(a)supporting the children’s transition into the father’s primary care;
(b)supporting C’s developing relationship with the father;
(c)supporting the father in his parenting role;
(d)supporting the children as they recommence time in their mother’s care.
The father facilitate the children’s attendance at appointments as requested by Ms E from time to time.
Subject to their wishes, the mother and X participate in family therapy with Ms E, or such other counsellor as the mother may nominate.
The father do all things necessary to obtain a Mental Health Plan for B, C and D to facilitate their attendance upon Ms E, in order to defray the ongoing counselling costs.
The mother do all things necessary to obtain a Mental Health Plan for X to facilitate his attendance upon Ms E, in order to defray the ongoing counselling costs.
The parties obtain their own Mental Health Plans for the purposes of consulting with Ms E, or such other psychologist as they may nominate provided that each party meet their own costs of their attendances with Ms E or any other psychologist for individual counselling.
Injunctions
The mother is restrained from removing the children from school when they are in the father’s care.
Each parent is restrained and an injunction is granted restraining them from:
(a)physically chastising or physically disciplining any of the children;
(b)excessively manhandling any of the children;
(c)consuming alcohol to excess while any of the children are in their care;
(d)denigrating the other party or any member of that party’s family in the presence of any of the children and from allowing any other person to do so (including X);
(e)discussing issues raised within the course of these proceedings with or in the presence of any of the children or allowing anyone else to do so save and except in the course of any family therapy or counselling;
(f)discussing, commenting on or mentioning these proceedings or the outcome of these proceedings on Facebook, Twitter, Instagram or any other social media website and from permitting any other person to do so.
Interaction with the children’s schools or extracurricular activities
Each parent is permitted to attend school events or activities to which parents are usually invited and to obtain copies of notices, newsletters and the children’s school reports and to obtain such documents directly from the school in that regard.
Each parent ensure that they have the necessary school uniform requirements for each child and that any such items from the other parent’s home are returned with the children at the next handover.
Each parent is permitted to enrol the children in one sporting or extracurricular activity that may fall within the other parent’s primary care and both parties shall ensure the children attend such activities.
The parents are otherwise permitted to enrol the children in additional sporting or extracurricular activities that may fall within the other parent’s primary care, provided such activities occur with the consent of both parents.
Additional orders
The Independent Children’s Lawyer and/or her nominee meet with the children X, B, C and D to explain the Court orders to the children as soon as practicable.
The Independent Children’s Lawyer liaise with Ms E in relation to a Transition Plan and her ongoing counselling support if possible.
Liberty to the Independent Children’s Lawyer to forward any relevant reports on the Court file to Ms E together with the Reasons for Judgment delivered this day.
The order for the appointment of the Independent Children’s Lawyer is discharged as and from 30 November 2020.
The proceedings are dismissed as finalised.
IT IS NOTED that publication of this judgment under the pseudonym is Gables & Gables approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 2985 of 2013
| MS GABLES |
Applicant
And
| MR GABLES |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to the parties’ four children: X aged 12 years, B aged 11 years, C aged 10 years and D aged 8 years. Their parents have been engaged in litigation before this Court since 2013.
Final parenting Orders were made by consent between the parties on 18 February 2015 but those arrangements quickly broke down and the mother commenced further proceedings in 2016. The parties have been unable to reach agreement in relation to final parenting Orders and it now falls to the Court to determine the long-term parenting arrangements for the four children.
The parties and their children participated in extensive re-unification counselling during 2018 and these proceedings were adjourned to facilitate that process. Subsequently in 2019 I was unavailable to conduct hearings, which led to a significant delay before trial dates could be allocated. I apologise to the parties for this inconvenience.
Background
The parties met in City G in 2005 and married in 2007. Their oldest child X was born in 2007, B in 2008, C in 2010 and D in 2011. The father also has an older child H, aged approximately 17 years. H spends time in his care on alternate weekends.
The parties separated finally on 27 March 2013. The father filed an Initiating Application in the Federal Circuit Court on 19 August 2013 and the mother filed her Response on 26 September 2013. The father alleged that the mother was deliberately undermining his relationship with the children and the mother alleged that the children were exposed to violence, emotional abuse and neglect in the father’s care.
A s.62G Family Report was prepared by Ms F in October 2014. Following Ms F’s report, final Orders were made by consent between the parties on 18 February 2015. Those Orders provided for the parties to share equally in parental responsibility and the children to remain living in the mother’s primary care. The Orders detailed the children’s time with their father, progressing to alternate weekends from Friday to Sunday during school terms, in addition to a few hours after school each Wednesday. School holidays and time with each parent on special occasions were also addressed.
The parties consented to a range of ancillary Orders addressing their communication, parental behaviour, handovers and ongoing counselling for the children. The Orders were detailed and a clear attempt to address potential areas of dispute in the future. Sadly, the Orders of 18 February 2015 did not create the stable, co‑operative parenting environment that the Court had hoped.
The mother continued to hold concerns about the children’s safety and welfare whilst in their father’s care, despite the consent Orders. She kept detailed notes about any issues that arose, including any complaints raised by the children about their experience at the father’s home.[1]
[1] Exhibit M1
The father has acknowledged that he struggled to manage the children’s conduct at times. On occasions the children would settle into his care for an enjoyable weekend; at other times, the father was unable to manage the children’s behaviour. The dynamic between the father and the eldest child X deteriorated to the point where X would demand to go home to his mother and the father would acquiesce.
C also began to resist spending time in her father’s care and her behaviour became increasingly disruptive. The father conceded that he struggled to manage C’s behaviour and at times he would return C to the mother’s care before the visit ended.
In addition to the difficulties experienced in the father’s home, all of the children have experienced significant behavioural issues at school. In D’s case, this commenced at childcare and continued through kindergarten and school. B, C and D have all been reported for disruptive and oppositional behaviour that has led to each of the children being removed from the class or suspended. I note that B was suspended on three separate occasions in November 2015 and D was suspended from kindergarten in October 2015, when he was only four years old.
In early 2015, the children commenced counselling with Ms J at K Counselling in City G. In late 2015 Ms J advised the mother that C had reported that the father had hit her in the stomach with a closed fist. Ms J reported C’s disclosures to Families SA (now the Department for Child Protection). Subsequently C told her mother about another occasion when the father had become angry with her and had grabbed her forcefully around the neck during a visit to the paternal grandmother’s home in Adelaide. Apparently C told her cousin L about this incident and his mother (C’s aunt) reported C’s disclosure to Families SA.
Police officers at City G referred C to Child Protection Services (CPS) for a forensic interview, but apparently SA Police later informed the mother that the CPS interview would not proceed until the children’s time with the father had been suspended. In light of this advice, the mother recommenced proceedings.
The current proceedings
The mother filed her Initiating Application on 30 June 2016 and the father filed his Response on 20 July 2016. The matter proceeded to argument before me on 21 July 2016 by which time there had been a substantial delay in the child protection investigation. After hearing submissions the Court made the following Orders:
1.The existing Orders for the children to spend time with the father are suspended for a period of four (4) weeks to facilitate any police or Child Protection Services investigation.
2.The children’s time in the father’s care, in accordance with the Orders of 18 February 2015, resume as and from Friday 26 August 2016 whether or not the Child Protection interviews have been conducted.
3.Pursuant to s.68L of the Family Law Act 1975 THAT an Independent Children's Lawyer be re‑appointed to represent the interests of the children.
The Court made orders for the release of information obtained from Families SA and SA Police and further ordered that the parties facilitate the children’s attendance for counselling with Mr M. The proceedings were then adjourned to 6 September 2016.
On that occasion the Independent Children’s Lawyer had been re‑appointed and informed the Court that CPS were in the process of investigating C’s allegations. The Independent Children’s Lawyer requested that the children’s time continue to be suspended until CPS had completed their assessment.
In circumstances where the child protection investigation was definitely underway, the Court granted a further adjournment to 5 October 2016 and continued the orders suspending the children’s time in the father’s care. The Court further ordered the Independent Children’s Lawyer to liaise with CPS and request that they release their report by 26 September 2016 if possible.
At the hearing on 5 October 2016 the suspension of the father’s time was again continued, as the Independent Children’s Lawyer advised the Court that SA Police were consulting with Crown Prosecution in relation to the CPS Report. The proceedings were further adjourned to 9 November 2016.
Interim parenting issues proceeded to argument on 9 November 2016, by which date the CPS report dated 28 September 2016 had been filed[2] and the Independent Children’s Lawyer confirmed that no further action would be taken by SA Police. The report writer noted various inconsistencies within C’s disclosures and concluded: “on the basis of the information gathered during the assessment, it was difficult to determine if the reported incidents constituted physical abuse”.[3]
[2] Affidavit of P filed 28 September 2016, Annexure B
[3] ibid, page 16 of the Report
In those circumstances, the Court reinstated the children’s time in the father’s care. Given the children had not spent any time in their father’s care for approximately five months, the existing orders for increased school holiday time were suspended, to facilitate a gradual resumption of contact. The Court also directed the parties to attend family therapy with Mr N, a family counsellor with O Counselling based in City G. The proceedings were listed for a three-day trial to commence on 14 August 2017 and interim parenting arrangements and trial directions were adjourned to 13 February 2017.
Following submissions on 13 February 2017, the Court continued the previous parenting Orders as pronounced on 9 November 2016, including the order for family therapy. The Court also ordered that the parties participate in a s.62G Family Report to be undertaken by Ms F.
Notwithstanding the Orders of 9 November 2016 directing that the children recommence time with their father, only B was spending regular time in the father’s care. X and C were refusing to see their father and D’s attendance was sporadic.
The disruption in the children’s relationship with their father was considered at length by Ms F in her family report dated 8 June 2017. Ms F discussed the difficult family dynamic and recommended the family undertake intensive reunification therapy. On 13 July 2017 the parties entered into detailed consent Orders for that process to commence. The trial dates were vacated to allow time for the reunification therapy to proceed.
It was anticipated that Mr N would conduct the reunification counselling but the parties were subsequently advised that intensive reunification counselling was beyond the resources offered by O Counselling. Accordingly on 12 October 2017 the parties consented to further Orders for the reunification counselling to take place with Ms E. The Court then pronounced trial directions and the proceedings were listed for a four day hearing to commence on 28 February 2018.
The reunification counselling with Ms E was productive and on 28 February 2018 the parties agreed to vacate the trial listing and continue re-unification counselling. The proceedings were then adjourned to 12 June 2018. Ms E provided a report on 4 June 2018 which indicated positive progress regarding C and D’s relationship with their father. Accordingly on 12 June 2018 the parties consented to orders for B to spend additional time in the father’s care and for C and D to commence spending day visits with their father.
The re-unification counselling continued to progress well. Further orders were made by consent on 24 September 2018, which provided for C and D to commence spending overnight time with the father. The proceedings were next mentioned on 13 December 2018 when the parties again consented to interim parenting orders.
The three children were due to spend overnight time with their father on Christmas Day 2018, but unfortunately difficulties arose. An argument occurred between C and B, which led to C becoming angry and aggressive.
The father was unable to settle C’s dysregulated behaviour. He asked a neighbour to come over and assist, but the neighbour’s response was to speak aggressively to C and then pull her up from the floor by her hair. The neighbour’s actions were totally unacceptable and the father has acknowledged this. Not surprisingly the events on Christmas Day led to a further fracture in C’s relationship with her father.
The proceedings were next mentioned before the Court on 13 February 2019 before Registrar Brown when the parties consented to Orders as follows:
1.Paragraphs 1(ii), (1)(iii), 4, 5, 7, 8 and 11 of the Orders made 13 December 2018 do continue.
2.The child D spend time with the father each alternate weekend from the conclusion of school (or 3pm if a non-school day) Friday to 5pm Sunday with time to commence Friday 15 February 2019.
3.The child C spend time with the father each alternate week from 9am until 5pm Saturday and from 9am until 5pm Sunday, with time to commence on Saturday 16 February 2019.
The Orders addressed handover arrangements and ordered ongoing reunification counselling with Ms E. An addendum Family Report was also ordered and the proceedings were otherwise adjourned to 13 June 2019. B and D continued to spend time with their father, but C refused. C did not spend any time with her father throughout 2019.
Ms F’s addendum Family Report was released to the parties on 3 June 2019. On 13 June 2019 the proceedings were mentioned before a visiting Judge, who continued the Orders of 13 February 2019 until further order and adjourned the proceedings to a trial callover on 11 July 2019.
The callover proceeded before me on 11 July 2019 and the matter was listed for a four day trial to commence on 24 February 2020. The Court pronounced the usual directions for the filing of trial Affidavits and directed that copies of the trial Affidavits be provided to Ms F at least seven days prior to the hearing.
The trial
The trial commenced before me on 24 February 2020. The evidence concluded on 27 February 2020 and final submissions were presented on 5 March 2020.
The mother relied upon her trial Affidavit filed 10 December 2019, together with a range of documents tendered during the hearing.
The father relied upon his trial Affidavit filed 20 December 2019 and an additional Affidavit filed 28 January 2020, annexing the children’s Semester 2, 2019 school reports. He also relied upon various documents tendered during the hearing.
The Independent Children’s Lawyer called Ms F and relied upon her three Reports dated 13 October 2014, 8 June 2017 and 30 May 2019. The Independent Children’s Lawyer also called the reunification counsellor, Ms E, and relied upon her reports dated 16 February 2018, 4 June 2018, 23 August 2018, 26 November 2018, 5 February 2019, 11 February 2020[4] and 4 March 2020[5].
[4] Exhibit ICL2, Documents 1-6
[5] Exhibit ICL3
The father’s proposed parenting orders
The father proposed that he have sole parental responsibility for the four children and that they live in his care. The father conceded that X would be unwilling to move and proposed that any change should be subject to his wishes, given that X is nearly 13 years old.
On the basis that the three younger children would be living in the father’s care he proposed that the children spend no time with their mother for a period of three months, so they could settle into his care. Thereafter he proposed that the children commence spending time with their mother on a supervised basis through the City G Children’s Contact Service before commencing unsupervised day visits. The father proposed the children’s time with their mother would progress to unsupervised overnight visits and then to overnight time on alternate weekends and half school holidays.
The father set out a range of further orders in relation to ancillary parenting matters, including handovers, counselling support for the children, injunctive orders and co-parenting communication.[6]
[6] MFI F2 Draft final Orders proposed by the father
The mother’s proposed parenting orders
The mother sought orders that she have sole parental responsibility for the four children and that they remain living in her care. She then proposed a range of differing orders regarding each child’s time with their father. She proposed that X spend time with the father in accordance with X’ wishes and as may be agreed by the parties in writing.
With respect to B and D, the mother proposed that those children continue to spend time with the father each alternate weekend from the conclusion of school Friday until the commencement of school Monday during school term times together with time overnight on the intervening Wednesdays. She also proposed that the children spend time with the father during school holidays, progressing to one half of each short school holiday period and on a week about basis during the Christmas school holidays.
In relation to C, the mother proposed that the child gradually recommence spending time with her father for a few hours each alternate Friday, before progressing to full day visits on alternate Saturdays. After four such visits she proposed that C’s time in the father’s care increase to an overnight stay and eventually C would spend alternate weekends in her father’s care, coinciding with the time spending arrangements for B and D.
The mother also proposed that the three children B, D and C spend time on special occasions with each parent and supported a range of ancillary parenting orders regarding handovers, communication, injunctive orders and the parents’ engagement with the children’s schooling.[7]
[7] MFI M3
Independent Children’s Lawyer’s proposed parenting orders
The Independent Children’s Lawyer proposed that the parents share equally in parental responsibility for X, B, C and D. She proposed that X continue to live with the mother but that B, C and D move to live in the father’s primary care.
The Independent Children’s Lawyer acknowledged that X’ time in the father’s care should be subject to X’s wishes, but set out a detailed proposal for B, C and D to commence regular time with their mother. The Independent Children’s Lawyer proposed that Ms E be requested to prepare a transition plan, in consultation with Ms F, to assist the children in the transition to their father’s primary care. She proposed the children spend time with their mother as follows:
a)No time during the first four weeks from the date of these Orders, other than supervised by Ms E during any consultation between her and any of the children and the mother;
b)Thereafter from 10.00am until 5.00pm on one day each weekend for four weeks;
c)Thereafter from 5.00pm Saturday until 5.00pm Sunday each alternate week for four alternate weekends;
d)Thereafter from the conclusion of school Friday until 5.00pm Sunday each alternate weekend for four alternate weekends;
e)Thereafter and ongoing, from the conclusion of school Friday until the commencement of school Monday each alternate weekend;
f)Thereafter for one half of each school holiday period with the time pursuant to paragraph (e) to be suspended during school holidays;
g)On special occasions, including four hours on each of the four children’s birthdays, Mother’s Day (provided that the children spend Father’s Day with the father) and alternating Christmas arrangements such that the children spend equal time with each parent during the Christmas period each year.
The Independent Children’s Lawyer sought further orders for the parties to obtain Mental Health Plans for themselves and for the children, to facilitate ongoing family therapy with Ms E and individual counselling for each parent, whether with Ms E or a separate psychologist.
Legal principles
In accordance with s.65D, the Court is empowered to make such parenting order as it thinks proper. When making a parenting order the best interests of the child are the paramount consideration (s.60CA). Section 60B of the Family Law Act 1975 sets out the objects and principles that govern the Court’s decisions making responsibilities. This section focuses on the importance of parents being meaningfully involved in their children’s lives, fulfilling their parenting duties and obligations and upon the need to protect children from harm.
Section 60CC sets out the factors the Court must consider in determining the child’s best interests. As discussed in the Full Court in Goode & Goode[8], s.60B provides the context in which the various factors in s.60CC are “examined, weighed and applied in the individual case”. Although that case dealt with interim parenting issues, the Full Court’s reasons provide guidance about the legislative pathway the Court should follow in any parenting case.
[8] Goode & Goode (2006) FamCA 1346
First, the Court should address the considerations set out in s.60CC. Section 60CC is divided into primary considerations and additional considerations. There are two primary considerations:
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 the physical or psychological; harm from being subjected to, or exposed to abuse, neglect or family violence.
In the event these two considerations are in conflict, s.60CC(2A) clarifies that concerns regarding the child’s safety must prevail. Section 60CC(3) then sets out a range of additional considerations that must also be taken into account.
The Court must also ensure that any parenting orders do not expose children to an unacceptable risk of family violence (s.60CG). Section 4AB defines family violence to include violent, threatening or other behaviour used to coerce or control a person, or to cause them to be fearful. Violent behaviour includes physical or sexual assault, sexually abusive behaviour, taunts, stalking, intentionally damaging a person’s property or exercising financial control over a person.
Section 61DA presumes that it is in a child’s best interests for the parents to have equal shared parental responsibility, unless the Court finds that the presumption does not apply or is rebutted. An order for equal shared parental responsibility triggers the effect of s.65DAA, which requires the Court to consider whether it is in the child’s best interests to spend equal time with each parent, or substantial and significant time which each parent. Substantial and significant time is defined to include weekday time as well as time during weekends, school holidays and on special occasions.
Discussion of the evidence
I will consider the parties’ evidence in the context of the relevant s.60CC criteria. The Court is not required to address every allegation or to make findings upon every factual matter in dispute.[9] Rather, I will focus upon those matters that are most relevant to my decision regarding the children’s future care and welfare.
[9] Baghti & Baghti & Ors [2015] FamCAFC 71
Given the significance of the expert testimony in this matter, I will discuss the evidence presented by Ms F and Ms E before addressing the parties’ evidence. As mentioned, I place considerable weight upon the expert evidence, but I remind the parties that a trial judge is not obliged to accept all of the evidence of an expert witness, or to follow all of their recommendations.[10] Rather, my obligation is to assess all of the evidence and reach a decision in the best interests of the children.
[10] Goldman & Goldman [2018] FamCAFC 65; Muldoon & Carlyle (2012) FLC 93-513
Ms F
Ms F is in the unusual position of having prepared three reports regarding this family, over a five year period. Her longstanding involvement has given her greater insight and adds to the weight the Court can place upon her evidence and her recommendations.
Concerns regarding the children’s aggressive and challenging behaviour at school were identified in Ms F’s first Family Report. In the course of her second Report in 2017, Ms F became increasingly concerned about the mother’s negative influence upon the children’s attitude towards their father. Ms F also raised questions regarding the mother’s parenting capacity, particularly as the children continued to demonstrate challenging behaviour at childcare, kindergarten and school. Ms F commented:
“143.The family consultant held many concerns about the mother, many of which were highlighted in the initial Report. The Consultant suspected that the children had an insecure attachment with the mother, likely as a result of her inconsistent attunement with them and lack of consistent emotional support. The reports from the school were particularly concerning, in that the Family Consultant suggested the children’s behaviour towards authority figures and response to structure and boundaries mirrored the mother’s presentation. Ms Gables appeared to struggle to accept responsibility for her own behaviour, and tended to avoid or dispute views that she did not share: responsibility was consistently placed on others (the father, the school). The children’s exceedingly poor response to authority figures echoes the mother’s suggestion to them that they have a ‘choice’ in relation to important issues and to be able to disengage or oppose the direction of others. This can be described as mis-socialisation, and predicts a very poor behavioural and academic trajectory for these children. Significantly, the school’s report that the children’s behaviour improves in the face of focussed and attuned engagement with them further supports the hypothesis about the likely long-standing and relational basis to their current issues.
144.Despite the lack of independent confirmation from statutory services responsible for investigation of abuse (such as Families SA and CPS), the mother persists with her view that the father is ‘unsafe’ and poses a risk of harm to the children. Her implication that the risk of sexual harm exists seems somewhat baseless, and potentially defamatory. It is the case that in most matters where alienation is an issue, the situation is contributed to by parental deficits or weaknesses on the part of the alienated parent; this does seem the case here to a certain extent. However, Ms Gables has a clear duty to support the children’s relationship with the father and problem solve with the children about realistic shortcomings rather than create ‘mountains out of molehills ’[11]
[11] Family Report dated 8 June 2017, paras.143, 144
In the third Family Report in 2019 Ms F again raises concerns about the mother’s parenting capacity. In that report the mother acknowledged that she was frequently called to the school as a result of the children’s poor behaviour. Ms F noted however, that the mother “… later considered that the children presented as ‘forward’ rather than oppositional or defiant and implied that her children were unjustly implicated during conflicts with peers. Additionally, it seems Ms Gables considered her role was in proving ‘the children’s point of view’ to the school when difficulties occurred”.[12]
[12] Family Report dated 30 May 2019, para.36
Ms F noted that X’s school behaviour had settled down over 2019 and his school results were impressive. She queried whether X’s decision to withdraw from spending time with his father, and consequently from the parental conflict, had given him the emotional space to focus on his schooling. While this is a positive development, Ms F noted that it came at a cost for X, who has lost any ongoing relationship with his father at this time.
During cross-examination Ms F commented upon the mother’s engagement with relevant parenting support services. While the mother has completed the Kids-Are-First and Circle of Security courses, she implied to Ms F that she did not learn anything and that the courses “didn’t make me think I needed to change”.[13] Ms F queried whether the mother fully engaged with the relevant agencies, or was simply going through the motions.
[13] Ms F cross examination 25 February 2020
The mother’s presentation during interviews was a consistent theme throughout Ms F’s three reports. In 2014 Ms F described the mother as “…a poor historian who appeared to find it difficult to remain on the topic at hand and who tended to provide narratives that were incoherent”.[14] In 2017, Ms F again commented that “… The mother was a somewhat inconsistent narrator and required significant prompting at times: this was particularly notable in relation to her lack of reporting memory related to the outcome of the CPS investigation, which led the family consultant to wonder if Ms Gables discarded opinions that did not match her own.[15]
[14] Family Report dated 13 October 2014, para.47
[15] Family Report dated 8 June 2017, para.21
In her 2019 Family Report Ms F concluded that:
“Ms Gables provided alternately vague or defensive responses during some areas of discussion. At other times, she tended to provide extraneous details to the topic at hand, and needed to be brought back to the topic on more than one occasion. Similarly to that noted historically, Ms Gables was somewhat of a poor narrator and historian.”[16]
[16] Family Report dated 30 May 2019, para.34
Ms F concluded that the mother appeared unable or unwilling to consider evidence that did not match her own narrative. She noted that the mother showed a tendency to dismiss evidence that did not support her allegations of physical abuse by the father, or which placed the purported physical abuse within a fraught parenting context, as claimed by the father.
Ms F acknowledged that the mother had facilitated the children’s participation in re-unification therapy with Ms E, but noted Ms E also raised concerns about the mother’s attitude during that process. Ms F described the mother’s engagement with Ms E as “superficial at best”.[17] Ms F continued:
“Ms Gables’ insight during the interview with the consultant was limited and she maintained her perspective that she was successfully engaged with Ms E and with the tenants [sic] of the reunification therapy. However, it is significant to note that despite her assertions, C’s more recent resistance has not been assisted by Ms Gables who seems unable to show any increased capacity to problem solve and a seemingly ongoing difficulty in resolving the molehill of an issue relating largely to the conduct of Mr Gables’ neighbour, which has rather turned into an unsurmountable mountain more directly featuring Mr Gables. This tended to mirror her behaviour relating to C and X in 2016/2017.[18]
[17] Family Report dated 30 May 2019, para.99
[18] Ibid, para.100
Based on Ms F’s evidence, it would appear that any successful outcomes from the reunification therapy with Ms E have occurred despite, rather than because of, the mother’s participation. Ms F expressed real concern that unless there was some other intervention, the mother’s hostility towards the father could lead to C, and eventually also B and D, becoming completely estranged from their father.
The father’s parenting capacity was also subjected to an equally open, critical analysis by Ms F. She noted that the father struggled to engage positively with the children, and was unable to manage their challenging behaviour. This was particularly evident in the father’s reaction to X’ oppositional behaviour in 2015/2016. On various occasions the father contacted the mother to come and collect X, rather than engaging effectively with X himself. On one occasion the father resorted to calling the police.
In the course of cross-examination, Ms F acknowledged that the father’s parenting responses were lacking. One such example was the father picking up X in a fireman’s hold and carrying him inside when X refused to return into the house. She conceded that the father continued to struggle with the children’s dysregulated behaviour, as occurred with C on Christmas Day 2018.
Notwithstanding these criticisms, Ms F noted that the father “… had some insight into the weakness of his parenting (for example, yelling) and seemed to accept the information as provided in the initial Report; this would suggest some capacity for flexibility and insight”.[19] She was confident that the father had developed significant insight into his parenting responses and that he was able to reflect upon his behaviour.[20]
[19] Family Report dated 8 June 2017, para.145
[20] Family Report dated 30 May 2019, para.24
Ms F was heartened by the father’s engagement during the family therapy with Ms E and commented that the father also seemed less focussed on the conflict with the mother. She commented positively on the father’s insight to the children’s situation during the 2019 Family Report interview, saying:
“Mr Gables reflected on the observation with the children on the day of assessment, with his narrative indicating that he was aware of the emotional nature of C’s behaviour; this encouraged the Consultant as Mr Gables seemed able to appreciate C’s emotional perspective, rather than blame her for her actions.[21]
[21] Ibid, para.20
Ms F ultimately recommended that B, C and D move into the father’s primary care. Her recommendation was based on her ongoing alarm regarding the children’s dysregulated behaviour, and her concern that their relationship with the father would be undermined and ultimately severed, if the children remained living with their mother. In the course of cross examination Ms F acknowledged that a change in primary care would have a dramatic, and potentially traumatic, impact upon the children in the short term. Ms F acknowledged that a change in primary care was a big risk but she reiterated that the children also faced risks if they remained living with their mother. She noted that B, C and D were continuing to demonstrate very poor behaviour at school and that the children were at risk of becoming “mis‑socialised” and of losing any sense of appropriate adult authority.
Ultimately Ms F concluded that the mother was unable to support the children’s right to a meaningful relationship with their father. Accordingly the upheaval associated with a change of primary care was necessary, as it was the only outcome that would enable the three younger children to maintain a meaningful relationship with both parents. She was optimistic that the father’s capacity to manage the children’s behaviour would develop, particularly with ongoing counselling support from Ms E.
Ms F acknowledged that she could not predict whether a change in primary care would lead to an improvement in the children’s dysregulated behaviour, but reiterated that leaving the parenting arrangements as they presently stand was also an unsatisfactory outcome for the children.
Ms F was challenged in the witness box, but her evidence remained consistent. In the course of cross-examination Ms F made appropriate concessions regarding her assessment of the family dynamic, but maintained her opinion that B, C and D should move to live in the father’s primary care. Her evidence was of considerable assistance to the Court.
Ms E
Ms E began working with the family in January 2018. In her first report dated 16 February 2018, Ms E concluded that there was potential for C and D to re-establish a relationship with their father and noted that neither child should be left with the responsibility for deciding when or whether they would spend time with their father.[22] Ms E also recommended that both parents undertake individual counselling to address their parenting skills and their own emotional regulation.[23] Ms E was particularly concerned that the mother may struggle to support the children’s relationship with their father and had little insight into her own parenting limitations.
[22] Exhibit ICL2, Psychological Report of Ms E dated 16 February 2018, page 10
[23] Ibid page 9
Ms E concluded that X would require individual therapy before any attempt at reunification could be considered, given the depth of his hostility towards his father and his increasing alignment with his mother. B was spending time with the father regularly at this stage and did not require re-unification therapy but would benefit from ongoing psychological support to help her address her behavioural issues and emotional management.[24]
[24] Ibid, page 10
D and C began spending time with their father, supervised by Ms E. These arrangements proceeded smoothly and Ms E then recommended that C and D commence fortnightly day time visits with their father, with the visits to gradually include their sister B and their father’s older child H.[25]
[25] Ms E, second Psychological Report dated 4 June 2018, Exhibit ICL2, Attachment 2
Ms E subsequently reported that the unsupervised time between C, D and the father appeared to proceed smoothly. The father did not report any disruptive or dysfunctional behaviours from C or D and was able to act on Ms E’s advice regarding appropriate parental interventions. Importantly, the father was also better able to manage his own frustration. While he was still aggrieved by the mother’s behaviour, Ms E noted that the father appeared to be less reactive to her behaviour.[26]
[26] Confidential Psychological Report dated 23 August 2018, Exhibit ICL 2, Document 3
Ms E provided two further detailed reports which confirmed that C and D’s relationship with their father was developing and recommended that the children progress to regular overnight time.[27]
[27] Exhibit ICL2, Reunification Therapy Report dated 23 August 2018, pages 4-7
In the course of her counselling Ms E highlighted a number of concerns regarding each party’s parenting style. She noted that the mother “continued to demonstrate reduced insight into her own behaviours … and … did not appear to appreciate that children require guidance and support to manage their emotions”.[28] She concluded that the mother was unable to appreciate the inconsistency between her words and her actions, or the impact this had upon the children.[29]
[28] Exhibit ICL2, Re-unification Therapy report from Ms E dated 4 June 2018, page 10
[29] Ibid, page 10
Ms E also noted that the mother was struggling to manage the children’s disruptive, and at times, dangerous behaviour both at home and at school. For example, when C engaged in risky behaviour such as running out of the house on to a nearby road, the mother’s response was simply to “keep an eye” on her, rather than exercise appropriate parental authority.
Regarding the father, Ms E commented that he “struggles to regulate his emotional responses to current and past incidents involving the children and/or Ms Gables.”[30] She noted that the father demonstrated increased insight into the impact his own mood can have upon the children’s disruptive behaviour, although he was still observed to make negative and unhelpful comments to X at school pickups. Overall Ms E reported that the father’s emotional self-regulation had improved, which led to an improvement in C and D’s engagement with him.
[30] Ibid, page 10
Ms E was equally concerned by the father’s inability to manage C’s behaviour during the Christmas Day incident. She noted that he failed to respond protectively to his neighbour’s aggression towards C, which reflected a “learned helplessness” within the father’s parenting style.[31]
[31] Ibid
Ms E commented on the parents’ different parenting styles, saying:
“These [parenting] styles do not appear to complement each other, resulting in adverse consequences on the development of the children’s understanding of boundaries and appropriate behaviours, on their mental health, self-esteem, and appear to have contributed to fracturing and splitting between the children and parents.”[32]
[32] Ibid, page 10
Ms E noted that the father did not report any significant behavioural difficulties with the children in his care, but they continued to display disruptive behaviour at school during 2018. The mother reported ongoing conflict between B and X when B returned home after spending time with the father.
Both parties co-operated with the time-spending arrangements during 2018, but Ms E queried whether the mother was genuinely engaged with the reunification process. The mother appeared to misunderstand the purpose of the therapy and repeatedly expressed surprise and concern when Ms E reminded her that the goal was an ongoing relationship between the three younger children and the father.[33] Ms E noted that the mother’s views were inconsistent. For example, in November 2018 the mother initially reported that C and D were coping well with the overnight visits, but then told Ms E that C did not want to stay overnight with her father. The mother went on to say that she and the children were not being supported enough and that Ms E was not listening to the children.[34]
[33] Exhibit ICL2, Psychological Report dated 16 Feb 2018, page 5; Reunification Therapy Report dated 26 November 2018, page 5; Reunification Therapy Report dated 5 February 2019, page 4
[34] Exhibit ICL2, Reunification Therapy Report dated 26 November 2018, page 4-5
Ms E met with the children on 23 January 2019, which was their first interview after the difficulties on Christmas Day. At the beginning of her interview with C, the child informed Ms E that “my Dad bashed me” on Christmas Day. C described an argument with B which led to C “… having a ‘huge’ meltdown in response, getting angry, throwing and kicking items and tipping over a table”.[35] C went on to say that everything positive she had said about her father previously had been a lie. However, in further conversation, C conceded “not everything was a lie” and that she “felt muddled” as “ ‘Mum says one thing and Dad says another thing’ regarding her time with her father.”[36]
[35] Exhibit ICL2, Reunification Therapy Report dated 5 February 2019, page 2
[36] Ibid
Despite C’s distress, Ms E noted that she was willing to resume spending time with her father again. Ms E reports that:
“C then stated that she would like to give ‘Dad’s one more try’, but stated she felt ‘scared at what Mum will do’ when she found out and asked that I tell Ms Gables ‘as long as she doesn’t get angry’. I indicated to C I could not make that promise, but that I would talk to Ms Gables about what she had said.”[37]
[37] Ibid
C’s concern about her mother’s reaction proved to be well-founded. When Ms E interviewed the mother by telephone on the following day, the mother became defensive and dismissed C’s concerns, denying that she reacted negatively to the children seeing their father. The mother ultimately accused Ms E of colluding with the father and “giving the father everything he wants”.[38]
[38] Ibid, page 3
Given that attitude, it was not surprising that the mother contacted Ms E’s office again and informed a staff member that C ‘was confused’ during her interview with Ms E and did not want to attend the father’s home any longer.[39] Nonetheless, in light of C’s comments directly to Ms E, she recommended that C commence day time visits with the father during alternate weekend time for D and B. Unfortunately, the mother did not support this outcome and C did not spend any time with her father for twelve months.
[39] Ibid, page 4
Ms E continued to consult with the children via Skype during 2019, but C repeatedly refused to discuss her father during these sessions, beyond stating that he “bashed me”. Any attempt by Ms E to gently challenge C’s narrative surrounding the Christmas Day incident led to C becoming emotionally dysregulated and withdrawing from the session.[40] Ms E suggested that the father write to C, apologising for the events on Christmas Day and expressing hope that they can rebuild their relationship. The father did so and his message was read by Ms E before the card was sent to C. Ms E noted that, once again, the mother did not support this initiative or encourage C to respond to her father’s apology.
[40] Exhibit ICL2, Reunification Therapy Report dated 11 February 2020, page 5.
In her final report prior to trial, Ms E reiterated that the father failed to respond adequately on Christmas Day 2018. Nonetheless, she noted that the father acknowledged his failure and continued to address his emotional management and develop greater insight into his emotional responses.[41] By contrast, the mother’s insight and ability to appreciate the children’s perspective remained poor. Ms E concluded:
“Consequently, the negative behaviour of the children and of herself, is minimised, denied, excused or not addressed, further reinforcing dysfunctional and aggressive coping behaviours by the children and confusion through conflicting and inconsistent messages between herself, Mr Gables, the school, family and any reunification sessions.”[42]
[41] Ibid, page 6
[42] Ibid
Ms E noted that C had limited engagement throughout most of their sessions, but during their appointment in November 2019, C informed Ms E that she had approached her father at a recent school Sports Day and given him a hug. Ms E concluded that this voluntary approach by C to the father provided some basis to again commence reunification counselling, but she remained concerned that C would receive contradictory messages about the process from her mother.[43]
[43] Ibid
Ms E was cross-examined by both parties regarding Ms F’s recommendation for a change in primary care. She commented that any such change needed a careful analysis of the risks and benefits, but pointed out that the current parenting situation is not working well for the children, who continue to experience significant behavioural dysregulation at school.
After careful consideration of the best interests of the children, Ms E cautiously supported a change of primary care for C, B and D. She noted that the children and the family as a whole would require intensive support in the transition period. She suggested the father would also require support to manage the children’s challenging behaviour and provide for their day to day parenting needs at the same time.
Ms E agreed that it would be a big challenge for any parent to assume primary care of three children. She noted, however, that the father had developed insight into the children’s emotional reactivity and his own responses to their behaviour. She concluded that the father was much better equipped to cope with the responsibilities of primary caregiver, compared to earlier years. Ms E acknowledged that the children may demonstrate dysregulated behaviour as they adapt to such a significant change, but concluded that these risks needed to be weighed up against the risks that presently confront the children, citing their poor behaviour at school.
In response to a question from the Bench, Ms E recommended that C resume spending time with the father immediately and expressed concern that C’s relationship with the father may otherwise proceed down the same path as her older brother X. Ms E further indicated that she could prepare a transitional parenting plan to provide structure and support for the family, in the event the Court ordered a change in primary care for B, C and D. She noted it would be important that the children not be informed of the Court’s decision until a process was in place to support their transition.
At the conclusion of evidence on 27 February 2020, the parties undertook negotiations and consented to orders for B and D to continue alternate weekend time in the father’s care from Friday through to Monday and for B to continue time with her father each intervening Wednesday overnight. Orders were also made by consent for C to commence spending time with the father on alternate Fridays from the conclusion of school until 8.00pm on three occasions and thereafter each alternate Saturday from 9.00am until 4.00pm. The proceedings were otherwise adjourned to 5 March 2020 for final submissions.
In accordance with consent Orders entered into on 27 February 2020, C, B and D met with Ms E on Friday 28 February 2020. She explained the Orders to the children and assisted their transition into the father’s care. The children spent the day in the father’s care and they drove back to City G together, where he returned them to the mother at 6.00pm.
The hearing resumed on Thursday 5 March 2020 for final submissions. The Independent Children’s Lawyer sought to tender a further report from Ms E regarding her consultations on 28 February 2020.[44] The Court received the report into evidence, noting that her interviews with the children were not subject to challenge. However, as Ms E was not cross-examined on the report, little probative value could be placed upon the balance of her report, other than her final recommendation that B, C and D transition into the father’s primary care. [45]
[44] ICL3 Progress Reunification Therapy Report dated 4 March 2020
[45] See Order 5 March 2020
Ms E’ intense engagement with the family enabled her to provide a comprehensive analysis of the family dynamic and the best interests of the children overall. As with Ms F, Ms E’s evidence greatly assisted the Court.
Section 60CC considerations
Section 60CC(2)(a) – the benefit to the child or children of having a meaningful relationship with both parents
The expert evidence from Ms F and Ms E confirms that the children will benefit from having a meaningful relationship with each parent. Despite the mother’s ongoing concerns, Ms F did not consider that any of the children were at risk of physical or psychological harm in the father’s care, based on the information available to her.
X, B, C and D have lived in the mother’s primary care since separation and there is no dispute that they enjoy a meaningful relationship with her. The mother’s parenting style has created difficulties for the children’s overall emotional development, however their relationship with her remains important.
The nature of the children’s relationships with their father is more complex and varied. X has no relationship with his father at the present time and is refusing any contact with him. By contrast, B has maintained an ongoing relationship with her father throughout these proceedings and this relationship is meaningful and beneficial to her.
C and D have experienced more disruption in their relationship with the father, but D has successfully re-established a meaningful relationship with his father and clearly values this connection. C did not see her father during 2019 but has now recommenced spending daytime visits with him.
During her meeting with the children on 27 February 2020, to facilitate a handover to the father, Ms E noted that C initially appeared uncertain about seeing her father, however at no time did C indicate she felt unsafe. Once the father arrived, Ms E reported that C initiated physical contact with him and hugged him.[46]
[46] Exhibit ICL3, Progress Psychological Report dated 4 March 2020 at pages.3, 4
Ms E followed up with both parents after this visit. The mother reported that the children settled easily into her care after they returned that evening. However, the mother subsequently spoke to Ms E again, advising that C was now distressed at the thought of spending time in the father’s care. Ms E conducted a further Skype session with C, during which C said that her worry was primarily about “being stuck in the middle” and that these feelings were strongest before she went to spend time with the father.[47] This suggests that C was reflecting her mother’s concerns, rather than her own. I conclude that, in line with B and D’s experience, C would enjoy a good relationship with her father, were it not for her mother’s undermining intervention.
[47] Ibid, pages4, 5.
Taking into account all of the evidence, I conclude that B, C and D will benefit from maintaining a meaningful relationship with both of their parents.
Section 60CC(2)(b) the need to protect the children from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence
The mother believes the children are at risk of physical and emotional abuse in the father’s care. The father concedes that he has resorted to physical discipline to manage the children’s behaviour, particularly with X and C, but only as a means to ensure the child did not hurt themselves or others. Otherwise he denies the mother’s allegations.
The allegations of physical violence towards X
I have considered the evidence from both parties, including the detailed allegations in the mother’s trial Affidavit. It is unnecessary to address each allegation separately. I have also had the opportunity to observe both parties during cross-examination. The father presented as a measured and reflective witness and I accept his evidence about his interactions with X during 2015.
I am satisfied that the father has not assaulted X in the manner alleged by the mother, but he was unable to manage X’s behaviour without resorting to physical intervention. In relation to the interaction between X and his father in 2015/16, I make the following findings:
·X was increasingly resistant to spending time with his father;
·X resisted his father’s authority by “acting up” or leaving the father’s home;
·The father was unable to manage X’s aggressive behaviour. On numerous occasions he asked the mother to come and collect X;
·On other occasions the father intervened physically to control X’s aggression, including an incident when he picked X up in a “fireman’s hold” and carried him inside, and another incident when he grabbed at X’s shirt and made contact with his neck;
·In circumstances where the father engaged physically with X during arguments, X would have felt threatened and frightened, which may have led him to overstate the father’s behaviour and report these incidents to his mother as the father “grabbing him by the neck”, or “throwing him on the bed”;
·Contrary to the mother’s allegation that X nearly drowned in the father’s care, I conclude that the “pool incident” has been overstated and X was not at risk of drowning. Rather, he and D were engaged in horseplay and X was held underwater by his five year old brother for a short period;
·The mother has accepted X’s account of these incidents, as they confirm her own perceptions of the father.
I accept the father’s evidence and conclude that X or the mother have exaggerated the father’s behaviour. Nonetheless, the father’s inability to manage X’s behaviour in the past remains a matter of concern. The Court must assess the risk that the father will resort to similar parenting responses if he is confronted with challenging behaviour by B, C or D in the future.
The allegations of physical violence towards C
The mother alleges that in late 2015 C told her counsellor at O Counselling that the father had punched her in the stomach.[48] The mother filed a report from the counsellor, Ms J. Regarding the interview with C, the report records:
“In this session C had drawn a picture that had a person around another person’s throat and when C was asked to explain the picture she says it was ‘… Dad strangling X’s and went on to say ‘Dad grabs X by the throat’. It was at this stage that C expressed that ‘I get terrified when Dad hurts X’. Throughout her sessions C made further disclosures regarding abuse from her father with both her and X as the victims. Where there were disclosures of abuse I made reports to the Child Abuse Report Line.”[49]
These allegations are concerning, but nowhere does Ms J report C saying that her father punched her. The father has specifically denied ever hitting C.
[48] Mother’s trial Affidavit filed 13 December 2019 at para.75
[49] Exhibit M1, Document 6, Report from Ms J, K Counselling dated 19 August 2016
Child Protection Services eventually undertook a forensic investigation in September 2016, conducted by Dr Q. C told Dr Q that her father had “done bad things” saying “I ran behind the couch and he just got me up by the neck and started pulling me up, I forgot the rest.”[50] C told Dr Q that her grandmother also pulled her by the neck and cracked her neck and that her grandmother pulled her down the stairs.[51]
[50] Exhibit M1, Document 3, CPS Report regarding C dated 28 September 2016
[51] Ibid, pages.9-11
The father denies this ever occurred, but conceded he had intervened physically when C was behaving aggressively towards him, or her siblings. I accept the father’s evidence.
In the course of her interview, C also told Dr Q about the father “pulling her arm out of her socket”. Dr Q’s report reads as if C was describing a recent event, but this incident occurred in 2013, prior to the parties’ separation. It occurred in the context of the father grabbing C’s arm to prevent her running onto the road in a dangerous manner.
Dr Q noted that there were various inconsistencies within C’s disclosures, but could not determine whether these inconsistencies were due to C feeling anxious, or the delay between the actual events and the CPS interview, or whether C had discussed the allegations with others, which had caused her to become confused.[52] Dr Q noted that other factors supported the credibility of C’s disclosures, including C’s description of her own emotional reaction and her use of age appropriate language. Dr Q ultimately concluded:
“On the basis of information gathered during this assessment it is difficult to determine if the reported incidents constitute physical assaults. However, it is, at the very least, inappropriate parenting behaviour and physically harming and is concerning …”[53]
Dr Q recommended that a family assessment should be undertaken.[54]
[52] Ibid, page p.16
[53] Ibid
[54] Ibid, page 16
Taking into account all the evidence before the Court, including the evidence from each party, I make the following findings:
·In 2013 C’s elbow was dislocated when her father grabbed her arm to prevent her running on to the road. His actions were to ensure her safety and cannot be classified as an assault;
·C’s allegations of the father and paternal grandmother each grabbing her by the neck or “cracking” her neck are concerning, but I conclude that the mother may have embellished these incidents, and C has adopted the mother’s narrative;
·C’s disclosures must be viewed within the context of entrenched parental conflict and distrust. The two family assessments subsequently undertaken by Ms F cast C’s disclosures in a different light.
I conclude that the father has previously relied upon physical discipline when managing the children’s behaviour and his parental response has undermined X and C’s sense of safety and security in his care. The Court does not condone physical discipline, but the evidence does not support a finding that C has been physically assaulted by the father or by her paternal grandmother.
The father has since engaged positively with Ms E and his parenting capacity and insight has improved. Notwithstanding the father’s earlier behaviour, I conclude that the children are not at risk of physical violence or a pattern of ongoing physical discipline by the father.
Section 60CC(3) additional considerations
(a) any views expressed by the children
X
X was seven years old at the time he was first interviewed by Ms F in 2014 and was nearly twelve years old at the time of his last interview in May 2019.
In each of the interviews X was critical of his father. In 2014 he described being yelled at and smacked by his father.[55] In 2017 X told Ms F that his father had “done hurtful things to him in the past …”, saying that his father had once “picked him up by the neck” and on another occasion had “thrown” him on to the bed.[56] X was clear that he did not want to spend time with his father, saying “I don’t trust him no matter what”.[57]
[55] Family Report, 13 October 2014, paras.77-80
[56] Family Report, 20 April 2017, para.81
[57] Ibid, paras.81-88
X was equally resistant to seeing his father in 2019 and remained of the view that their relationship was beyond repair.[58] Ms F noted that X was very reluctant to engage in the interview process, which is hardly surprising given that he has participated in three such interviews over the previous five years. X is now of an age where his views must be given significant weight.
[58] Family Report, 30 May 2019, para.56
B
B was six years old at the time of the first interview in 2014 and nearly eleven years old at the time of the last interview in 2019.
In 2014 B described time spending with her father as “fun”. In 2017 B again spoke very positively about spending time with her father and was worried that this may not continue into the future, given the current dispute. Ms F noted that B felt drawn into the parenting dispute and reported “B suggested that it confused her that her mother suggested ‘I have a choice (about spending time with the father), he says I don’t … I am not sure who is lying.” B went on to say that both parents contributed to the difficulties at handovers. [59]
[59] Family Report, 20 April 2017, para. 95
In her 2019 Assessment Report, Ms F noted that B was generally reluctant to “blab” about either party and that she tried to stay out of the conflict, because if she gets involved, she gets into trouble. B described her father’s anger during their time together as largely fluctuating and his more significant “yelling” happened only rarely, and in the context of discipline or sibling conflict. B went on to say that her mother used to engage in physical discipline, but “not anymore”. B was clear that she wanted to maintain a relationship with both of her parents.[60]
[60] Family Report dated 30 May 2019, para.62-67
B appears to be the child least affected by the parental conflict. She has an engaged and meaningful relationship with both of her parents and has maintained that relationship even through those periods when none of her siblings were spending time with their father.
C
C was only four years old at the time of her first interview with Ms F in 2014 and was nine years of age at the time of the last interview in 2019.
In the 2014 Family Report, Ms F simply noted that “C provided positive pictures of both her parents, and also noted that both parents “smack me … on the bottom”.[61] At the time of the second Family Report in 2017, C was not spending any time with her father and provided a consistently critical account of his behaviour. C told Ms F that she was scared of her father due to an incident that occurred a long time ago when “he pulled my arm from my socket” but clarified that this occurred some time ago when she was running across the road and her father pulled her back to safety. [62] C reported that her mother felt sad when C was spending time with her father and that she missed her mother when they were apart.[63]
[61] Family Report dated 13 October 2014, para.90
[62] Family Report dated 8 June 2017, paras.99-105
[63] Ibid
In her most recent interview in 2019, C continued to present a consistently negative view about the father, stating that he “lies a lot” and that spending time with him was terrible, as the father “kept on yelling, calling us stupid”. C maintained her view that “my father bashed me” (referring to the Christmas 2018 incident) before going on and saying “well, him and his neighbour bashed me”. [64]
[64] Family Report dated 30 May 2019, paras. 69-74
C told Ms F that Ms E supports her dad and said that her mother hates Ms E. C said that she knew this as “we always talk about Ms E and how we hate her … me, X, mum, grandpa and nanna.” C suggested her feelings about Ms E changed when “I realised she was helping my dad … she is focussed on dad, she doesn’t care about us.” [65]
[65] Ibid
In assessing the weight to be placed on C’s views, C has clearly been affected by her mother’s hostility towards the father. It should be noted that C recommenced spending time with her father during 2018, notwithstanding her hostile views expressed to Ms F in the June 2017 report. C’s relationship with her father was again disrupted following the distressing incident on Christmas Day 2018, but has recently resumed. I conclude that limited weight should be placed upon her views, as the mother has actively undermined C’s trust in the father.
D
D was just three years old at the time of his first interview in 2014 and nearly eight years old during his last interview with Ms F in 2019.
He was too young to contribute in any meaningful way during the first assessment and even during the second Family Assessment in 2017, Ms F noted that his engagement was limited. Within that brief interview, D confirmed that he was no longer seeing his father because “… he is mean to X … and to C and sometimes me”. D went on to describe being told that his father had grabbed C around the throat and pulled her out of the spa and went on to suggest that his father had yelled at him.[66]
[66] Family Report dated 8 June 2017, paras.107-110
In the third Family Report in 2019, Ms F noted that D found it difficult to talk about his father, commenting that his mother “did not like it much” when he spent time with his father. Despite his mother’s attitude, D told Ms F that he wanted to spend more time with the father, in line with B’s schedule and discussed the possibility of “equal” time with both parents, as he loves both of them.
D’s capacity to speak positively about time with his father may reflect the beneficial engagement Ms E has provided for the family. While D was clearly aware of the ongoing conflict between his parents, he was reluctant to discuss those difficulties in any detail.[67] Given D’s young age, limited weight can be placed upon his views, but it is noteworthy that he has developed a positive relationship with his father.
[67] Family Assessment Report dated 30 May 2019, paras.76-80
The Court has more recent evidence regarding the views of B, C and D when they were interviewed by Ms E on Friday 28 February 2020. B and D were clearly pleased to be spending time with their father. C was initially reluctant, but was encouraged by her siblings. Ms E commented: “C appeared excited and did not voice any concerns and did not state at any point during the session that she did not want to see dad or spend time with him, or that she felt unsafe in Mr Gables’ home.”[68]
[68] Exhibit ICL3, pp.3-4
(b) the nature of the children’s relationships with each parent and significant others
The children have lived in their mother’s primary care since separation and clearly have a strong relationship with her. Ms F has observed their interaction with their mother in each report and no significant concerns were raised during these sessions. Ms F noted however that X was totally aligned with the mother and that C was heavily influenced by her mother’s views and attitudes towards her father.[69]
[69] Family Assessment Report dated 30 May 2019, para. 101
The extent of the mother’s influence upon C was evident during Ms E’s telephone call with the mother and C on 3 March 2020. The mother informed Ms E that C was distressed whilst at her father’s home. However when Ms E spoke with C, the child described her primary worry as “being stuck in the middle”, rather than any specific complaint regarding time with her father.
The situation regarding the children’s relationship with their father is more complicated, as discussed above. In 2014 Ms F commented that X did not demonstrate any fear of his father and queried whether his misbehaviour during the session was an attempt to attract his father’s attention.[70] Subsequently X’s relationship with his father has totally fractured and it is difficult to see anyway forward for their relationship at this time.
[70] Family Assessment Report 13 October 2014, para.98
By contrast, B has been able to maintain her relationship with the father throughout the past three years. She continued to spend time with him, even when her three siblings were not accompanying her.
C and D’s relationship with their father has been much more troubled. In 2017 both children routinely refused to leave school with their father on Friday afternoons and their parenting arrangements broke down. The children only resumed spending time with their father through the re-unification counselling with Ms E. This process has allowed D to re-connect with his father and the most recent reports from Ms F and Ms E indicated that D is now very comfortable in his father’s care.[71]
[71] Exhibit ICL3, p3
C’s relationship with the father has been more erratic. C did not interact with the father during the family assessment in 2019, but Ms F noted that C’s behaviour and her physical proximity to the father suggested a curiosity about his responses, rather than indicating any stress or fear in his presence.[72]
[72] Family Assessment Report 30 May 2019, para.87
Despite their long estrangement during 2019, Ms E reported that C quickly engaged with her father when the children met with him on 28 February 2020 and noted that C was happy to leave in her father’s care with her siblings. I conclude that C seeks a meaningful relationship with her father and that their relationship will flourish, if she is protected from the mother’s undermining attitude.
The nature of the sibling relationship between the four children requires separate consideration. Children of separated parents are generally each other’s strongest support network as they navigate the conflict zone between their parents’ households. It must be difficult for these four children to integrate their different perceptions of the father, especially when X has rejected him absolutely. A change in primary care for the three younger children could undermine their sibling bond and this is a significant factor in my considerations.
Neither party presented substantial evidence regarding the children’s interaction with extended family members but I am confident both parents will support these relationships into the future.
(c), (f) and (i) each party’s parenting engagement, parenting capacity and their attitude to the responsibilities of parenthood
Both parties love their children. They are committed to the children’s best interests and take their parenting responsibilities seriously.
The mother’s parenting role
The mother has provided primary care for the children since the parties separated. She is attentive to their needs and she provides appropriate day to day care for them, but there are real questions regarding her capacity to support their emotional, social and intellectual needs.
Throughout her interviews with Ms F the mother raised ongoing concerns regarding the children’s aggression and defiance, but showed little insight into her parental authority. The mother’s general response to dysregulated behaviour from any of the children was to leave that child alone and let them “solve it themselves”.
The mother has engaged with the school about the children’s behaviour on occasions, but, at other times, has dismissed the school’s concerns. The mother suggested to Ms F that the fault lies with the school, as they have not managed the children appropriately.
Both Ms E and Ms F raise real concerns regarding the mother’s capacity to provide child focussed, emotionally safe parenting to the children. Their concerns extended well beyond her hostility towards the father and they queried whether the mother is able to address the children’s behavioural issues generally. It is pleasing to see that X is progressing well in the mother’s care, but, as mentioned, this seems to have come at the cost of any relationship with his father.
To her credit, the mother has pursued counselling support for the children, such as their sessions with K Counselling and, more recently, with Mission Australia, organised through the children’s school. The mother also ensured the children were available to attend Skype sessions with Ms E during 2019 and early 2020. However her ‘co-operation’ with the reunification process did not extend beyond that. The children are acutely aware of their mother’s distrust of Ms E, as indicated by C telling Ms F that her mother “hates” Ms E.
It is clear that the mother felt unfairly criticised and unsupported by Ms E, but I conclude the mother will feel that way about anyone who challenges her own views. The mother seemed unwilling, or unable to manage the children’s aggressive behaviour, even within her own home. She was unable to reflect on the parenting feedback provided to her by Ms E and Ms F and has failed to protect the children from her hostility towards the father. These are significant factors that led both Ms F and Ms E to recommend a change in primary care for the three younger children.
Ms E noted that the mother failed to provide the children with sunscreen, drinks or hats for their supervised time with the father and was concerned the mother may struggle to provide for the children’s physical needs at other times. With due respect, I do not place any weight on this. The mother’s failure to send provisions for the children should not be extrapolated to her general parenting. It is more likely that the mother felt it was the father’s responsibility to provide essential items such as drinks, hats and sunscreen.
Ms E was also concerned about the mother’s ongoing inability to comprehend the purpose of the re-unification counselling, to the point where Ms E recommended that the mother undergo a cognitive assessment. Having observed the mother in the witness box, there may be another explanation. Rather than a cognitive inability to understand the process, it may be that the mother is emotionally unable to accept or understand the re-unification process, as she is opposed to the ultimate outcome.
The father’s parenting role
Ms E and Ms F were also critical of the father’s parenting, as discussed above.[73] They noted that the father’s parenting style was over-reactive and authoritarian, but at the same time he presented as passive and ineffectual in managing the children’s behaviour.
[73] See paras 71,72 & 86,87
The mother raised numerous incidents during 2015 where she argued the father abused X, locking him outside, snatching a biscuit off the child and crushing it, or swearing at the child.[74] The father was cross-examined in relation to these events and acknowledged that he was unable to appropriately manage the children’s behaviour, particularly X.
[74] Mother’s trial Affidavit filed 13 December 2019, paras. 40-62
There were occasions when X’s behaviour was provocative and the father was understandably angry. However when X (or one of the other children) would continue to misbehave, the father’s reaction was to ‘give up’ and simply hand the child back into the mother’s care. This is a disturbing abrogation of parental responsibility. The father’s inability to manage the children’s behaviour would have undermined their sense of security in his care.
A significant point of difference between the parties is that the father has been able to acknowledge his shortcomings. The father conceded that he had struggled to control the children’s misbehaviour in the past. He acknowledged that he had responded rudely to the mother at handovers. Importantly, he demonstrated his willingness to engage with Ms E and to receive feedback and guidance regarding his parenting strategies.
Ms E commented upon the father’s improved parenting engagement, particularly during 2019. His commitment to the re-unification counselling and to address his own parenting limitations gave Ms E confidence in the father’s future parenting capacity. Nonetheless, the father’s ability to provide primary care for the three younger children is untested and this is a significant factor to consider.
The children have not lived with the father for any extended time and he has not been required to care for them and manage their behaviour for more than three or four days during the school holidays in 2015/2016. The father’s engagement to counselling with Ms E is commendable, but with the best will in the world, this counselling cannot fully prepare him for the reality of juggling the responsibilities of full time parenting and full time employment.
(d) the likely effect of any changes in the children’s circumstances; and (e) practical difficulty and expense
A change in primary care would have a dramatic impact upon all four children. It is impossible to predict how B, C and D would settle into their father’s care. Nor can the Court predict how this change would impact the sibling relationship between the three children and their older brother X.
It may be that B, C and D will settle in easily and will flourish in their father’s care, with an accompanying improvement in their behaviour overall. Alternatively, the children may be confused or distressed by such a dramatic change in their lives, which could lead to their ‘mis-socialised behaviour’ escalating. The father may struggle to manage an escalation in the children’s behaviour, but I accept that he is better equipped now than previously and that he would seek appropriate counselling support.
Both parties live in City G. While the mother had previously discussed relocating to Adelaide, that did not eventuate. Accordingly, a change of primary care would not result in changes to other aspects of the children’s lives generally. They would continue living in City G, attending the same school and participating in the same sporting or extracurricular activities.
Presently all four children attend City G Primary School and this creates a practical issue, particularly in the early stages of a change of primary care. Potentially both parents would be attending the school to collect the child or children in their care, which could be unsettling for the children. I understand that the school grounds have two separate entrances and this may provide a mechanism to reduce interaction at the end of school day.
In the event of a change in primary care, the Independent Children’s Lawyer and Ms F both recommend a period of time when the children do not see their mother, which would be complicated by the geographical limitations of City G. Inevitably, the children will see their mother or X at school or around town and, again, this could be emotionally unsettling for the three younger children, particularly C.
The children’s ongoing relationship with their mother will continue to be significant and important for them, even if they move into the father’s primary care. It would be essential that the children commence spending regular time with their mother, once they have settled into the father’s care. To that extent, a proposed change in primary care will not necessarily undermine the children’s relationship with their mother in the longer term.
(g) maturity, sex, lifestyle and background of the children
All of the children have presented with considerable behavioural difficulties at school across the years. The mother has acknowledged as much and, to her credit, has sought counselling support for the children, in addition to engaging with the school to address these concerns. Despite these efforts, however, the children’s problematic behaviour has continued.
Ms F spoke with the children’s counsellors at K Counselling and with the children’s school for the purposes of her 2017 Family Report. In the course of her discussion with K Counselling, Ms F was informed that the family was initially referred “due to behavioural issues and issues relating to the parties’ separation”. K Counselling noted that B had anger management issues and that the mother presented as “somewhat overwhelmed”.[75]
[75] Family Report 8 June 2017, paras. 124-128
City G Primary School informed Ms F that the children B, C and D continued to present very challenging behaviour during 2017. The school queried whether the children “have learned strategies to ‘avoid responsibilities’” and noted that they showed “significantly defiant and oppositional behaviour when they disliked an instruction or suggestion”.[76]
[76] Ibid, paras.130-131
Ms F spoke with the school again for the purposes of her 2019 Family Report. At that time the school reported that C and D were continuing to present significantly dysregulated behaviour and D was excluded from the school in late 2019.[77]
[77] Family Report dated 30 May 2019, para 93
The school commented that the children’s behaviour reflected their confusion and anger about the parenting dispute and identified their behaviour as “trauma escape behaviour”. The school also noted that the children attempted to play the parents off against each other and were aware of their parents’ inability to co-operate. All four children had been assessed as “high needs” pupils due to their behaviour issues.[78]
[78] Ibid, para. 97
D’s aggressive behaviour in the classroom has continued and on 19 February 2020 he was suspended for two days. If D or either of his sisters continue in this pattern it will severely undermine their educational progress and their social engagement with classmates and peers.
On a more positive note, X’s behaviour improved during 2019 and he received a positive end of year school report. Likewise the school noted some improvement in B’s behaviour during the year, but the end of year school reports for B, C and D indicate that all three children have difficulties with their learning.
(j) Family violence; and (k) family violence orders
I have addressed these allegations and conclude that the children are not at risk of being exposed to family violence in the father’s care. I am satisfied that the father’s parenting capacity has improved through his work with Ms E and it is unlikely he would resort to physical discipline in the future.
(l) Orders least likely to result in further proceedings
The parties have been before the Court for over seven years and the emotional impact upon their four children is demonstrable. X is estranged from his father and the three younger children have been living in a state of emotional confusion and torn loyalties. I am confident neither party wants this situation to continue. Both parents want to provide a stable, secure parenting environment for their children, away from the stress and distress of ongoing litigation.
Previously the proceedings were resolved by consent, as were a range of interim parenting orders throughout 2018 and 2019. The situation is now different – the parties have handed their parental decision-making over to the Court.
I have had the opportunity to observe the parties and to hear extensive evidence from them and from the two expert witnesses. The Court expects that both parties will comply with the Orders and will not expose their children to the trauma of further litigation.
Conclusion
The present orders provide for the parties to share equally in parental responsibility, but it is obvious that communication and trust between the parties has entirely broken down. I conclude that equal shared parental responsibility is not in the children’s best interests. I further conclude that only one parent should hold parental responsibility in relation to major long term parenting decisions (as opposed to day to day decisions regarding the children’s care). This will minimise the potential for future conflict and uncertainty between the parties and will reduce the risk of further litigation between them.
The nominated parent will be required to consult with the other parent and take their views into account, but will ultimately be authorised to make the decision they consider is in the child’s best interests. In determining which parent holds this responsibility I take into account the parenting arrangements for the child or children and each party’s capacity to consider and pay regard to the other parent’s point of view.
Parental responsibility and living arrangements for X
X will continue to reside in the mother’s primary care. This reflects X’s views, which is appropriate given his age. X has refused to spend time with his father since 2017 and believes that he and his siblings are unsafe in the father’s care. I reject that proposition, but accept that X’s relationship with his father has broken down and will only be repaired if X expresses an interest in doing so.
It is appropriate that the mother exercise sole parental responsibility for X, but she is still expected to consult with the father and take his views into consideration.
The orders will provide for X to spend time with his father, but only as he wishes. The father may contact X by letter or by electronic means, but the extent of any personal communication will be up to X to determine.
The living arrangements for B, C and D
It is very difficult to determine what parenting arrangements will be in the best interests of the children. The father and the Independent Children’s Lawyer propose that the children move into the father’s care, with various structures and safeguards built in to support the children’s transition. This outcome is supported by Ms F and Ms E.
The mother seeks no change in the primary care arrangements, and proposes ongoing orders for the children to spend regular time with their father in the future. The difficulty with the mother’s proposal is that she has previously consented to parenting orders for all four children to spend overnight time with their father, but has repeatedly failed to comply with those orders. The father and the Independent Children’s Lawyer have little faith in the mother’s capacity to comply with orders in the future.
The mother has failed in her role as primary carer in that she has been unable to maintain a safe emotional environment where the children can enjoy a meaningful relationship with both parents. The mother says that she will accept the Court’s decision, but her past history provides no comfort in this regard.
The mother’s failure to facilitate C spending time with her father during 2019 is particularly concerning. The re-unification counselling had proceeded well during 2018. The father totally mismanaged the events on Christmas Day 2018 and it is hardly surprising that C returned to her mother’s home in a distressed state. However, rather than reassuring C over the following weeks, the mother sought to capitalise on C’s distress and allowed – if not encouraged – C to reject her father. Ms E’s subsequent suggestion that the father send a written apology to C, which he did, was also undermined by the mother.
In the event the children remain in the mother’s primary care, I have little confidence that she will support C, B or D to maintain their relationship with the father. The mother has been aware of Ms F’s concerns since receiving her Family Report in 2017, which raised the possibility of a change in the children’s primary care. Despite this warning bell, the mother has continued to frustrate the parenting Orders.
The Court does not minimise the father’s previous failings as a parent. He must take responsibility for his past behaviour and the impact his decisions have had on the children, particularly upon X and C. The father has engaged very positively with Ms E, but he has no experience in providing primary care for any of the children.
B has maintained her relationship with the father despite her mother’s destabilising influence. D has re-established a strong connection with his father, but this only occurred with Ms E’s intensive support. C remains more susceptible to the mother’s influence, however. There is a real risk that all of the children’s relationships with their father will be jeopardised if they continue to live in their mother’s primary care and are exposed to the corrosive impact of her acrimony.
Moving to live with their father would be a major transition for these three children, however their present circumstances are far from ideal. Each child continues to exhibit behavioural difficulties at school. The children have been drawn into the present parenting dispute, primarily by their mother. By contrast, the father gave evidence that he accepts that the children have a meaningful relationship with their mother and that he will facilitate their time in her care, as ordered by the Court. I accept the father’s evidence in this regard.
Taking into account all of the evidence, I conclude that in the best interest of B, C and D they should move from their mother’s primary care. This outcome accords with the views expressed by the two expert witnesses and by the Independent Children’s Lawyer. It is the outcome that is most likely to support the children’s ongoing relationship with both parents into the future.
This outcome will be especially challenging for C, who is spending limited time with her father at present. However, I am optimistic that C will settle into her father’s care once she is insulated from her mother’s hostility towards him.
Should the children move into the father’s primary care?
There are certainly strong arguments to support the children moving into the father’s primary care on a long term basis, as recommended by the Independent Children’s Lawyer. I have given this outcome very serious consideration and also considered all of the evidence presented at trial. However, I reach a different conclusion as to the children’s long term parenting arrangements.
I agree that it is in the best interests of B, C and D to maintain a meaningful relationship with each parent. This will not occur if they remain living in the mother’s primary care.
At this point, however, I depart from the views expressed by Ms F and Ms E.
Rather than the children remaining in the father’s long term primary care, I conclude that it is in the children’s best interests that they spend a significant period of time in their father’s primary care, commencing with a period of four weeks in his sole care. This will allow the children’s relationship with their father to stabilise, free from the mother’s undermining influence. Thereafter, I conclude that the children should commence spending alternate weekends with their mother and eventually progress to living week about with each parent. I conclude that shared care is the most appropriate long term parenting outcome for the children, for the reasons that follow.
First, B, C and D have a strong relationship with their mother and they may struggle to accept a change to their father’s primary care. The children will miss their mother and X. They may blame the father for their sense of loss, which has the potential to undermine, rather than strengthen, their relationship with him. The children may act out their distress at school, or in the father’s care. This is a serious concern, given the children’s past behavioural issues.
Second, the father’s parenting capacity as primary caregiver is entirely untested. He has worked hard to improve his parenting responses, but providing primary care for these three young children will be a very demanding task. The children live in an emotionally complex family dynamic and it is inevitable that they will act out from time to time. The father may struggle to regulate the children’s behaviour, which would undermine their sense that he is a safe, reliable parent. The father’s capacity to manage the children’s behavioural difficulties in the future is simply unknown.
Third, C has not spent overnight time with her father for three years. This will be a dramatic change for her. Inevitably she will worry about her mother, and may also blame herself for her mother’s distress. It would be reassuring for C to know that she and her siblings will resume regular extended time in her mother’s care.
Fourth, I am concerned that limited alternate weekend time will detract from the sibling relationship between the four children in the long term, which would not be in their best interests. The younger children may come to resent X’s ‘privileged position’ in the mother’s household. Alternatively, X may feel angry or abandoned by his siblings, which may create conflict between them. He may blame his father for the outcome, which would undermine any potential for reconciliation between them in the future.
Fifth, B, C and D are more likely to accept an extended block of time in the father’s primary care if they understand that they will eventually return to a regular regime of extended time with their mother and X. The children may perceive a long enforced absence from their mother as a punishment, and may blame the father in this regard. The very worst outcome for the children would be a return to the pattern of conflict and ‘child refusal’ that occurred in 2016 and 2017.
Finally, week about shared care is the outcome most likely to avoid further litigation between the parents, which is a significant factor in my determinations. The children may still be exposed to the mother’s undermining behaviour, but their exposure will be more limited and will be counter-balanced by their experience of extended care from their father.
The children’s transition into the father’s care
The Court must now determine how this change should be implemented for the three children. It is essential that B, C and D understand that their future living arrangements have been decided by the Court and Ms E’s role is to support them in this transition. It must be made clear to the children that the dispute about their living arrangements is now resolved.
Ms E gave evidence that she could she prepare a Transition Plan to support the children move into the father’s primary care. The Court hopes that she will also be available to assist the children’s transition to eventual shared care. The children will certainly benefit from Ms E’s ongoing support, but it is not appropriate to delay their move into the father’s primary care. I am concerned that the mother, intentionally or otherwise, may undermine and disrupt the implementation of these parenting orders if the children remain in her sole care for any extended period of time.
I conclude that the most appropriate outcome is for the children to move into the father’s primary care in the second week of the July 2020 school holidays. The children will then spend a period of four weeks in his sole care, which will provide B, C and D an opportunity to settle into their father’s home. I will order that the mother deliver the children into the father’s care on Monday 13 July, unless the Independent Children’s Lawyer has been able to arrange for Ms E to assist in the process on some other day across that week.
After this four week period, the children will commence spending time with their mother on alternate weekends from the conclusion of school Friday until the commencement of school on Monday, for the remainder of the third term. The father will continue in the role of primary caregiver as the children re-integrate the experience of moving between their parents’ care. B, C and D will then transition into a week about parenting regime, to commence during the September/October school holidays and ongoing.
Hopefully the children will be able to re-commence counselling with Ms E as soon as possible. I am confident that the children will engage more freely with Ms E, once they are in the father’s care. It would greatly assist the process if Ms E was available to facilitate the handover, but that may not be possible, given the short timeframe.
Both parents are responsible for implementing these orders. The mother has previously failed to comply with Court orders and her behaviour has denied the children a secure emotional base with each parent. In the event the mother continues to do so, the Court will be compelled to place B, C and D in the father’s long term primary care. This is the opportunity for the mother to live up to her evidence during the trial and to demonstrate that she will respect the authority of the Court.
I acknowledge that shared care is generally considered to be inappropriate where there is no functional co-parenting relationship. The parties in this instance have different parenting styles and there is no effective communication between them. Inevitably the children’s lived experience of shared care will be one of “parallel parenting”, as briefly mentioned by Ms F in her 2017 Family Report.
Parallel parenting generally involves a tightly defined parenting regime, where parental interaction is minimised. In this scenario, children benefit from the reduction in conflict, but the advantages of flexibility and co-operative parenting are lost to the family. The children are required to adapt to their parents’ separate worlds and limitations, in the service of preserving a meaningful relationship with each of them.
This outcome is far from perfect, but all of the potential parenting options open to the Court are accompanied by risks and uncertainty for the children. Shared parenting places both parents in “equal status” from the children’s perspective, which will further emphasise the importance of the father’s parenting role. Week about care also has the advantage of being clear and predictable for the children.
The Court hopes that B, C and D will continue counselling with Ms E, who will support their adjustment to the new parenting regime. Both parents will also benefit from counselling as they adjust to their new parenting roles.
These Orders will be distressing for the mother, but it is essential that she takes responsibility to manage her own distress away from the children, including X. Ms F and Ms E have previously commented on the mother’s limited capacity to engage in meaningful counselling. The Orders will provide for both parents to attend counselling, but I accept the mother and X will only benefit from future counselling if they participate willingly.
Parental responsibility regarding B, C and D
An order for equal shared parental responsibility remains unsuitable for the children, as there is no effective communication or co-parenting relationship between the parents. The mother has demonstrated her inability to consult with the father and does not respect his parenting contribution. It is also not in the children’s best interests that the mother be granted sole parental responsibility for their longer term care and welfare, given her inability to communicate with the father in previous years.
The father has not had the opportunity to exercise parental responsibility for the children, but I am satisfied that he will endeavour to do so carefully, with proper attention to the children’s needs and their best interests. In addition, I am satisfied the father has greater capacity to consult with the mother and take her views into account.
Accordingly I conclude that the father should be granted sole parental responsibility for decisions relating to the children’s long term care, welfare and development.
Ancillary parenting orders
The week about parenting regime will continue during the school holidays, including the Christmas 2020 school holidays. Thereafter the children will continue to spend half of the long school holidays with each parents, but in a pattern where the children spend a block of seven days and a block of approximately fourteen days with each parent, which will allow either parent to plan a holiday with the children in the future, if they choose.
In the longer term the children should spend time with each parent on their birthdays and each parent’s birthday. I note that B and D’s birthdays fall in ... and the children will have just transitioned into father’s sole care this year. It will be disruptive if the children’s four week period with the father is interrupted and accordingly the mother will be limited to contacting B and D by telephone on their birthdays this year.
I decline to make specific orders regarding the Easter weekend. This long weekend often falls during the school holidays, but not every year. Either way, I conclude the parenting arrangements will continue in the usual pattern, to reduce the potential for conflict or misunderstandings between the parents.
It is appropriate that the children take sufficient of their clothes and belongings for the initial period in their father’s care. He will obviously need to supply the children with additional clothing that will remain in his home in the long term. Both parties will need to ensure the children have complete school uniform requirements in each home.
The parties appear to be in agreement regarding handover arrangements. Both parents are permitted to liaise with the children’s schools, to attend school events and to maintain contact with the children’s treating health professionals, including any occasion when the children are hospitalised, subject to X’s views in that regard.
Both parents will retain responsibility for the children’s day to day care. The reality of parallel parenting should minimise the need for communication on day to day matters, but occasional issues will inevitably arise. In the event of an emergency in relation to any of the children, limited communication by text or phone call is appropriate. Otherwise, communication between the parents will be best managed through a Co-parenting App, such as Our Family Wizard App.
Additional orders
Finally, it is appropriate that the Independent Children’s Lawyer (or her nominee, such as Ms F or Ms E) arrange to meet with the children and explain the effect of these Orders to them. Hopefully this can be arranged as soon as practicable, but I appreciate there may be logistical difficulties, given the travel involved.
The Independent Children’s Lawyer may also have a role to play in confirming Ms E’s ongoing involvement and I will continue the appointment of the Independent Children’s Lawyer until 30 November 2020, to assist the parties in implementing the Orders.
I now make orders as set out at the commencement of these Reasons.
I certify that the preceding two hundred and twenty-four (224) paragraphs are a true copy of the reasons for judgment of Judge Kelly
Associate:
Date: 3 July 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Expert Evidence
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Injunction
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Procedural Fairness
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