HACKER & HACKER
[2009] FMCAfam 217
•26 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HACKER & HACKER | [2009] FMCAfam 217 |
| FAMILY LAW – Children – competing applications as to with whom children live – where the mother makes allegations that children at risk from father – where the children are in fear of the father and some have spoken of self-harm and suicide – where the mother alleges family violence – where the father alleges that the mother views him as an irrelevancy to co-parenting and joint decision making – expert evidence that the children are not at risk from father and have been influenced by mother – evidence that children have strong wish to remain in primary care of mother – evidence of enmeshed relationship between children and mother – evidence that one child may derail any change to primary care of mother – complaints by mother and third parties to police and Department of Child Safety – unsubstantiated outcome – where mother presents children for police and Departmental interview without informing father, ICL or Court – where mother takes children to psychiatrist without informing father, ICL or Court – where mother fails to seek counselling support for child and involve father in that contrary to medical advice – where mother enrolled child in school without father’s knowledge. FAMILY LAW – Children – finding that the children are not at risk from father but are at risk from mother because of her fears and lack of insight – finding that no evidence of family violence – finding that the children have taken on fears of mother – finding that mother failed to support the children’s relationship with father – finding that mother ignored equal shared responsibility order in relation to medical and educational matters – Final Order for equal shared parental responsibility – discussion of appropriateness of an equal time care parenting order as sought by mother in the alternative – order that children reside primarily with father – 10 nights /4 nights fortnightly parenting arrangement and equal shared school holidays – orders for therapeutic intervention. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 64B, 65D, 65DAA, 65DAB |
| Runcorn & Raine [2008] FamCA 837 |
| Applicant: | MR HACKER |
| Respondent: | MS HACKER |
| File Number: | BRC 13247 of 2007 |
| Judgment of: | Purdon-Sully FM |
| Hearing dates: | 24 - 26 November 2008 |
| Date of Last Submission: | 19 December 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 26 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Matthews |
| Solicitors for the Applicant: | Berck & Associates Solicitors |
| Counsel for the Respondent: | Mr Jordan |
| Solicitors for the Respondent: | Wallace Davies Solicitors |
| Counsel for the Independent Children’s Lawyer: | Mr Andrews |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Queensland |
ORDERS
That all previous Orders and Parenting Plans be discharged.
That except as otherwise stated, the Father and the Mother have equal shared parental responsibility for the major long-term issues for the children [W], born [in] 1996, [X], born [in] 1997, [Y], born [in] 1999 and [Z] born [in] 2000, including but not limited to:
(a)any medical or health matter concerning the children;
(b)any medical or health matter affecting either parent which may affect the ability of that parent to care for the children;
(c)matters relating to the education of the children including but not limited to the choice of school or curriculum and provision to the other parent of all school reports, photographs and communication from the children’s school other than with respect to other routine or administrative matters;
(d)disciplinary matters other than of a trivial nature;
(e)matters concerning the social development and sporting activities of the children;
(f)matters concerning the religion or faith of the children;
(g)any change of place of residence or telephone number of either parent;
(h)any intended change in the surname by which the children are commonly known from that recorded on the children’s birth certificates;
(i)any matter regarding the children with respect to which a parent should be informed and consulted having regard to the provisions of Part VII of the Family Law Act 1975 as amended.
That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)they shall inform the other parent about the decision to be made;
(b)they shall consult with each other on terms that they agree;
(c)they shall make a genuine effort to come to a joint decision.
That notwithstanding the provisions of Order (2):
(a)the Mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her;
(b)the Father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.
Exchange of Information
That the Mother and Father shall:
(a)keep the other parent informed at all times of their residential address and landline and mobile contact telephone numbers and any mobile telephone numbers of the children and notify the other of any change within 24 hours;
(b)keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children;
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children and this Order authorises any treating medical practitioner to release the children’s medical information to the other parent;
(d)keep each other informed of the current details of any private health cover held by them in respect of the children.
That the parents authorise, by this Order, the schools attended by the children to give each parent information about the children’s educational progress and other school related activities and interviews and supply them with copies school reports, photographs, certificates and awards obtained by the children (at that parent’s cost) and the Mother and Father shall take all steps necessary with the schools attended by the children to register each other with the school administration and teachers as the person ahead of all others to be contacted in the event of emergency, accident, illness or otherwise with respect to each child.
That in the event that the schools attended by the children are unable to provide to each parent any written day to day communication notes and/or information relating to the children’s requisites and activities then such information shall be provided to the Father and the Father shall keep the Mother informed.
That a communication book be maintained by the parents and be used by them to maintain a record and notice of all significant matters associated with the children whilst in their care pursuant to these orders including the social, educational, extra-curricular and sporting commitments of the children and that each parent complete that book and exchange it between them when the children move between their respective homes ensuring that the book travels in a sealed envelope.
That save for emergent circumstances and unless otherwise agreed the parents will otherwise communicate through the communication book, in writing, including email or text messaging about parenting matters and not use the children for this purpose.
That during the time the children are with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
Time with the parents
That the children are to live with, spend time with and/or communicate with their Mother and Father as agreed between the parents and if they fail to agree then as follows:
(a)That the children shall live with the Mother during school term:
(i)each alternate week from after school Thursday until before school Monday or where Monday is a public holiday (or pupil free day) until the commencement of school on Tuesday commencing 2 April 2009 to continue fortnightly thereafter until the commencement of any school holiday period;
(ii)this Order shall be suspended for the weekends during any school holiday period (which shall be deemed to include the first weekend after the school term ends and the weekend before school recommences) and to recommence on the weekend after the school term recommences determined as if the sequence had not been interrupted;
(b)That otherwise, the children shall live with the Father;
(c)That the children shall live with their parents for school holidays as follows:
(i)the first half of the Easter, June/July, September/October and Christmas school holidays in even numbered years with the Mother and in odd numbered years with the Father; and
(ii)the second half of the Easter, June/July, September/October and Christmas school holidays in odd numbered years with the Mother and in even numbered years with the Father;
(d)For the purpose of these Orders:
(i)The school holiday time shall commence when a parent’s time falls in the first half of the holidays after school from 5.00pm on the day the school term finishes and conclude at 5.00pm on the day calculated to be half of the holidays;
(ii)When a parent’s time falls in the second half of the holidays from 5.00pm on the day calculated to represent half of the holidays when time shall end at 9.00am on the day the school term commences;
(iii)School holidays shall be deemed to commence at the close of school on the day the school term finishes and conclude at 9.00am on the day the children return to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights then the Mother shall retain the additional night;
(e)That the children shall spend time with their parents on special occasions as follows:
(i)For Christmas Day:
(ii)from 9.00am on 24 December until 2.00pm Christmas Day in odd numbered years with their Mother and in even numbered years with their Father; and
(iii)from 2.00pm Christmas Day until 5.00pm Boxing Day in odd numbered years with their Father and in even numbered years with their Mother;
(iv)On the birthday of each child (with the parent they are not living with on the day, including every child):
(v)if a school day, from after school until 6.00pm;
(vi)if a non-school day, from 1.00pm until 6.00pm;
(vii)with that parent to be responsible to collect and return the children;
(viii)On the Father’s birthday each year if it falls when the children are with the Mother:
(ix)if on a school day from the conclusion of school until 6.00pm;
(x)if on a non-school day between 1.00pm and 6.00pm;
(xi)On the Mother’s birthday each year if it falls when the children are with the Father:
(xii)if on a school day from the conclusion of school until 6.00pm;
(xiii)if on a non-school day between 1.00pm and 6.00pm;
(xiv)With their Father on Father’s Day (if the children are not in his care) from 9.00am until 5.00pm with the Father to be responsible to collect and return the children;
(xv)With their Mother on Mother’s Day (if the children are not in her care) from 9.00am until 5.00pm with the Mother to be responsible to collect and return the children.
The children shall communicate with their parents on the telephone at such times as a child reasonably requests and the Father and Mother shall be at liberty to telephone the children daily and in relation to such communication each parent shall:
(a)arrange for the children to telephone the other parent on the following night if, for any unforeseen circumstance, the children miss the telephone call from that parent;
(b)ensure that the children have privacy during the conversation; and
(c)save for emergencies a parent shall telephone no more than once a day.
That the Mother and Father shall be at liberty to have reasonable communication with the children by electronic communication and in this regard they will keep the other informed of the children’s current email address.
Collection and delivery
That except as otherwise ordered, the Father and Mother shall collect the children from and return them to school during times that they have the children and the parent who is not receiving the children to their care at any changeover shall not be present at the school in the vicinity of such changeover.
That if the children are not attending school then unless otherwise agreed in writing all changeovers shall occur at the home of the paternal great grandmother, Ms P, at [address omitted] and such changeovers shall be structured as follows:
(a)the Father shall deliver the children to Ms P at least 10 minutes prior to the time for commencement of any time for the children to spend time with the Mother pursuant to these Orders and not remain at, near or in the vicinity of the residence.
(b)the Mother shall collect the children at the time specified for the children to spend time with her pursuant to these Orders from the residence of Ms P.
(c)The Mother shall deliver the children back to the residence of Ms P at least 10 minutes prior to the time specified for the children to be returned to the care of the Father pursuant to these Orders and not remain at, near or in the vicinity of the residence.
(d)The Father shall collect the children at the time specified for the children to be returned to the care of the Father pursuant to these Orders.
That each parent shall deliver and return the children’s clothing, school supplies and belongings and the children’s clothing shall be returned in a clean condition.
Schooling
That unless there is written agreement to the contrary the children, [W] and [Y], shall attend [M] College, Brisbane and the children, [X] and [Z] shall attend [P] College, Brisbane for their high school education and the parents shall do all acts and things necessary to ensure and/or complete the enrolment of the children to enable them to attend such schools.
That, save for the child [W], the Father and Mother do all acts and things necessary to ensure the enrolment of the children at the said schools.
That the Father and Mother be permitted to attend special events, sporting events, fetes, concerts and parent/teacher interviews pertaining to the children including any extra-curricular activities in which they might be engaged.
Other Specific Issues
That within fourteen (14) days of the date of these Orders the parents shall agree in writing to the name of a doctor or medical centre that will treat the children’s medical and health related needs from time to time.
That in the event that the parents are unable to agree the following process shall be followed:
(a)Within a further seven (7) days the Father shall provide to the Mother a list of the names of three general practitioners and/or medical centres together with their fees, experience and availability;
(b)Within a further seven (7) days the Mother will select a name and inform the Father of her selection;
(c)In the event that the Mother fails to select then the Father may select;
(d)Save for emergent circumstances the parents shall then take the children to the selected doctor or medical centre for their medical and health related needs.
That the Mother not make any notification to the Department of Child Safety or the Queensland Police Service about the children without providing 5 days notice of such intention and details of all the circumstances that give rise to such intention to make such notification to the Father and to the Independent Children’s Lawyer (“ICL”) (until discharged).
That when the children are spending time with a parent during school holidays, that parent shall be at liberty to take the children away for a holiday and in relation to same:
(a)The travelling parent shall provide the other parent at least seven (7) days prior to scheduled departure with details of the proposed trip including but not limited to departure and return times and dates, a contact telephone number for the travelling parent and the children and the address at which they will predominantly be based (provided that they will not be required to provide details of every address at which the children will stay);
(b)During the trip the travelling parent shall arrange for the children to telephone the other parent on at least two occasions weekly.
Therapeutic Intervention
That forthwith on the making of these Orders the Independent Children’s Lawyer (“ICL”) arrange for an appointment for the children to attend upon Dr A or other suitable child psychiatrist (“the counsellor”) for counselling, the costs of that to be shared equally by the parents.
That for the purpose of the children’s counselling the Father and Mother do all acts and things reasonably necessary to ensure that the children attend such counselling as required and that they each also attend from time to time upon the counsellor as requested by the ICL or the counsellor.
That the ICL provide a copy of the Reasons for Judgment to the counsellor together with the Orders and the reports of Mr Sean Moriarty dated 16 December 2007 and 4 November 2008 for the purpose of the counsellor explaining to the children and counselling them with respect to the outcome of these proceedings.
That save for the children’s attendance upon the counsellor, the Father and Mother be restrained from taking the children to any medical or health professional for the purpose of psychological assessment, treatment or counselling without the written consent of the other or order of the Court.
That within twenty-eight (28) days of these Orders the Mother attend upon a psychologist or other professional as may be nominated by the Regional Dispute Resolution Coordinator Qld of the Federal Magistrates Court of Australia (“the Co-ordinator”) for the purpose of counselling, the costs of such counselling to be borne by her and the Co-ordinator notify the ICL of the name of such psychologist.
That the Co-ordinator notify the ICL of the name of the Mother’s counsellor and the ICL thereafter provide a copy of the Reasons for Judgment together with the Orders and the reports of Mr Sean Moriarty dated 16 December 2007 and 4 November 2008 to the Mother’s counsellor to assist in the counselling process.
Dispute Resolution
That the process to be used for resolving disputes about the terms or operation of these Orders or future parenting matters shall be as follows:
(a)The parent shall notify the other parent in writing of the matter to be resolved;
(b)The other parent shall respond in writing within seven (7) days as to their agreement or otherwise;
(c)Where agreement is reached which requires a change to these Orders then the parents will take steps to have the agreement formalised;
(d)Where agreement is not reached then the parents shall consult with a Family Dispute Resolution practitioner OR Family Relationship Centre to assist with resolving any dispute or reaching agreement about changes to be made;
(e)They shall pay the costs of the Family Dispute Resolution practitioner equally;
(f)In the event that they cannot agree on a Family Dispute Resolution practitioner:
(i)the Father shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;
(ii)The Mother shall choose one of the listed practitioners within seven (7) days of receipt of the list;
(iii)If the Mother fails to choose then the Father may choose.
That unless there are some emergent circumstances, before an application is made to a Court for a variation of these Orders to take into account the changing needs of the children or otherwise, each party is to take the steps referred to in the preceding Order.
ICL
That the ICL be discharged on a date to be not less than six (6) months from the date of these orders.
Liberty to Apply
That each party have liberty to apply.
IT IS NOTED that publication of this judgment under the pseudonym Hacker & Hacker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 13247 of 2007
| MR HACKER |
Applicant
And
| MS HACKER |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr and Ms Hacker are unable to agree on the parenting arrangements for their children, [W] aged 12; [X] aged 11; [Y] aged 9; and [Z] aged 8 years.
The father seeks that the children live with him and that they spend time with their mother from after school Friday to before school Monday each alternate weekend and on holiday and special occasions.[1]
[1] Submissions of Counsel for the Father dated 15 December 2008 at para.45
He outlines his proposed arrangements at paragraphs 16 and 25 to 34 of his trial affidavit filed on 10 November 2008.
The mother seeks that the children continue to live with her and that they spend time with the father each alternate weekend from after school Friday to before school Monday, on special occasions and for half of the school holidays, on a week about basis. Alternatively, she seeks a week about parenting arrangement.[2]
[2] Submissions of Counsel for the Mother dated 10 December 2008 at paras.69 to 72
She outlines her proposals in her trial affidavit filed on 10 November 2008, in particular, at paragraphs 32 to 34 and in her Case Outline document filed on 17 November 2008.
The children were separately represented at trial. Counsel for the Independent Children’s Lawyer (“ICL”) seeks that the children be placed in the father’s primary care and that they spend time with the father each alternate weekend from Friday after school to Monday before school and in the other week overnight on a Thursday.[3]
[3] Submissions of Counsel for ICL filed 4 December 2008 at para.38
Both parents and the ICL seek an order that parental responsibility for the children be shared equally.
There is also an issue to do with schooling. Counsel for the ICL supports the father’s proposal that the female children attend [M] College and the male children, [P] College for their high school years. Whilst this was not addressed by Counsel for the mother in his written or oral submissions, I will proceed on the basis that schooling remains a live issue notwithstanding the concession made by the mother during the trial that she would consent to [W] attending [M].[4]
[4] At the conclusion of the trial when I asked Mr Jordan for the mother if the schooling for the three remaining children remained an issue given the mother’s concession with regard to [W], he said that he was not prepared to take instructions from his client at that stage without the presence of his instructing solicitor.
Background
The mother is aged 39 years, having been born [in] 1969. She enjoys good health. She resides in rented accommodation in [S], Brisbane. She has not re-partnered. She is employed as a casual [occupation omitted] working 5 days a week for 6 hours a day. On the weekends when the children are with their father she works 19 hours.
The father is aged 45 years, having been born [in] 1963. He enjoys good health. He also resides in rented accommodation in [S]. He has not re-partnered. He is employed full time in business development with [company omitted]. His hours of work are flexible and he is able to work from home to accommodate his parenting role.
The mother and father commenced a relationship in 1989. They married [in] 1995.
[W] was born [in] 1996, [X] [in] 1997, [Y] [in] 1999 and [Z] [in] 2000.
In 2005 the father and mother relocated to move to Mackay partly in the hope that a “fresh start” would help their marital difficulties. In mid 2006 the mother returned to Brisbane with the children. The father remained working in Mackay.
Thereafter the father had limited time with the children before returning to the matrimonial home in March 2007. In what the court expert, Mr Moriarty, described as a “confluence” of issues against the background of the parties’ marital dysfunction and breakdown, from about 2006 onwards the mother would not leave the children alone with their father because she held fears that he may harm them.
The parties separated in about September 2007, the father saying that separation occurred under the one roof on 14 August 2007 and the mother saying that it was effected on 14 September 2007 when she left the former matrimonial home with the children.
A decree nisi of dissolution of marriage was pronounced on 3 February 2008. The parties formalised a property settlement on 31 July 2008.
Shortly after the mother and the children left the matrimonial home the father, through his lawyers, sought to spend time with the children and correspondence to this effect, commencing on 13 September 2008, was sent to the mother’s former lawyers.[5]
[5] Exhs.6 to 8
In a letter from the father’s lawyers dated 20 September 2008 the father’s instructions were that “it was of critical importance that both parents are able to spend time with the children so that any impression in the minds of these children that their father is to blame for this separation and is not desirous of continuing a relationship with them is put to rest.”[6]
[6] Exh..7
By letter dated 27 September 2007 the mother’s lawyers advised that the mother would not agree to the father spending any time with the children “unless the children request, and until such time as Ms B or Mr Moriarty recommend the type of contact that is to occur, and under what circumstances it is to take place.”[7]
[7] Exh.9
The parties attended upon Ms B, a psychologist, on 1 October 2007. They were unable to reach agreement, other than in relation to the father spending some limited time with the children.
The parties attended upon Mr Moriarty for a family report on
11 October 2007. He found no evidence that the father had abused the children or that they were at risk in his care. He recommended that the father spend regular weekly time with the children.
On 13 November 2007 the mother attended upon her (and the children’s) general practitioner, Dr N, expressing concerns about the children and their distress in seeing their father. She related “a long history of emotional and physical violence” in the marriage and on the husband’s return to Brisbane, being “exposed to daily verbal, emotional and occasionally physical aggression” and of her trying to “shield the children from this by stepping in to take the attack.”[8]
[8] Exh.19 (Mother’s file 13 November entry)
Dr N advised the mother to bring the children in for a consultation. This occurred on 17 November 2007.
On 18 November 2007 the mother reported to Dr N that [X] had said that he was going to commit suicide.[9]
[9] Exh.10
The following day, on 19 November 2007, Dr N referred the children to a child psychiatrist, Dr A because of “anxiety associated with visiting their father.” In her letter of referral she also referred to the fact that [X] “spoke of suicide as being a way of never having to see his father again.”[10]
[10] Exh.11
At some date between 19 November 2007 and 27 November 2007
Dr A saw the children and the mother.[11]
[11] It is unclear if this occurred on one or two occasions however the mother’s evidence appears to be that Dr A saw the children on one occasion only.
In her letter to Dr N, dated 27 November 2007 and following that consultation, Dr A expressed the view that “the children really need to see their father and that whilst there are some concerns there is little evidence to suggest that any major threats have been made towards the children or that they are in any danger.” It was her recommendation that the father be invited to see her and the children with a view to rebuilding their relationship.[12]
[12] Exh.12
Dr N did not recall discussing the contents of this letter with the mother, as she understood that Dr A was managing the matter. However the mother acknowledged at trial that Dr A had advised her to involve the father in further session/s with her and the children.
The mother did not inform the father of the children’s consultation with
Dr A. Nor did she present the children for further counselling with
Dr A and involve the father as she had been advised to do.
On 23 October 2007 the father instituted these proceedings and the matter was heard on an interim basis on 17 December 2008.
Interim orders were made on 18 December 2007. Pursuant to those orders, inter alia, the father and mother were to have joint parental responsibility for the children. The orders defined that responsibility to include decision-making about “any medical or health matters concerning the children”, “matters relating to the education of the children” and “any matter regarding the children in respect of which a parent should be informed of and consulted”. [13]
[13] Order 2
Pursuant to the orders the children were to spend time with the father during the school holidays and then from the commencement of the 2008 school year each alternate weekend from after school Friday to before school Monday and from after school Thursday to before school Friday the following week and then each alternate week thereafter. [14]
[14] Orders17 to 19
The mother thereafter made the children available to the father in accordance with the orders.
In January 2008 the parties attended a Post-Separation Parenting Program at Relationships Australia. A joint counselling session was unsuccessful and counselling did not proceed further.
On 2 February 2008, the mother attended upon Dr N. She was noted by Dr N to be “beside herself with worry” as the children were having their first full weekend with the father and they were not coping. Three of the children were said to be vomiting and [X] was waking at night talking of suicide. The mother was noted to be “not sleeping, constantly anxious.”[15]
[15]Exh.19 (2 February 2008 entry)
On 4 February 2008 Dr N saw [X] and one or more of his siblings together (possibly [W] and [Y]). Dr N’s notes recorded [X]’s continuing anxiety in seeing his father and that [X] had “talked of suicide as escape.”
Dr N’s management plan was to encourage the children to “look after each other if they were with their Dad and to bind together as a group so that if one of them was distressed they would help each other.”
Whilst Dr N was very concerned about [X] and continued to believe that he required specialist management, she felt her “hands were tied”.[16] This was because the mother had informed her that the father did not want the children to see counsellors or doctors unless there was a physical problem.
[16] Oral evidence of Dr N at trial
On 5 March 2008 the mother again saw Dr N. Dr N’s notes record her as being “under extreme stress”. She said that [X] had “held a gun to his own head and pulled the trigger, saying ‘I wish I had a gun then I would never have to see dad again.’”
Dr N saw [X] and [W] together on 11 March 2008. Her notes record “([X]) thought that if he had a gun and shot himself he would not have to see Dad – discussed finality of death and strategies for dealing with anxiety.” [17]
[17] Exh.19 (4 February 2008 and 11 March 2008 entries)
Dr N again advised the mother that Dr A should be involved. She was again told by the mother that that was not possible because the father would not agree to counselling.
Notwithstanding her concerns Dr N did not contact the father. Nor did the mother. Dr N’s evidence was that the mother did not show or discuss with her the orders made on 18 December 2007, although she was told by the mother that an order for equal shared parental responsibility had been made.[18] Nor, she said, did the mother make her aware of the views of Mr Moriarty in his 2007 report.[19]
[18] Evidence of Dr N under cross examination by Counsel for the father
[19] Ibid.
On 25 March 2008 the mother again saw Dr N reporting, inter alia, concerns about “suicide with [W] and [X]”.
Dr N’s response to [X]’s disclosures was to again talk to him about strategies to deal with his anxiety. The mother’s response was to “play the matter down”.[20]
[20] Mother’s evidence at trial
The mother did not inform the father or the ICL of the further developments with [X] or [W]. Nor did she involve Dr A.
The matter came back to court on 27 March 2008. The father was seeking, inter alia, orders about the children’s medical attendances as he said he was not being kept informed by the mother.
The father’s lawyer had written to the mother’s lawyer on 5 and
20 February, and 5 and 26 March 2008 seeking information about the children’s attendances on Dr N. No response was received.[21]
[21] Father’s affidavit filed on 26 March 2008
On 27 March 2008 the parties consented (on a without admissions basis) to an order restraining them from taking the children to Dr N or from seeking counselling or psychological treatment for the children without the written consent of the other or the ICL.[22]
[22] Order 2
Dr N’s evidence at trial was that she was not aware that prior to
27 March 2008 there was no prohibition on the parties taking the children for counselling, including, in particular, on 4 February 2008 and 11 March 2008 when she was worried and advising the mother that [X] needed specialist support.
The mother did not inform the court on 27 March 2008 of the developments with [X] and [W] and their earlier attendance upon
Dr A and her professional advice, or Dr N’s advice that [X] needed specialist support.
On 22 April 2008, without the knowledge of the father, the mother enrolled [W] in [S] College at [omitted].[23] During the marriage the parties had jointly enrolled and paid a holding deposit for [W] to attend [M] College for her secondary schooling.
[23] Exh.15
Against the background of the court proceedings, between 24 January 2008 and October 2008 complaints (the ICL says twelve in number) were made to the Queensland Department of Child Safety (“the Department”) by the mother, the maternal grandmother, Ms S and the mother’s work colleague, Ms M.[24]
[24] The mother acknowledged under cross-examination that she was aware that her mother and Ms M had made complaints, as had she.
The Department’s records reveal that on 17 March 2008 the notifier (who the mother accepted at trial was her) said that “the oldest child had been observed to be constantly rocking forwards and backwards at home”; that “older child had been observed to be yelling at younger children which notifier believes is a coping mechanism” and “that older child had tried to hurt himself.”[25]
[25] Exh.21
The Department’s records further reveal that on 24 September 2008 the mother told the Department “[W] has said she wants to die, [X] tried to jump off roof and has held a gun to his head. [Z] has said that if they hurt themselves they can go to hospital and won’t have to go to [their father’s]”. The mother was further recorded as telling the Department, amongst other matters, that “[W] rocks back and forth when at home”.[26]
[26] Exh.21
The mother did not inform the ICL of these matters or of the Department’s involvement or investigations. The father did not become aware of the Department’s involvement until 14 October 2008 when he was interviewed by the Department. He then informed the ICL.
Nor did the mother inform the children’s teachers or the school Principal, Mr M, of their concerning behaviours, including [X]’s threats to suicide and [W]’s wish to die.
Mr Moriarty re-interviewed the parties and the children on
30 September 2008. Mr Moriarty again concluded that there was no evidence that the father had mistreated the children.
At the time of his interviews the mother did not make Mr Moriarty aware of the children’s threats or escalating presentations or of the involvement of the Department or that an appointment had been made for the children to be interviewed by the Department at a date after their interviews with Mr Moriarty.
On 9 October 2008 - [W]’s birthday, the children were interviewed by the Department. A safety assessment was prepared. The Department’s assessment was recorded as being “unsubstantiated”.
The mother accepted that she had been informed of this outcome by her lawyer some time after 14 October 2008.
On 15 November 2008 the mother made a complaint to the [B] Child Protection Unit about the children’s treatment by the father. The children were interviewed by police.
The trial proceeded over three days commencing 24 November 2008.
At the conclusion of the trial the mother gave a written undertaking to the court that she would not make any notification to the Department or the Queensland Police without providing notice to the ICL and the father.
An order was also made, by consent, that [W] attend [M] College from 2009.
Care arrangements for the children
The children’s care arrangements from birth to the date of trial were as follows:
a)Until about the end of 2005 the family resided in Brisbane. The father was in full time employment and the mother was the children’s primary carer.
b)From the end of 2005 until June 2006 the family resided in Mackay. The father was in full time employment and the mother was the children’s primary carer.
c)From June 2006 until March 2007 the children were in the exclusive care of the mother in Brisbane. The father remained in Mackay seeing the children on only two occasions when he visited Brisbane.
d)From March 2007 until September 2007 the father lived in the matrimonial home in Brisbane with the mother and children. The father continued in full time employment. The father was unable to spend time alone with the children.
e)From 14 September 2007 to about 18 December 2008 the father spent time with the children on only three occasions during the day time. The children were otherwise in the mother’s sole care.
f)Following the making of the interim orders on 18 December 2008 the children remained in the mother’s primary care and spent weekly, including overnight time, with the father in accordance with the order.
Education history of the children
The three youngest children attend [A] Catholic School at [A] in Brisbane. [X] is now in Grade 7, [Y] in Grade 5 and [Z] in Grade 4. [W] attended this school until the end of 2008. She now attends Grade 8 at [M] College.
The evidence is that the children are all progressing well academically.[27] They are reported to be happy and well behaved and they have many friends.
[27] Exh.20 (Subpoenaed documents from Catholic Education)
There is no evidence from the children’s teachers of concerns about the children being abused by their father. There are no reported complaints by the children to their teachers in this regard.
There is no evidence in the material subpoenaed from Catholic Education of any reported concerns by the mother to the school about the children’s behaviours, including threats of suicide.
There is also little evidence to corroborate concerns about their compromised relationship with their father. [W]’s teacher Mr L said that earlier in 2008 [W] was upset at having to go to her father’s home saying that he was mean to her however she “did not really elaborate” other than to say that “he would not let them do things, no specifics were given”. In February/March 2008 he said that she was often upset and in tears on the second Friday when she was to go to stay with her father. This behaviour however had settled at the end of the first term. His evidence was that “every now and then I check to see if everything is ok and she tells me it is fine.”[28]
[28] Annexure B to Affidavit of Mr M filed on 23 September 2008 at paras.4,8, and 9
The oral evidence of Mr M, the children’s school principal, was that the only issues relating to the children of which he was aware were some difficulties at pick-up with their father and on one occasion, in about August 2008, one of the male children complained about getting into the car with his father and said that he was worried that he was going to be hurt. The child did not, however, elaborate.
Personality, intellect, health and development of the children
The evidence is that the children are bright, healthy children who are developing within normal parameters. There is no evidence to suggest any developmental or medical basis for their anxiousness with and behaviour towards their father.
There is no evidence in the subpoenaed medical records (which span a period of some seven years) of any reported problems between the children and the father until after separation.[29]
[29] Exh.19
There is no evidence that the mother, who also attended the [A] Medical Centre and who had attendances recorded at least yearly from 15 October 2001 onwards, related to any doctors concerns about the father’s treatment of her and/or the children until 13 November 2007, after the parties had separated.
Mr Moriarty described the children as being socially and educationally, in terms of their abilities and behaviour, at the “upper end of the range.” He says that “within their school environment they conform to rules and have good relationships with their peers. As a sibling group they are strongly bonded.”[30]
[30] Mr Moriarty’s report dated 4 November 2008 at paras.39
He described them as being “relatively homogenous” as a group, “cheeky in a pleasant way”, and children who (in the context of the interviews for his second report) “would not have been difficult to manage if not for the emotional content of (the) interviews.”[31]
[31] Ibid at para.22
He described [W] as a child from whom her siblings take their lead and who “in her manner varies between a child and an adult, and can easily and quickly lapse back into the role of a happy little girl playing with her siblings”.[32]
[32] Ibid at para.22
I accept Mr Moriarty’s observations of the children.
Allegations of abuse
A central issue in these proceedings is the mother’s assertion that the father had threatened the children, that he had physically and emotionally abused them and that he had also subjected her to a pattern of abuse to which the children had been exposed.
In their interviews with Mr Moriarty the three eldest children reported that they were scared of their father, that he may hurt them.
Neither the mother nor the children were able to clarify to Mr Moriarty, in his first report, the basis of the children's fears. Mr Moriarty was unable to identify any unacceptable risks associated with the father spending time with the children.
All of the children, save for [Z] who was not asked for the purpose of the first report, revealed to Mr Moriarty that their mother missed them when they were gone, worried about them when they were gone, cried before they went and when they returned from spending time with their father as she did not want them go, would say that she was sad, that she told them she thought their father would hurt them or that she knew he was going to hurt them, and that their mother had told them that a lot before the marriage breakdown.
When the children attended upon Dr N on 4 February 2008, she discussed with them the need to “stick together” when with their father and “crisis management” techniques, including the use of emergency numbers and the mobile telephone. Her notes record that she “reinforced this will need practice to develop.”
The mother further reinforced in the children the need to take protective action when with their father by, for example, providing the children with a Kids Help-line number and police number and on a visit to McDonalds with their father for [Z]’s birthday, shortly after separation, by telling them that if they were concerned they could speak to the staff and ask them to call the police.
During a dispute between the parents following this visit, the mother told the paternal grandparents, who were present, that they were suppose to keep the children safe from the father. This was said in the presence of the children.
The mother reported to Dr N her level of anxiety at the children spending time with the father and at their presentation. On 23 June 2008 Dr N noted that the mother felt "trapped and hopeless” and had been “very teary in the last few days in response to the children’s mood.”[33]
[33] Exh.19 (23 June 2008 entry)
Whilst the mother alleged in her affidavit filed on 11 December 2007 serious examples of physical mistreatment of the children, including violence by the father towards her and the children, neither the mother nor the children recounted that to Mr Moriarty during their interviews with him and the mother did not rely upon this evidence at trial.[34]
[34] The mother told Mr Moriarty at paras.15 and 19 of his report that the father had threatened to hit the children and tried but missed and that he was “raising his fist more”
Mr Moriarty concluded in his first report that there were “concerning features of Ms Hacker’s account which portray a very obtuse form of reasoning. By her own account Mr Hacker made no threats against the children yet she prohibited him from spending any time with them and has instilled the children with the same fear that he might hurt them, this without any basis.”[35]
[35] Mr Moriarty’s first report at para.82
During the interviews with Mr Moriarty for the purpose of the second report, [W] said that she hated her father because he swore at them and threatened to hit them, that they did nothing when they saw him except stay inside watching television and playing games and that she was “scared of him because of what he might do to them if he got angry”.
[Y] and [X] said the same thing almost word for word. They both complained that their father had sworn at them, did not do anything with them and that they “hated him”.
[Z] said the same thing. He told Mr Moriarty that he and the other children had spoken about that before talking to him.
Mr Moriarty concluded that the children had prepared what they would say before the interviews. It was not possible, he said “to ascertain any context to any of the comments made by the children that their father swears at them and threatens to hit them.”[36]
[36] Mr Moriarty’s reports dated November 2008 at para.31
He concluded that the children’s anger mixed with hysteria was played out for his benefit and that the children were not fearful of their father at all. There were no tears and their behaviour turned off immediately that they returned to their mother.
He retained his earlier view that the children’s claims of mistreatment by their father were not plausible, the more likely explanation being that they had been “heavily influenced by their mother”[37] and that they had essentially taken on her fears.
[37] Ibid at para.38
Whilst reporting the children’s anxiety in having to see their father, the reports of the children’s doctors do not reveal any evidence that the children had been abused by their father.
On 2 June 2008, the Department contacted Dr H at [A] Medical Centre, Dr N being on extended leave. Dr H (who had seen the children) informed the Department that whilst the children were fearful of their father she did not believe that he had abused them. She expressed the view that the children’s concerns were “mostly anxiety related”, that whilst the children had said “they did not like Dad” and “felt scared of him”, they had “never stated that (they) had been hit” although they had stated “they were frightened of this”. She informed the Department that she had never seen any bruising on the children during her examination of them and that the mother usually sat quietly in the room during the children’s visits and “looks distressed at info children discuss.”[38]
[38] Exh. 19
Dr N’s evidence at trial was that she and Dr H had “the same concerns for the children” and “we were interpreting the information they gave us in the same way.” It was her belief, notwithstanding the children’s complaints, that the father had never physically abused the children, a belief she understood was shared by Dr H.
The notes of the Department reveal a range of fears by the children and alleged mistreatment at the hands of their father, including physical abuse. However the investigating officers expressed difficulty in understanding a contextual basis for the children’s complaints. The Department reports noted, however, concerns about the children’s exposure to their parent’s conflict.[39]
[39] Exh.21
In her September 2008 interview with the Department the mother raised [W]’s behaviour in rocking back and forth at home, [X] trying to jump off a roof and [Z] also talking about self-harm. This evidence was not in her trial affidavit.
She is also reported to have said that prior to separation the father had threatened to “hang her and the children if she left him.” However in her affidavit filed on 11 December 2007,[40] her evidence was that the father was suicidal and that he had told her that he was “looking on which tree to hang himself.”[41] She made no mention of the father threatening to hang her and the children.
[40] The affidavit was relied upon by the father.
[41] Mother’s affidavit filed on 11 December 2007 at para.102
The Department recorded an unsubstantiated outcome. It found that the children were not in need of protection.
The Department’s assessment noted that whilst the children’s reactions to spending time with their father were concerning, the Department’s checks with the children’s school and family doctor did not support their allegations. The school had reported that the children’s behaviour was “normal and consistent” leading up to the arrival of their father at school for collection and that the school had no concerns about the children being “withdrawn, depressed or exhibiting difficult or violent behaviours.”
The assessment recorded that “It appears that the children are more inclined to support their mother, however, this alliance with the mother does not necessarily translate into hostile feelings towards the father, but more so that they have been fed information about him. However all the children represented as happy and well adjusted; demonstrating no indicators of exposure to physical or emotional abuse. There is no evidence found throughout the assessment period to suggest that any of the children have been harmed at this time.”[42]
[42] Exh.21
On 15 November 2008, some nine days before trial and some three weeks after the children had been interviewed by the Department, the mother took the children to the [B] Police.
The children alleged that their father was always very angry with them, that they were afraid to stay with him because of a concern that they would be disciplined for no reason, that the father slapped them on the head with an open hand, made an angry face, made a low gruff voice to scare them, yelled at them in their face, did not allow them to phone their mother when they asked, pushed them to the ground and tripped and then laughed at them.
Whilst the police investigation was ongoing at the time of the trial the police report noted that contact with the Department had revealed that “the mother has a long history of making reports about the father with DOCS and individual assessments had been made and no action is to be taken by DOCS.”[43]
[43] Police Report received 26 November 2008
The mother made no mention in her trial affidavit of the notifications, investigations and interviews of the children conducted by the Department. Nor did she seek to adduce evidence of the ongoing police investigation given that that had occurred five days after she had filed her trial affidavit. Nor did she raise the serious matters raised by her in her Departmental interview relating to the children’s presentations and [Z]’s compliant to Ms M about being hit by his father and thrown onto concrete.
Nor did the mother adduce any evidence at trial from Ms M and her mother, both of whom, she acknowledged, had made complaints to the Department.
Her trial affidavit contained fifty-five paragraphs of evidence, twelve of which related to why [W] should attend [S] College. There was not one paragraph to do with [X]’s suicide threats or the Department’s involvement.
Nor did the mother file a Notice of Abuse or Risk of Abuse in the proceedings. This is notwithstanding the escalating behaviours of the children first raised in her affidavit filed on 11 December 2007, raised by her with Dr N and Dr A, raised by Dr N in her letter to the mother’s lawyers on 28 March 2008 [44] and raised by the mother in her interviews with the Department.
[44] Exh. 19
The fact that a police investigation was current only came to light during the course of the trial as a result of the father receiving a call from investigating police during a Court break, the police seeking that he make himself available for an interview and the father’s Counsel bringing this to the attention of the Court. A subpoena was then issued to the police.
The mother’s response to [X]’s presentation was particularly concerning and her evidence by way of explanation, an example of what Mr Moriarty referred to as her “obtuse” reasoning. It evidenced, a best, limited insight and rudimentary parental judgment.
The mother was unable to offer any reasonable explanation as to why, at a time when [X] was making suicide threats, when [W] was demonstrating concerning behaviours, when, on her evidence, one or more of the children were so distressed that they were physically sick in her car, when she was making regular complaints to the Department and, when, she says, she was reading everything she could and considering every possible strategy even “daily” to respond to her concerns about the children, she did not bring these matters to the attention of the ICL, the father, the Court, the children’s teachers, Mr Moriarty or why she did not follow up Dr A’s advice to engage the father in counselling.
Counsel for the ICL submitted that the mother’s failure to take [X] back to Dr A demonstrated her position. I accept that. Her position was that she did not want the children to have a relationship with the father that she was unable to control.
If it was the mother’s evidence that Dr A had recommended that the father participate in family counselling and she told her lawyer that and she had being saying to the father “all along” that they need “extra help” and that they “need to get counselling for these children”, then there is no explanation why an order to that effect was not sought by her. Nor is there a satisfactory explanation as to why when the mother engaged a second firm of lawyers, after January 2008, she did not instruct them to contact the ICL or the father or seek an order from the Court given that her evidence was that she communicated all of these matters to her lawyers.
The mother appeared to be more interested in seeking out bits of information from the internet or a range of different people who, to use her words were “neutral”. She did this, she says, to give the children ideas and the parents ideas, including the provision of a Kids Helpline phone number as an appropriate way to respond to the children’s presentations, on her case, of serious abuse, rather than let common sense dictate her course. In this instance that course was to act on the professional advice she had already received from Dr A, who was clearly a “neutral”, to again use the mother’s words.
Her preparedness to allow the children to be interviewed by the Department on [W]’s birthday and before they were to spend time with their father to celebrate that occasion, was another example of poor decision-making and her lack of insight.
Her evidence in relation to her presentation of the children for police interview was a further example of her lack of insight, obtuse reasoning and inability to understand the impact of her conduct in reinforcing in the children’s minds a fear of their father.
The mother’s evidence under cross-examination was that she kept being told that she did not have any evidence to support her or the children’s concerns. Notwithstanding that and notwithstanding the matters identified by Mr Moriarty in his first report, the mother pressed ahead and there was no evidence at trial to suggest that her views had changed.
Dr N’s evidence at trial was that deep down the mother did not want the children to spend time with their father.[45] I accept this evidence.
[45] In response to a question by Counsel for the father
I find that there is no credible evidence that the father has emotionally, psychologically or physically abused the children or are they at risk of him doing so.
Allegations of Family Violence
The mother’s evidence in relation to family violence is brief and contained in paragraph 13 of her trial affidavit.
It was that during the parties’ relationship there was high conflict to which the children were exposed. This included the father being angry and aggressive with her and abusive and denigratory of her.
She said that because of this conduct the children’s alignment with her was strengthened and they were anxious and scared of the father’s reaction “in the event they did not please him.”
The mother did not adduce at trial evidence of the matters deposed to in her affidavit filed on 11 December 2007 relating to the father’s alleged aggressive and unreasonable behaviour as detailed at paragraphs 5 to 31, 86 to 88, 91, 102, 104, 106, 107, 110, 111, 112 of that affidavit which, she says, formed the basis for her holding “grave concerns for the children’s emotional and psychological wellbeing when in the father’s care”.[46]
[46] Mother’s affidavit filed on 11 December 2007 at para.4
She did not depose in her trial affidavit to her safety concerns prior to separation, which resulted in her asking her mother to stay with her; her brother ringing her after a family holiday in Easter 2007, on her account, to enquire if she and the children were still alive; the father’s threats to kill himself and her caution at leaving the children alone with him as a consequence; his threat to her with a knife, an incident with a hammer and his controlling nature, amongst other complaints.
Nor did the mother raise these matters with Mr Moriarty in his interviews with the parties on 11 October 2007. She told Mr Moriarty that the father was emotionally abusive in the marriage and that he had threatened to hit the children. However she also told him that there were not a lot of heated arguments.[47] This is notwithstanding her recounting to Dr N the following month “a long history of emotional and physical violence” and her trial evidence that she had made “repeated requests” that the father play a more active role in family life.[48]
[47] Mr Moriarty’s report dated 16 December 2007 at paras.5, 15, 27, 28
[48] Mother’s affidavit filed on 10 November 2008 at para.8
The father’s evidence was that the mother refused to allow the children to spend time alone with him before separation because she told him that he was “suicidal, violent and that being alone with (him) destabilises the children.”[49]
[49] Father’s Affidavit filed 19 November 2007 at para.33
The father denied that he had been:
a)physically or emotionally abusive of the mother or the children;
b)suicidal or violent to the mother or the children; and
c)treated for serious mental health problems.
He said that the mother raised her domestic violence concerns in a letter from her solicitor dated 13 September 2007.[50] He said that the incidents referred to in that letter were a distortion of the facts. I accept his evidence.
[50] Exh.5
For example, he said that his remark to the mother to be careful because he “had a knife”, was made to ensure her safety at a time when he was using a sharp knife to cut vegetables and the mother was passing him in their narrow galley of a kitchen. His evidence was that it was not said as a threat and nor were the children present, to his recollection.
By way of further example, his evidence was that he did not throw a hammer at the mother in the presence of the children. He says that he when he was building a cubby house for the children he hit his hand with the hammer and threw it down in pain.[51]
[51] Father’s Affidavit filed 19 November 2007 at paras.36 and 37 (n)
At no time, before or after separation, did the mother obtain a protection order against the father. This was notwithstanding her having engaged a lawyer in April 2007 and having been advised by the police to do so when she attended at the [A] Police Station after a dispute with the father at changeover on 28 October 2007.
I find that there is no credible evidence of family violence between the parents or exposure of the children to family violence.
Evidence – discussion and further observations
The circumstances leading to the parties’ separation and the events thereafter played out against the background of court proceedings, make this an unusual case.
It is also a sad case, as it is clear that the children have been exposed to a great deal of conflict and upheaval in their lives as a consequence of their parent’s marriage breakdown.
The father acknowledged that during the marriage the mother was exemplary in her day to day care of the children.
Dr A described the mother and children as “a gentle, close family”.[52]
[52] Exh. 19 (letter Dr A to Dr N dated 27 November 2007)
My observation of the father, at trial, was that he was a thoughtful, indeed, a gentle man.
Whilst the mother’s conduct before and following separation, her level of insight, ability to respond to the children’s emotional needs and her ability to promote the children’s relationship with the father are issues, the children have a very close, dependent relationship with her - their historical primary carer. The nature of that relationship and the likely impact on them of being placed in the father’s primary carer is an issue.
[W], who will turn 13 years of age in October 2009, has played a dominant and influencing role in the sibship.
Whilst the exercise of assessing and understanding the facts (in particular, a contextual basis for the children’s reaction to their father) was, at times, akin to working on a large puzzle without having the benefit of all of the pieces, a “clear picture” emerged from the evidence overall.
The children are described by teachers, doctors and investigating authorities as happy children. They do not exhibit any dysfunctions other than in their relationship with their father. Mr Moriarty referred to the child/parent relationships as being “disproportionate to the known family history.”[53] I agree.
[53] Mr Moriarty’s report filed 11 November 2009 at para.35
In my view, the children’s behaviour can only be understood in the context of what Mr Moriarty referred to as “marital dysfunction which existed for a long period alongside an intensifying alliance between the children and the mother”, an alliance which he concluded, was fostered by the mother both before and after separation with “the deprivation of the father’s time with the children (consolidating) that pattern.”[54]
[54] Mr Moriarty’s report dated 4 November 2008 at para.36
There was a great deal of evidence in this case, including subpoenaed material from The Department of Child Safety, the Queensland Police, Catholic Education and the [A] Medical Centre. There were some
22 exhibits.
I have considered all of the material I was asked to read by the parties and by the ICL. I have had the benefit of written and oral submissions.
There are a number of factual disputes between the parties. Where there is a difference between the parents on factual matters I accept the evidence of the father. I found him to be a frank and honest witness. He had insight into the family dynamics. He was not demeaning of the mother and any allegations he made in respect of her conduct were substantiated on the totality of the evidence.[55]
[55] In this regard I accept the submission of Counsel for the father at paras.5 to 7 of his written submissions
Whilst Counsel for the mother was critical of the father’s conduct during the trial[56] I observed no impropriety on his part, including when the mother was cross-examined.[57] Nor do I accept that his evidence was “airbrushed”.
[56] Mother’s written submissions dated 10 December 2008 at para.36
[57] There was however, at times, some tension between Counsel for the father and Counsel for the mother.
Mr Moriarty described the mother as being noticeably “guarded and evasive” and that she was unable to answer questions in other than a “general or roundabout” fashion. That was also my assessment of her.
Insofar as I need to make findings of fact I will make any further comments I need to make on credit during the course of my discussion about the matters relevant to my considerations.
I accept that Mr Moriarty has expressed his own views and those views were held by him. I also accept that in giving his opinion, he relied upon the information and facts as set out in his first and second reports and the further information put to him during the course of his cross-examination.
Legal principles
The relevant legal principles which govern the court’s determination in parenting matters and which I am required to follow are set out in the Family Law Act 1975 (“the Act”), and in particular Part VII of the Act which relates to children.
Section 65D of the Act, subject to s.61DA and s.65DAB, gives the court power to make a “parenting order”. A “parenting order” is defined by s.64B of the Act.
In deciding whether to make a particular parenting order, s.60CA requires that I must have regard to the best interests of children as my paramount consideration.
In determining what is in the best interests of children I must consider the matters set out in s.60CC. The section refers to “primary considerations” and “additional considerations”.
There are two primary considerations. The first is the benefit to children of having a meaningful relationship with both parents, and the second is the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, family neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as “primary” and, as a note to s.60CC indicates, are consistent with the first two “objects” of Part VII of the Act, as stated in s.60B(1)(a) and (b) of the Act.
The Court must also take into account, insofar as they are relevant, the “additional considerations” set out in s.60CC(3) and must also consider (to summarise), the extent to which each parent has fulfilled his or her parenting responsibilities and has facilitated the other parent in fulfilling their parenting responsibilities (subsections 4 and 4A). These are to be considered in conjunction with but not subordinated by the primary considerations in the broad enquiry to determine the arrangements that are in the best interests of the children.
I will be guided by s.60B which sets out the objects of Part VII of the Act and the principles underlying it.
Primary considerations
My conclusions and reasons for forming my conclusions as to the primary considerations are as follows.
It is important, and in the interests of the children that they be afforded an opportunity to develop a meaningful relationship with both their mother and father. I find the mother’s conduct has undermined the children’s ability to develop a meaningful relationship with the father.
The basis upon which I have reached this conclusion is as follows:
a)For a meaningful relationship to be able to develop it must be supported by each parent, in word and in deed. Whilst the mother has made the children available to spend time with the father, in accordance with court orders, her compliance has been perfunctory. There is a difference between making children available for time and promoting their relationship with their father in the fullest sense. In that regard the mother adhered to the letter but not to the spirit of the order;
b)I otherwise adopt my earlier comments and reasoning in relation to this issue with respect to the mother’s conduct in my earlier discussion of the allegations of abuse and family violence.
I find that there is no need to protect the children from being subjected to or exposed to physical or psychological harm by reason of abuse by their father. There is no evidence, upon which I am prepared to rely, that the father has mistreated the children or that the children are at risk of physical, psychological or emotional abuse in his care. Nor are the children at risk of family violence in the father’s care.
In reaching this conclusion I rely upon my earlier discussion concerning the mother’s actions in relation to the children and their relationship with the father.
I find that unless some steps are taken to address the present dynamic then the children remain at risk of harm (emotional, psychological and physical) as a consequence of the mother’s lack of insight and poor decision-making and that that risk is significant.
In reaching this conclusion I again rely upon my earlier discussion concerning the mother’s actions, her lack of insight, her inability to understand the basis of the children’s fears and escalating behaviours and her contribution to that and the negative impact of that on them.
I give significant weight to these primary considerations and my findings in relation to them. I find that they favour the proposal of the ICL and father for a change in the primary care of the children.
I treat these primary considerations and my findings as being central to the structure of the orders that I ultimately propose to make with respect to the best interests of the children.
Additional Considerations
I view the additional considerations at subparagraphs (a), (b), (c), (d), (e), (f), (g), (i), (j), (l) of s.60CC (4) and (4A) as being relevant to this matter.
Views of Children
In terms of the wishes and attachments of the children the evidence is that the children hold strong views about the father. The father accepts that the children would not want to reside with him on a primary basis and that they are primarily attached to their mother.
However I find that any weight to be given to the children’s wishes and their views must be considered in the context of their age and level of maturity and the dynamics that have influenced that.
Mr Moriarty made a number of relevant observations in this regard in his first and second reports which I have considered.
Mr Moriarty’s evidence was that whilst he observed “anger mixed intermingled with hysteria”, there were no tears and the children’s hostility towards their father “evaporated as soon as they left (their father) and was replaced with displays of intense emotional affections for their mother.” His evidence was that “this display was played up for the benefit of my assessment and that the vitriol directed at their father was not derived purely from their experience with their father.” I accept that evidence.
It was also his evidence that the comments of the children in the second interviews were prepared and “probably worked out between them” prior to the interviews. I accept this conclusion.
The Department made similar observations about the prepared nature of the children’s responses during their interviews.
I find that whilst the wishes of the children are a factor they are not a substantial factor given the likely reason for the formation of their views and the expression of their views and wishes, those matters being identified by Mr Moriarty in his reports and oral evidence and otherwise supported by the totality of the evidence before me.[58]
[58] See in particular paras. 80, 82 – 84 of his first report
Children’s Attachments
I find that children have a dysfunctional relationship with the father.
Notwithstanding the children’s close bond with the mother (and [W]’s “emotional investment” in her bond with her) I find that the children also have a dysfunctional relationship with the mother.
I accept Mr Moriarty’s evidence that the enmeshed nature of the children’s relationship with their mother is unhealthy. It was clear from the mother’s evidence that she had difficulty at times differentiating between the children as individuals and between the children as a group and herself.
I also accept the evidence of Mr Moriarty that the children’s oppositional behaviour, at the second interview, was deeply concerning and unhealthy.
I also accept the father’s evidence that during their marriage the mother had been controlling of his relationship with the children. I find that her conduct since separation has evidenced an ongoing need to control the relationship.
Notwithstanding the present difficulties in the children’s relationship with their father I accept the submission of Counsel for the ICL that the father has a great deal to offer the children.
The children appear to have an ongoing relationship with the mother’s family although the evidence does not enable me to assess the strength of that relationship.
The children appear to have a developing relationship with the father’s family. The father’s mother impressed me as a patient and sensible woman who has a great deal to offer the children.
The children are closely attached to one another. It is not in their interests to be separated and there was no suggestion that that was an option open on the evidence.
I place significant weight upon my findings in relation to this consideration and find that it favours the proposals of the father and the ICL.
Parental Attitude and Capacity
In the circumstances of this case it is convenient to deal with a number of the considerations listed in s.60CC in the following discussion. They are s.60CC (3) (c), (f) and (i). I will also consider under this heading sub-sections (4) and (4A).
I find that:
a)Both parents have a capacity to provide for the day to day physical needs of the children, including their intellectual needs;
b)The mother, through lack of insight, has been unable to utilise appropriate strategies to respond to the family dynamics and conflict and the children’s presentations and she has not evidenced a proper attitude to parenting including a capacity to provide for the children’s emotional needs, whereas the father has demonstrated a proper attitude to parenting and a capacity to provide for the children’s emotional needs;
c)The mother has not evidenced a willingness and ability to facilitate and encourage a close and continuing relationship between the children and the father whilst the father has evidenced a willingness and ability to promote the children’s relationship with the mother;
d)Whilst the father has demonstrated an appropriate attitude to his joint parental responsibilities and to the children, the mother has failed to keep the father informed and she has failed to ensure that the father participates in decision-making about the major long term issues in relation to the children.
The bases upon which I have reached these conclusions are as follows.
I have in the context of my discussions of the primary considerations already addressed some of these matters and made findings.
The mother says that she wants the children to have a good relationship with their father. However the evidence is that it must be on her terms.
Following separation the children were not made available to the father, notwithstanding that it was school holidays and notwithstanding his proposal for supervised time. Nor did the mother ensure that the children spoke to the father on the telephone. I do not accept her explanation as to why telephone time did not occur. Nor was the father made aware of where the children were living.
The mother’s evidence, under cross-examination by Counsel for the father, on her failure to make the children available, was unsatisfactory.
I find that she frustrated the father’s attempts to spend time with the children at a critical time. I do not accept her explanation that she did not make the children available to the father other than on a limited basis because she was acting on legal advice and/or awaiting expert advice.
The clear impression from her cross-examination was that she did not want the children to spend time with their father at all or unless it was done in a manner that she was able to control. I do not accept that she was prepared to agree to supervised time but did not do so on legal advice. This was not part of her sworn evidence at the interim or final hearing.
I accept the evidence of the father that the mother views him as an irrelevancy to the children and to joint parental decision-making.
The mother provided no satisfactory explanation for her failure to comply with the Orders of 18 December 2007 and 27 March 2008 that required her to engage in joint decision-making with the father on important issues to do with the children including medical and educational matters.
I have already discussed her failure to inform the father about [X]’s threats and [W] behaviours in particular. I do not accept her various explanations for her failure to consult the father before she enrolled [W] at [S] College. It was a further example (particularly when viewed against the background of ongoing court proceedings) of her attitude to the father and her inability to view him as an equal co-partner in the raising of their children.
I find however that the father has endeavoured to communicate in an appropriate and respectful fashion and to keep the channels of communication open with the mother.
I find that the mother’s communication with the father was perfunctory.
I find however that the father has taken steps to communicate with and engage the mother in their co-parenting of the children.
I also find that notwithstanding their dysfunctional relationship he has continued to promote the children’s relationship with the mother in a number of ways, including keeping photographs in his home of the children and the mother and by ensuring that the children are able to speak regularly on the telephone with her.
I find that the father has also evidenced an appropriate attitude to the mother and her role in the children’s lives. He acknowledged the mother’s strengths. I accept the submission of Counsel for the father that he was able to confine his criticism and concerns about the mother to her conduct in relation to her inability to include him in the children’s lives and his concerns about the impact on the children’s wellbeing of her conduct.[59]
[59] Counsel for the father’s written submissions at para.6
I find that the father has evidenced an appropriate attitude to parenting, not only in his response to the children’s presentations but by seeking and following professional advice with a view to improving his relationship with the children. He has also made considered changes to his personal and work life to accommodate his parenting role. He has also met his on-going child support obligations.
Whilst the father was criticised for a lack of involvement with the children in their early life and his preparedness to allow the mother to control that, I do not view that as evidence of a lack of commitment on his part to them or a lack of interest in the children. It was largely a reflection of the roles the parties assumed in their marriage and a preparedness by him to allow the mother to assume the carer role in the manner she sought, he accepts, naively.
Further, the father presented in court as someone who, in personality and demeanour, was more likely to avoid confrontation than initiate it. In my view, the fact that he chose not to challenge the mother about her controlling behaviours, early in their relationship, should not be construed as evidence of parental disinterest.
Nor do I accept, on the evidence, that it was because of his disinterest in parenting that the children are now strongly attached to their mother.
Whilst I accept the submission of the ICL that each of the parents has personal strengths and vulnerabilities that they bring to their parenting role, I accept the evidence of Mr Moriarty that if the children remain in the mother’s care they are likely to have no relationship, at worst, or a compromised relationship, at best, with their father.
I also accept that notwithstanding the particular challenges posed by [W], the children are more likely to enjoy a relationship with both parents living in their father’s primary care than with their mother. The mother’s evidence was that her various attempts to promote the relationship between the children and the father had failed.
I accept that each parent is otherwise able to provide for the intellectual and physical needs of the children. Notwithstanding their parents’ dysfunctional relationship the children have been progressing well at school.
Given my earlier findings I find however that of the two parents the father has the greater insight into the family dynamics and is better able to respond to the children’s emotional needs.
I give significant weight to these considerations in reaching my conclusion and find that they favour the proposals for a change in the primary care of the children.
Effect of Change
I accept that increasing or reducing the father’s time with the children or changing their primary care is not a panacea to the difficulties that this case presents.[60]
[60] Mr Moriarty’s observation at para.44 of his second report
If I make the orders sought by the father the effect on the children will likely to be one of distress at not being in the primary care of the parent to whom they are most closely bonded. There is a risk that [W] will seek to undermine the arrangement. These are not insignificant factors in this case.
The mother is also likely to be distressed and the children may react to her distress. There is evidence before me of the children’s reaction to their mother’s distress and their concern for her when they spend time with their father.
Nor is it likely in my view, whatever parenting order is made, that the mother’s concerns about the children in the care of the father will abate or her actions in inculcating in the children their fears change, certainly not in the short term and not without ongoing therapeutic intervention. [61] There is every reason to believe that her limited insight and poor parenting responses will continue to manifest and she will continue to act out in ways that will negatively impact on the children’s ability to develop a meaningful relationship with their father.
[61] Counselling is only likely to be successful if the mother is open to this.
I also must take into account that these children have experienced significant upheaval in their lives because of their parent’s marriage breakdown dating from before their relocation to Mackay. It is a testament to their resilience that they have continued to progress well at school. [Y]’s teacher referred to school as being a refuge.
[W] has just started Grade 8, an important educational year. She is now attending a different school to the younger three children and whilst she will still have an ability to influence the children, her ability to do so at school changeovers may be lessened as a result of the transition taking place at different schools.
I rely upon and have already addressed, in the context of my consideration of the primary considerations, the risks to the children and I do not propose to canvass those again other than to say that notwithstanding the ground the father has made to build trust and the improvements in his relationship with the children since separation, I accept Mr Moriarty’s evidence that the children’s oppositional behaviour at the second interview evidenced a worrying deterioration in the situation from the first to the second interviews.
The father’s attempts at reparation of his relationship with the children are likely to continue to be influenced by how the mother acts, however this will be the case whether they remain in the mother’s primary care or in his primary care. However, notwithstanding the challenges, if I place the children in the father’s care his influence is likely to be greater and he will be afforded a greater opportunity to build trust.
Mr Moriarty outlined in his oral evidence the risks to the children on both parent’s proposals. I accept his evidence. Whilst it is not possible to predict the future, I accept that any risks associated with placing the children with the father are likely to be of short duration because of the children’s natures.
The mother says that the father has no history of primary care however there is nothing on the evidence that would cause me any concern about his ability to manage a household with four children and ensure that the children’s day to day needs are met. He has already taken appropriate steps in this regard.
Whilst it is superficially tempting to view any gains and improvement in the children’s relationship with their father as a reason to leave the parenting arrangements as is, given the children’s deep attachment to their mother, the concerning events of 30 September 2008 show that this is not the case. I am not prepared to view that as a mere isolated incident brought about by these proceedings.
Further, whilst the father informed Mr Moriarty that there had been improvement in his relationship with the three youngest children, his problems with [W] had worsened up until the interviews. Ms Hacker Senior also referred to the improvements, but also the ongoing difficulties with [W].
I find that any improvement in the father’s relationship with the children has come about because of the father’s actions, not because of any positive change by the mother. Mr Moriarty’s oral evidence was that the mother had made no change. Regrettably, I agree.
In my view if the father is afforded more time with the children free of the mother’s primary influence then there is some possibility of the present unhealthy dynamic being arrested. Of course this is an untested view. However, what is not untested is that to leave the children in the current parenting arrangement, without any change in behaviour from the mother, is to invite a continuation of the instability in the parenting arrangements that has occurred to date.
There was nothing in the mother’s evidence at trial that would provide any confidence that she has gained insight into the dynamic which has given rise to the children’s behaviours or that she accepts her role in that. This is notwithstanding expert reports, counselling interventions and the outcome of Departmental enquiry.
I give significant weight to these considerations and find that they favour a change in the children’s primary care in favour of the father.
Practical difficulties and expense
There appear to be no practical difficulties and expense in the children spending time with and communicating with their parents.
Characteristics of Children and Parents
I have already discussed this in the context of other considerations.
The great unknown in this case is, of course, the reaction of [W].
I do not underestimate the challenges she would present to the father in the event that I were to make the order he seeks.
However I take into account the social nature of the children (including [W]) and the superficiality of the children’s hostility to their father and what the ICL submitted as their “manners and intelligence”.[62]
[62] Counsel for the ICL’s written submissions at para.25
Had the father presented as less insightful and skilled then the “[W] factor”, if I may refer to it as that, may weigh against a change in the children’s primary care. However I am satisfied that, coupled with ongoing counselling for the children, that the father has the skills and the professional support to respond to any challenges that [W] and the other children may present.
Further, given the nature of the children, the evidence is that any emotional turmoil experienced by the children may be short lived. The evidence of the father’s employer and friends is that the children appear happy and settled in the father’s care.
I give significant weight to this consideration and find that it favours the proposals for a change in the primary care of the children.
Family Violence
I have already considered and made findings about this issue in my consideration of the primary issues. In view of my findings it is unnecessary for me to consider this again.
In view of my findings in relation to family violence this consideration has no impact upon my consideration of the competing proposals.
Orders least likely to lead to further proceedings
It is difficult to predict what outcome would be least likely to lead to further proceedings.
I have considered whether it would be appropriate to make an interim as opposed to a final order, on all proposals. However in my view no useful purpose would be served by doing so.
The children have already experienced a great deal of turmoil in their lives. They have already been exposed to a number of interventions. The making of an interim order would possibly lead to an updated family report involving further interviews and an ongoing focus on litigation with all its attendant stresses.
I have also considered the making of an s.65L order. On balance, and given the parenting orders that I propose to make I believe that it is preferable that there be no further involvement by the court. In reaching this decision I have had regard to the fact that the father has ongoing professional assistance and to the orders I propose to make for therapeutic intervention for the mother and the children.
Otherwise I find that any orders made should be detailed to ensure clarity.
Parental Responsibility
Under s.61DA(1), when making a parenting order, a court must apply a presumption that it is in the best interests of children for the children’s parents to have equal shared parental responsibility for the child. However, the presumption does not apply in certain circumstances, including where there has been child abuse and family violence or if there is evidence that it would not be in the best interests of a child for such an order to be made.
Both parties and the ICL seek that I apply the presumption. I regard an order for shared parental responsibility as appropriate in this case.
There are no circumstances here that would warrant, in my view, the exercise of my discretion in favour of excluding completely one parent from the consultation and decision-making involved with respect to major long-term issues for the children.[63]
[63] See dicta of Murphy J in Runcorn & Raine [2008] FamCA 837 at para.36 where His Honour observed the seriousness of such a step.
Equal or substantial and significant time with each parent
As I propose to make and order for equal shared parental responsibility I am required by s.65DAA to consider whether to make orders that the children spend equal time with each of the parents would be in their best interests and whether it is reasonably practicable.
If I am not minded to make that order then I am required to consider if an order for substantial and significant time with each of the parents would be in the children’s best interests and whether it is reasonably practicable.
My findings in this case negate the making of an equal time regime.
The mother’s evidence was she and the father “have considerably different parenting styles”[64] and that they were different people, with different ideas on “rules and regulations and how to follow through”. Whilst children can benefit from differences in parenting styles, in this case there is an absence of a workable co-parenting relationship, including good communication and trust that would best support an equal time shared care regime.
[64] Mother’s Affidavit of Evidence in Chief at para.24
Contrary to the mother’s sworn evidence filed on 10 October 2008 on the extent and manner of the parties’ communication the mother told the Department only a few weeks before that there had been no communication between her and the father for some 12 months.[65]
[65] Exh. 21 (Mother’s interview on 24 September 2008)
The parent’s present dysfunctional co-parenting relationship would adversely impact upon the children’s ability to settle as they moved between households on an equal time parenting arrangement. Children’s ability to settle is important generally, but particularly in this case. In his regard I accept the evidence of Mr Moriarty.
Parenting orders
In the end, the conclusions and findings that I have made in relation to the primary and additional considerations form the basis for my considerations about the parenting orders that I intend to make.
I have concluded that it is in the best interests of the children that I make the orders set out at the commencement of this judgment which include an order that the children live with the father and spend substantial and significant time with the mother as particularised.
I am satisfied that an order that the children spending substantial and significant time with their mother is in their best interests and reasonably practicable.
Whilst I accept that there is some merit in Counsel for the father’s submission that a reduction in the mother’s time to alternate weekend time is appropriate to afford the father a maximum opportunity to build trust and whilst I also accept that this accords with Mr Moriarty’s evidence,[66] on balance, I have decided that the children should be afforded the opportunity to have their mother participate in their care during some school week time.
[66] That a small reduction in time would make little difference
This may also lessen the children’s sense of loss, initially, and possibly the mother’s sense of loss and any impact of that on the children.
There is merit, however, in the four nights each fortnight with the mother during school term being taken in a block as opposed to three nights in one week and one overnight the following week, the current situation with the father.
Block time, will avoid disruption to the continuity of a school week and avoid the number of changeovers (including any problematic changeovers) which take place at school during the school term.
Further, the father’s evidence was that the children were “happier and more settled” over the three day weekend periods and that the time that was more difficult for them was the overnight Thursday in the alternate weekend.[67] Whilst I accept that that was the situation when the children were in his care and the children’s experience may be different with the changed parenting arrangements I propose, in my view a block period of time with their mother is preferable.
[67] Father’s Affidavit of Evidence in Chief at para.43
This parenting regime will also afford the father a block period of uninterrupted time to continue to build trust.
Whilst Mr Moriarty favoured a “swap” of the current parenting arrangements there is nothing on the evidence to suggest that the parenting arrangement I propose is not supported on his evidence. It retains a 10/4 night fortnightly split of time between parents.
Discussion and conclusions
The “clear picture” that emerges from the evidence is that the mother has limited insight and she does not value the father’s involvement in the children’s lives. The father’s evidence is, which I accept, that the mother “does not accept that this will be a long term serious problem for our children.”[68]
[68] Ibid. at para.88
Whether for reasons to do with what Mr Moriarty referred to as her “personal insecurities” or for some other reason, she is controlling of the father’s relationship with the children and I am satisfied that she will continue to undermine his role in the children’s lives and seek to inappropriately influence them.
In my view she probably does not do this consciously. However the conclusion I have reached on the evidence is that her actions are likely deeply embedded, unlikely to change without (possibly) significant therapeutic intervention and that she is likely to continue to act out in ways that not only undermine the potential for the children to have a meaningful relationship with their father but in ways that compromise their wellbeing.
Whilst this will remain the situation (until the mother gains insight), even if I place the children in the father’s primary care, I am satisfied that her conduct places the children at an unacceptable risk of harm and that to leave them in her primary care or in equal shared-care, notwithstanding their attachments, is to offer them more of what they have experienced to date, namely a “twilight zone” of dysfunction.
[X] threats of self-harm and [W]’s behaviours and the children’s collective presentation at the report writer’s interviews before trial should be a wake-up call to all.
Whilst it gives me little comfort to make an order that will remove children from a primary carer to whom they have such a strong attachment, against their wishes, and in the knowledge that this will cause them more distress given the turmoil they have experienced to date, I am satisfied that by placing the children in their father’s care, the one parent who does have insight and who does have the capacity to respond appropriately to their circumstances, there is some hope of arresting a damaging family dynamic.
Notwithstanding Mr Moriarty’s recommendations in his second report, prepared only three weeks before trial, wherein he expressed the views he did at paragraph 44 that the children should on balance remain with the mother, in my view there is a significant evidentiary base to depart from the recommendations in his report.
I rely on his oral evidence at trial that he would need to reconsider his recommendations if the court made a finding that the mother’s conduct consciously or unconsciously had the effect of undermining the relationship between the father and the children and that the mother could not control her reactions and those actions had an adverse impact on the children.
Further, it was not until trial that Mr Moriarty was made aware of the involvement of the department and the police.
Mr Moriarty’s oral evidence accords with the totality of the evidence and my findings, as to the unhealthy nature of the children’s relationship with the mother, that if they remain in her primary care their relationship with the father will likely never prosper (and may even become non-existent), the negative impact this may have on the children in the long term, that the father has a lot to offer the children, that the children are more likely to have a relationship with both parents in the father’s primary care than in the mother’s primary care, and that whilst there were risks in their placement in his primary care they are likely short term risks and able to be managed by him.
Whilst [W]’s reaction and the mother’s capacity to undermine the children’s living arrangements are unknown, I am satisfied that the father has the capacity to respond and manage the transition. He has to date shown himself to be patient and child focussed. He has managed the children’s hostility to him and the mother’s conduct in an appropriate way. He has not given up and has remained hopeful and positive. These are important qualities that he will need in his primary parenting role.
He also has a support network including his employer, family and friends. His mother was an impressive witness.
The three youngest children are attending a school where their teachers love and support them. Of course [W] is now at [M]. There is however no evidence before me that would cause me any concern that this school would not offer her appropriate support in line with that afforded to her and her siblings at [A] School, both schools being part of the Catholic education system.
I accept Mr Moriarty’s evidence that in effecting any transition there should not be a period of cessation of time between the children and the mother for the reasons that he identified. It is likely to further confuse the children and add to any distress by stopping them from seeing their mother.
I propose that school holidays and special occasions be shared equally. In this regard I prefer the proposals of the father which allow appropriate block time with each parent, particularly if either parent wishes to have some holiday time away with the children. The mother’s evidence, for example, was that she and the children enjoyed camping.
I propose however to extend the time the parents spend with the children on birthdays to 6.00pm if this occurs during a school week.
I have made Christmas time orders in line with the Father’s proposal which affords the parties a more equitable sharing of this special occasion.
I have made orders for the exchange of information which will ensure clarity as to the parties’ obligations. In that regard because of the difficulties that have arisen at the children’s primary school in relation to the duplication of daily notes given to the children to take home and the exchange of that information between the parents I have made an order that provides that in the event that the notes can’t be duplicated (and the evidence of Mr M explained the process and why that may not happen) then the father shall receive these notes and he shall keep the mother informed. The parties have access to email communication.
There appears to be no dispute that changeovers when they are not at school should occur at the home of the paternal great grandmother and I have made orders as to how that occurs to ensure clarity.
I propose that Dr A be engaged to see the children on an ongoing basis and that the parents be involved in that as requested by Dr A. I propose that the ICL make an appointment with her urgently. If Dr A is not available then I propose that the ICL select some other suitably qualified child psychiatrist. It is however my preference that she be retained given that the children have already seen her.
I propose that a copy of Mr Moriarty’s reports, these Orders and my Reasons for Judgment be provided to Dr A and to the mother’s counsellor for their assistance in the counselling process.
I have also made orders restraining both parents from taking the children to other than agreed doctors without the other’s consent, save in emergent circumstances. This is to avoid the children being over exposed to professionals and clarity of response.
The order of 27 March 2008 is still current including the prohibition against Dr N treating the children. I propose that the parties make a decision by agreement as to which doctor or surgery should be the children’s usual treating doctor or surgery and in the event of dispute I have formulated a mechanism for resolution of that.
I have also made an order that mother engage in her own counselling for the reasons I have identified. I propose that this be at the direction of the Regional Dispute Resolution Co-ordinator Qld and at the mother’s expense.
In terms of phone time I have not limited this to a fixed time period however I have limited any parent making a call to once a day save for emergencies. The children will need time to settle into their new circumstances and calls made too frequently may be unsettling for them. However the children should be at liberty to telephone either parent as they may reasonably request. In light of the orders I make changing their primary care and the history of phone time to date I see no benefit in limiting the children’s ability to speak to the mother on the telephone.
I propose that the children’s placement in their father’s care occur immediately and that changeover occur at their school today being a day when they will expect to be in their father’s care. I propose that the mother not be in attendance at that time. To facilitate changeovers and to ensure that the children’s arrangements are normalised as quickly as possible I propose to seek further submissions on the changeover arrangements.
I propose that the mother’s time with the children commence on Thursday 2 April 2009.
That arrangement will only occur once with the mother before the Easter break which commences about 10 April 2009. Under my proposed orders the father will spend time with the children for the first half of that break which will mean that they will be with the mother when they start the new school term.
I propose to make an order in terms of the mother’s undertaking to the court.
I propose to make the usual specific issues orders in relation to the exchange of information.
I do not propose to immediately discharge the ICL as there are matters that require attention and follow up by her in accordance with my orders. It is also desirable that she remain involved in this transition period.
I propose to make an order that both girls attend [M] College got their high school years and the boys attend [P] College, unless there is agreement to the contrary. It is now agreed that [W] attend [M] College and there is no reason why both girls should not also attend this school and the boys [P] College where [X] is already enrolled. [P] College, as I understand it, is in close proximity to [M] College.
There is no evidence before me to suggest that they will not otherwise be afforded an excellent education at these schools in line with their religious upbringing and the wish of both parents at one point that these schools were appropriate. The schools are located in Brisbane within reasonable proximity of both parent’s residences.
I am otherwise satisfied that the orders are reasonably practicable and in the children’s best interests.
In coming to my final conclusions I have also been guided by the objects and principles set out in s.60B of the Act.
I certify that the preceding two hundred and ninety-six (296) paragraphs are a true copy of the reasons for judgment of Purdon-Sully FM
Associate: M. Ledger
Date: 26 March 2009
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