Hale and Jeffrey - [2012] FMCAfam 606

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HALE & JEFFREY

[2012] FMCAfam 606

FAMILY LAW – Parenting – with whom the children should live – each parent seeking sole parental responsibility – consideration of the presumption of equal shared parental responsibility and the circumstances upon which it would be rebutted – determination to rebut presumption of equal shared parental responsibility – consideration of the objects and principles arising pursuant to the provisions of s 60B and consideration arising pursuant to the provisions of s.60CC(2) and (3) – balancing the children’s right to a meaningful relationship with both parents with the need to protect the children from harm – recognition of long standing shared care or significant and substantial time with both parents – consideration of expert evidence relating to medical, psychiatric and social science assessments in relation to each parent – consideration of the capacity of each parent to foster a relationship with the other parent – considerations arising from evidence as to capacity of each parent to recognise the value of the other parent’s relationship with the children – balancing of issues relating to change in the children’s living circumstances with long term benefits and stability arising from change – consideration of capacity of each parent to genuinely foster the relationship with the other parent – consideration of credibility and honesty of evidence given by each parent – orders with respect to variation of pre-existing shared care and equal shared parental responsibility to live with the father and spend substantial and significant time with the mother.

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61B, 61C, 61D, 61DA, 65DAA, 65DAC, 65DAE, 65L

Lansa & Clovelly [2010] FamCA 80
AIF v AMS (1999) 199 CLR 160
U v U (2002) 211 CLR 238)
Chappell and Chappell (2008) FLC 93-382

Applicant:

MR HALE

Respondent:

MS JEFFREY

File Number:

BRC 10148 of 2007

Judgment of:

Coker FM

Hearing dates:

12 & 13 May 2011, 23 August 2011, 4 November 2011, 16 December 2011, 24 January 2012 and 23 March 2012

Date of Last Submission:

23 March 2012

Delivered at:

Townsville

Delivered on:

22 June 2012

REPRESENTATION

Solicitors for the Applicant:

McMillan Legal

Solicitors for the Respondent:

Self-represented

Counsel for the Independent Children’s Lawyer:

Ms Lyons

Independent Children’s Lawyer:

SBA Family Lawyers

ORDERS

That all previous orders in relation to the parenting of the children X and Y born on (omitted) 2003, be discharged.
That the Father have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children, X and Y born on (omitted) 2003, subject to the communication and notification of such decisions to the Mother, including but not limited to:
(a)a child’s education (both current and future);
(b)child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with other parent.
That notwithstanding Order 1 herein:
(a)The Father be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with him.
(b)The Mother be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with her.
That the children, X and Y born on (omitted) 2003, live with the Father.
That the children spend time with the Mother at all reasonable times as agreed between the parties and failing agreement as follows:
(a)Each alternate weekend during the Gazetted school term from after school Thursday to before school Monday or Tuesday should Monday be a public holiday or pupil free day;
(b)For one half of all Gazetted school holidays:
(i)being the first half of the end of Terms 1, 2, 3 and 4 school holidays in even numbered years; and
(ii)the second half of the end of Terms 1, 2, 3 and 4 school holidays in odd numbered years,
That Order 5(a) herein 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.
That for the purposes of defining the first and second half of gazetted school holiday periods, the following apply:
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:
(a)The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Tuesday;
(b)The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Tuesday following the Easter public holidays to 6.00pm on the Sunday preceding the recommencement of school;
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:
(c)The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Friday which follows or is the last day of school until 9.00am on the Wednesday five days later;
(d)The second half of the gazetted end of Term 1 school holiday period shall be from 9.00am on the Wednesday until 6.00pm on the Sunday preceding the recommencement of school;
(e)The first half of a gazetted end of Term 2 or end of Term 3 school holiday period shall be from 5.00pm on the Friday which follows or is the last day of school to 6.00pm on the Saturday of the middle weekend of such holiday period;
(f)The second half of a gazetted end of Term 2 or end of Term 3 school holiday period commences at 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;
(g)The first half of the gazetted Christmas school holiday period commences at 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;
(h)The second half of the gazetted Christmas school holiday period commences at 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.
That each parent spend time with the children on special occasions at all times as may be agreed between the parties, but failing agreement as follows:
(a)At Christmas, provided that the parents are in the same locality, as follows:
(i)From 3:00pm on Christmas Eve until 11.00am on Christmas Day with the father in odd numbered years;
(ii)From 11.00am on Christmas Day until 3.00pm on Boxing Day with the mother in odd numbered years;
(iii)From 3.00pm on Christmas Eve until 11.00am on Christmas Day with the mother in even numbered years; and
(iv)From 11.00am on Christmas Day until 3.00pm on Boxing Day with the father in even numbered years.
(b)On the Children’s birthday as follows:
(i)That should the children’s birthdays fall on a day when the father is not otherwise spending time with the children then the father is to spend time with the children:
A.In odd numbered years from 3.00pm on their birthday until 9.00am the following day; and
B.In even numbered years from 5:00pm the night before their birthday to 3:00pm the following day.
(ii)That should the children’s birthday fall on a day when the mother is not otherwise spending time with the children then the mother is to spend time with the children:
A.In odd numbered years from 5:00pm the night before their birthday to 3:00pm the following day; and
B.In even numbered years from 3.00pm on their birthday until 9.00am the following day.
(iii)For the purpose of the parents spending time with the children on their birthdays, if that occasion falls on a school day, the parent entitled to spend time with the children will be at liberty to collect the children at the conclusion of school on that day and return them to school the following day, or to the other parent if the following day is a non-school day.
(c)On the Birthdays of the parents as follows:
(i)That should the father’s birthday fall on a day when he is not otherwise spending time with the children and a non-school day then the father is to spend time with the children form 9:00am on his birthday until 9:00am the following day;
(ii)That should the mother’s birthday fall on a day when she is not otherwise spending time with the children and a non-school day then the mother is to spend time with the children from 9:00am on her birthday until 9:00am the following day;
(iii)That should the father’s birthday fall on a day when he is not otherwise spending time with the children and a school day then the father is to spend time with the children from after school until 9:00am the following day.
(iv)That should the mother’s birthday fall on a day when she is not otherwise spending time with the children and a school day then the mother shall spend time with the children from after school until 9:00am the following day.
That each parent spend time with the children should it not normally be time spent with them for the entire weekend upon which Mother’s Day and Father’s Day fall from after school Friday until before school Monday.
That each parent inform the other as follows:
(a)Within 24 hours, of any medical treatment or hospitalisation of either child; and
(b)Home phone number, mobile number/s and email address.
That each parent have telephone communication with the children when they are not in their care at all reasonable times, with the parent not having the children in their care to be responsible for the making of the call to the other parent, and the parent having the children in their care to ensure that the children are available to speak with the other parent in a quiet and private environment.
That both parties shall be entitled to attend any school, social, sporting or educational event involving the children, including but not limited to theatre performances, sporting events, school activities and functions, Christmas parties and other special occasions and that both parties:
(a)Inform the other party of such events in a timely manner; and
(b)Communicate to the other if arrangements are made for the children to attend such an event whilst the child is not in that party’s care.
That the Mother ensure the children shall attend upon the (omitted) Medical Centre, or such other medical centre as advised by the Father in respect of the children’s medical and health matters (unless in the case of emergency) and will follow the recommendation of the treating general practitioner including recommendations for treatment plans and any necessary referrals.
In the event that the Mother is unable to attend a medical specialist appointment the Father will provide the Mother with a written statement from the doctor setting out the treatment plan and diagnosis (if any).
That each party shall keep the other informed as to their residential telephone number, work telephone number, email address, facsimile transmission and mobile telephone number and advise the other of any change to those details within 48 hours of any change.
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.
(d)Discuss these proceedings with, or in the presence of one or other of the children, or permitting any other adult member of the household to do so.
That in the event there is a dispute about the children or about the interpretation, implementation or enforcement of these orders, the parents, before making any further application to a Court shall:
(a)Either attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (as amended) or by the Commonwealth Attorney-General; or
(b)Participate in family dispute resolution with a Family Relationship Centre or a person authorised under s.10G of the Family Law Act 1975 (as amended).
That the Independent Children’s Lawyer be discharged.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT TOWNSVILLE

BRC 10148 of 2007

MR HALE

Applicant

And

MS JEFFREY

Respondent

REASONS FOR JUDGMENT

These proceedings have been on foot for a very considerable period of time. They were instituted in 2007 by Mr Hale, whom I shall refer to as the father. The respondent to the application is Ms Jeffrey, whom I shall refer to as the mother. The proceedings relate to two children of the parents’ relationship, twins, Y, and X, born (omitted) 2003.
As I say, the parties have been in dispute for a very considerable time, and tragically, notwithstanding the significant involvement of various professionals who have provided advice and assistance in relation to this matter, including psychiatrists, psychologists, social workers, school teachers, school guidance officers and a multitude of experienced medical practitioners, the parties’ dispute continues, and in fact, if anything, seems to have escalated.
It is in that circumstance, that it is necessary for there to be a determination made in relation to arrangements with regard to the final parenting of the children. The positions of the parties are quite diametrically opposed. The father’s position has not changed radically, but was finally outlined in the parenting orders sought, which were annexure AH29, to his trial affidavit filed on 23 February 2011. The orders that were sought by the father are annexed to these reasons, and marked with the letter A. The mother’s position also has varied over time, but was most comprehensively outlined in her case information document, lodged on 9 May 2011. The orders proposed by the mother, 1 through 15, are annexed hereto and marked with the letter B.
As is perhaps obvious from the comments that have already been made by me in relation to this matter, the diametrically opposed positions of the father and the mother can be reflected most obviously in the fact that each parent proposes that Y and X live with them, and each parent proposes that they should have sole parental responsibility for decisions to be made, in relation to the long term care, welfare and development of the children.
It should also be noted that the proposals by each of the parties, in relation to arrangements with regard to the time to be spent by the other parent, are generally reflective of each other, though the father proposes that the mother should have the children with her from after school Friday until after school Monday, though to all intents and purposes, it will be until the beginning of school on Monday, and that thereafter, there should be the balance of each fortnightly period spent with the father. The mother’s proposal is slightly extended over that proposed by the father, in that whilst there is one period each fortnight to be spent with the father, the mother proposes that it commence after school Friday, and conclude before school on a Tuesday rather than, as appears from the father’s material, to be before school on a Monday.
Each parent proposes holidays being shared between the parents, but it would appear also to be the case that neither proposes that there should be more lengthy periods of time spent with one parent or the other than one week, which of course, particularly during the Christmas school holiday period, places significant impositions on the opportunity to take a more lengthy holiday than would normally be the case, if the holidays were simply split down the middle, and therefore, a greater period were available.
Being mindful of the complex issues that arose in relation to this matter, an independent children’s lawyer was also appointed. When the proceedings first commenced, the independent children’s lawyer was not in a position where she felt that she were able to provide an indication of what the proposed orders might be, in relation to the matter. The independent children’s lawyer noted that the position at the commencement of hearing in May 2011, was that there was a shared care arrangement as well as equal shared parental responsibility, and that there would be no specific position taken, at least until such time as the evidence could be heard, in relation to the matter.
At the conclusion of the hearing, and it went for a total of some five days between May and December of 2011, the independent children’s lawyer was in a position where she was able to put forward specific proposals in relation to arrangements, with regard to the parenting of the children. The final minutes of orders proposed by the independent children’s lawyer are orders 1 through 25 of the annexure to the written submissions of the independent children’s lawyer filed on 2 February 2012, annexed to these reasons and marked with the letter C.
As can be noted from those orders, a slightly different position is taken from that proposed by either the mother or the father. In fact, it is proposed that there should be equal shared parental responsibility, provided however, that the independent children’s lawyer says that in respect of the two most hotly contested issues relating to the children, educational decisions and medical determinations, that the father should have sole parental responsibility in relation to such decisions, provided however, that the father is to keep the mother informed in a timely manner of decisions or changes that are made by him in respect of those specific responsibilities.
The independent children’s lawyer also proposes more specifically, however, that the children should live with the father, but then goes on to propose that the children should spend a more considerable period of time with the mother during each fortnightly period, such that it should be from after school Thursday until before school Monday in each alternate week, in other words, a period of four nights in one week, and from after school Tuesday until before school Wednesday in the alternate week, totalling therefore five nights in each 14.
The independent children’s lawyer’s proposal with regard to school holidays is that they should be shared, and the independent children’s lawyer does not suggest that there should be any distinction, as proposed by the parents, in relation to one week alternating arrangements, including during the longer Christmas school holiday period. The independent children’s lawyer provides, at some length, proposals specifically relating to issues in respect of educational and medical decisions to be made with regard to the children, and also understandably, puts forward proposals in relation to dispute resolution with regard to issues that would obviously arise, in respect of the children.
Interestingly in this matter, the initial position taken in respect of the proceedings was that it could be determined within a two day period. In fact, over time, it became clear that it would require considerably more time for hearing, and that stemmed in part at least, from the fact that initially neither parent, or the independent children’s lawyer, was of the view that Mr S, the family report writer having prepared three reports in relation to these proceedings, would be required for cross-examination.

As evidence fell in relation to the matter, however, it became more and more obvious that the concerns that were expressed by Mr S, and perhaps the changes that had occurred since his last report was prepared, meant that there would be a greater need for there to be consideration by him of those changed circumstances, and therefore an obvious need for there to be cross-examination.
On the final hearing day in relation to the matter, Mr S was required for lengthy cross-examination. I shall turn to his evidence in relation to this matter a little later in these reasons, but before doing so, should note that a considerable number of other expert witnesses were required for the purposes of giving evidence in relation to the proceedings, and in fact, other experts who provided reports or information at the request of the independent children’s lawyer, were not required, though no doubt, their evidence was still to be relied upon.
I shall refer to the evidence of those various witnesses, and the evidence, in particular, of Mr S before turning to the evidence of the parties themselves, as it is important in my assessment that there should be a clear understanding of the very difficult issues that arise in relation to this matter, and they are, unfortunately, exacerbated by the personalities and behaviours of the parties.
It is significant that those issues need to be fully apprised, or appreciated, before the evidence of the parties can be more completely examined, in relation to the matter.
I turn then firstly, to the evidence of the witnesses who provided affidavits but were not required in relation to this matter. The first of those witnesses was Dr C, a psychiatrist in private practice in Brisbane. At the request of the independent children’s lawyer, Dr C interviewed both the father and the mother, and provided reports in relation to both of these parents. Dr C is a most experienced psychiatrist, having been in practice for some 30 years, and is well known to the court and to the family law jurisdiction.
I do not intend to address his evidence at any great length, particularly as he was not required by any of the parties in relation to this matter, but it is noteworthy that in the summary and assessment relating to the father, he said the following:
This 43 year old man has really had only one significant relationship in his life and has clearly had some difficulties in relating to women. I suspect this stems in large part from his unsatisfactory upbringing, from the death of his mother at a young age and from an unsatisfactory relationship then with his father and step-mother.
He goes on:
Certainly there is no suggestion that this man has an Axis 1 psychiatric disorder. I think that he has personality difficulties in the avoidant and dependent spectrum, has had difficulties dealing with conflict and there seems to be some mutually admitted marked conflict in the relationship with Ms Jeffrey. Indeed he would appear to have had some difficulties in disentangling himself from that relationship and indeed both parties have clearly had some troubles with boundaries.
Dr C then goes on finally, at page 9 of his report in relation to the father to say:
This man certainly from the current presentation appears motivated to remain in contact with his children and there is certainly no clear indication from the material to hand which would suggest that he should not have some ongoing contact with them.
Of course, that report was prepared some considerable time ago, Dr C having noted his report as dated 12 March 2009, and circumstances have changed where the father no longer seeks orders in relation to spending time with the children, but rather, now seeks orders with regard to the children living with him. Not being called in relation to the matter, however, I can only assume that his assessment in relation to the father presenting no concerns with regard to interaction with the children would mean that his more significant involvement, including having the children living with him, would not similarly give rise to concerns.
In relation to the mother, Dr C’s report of 12 March 2009, again under the heading, Summary and Assessment, makes reference to the difficulties that exist and continue, unfortunately, in the relationship between the mother and the father. He says the following:
This 41 year old lady, like her previous partner, and the father of her children, has considerable baggage. It seems that she has been in and out of counselling over a lengthy period of time and she would appear to have suffered a mixture of anxiety and depressive symptoms. It seems that she was an only child, having lost her younger brother when very young, was lonely and somewhat naïve during her youth. She certainly appears to have had a significant degree of ambivalence in relationships with men and indeed told me that she now wanted to put the relationship with Mr N on hold until these matters were sorted out though certainly it was unclear from her account, as to what her plans were in the future. It seems as though this lady had some similar difficulties in the relationship with Mr Hale. Her account is that it was all his problem but the family report writer, I think, has highlighted this history very well, when he says at paragraph 22, “The challenge in interviewing Ms Jeffrey is that she seems to attempt to use the family report as a trial process to prove Mr Hale’s contended responsibility for all pre and post separation adult and parenting problems.”
Dr C then goes on:
This was certainly my impression in the interview and this lady certainly presented with a degree of passive aggression. There are certain significant dependent features to her personality and she certainly appears to have had difficulty in extracting herself from the relationship with Mr Hale which from her account, was bad from the word go.
Dr C then goes on to speak of the relationship that the mother, at that time, had with a partner, Mr N, though it should be noted that by the time the matter finally came for trial, in May of 2011, the mother was not in a relationship with Mr N, but had rather formed a relationship with and had married Mr T. The mother certainly had a number of issues that were noted by Dr C, but concluded at page 11 of his report as follows:
- - it is my clinical impression that there were profound difficulties on both sides in the making and breaking of affectional bonds and that those difficulties in some significant way, remain. It would appear that both Ms Jeffrey and also her former partner, have had “treatment” over the years though their early life experiences would appear to still be having a pressing effect upon their adult relationship.
Dr C did not note any specific psychiatric issues in relation to either of the parents, but clearly was of the view that their experiences in the past had led, at least to some degree, to the difficulties that they were having in 2009 with their relationship with each other, and clearly those relationship difficulties continued now and into, it would seem, the future. I was assisted by the evidence of Dr C.
The principal of the (omitted) State School, Mr D, also provided two affidavits in relation to inquiries directed to him by the independent children’s lawyer. Those affidavits, filed 18 October 2010 and 28 February 2011, specifically responded to questions that were directed to the principal by the independent children’s lawyer, and noted issues with regard to the children’s progress at school, matters of concern, parental conflict and the like.
The first report noted the children’s attendance at school, and in particular, recorded that in 2009, the child, Y, had a total of 36 days absent from school, and between 1 January and 6 August 2010, had a further 19 days absent from school. In the case of X, the records indicated that in 2009, but it should be noted, only between 14 September and 11 December 2009, some three months, there were 32 days absent. And in 2010, between 28 January 2010 and 6 August 2010, another 24 and a half days of absence were noted.
A similar pattern emerged in the second affidavit of February 2011, which related to a more complete assessment in respect of the children’s attendances at school and absences, in that it was noted that for Y, in 2010, there were 22 full day absences, nine part day absences, and eight unexplained absences. In 2011, there was only one part day absence recorded as 31 January 2011. Insofar as X was concerned, however, there were more significant periods of time, noting that in 2010, there were 31 full day absences, nine part day absences, and 15 unexplained absences. In 2011, however, the situation radically improved, and only one day was noted as absent, though of course, the report only addressed two or three weeks of the school term.
Mr D noted in his response to the queries directed to him by the independent children’s lawyer, that no matters had been reported by the students to the school pertaining to their home life that indicated problems, and confirmed this in both of his responses. It was noteworthy also that in both responses, Mr D noted that both parents had considerable contact with the school, and noted the children lived week about with their parents, whichever parent had them in a particular week was responsible for notifying the school of absences. He also noted that both parents had attended parent teacher interviews, met with teachers to discuss specific concerns, and attended school events.
He noted also the referrals to the guidance officer, particularly in relation to the child, Y, but that whilst there were certainly some difficulties with speech and language, the child appeared to be progressing well academically. The school reports which were annexed to the affidavits by Mr D also indicated a generally positive progress being made by the children.
Mr D was not required for cross-examination in relation to the matter, and whilst clearly, there are some concerns that arise in relation to the number of absences, particularly in 2010, there do appear to have been some improvements in that regard, and that is perhaps reflected in the fact that neither party, nor the independent children’s lawyer required Mr D for the purposes of cross-examination.
A number of witnesses, however, were required for cross-examination in relation to this matter, and in fact, one witness, the mother’s husband, Mr T, was also required by subpoena to attend. I shall turn to his evidence at the time of addressing issues in relation to the evidence of the mother. Before addressing the parties or the mother’s husband’s evidence, however, I intend to note, as I indicated earlier, the evidence of the various experts that were called in relation to these proceedings.
All had something to say about the children and the parents, but all, I thought, also noted the direct effects that were being had upon these children as a result of the continued dispute that existed between the mother and the father. The first witness called in that regard was Mr B. Mr B is a medical psychologist employed by State Health. Mr B had the opportunity to attend with the child, X, at a time of admission for pneumonia. Mr B was called by the independent children’s lawyer.
It was noteworthy that in his affidavit, but perhaps more particularly in his cross-examination, Mr B noted firstly, that in his professional assessment at the time that he saw X, she did not need further psychological assistance, but that he provided information in relation to the matter, as requested to do so. He noted also that whilst the mother said that there were some demeanour changes in X at the time of her hospitalisation, Mr B did not note such changes.
Mr B also noted that issues in relation to child protection were raised with him by the mother, but do not appear to have been reflective of disclosures made by the child.
In cross-examination by the solicitor for the father, there was little explored in relation to the evidence of Mr B, perhaps reflective of the fact that he only saw the child on three brief occasions, once for perhaps 60 minutes, and then twice for 30 minute appointments. What was noteworthy, however, was that Mr B was asked to confirm, and did confirm, that it was the mother who had asked him to refer the situation, if I can describe it that way, in relation to X, to the Department of Communities, and indicated that he was surprised at this, as there had been no disclosures made to him.
In cross-examination by the mother, these particular aspects of the matter were explored, and Mr B noted that a concern was raised by the mother about X being left home alone when she was ill, but he was adamant that there was no disclosure made by him, by the child. The mother seemed determined, as she did with all witnesses, to obtain evidence which was of a critical or damming nature in relation to the father, whilst Mr B clearly was of the view that no disclosure had been made, the mother was determined to obtain from him evidence which she thought would be of assistance to her.
She asked, and he noted that he did recall X saying that she didn’t want her father to attend with her at the hospital, but when asked why that was, he rather nonchalantly noted that it was because of the father providing a boring environment when the child spent time with him. Perhaps a less experienced psychologist might have drawn something adverse in relation to the father from that, but Mr B was not led into that particular realm, and rather simply noted that it was something that might be said by young children.
The mother, however, attempted, as she did on so many occasions, “to hang her hat on this”, noting that X did not raise any concerns in relation to her mother. Mr B acknowledged that that was the case. I was assisted to some small degree by the evidence of Mr B in relation to this matter.
Also called in relation to the proceedings was Y’s school teacher, Mr M. Mr M was called by the independent children’s lawyer, and noted certainly some difficulties with regard to Y, not so much academically but more socially. In his evidence-in-chief, he noted the child’s behaviours were slightly different, or somewhat different, to other children in the class, and that in his professional opinion, Y’s social skills were somewhat deficient and that he needed more instruction and guidance, in relation to interaction with his peers.
Quite simply, Mr M said that on occasions, Y would annoy other children in the class, and would not, as he put it, “deal with other children in an average way”. Mr M noted that he had had a number of meetings with the parents, and that at certain occasions, Y had been on a behavioural contract, which was a means by which it was attempted to, at least in some way modify the behaviours of the child.
Mr M noted that this was not a permanent contractual arrangement, but rather one that existed for a period of up to say a month, and then depending on need, and the needs of other children in the class, may be re-established.
Mr M noted that various discussions with the parents were held separate and apart, including the parent/teacher interviews, but that this was a normal procedure in separated family units. Mr M was asked about his interaction with each of the parents, and I think quite professionally, he noted that the father was approachable, that he accepted advice and took it on board, and that the mother similarly behaved in an appropriate manner and was accepting of the advice that was given.
Neither parent raised concerns for him in relation to their capacity to provide for the children. In particular, Mr M noted, again quite properly from the parents’ perspectives, that neither sought to involve him in the conflict that existed between the two of them.
In cross-examination by the solicitor for the father, Mr M confirmed that the class that Y was in was an all boys class, but was not prepared to draw any adverse findings in relation to how that might affect the behaviours in the class, and in particular, affect Y. He noted and acknowledged that an all boys class was perhaps a little more boisterous than a class of mixed sex, or one that was entirely female, but noted in particular, that there can be variations in all classes and groups, and that there was little that could specifically be drawn in that regard.
He noted in passing that Y was achieving sound but not outstanding results, and that he did not display any specific scholastic excellence.
The mother also cross-examined Mr M, and he again was positive about his interaction with the child, the attempts made to modify behaviour of an inappropriate nature in class by Y, and the involvement of both parents.
I must say that I was generally assisted and impressed by Mr M. He gave me the distinct impression that he was all that could be hoped for in a professional and experienced teacher, in that he was caring and at the same time, firm enough to ensure that children with behavioural or other difficulties were dealt with appropriately, so as to enable them to move forward in their education, both academically and socially.
Also called in relation to the matter was the guidance officer from the (omitted) State School, Ms M. Ms M is a highly qualified psychologist, and has worked in a number of spheres for a period of perhaps 40 years. She holds, as she noted, two teacher’s degrees as well as a Masters of Psychology, and was a most convincing and experienced witness.
In particular, she knew exactly what were the bounds of her areas of expertise, and did not overstep those bounds. In cross-examination by counsel for the independent children’s lawyer, Ms M noted her various instances of involvement with the children, and in particular, Y, and noted the request by Mr M that she assist in dealing with some of Y’s more, “challenging behaviours.”
She noted that there was a meeting between herself, Mr M and the father, and that at that meeting, issues were discussed, including the child’s high level of distractibility, and the fact that he was distracting of other children, and unable to stay on task. She noted that one of the concerns that arose from this was the social isolation that it placed upon Y, and that some of the other boys avoided him, and in fact, Y, from her observation, found it difficult to work in a group way. She indicated that Y himself had some difficulties understanding why he wasn’t accepted by other children in his peer group, and she made reference to his poor, social cognition.
Ms M, in particular, spoke of the meetings that she and Mr M had with both parents about Y being placed on a behaviour contract, and noted that she thought the father was less than accepting of the need for such an arrangement. She explained that she thought that that arose from the fact that she and the child’s teacher were commenting upon behaviours that the father himself had not experienced, and noted that the father felt somewhat challenged in relation to such issues. She noted the mother was more agreeable to such a course being followed.
Ms M was asked about issues in relation to attention deficit hyperactivity disorder, as well as attention deficit disorder. She noted that the school and schools that she had previously been involved in, would be supportive of the decisions made by parents, and the medical practitioners who made recommendations, in relation to children. It was noteworthy, however, that whilst she was not perhaps as experienced or medically qualified as some of the other witnesses, she had enormous experience in dealing with children over many decades, particularly those experiencing behavioural issues, and noted that in her assessment, and I think it is a fair generalisation, that,
Sadly, medication is not a magic wand. It depends on the child’s situation.
She went on to note that in passing, medication is just part of the diagnostic procedure, and that whilst Y was not, to her knowledge, receiving medication, the behavioural contract had had some effect, and that Y had, as she noted, tried to honour the behavioural plan.

Ms M was also asked by the independent children’s lawyer about her knowledge of the child, X. She noted in that regard that she had not been called in for specific one on one involvement with the child, but had been involved in discussions with regard to the management of various behavioural issues involving X, and noted that recently, she had been involved in discussions at an informal meeting, in which a complaint by X had been raised of her being bullied, but that the principal, in investigating the matter had assessed that in fact, it was X who was acting in a bullying manner.
More particularly, however, Ms M noted that from the information that she had, and the observations she had made, though not on a one on one basis, she was of the view that X may not have presented as suffering from the conflict that existed between her parents, but noted that there was a general concern in situations such as these, as children are, “caught in parents’ conflicting views” and that adversely affects children.
Ms M was cross-examined by both the solicitor for the father and by the mother directly. She was asked specifically by Mr M, on behalf of the father, whether, when she saw the parents in June of 2011, she thought that the situation within this, “split family”, had contributed to any of the issues in relation to Y’s behaviour. She answered, I think quite thoughtfully, when she said that she thought that that might be the case in part, but it was not the full explanation, and there obviously needed to be further investigation.
Interestingly, she also noted that the recent discussions in relation to X and to her behavioural issues, might also be a product of the dynamics of a split family, and in fact, she noted that in that regard, she thought that perhaps X’s behavioural issues were more directly a result of the pressures brought to bear, as a result of the split family unit, than might be the case with Y.
It was noteworthy also that Ms M, when asked about any private approaches made by either parent in relation to the matter, noted that following a parent, teacher and guidance officer meeting, that the mother had spoken with her after the father had departed from the meeting, and that the mother had requested that Ms M provide a letter in relation to her recommendations. Ms M, again, quite professionally, indicated that she was not intending to involve herself in that particular aspect of the matter, but rather, simply intended to write up her notes of the meeting that had occurred, and that there would be no recommendations made in relation to further treatment or needs on the part of the child.
The mother’s cross examination of Ms M was again, unfortunately, I thought, specifically designed to obtain supporting information for her, but also more particularly, and perhaps more unfortunately, to draw possible bases upon which criticisms could be made of the father. In that regard, for example, the mother sought from Ms M, confirmation of her cooperation in attempting to establish various times that might be available for meetings, and requests made for extra teaching assistance for X, as well as suggestions that the mother would assist at the school, in any way that she could.
Again, the distinct impression was that the steps taken by the mother, including her discussions with Ms M, were more to ingratiate herself with Ms M and the school than directly relating to a wish to fully deal with the issues of concern, that did arise in relation to these two young children.
The mother also, in her cross-examination, sought to draw adverse comments in relation to the father. In that respect, particularly for example, the mother sought from Ms M, confirmation of the fact that she was seeking to have the child medicated, and that there was a lack of consensus or agreement on the part of the father. However, Ms M went on to note that the mother was seeking the schools, and in particular, Ms M’s support for medication to be prescribed for the child, and Ms M, again, quite properly indicated that she would be able to give information in relation to various treatments and aspects of treatment, but could not give advice in that regard.
Ms M was able to give a comprehensive statement relating to the social implications of a child with ADHD, or at least with some of the characteristics of ADHD. She noted, for example, that in her terms,
A chip is missing from their computer, and therefore they don’t read social situations.
She noted that children experiencing these difficulties didn’t pick up on the subtle messages that were exchanged between groups of children and that in many instances that it appeared that their behaviours were out of kilter with other children. She described them as being, “gross” in their behaviours, and in that regard, I gained the impression that she was speaking more about the extent of behaviours, rather than of anything inappropriate in those behaviours.
Also, she noted that many children displaying the characteristics of ADHD or ADHD were not concerned with what other children might think, and they had no understanding of social disapproval. It therefore led to difficulties with other children, because of the behaviours to which I have referred, they didn’t want a child displaying those behaviours to participate in their activities. It gave rise to difficulties in children coping with such arrangements, and of course, meant that there were again occasions where the child was isolated and felt left out.
Having given that explanation, the mother sought more supportive evidence from Ms M of her own behaviours, however, the answers were not at all what I think the mother sought to elicit in this matter. For example, when the mother asked Ms M whether, in a general sense, a mother being concerned about their children and their behaviours is a normal response, Ms M brought it back to this particular case when she said,
Yes, but you can’t say that all of Y’s difficulties arise within his inner conflicted situation. He lives in a great deal of conflict, and that has an effect upon him.
She was recognising, I think, quite properly, that there is a very real and significant contribution to the difficulties that both of these children are experiencing, as a result of the continued conflict and dispute between the parents.
I was generally assisted by the evidence of Ms M. She clearly has educational qualifications as well as an enormous background and experience in dealing with children in circumstances such as those that exist in this family group. She was able to recognise that there were a multitude of reasons and factors which might affect behaviours in relation to children, and unfortunately in this instance, zeroed in on the very clear fact that to a significant degree, the circumstances within the family unit, or rather here, the two family units, was a factor contributing significantly to the difficulties in relation to the matter.
Dr K, a paediatrician, confirmed his affidavit of August 2011, and noted that he had provided treatment for X in relation to her asthma. He noted also that a chloride test had been done to confirm that the child did not suffer from cystic fibrosis, but certainly did carry the gene, which might mean that could be an issue in years to come.
Dr K was asked about behavioural issues with X, and indicated that in his meetings with the child, that had not been an issue that was of concern. Dr K noted the difficulties that already had arisen in relation to treatment that had been proposed by him in relation to X’s asthma, in that he noted that there had been difficulties with regard to the dosages that were provided to the child, and that one of those difficulties had stemmed from the fact that the name of the child on the script, be it Mr Hale or Ms Jeffrey, had led to some of those problems.
Dr K gave me the impression that whilst he was required to give evidence in relation to this matter, he did not hold a particular view one way or the other, as to issues in relation to the child, other than that he had some concerns relating to the asthma management plan, and its continued application in relation to the child. Again, unfortunately, the impression that I did get in relation to this matter, is that the mother sought to draw from Dr K more than he was prepared to give, though it did provide some insight into the determination of the mother, perhaps even unknown to her, to achieve her own goals, in relation to the proceedings.
In that regard, for example, she sought specifically to gain Dr K’s support in respect of what she at least would contend, was a lack of application or proper approach by the father, in relation to dealing with health issues in relation to the child. Though Dr K did not appear to wish to be drawn in relation to that particular matter. He noted that he had raised with the father the appropriateness of the sweat chloride test being done, but that it had not occurred for some time after he had raised that with the father. Of course, it was not of particular weight in relation to the determination of this matter and I must say that Dr K’s evidence though no doubt given in a professional and appropriate manner did not assist me in the determination of issues with regard to parenting of the child.
Also called in relation to the matter was Dr O the director of Child Development and Rehabilitation Services at the (omitted) Hospital in Brisbane. He was a consultant paediatrician and was close to retirement. I make that comment simply because he was asked about continuing treatment for the child and noted that he would not be involved in that because of his impending retirement.
Certainly Dr O clearly had an enormous background in child development and rehabilitation services and was a most experienced medical practitioner. Dr O noted that he had seen the child, Y, and in particular noted that there was more to be inquired into, in relation to Y than simply issues with regard to ADHD. He described the situation as more complicated and he said that there were other problems that needed to be dealt with, in relation to Y’s behavioural issues.
He noted that he had seen both of the children in 2008 and at that time that the child, Y’s speech had been delayed and that there were also attention difficulties.
There was concern at that time that Y may have been suffering from autism but that had not turned out to be the case. It was rather determined by him that there were speech and language difficulties arising from attentional weaknesses and originally it had been thought that they may have arisen from maturity issues and to some extent that particular theory was supported by the fact that there appeared to be improvements in 2009 and 2010, but in early 2011, the child appeared to be then displaying an inability with continued attention and behavioural difficulties and the school was expressing some concern in relation to impulsive behaviours.
The mother had raised then issues with regard to ADHD and Dr O had suggested that he met the criteria for medical intervention, particularly in light of the long-standing difficulties that the child had been experiencing.
Dr O noted that there was, he thought, a two part plan that should be instigated in relation to treatment involving both an attendance with a psychologist to deal with issues in relation to the child and also, if necessary, the administration of medication.
Dr O noted however that the parties were, as he understood it, unable to agree on a psychologist and that that gave rise to certain difficulties. He said that in discussions with the parents he had discussed a medication trial to see what works and what side effects there might be and then to review the situation but that the father had been somewhat reluctant to involve medication.
Dr O noted in particular that if, as he was asked to assume, the parties were having difficulties in agreement with regard to treatment of the child, then a certain and set plan would be beneficial.
Dr O noted that that would be appropriate and went on to say that the more conflict there is in a child’s life the worse the impacts would be and he thought that that would particularly be the case, in relation to the child, Y.
In cross-examination by the solicitor for the father, Dr O acknowledged that a matrimonial breakdown can have a possible effect upon ADHD or perhaps even give rise to characteristics of ADHD in a child, who does not suffer from the problem. He noted that that can arise because anxiety can lead to an effect on the child’s attention and that that can lead to concerns with regard to certain behaviours.
Dr O certainly was of the view that a combined treatment plan, involving both interviews and attendances with a psychologist as well as perhaps some limited medication to see how it might affect the child’s behaviour as well as to assess whether there might be any side effects would be appropriate but observed that the father was reluctant to do so. Dr O certainly noted that the father had concerns in that regard and acknowledged that he was aware that there was a continuing medical debate about Ritalin and its deleterious effects upon children, but notwithstanding that and of course Dr O was far more expert than any other in the room, it was clear that a low dose of Ritalin should be started to monitor how it affected the child’s behaviour, as well as whether there might be side effects.
Dr O again was asked to comment about certain issues with regard to X, including those which had been raised by Ms M in relation to bullying and/or stealing by the child but he said they were behaviours which were too broad for him to comment upon, without far more information being available.
Dr O did at the conclusion of his evidence however, again acknowledge that parental conflict may be a significant factor in relation to behavioural and other attention deficit issues that might arise with regard to any child and noted that,
Conflict between parents is never good for children.
Dr L is the children’s general practitioner and commented upon issues in relation to the treatment of the children. He noted that he had spoken with both of the parents and did have a concern that, with the mother making arrangements for the children to consult with a different medical practitioner that there was always a concern that care could not be as effectively delivered in relation to the children, where two or more medical practitioners were involved.
Dr L, I thought, also very significantly noted that as between these two parents there was, as he put it, “another agenda”, and that things said by one doctor or the other to one parent or the other, were taken out of context and used by them. It was suggested by Dr L that many of the difficulties that he was experiencing in relation to the treatment of these children arose from the difficulties in the relationship between the parents and that was reflected in fact in the fact that whilst he had suggested that both parents should be present during consultations in relation to the children, he had been told that this was not feasible and that the mother had indicated that she was not confident or comfortable with the father present.
Dr L was not cross-examined by the solicitor for the father and the mother’s cross-examination was not extensive, other than to address issues in relation to any communications between Dr L and Dr O and there Dr L noted that in that regard there had been some discussions but no written exchanges between he and Dr O.
Again, I was assisted by the evidence of Dr L, more particularly because it was simply again reflective of the fact that so many of the experts here were of the view that at least in part, and perhaps significantly, each of these parents’ behaviour had to some extent affected the children’s behaviours and unfortunately those effects were generally of a detrimental nature.
As I indicated, I also had the opportunity of hearing evidence taken from Mr S. Mr S has provided three reports in relation to this matter dated, 29 January 2008, 31 March 2009 and 25 August 2010. Mr S indicated that since the preparation of the third report, he had received further information in relation to these parents as well as these children and he confirmed that he had seen the trial affidavits, as well as having had made available to him various items from the subpoenaed material.
He noted that, in light of the perusal of so much of that material, that there had been some changes in his recommendations. He was asked to assume that the conflict that he had noted as early as the first report between the parties had remained and if anything was more entrenched and it was asked therefore whether that would have a more detrimental effect on the children. He was also asked to comment whether, if that was the case, he would change his recommendations.
He noted there, that the reports that he had previously given were largely designed to endorse shared care and equal shared parental responsibility and to try and emphasise to the parents the importance of them changing their behaviours one to the other, for the benefit of the children.
He noted however, that co-parenting had been so poorly managed by the parents that it was, as he assessed it, unsustainable, particularly in relation to educational and health issues and that a change was, in his professional opinion, absolutely essential.
When asked to turn his mind particularly to that recommendation he indicated that from all of the material that he had seen, the father seemed to be more inclusive and he noted that if the dispute between the parents were to continue, then it would not be beneficial to the children and that therefore one parent had to have greater responsibilities in relation to the matter.
Mr S noted the disputed facts that were relied upon by each parent in relation to this matter and perhaps the overall perception that each parent had, that it was the responsibility of the other parent that led to the difficulties, in relation to the proceedings. In that regard, he noted that any recommendations he made were relative to these two parents and related to the assessment that he had made of the mother and the father.
In his assessment, the high conflict that existed was not in the best interests of the children and as he put it, “if it continues then there will be poorer outcomes for the children involved, because of the high conflict that continues in shared care”. He was then asked with whom he would recommend that the children primarily live and he indicated that he supported the father in that regard, because of him being somewhat more inclusive of the mother’s involvement in the children’s lives to an appropriate degree and it was at least, a proper means of addressing the “dysfunctional co-parenting situation that existed”. He described it as there being two hands on the wheel but them going in different directions and the family being all over the road.
He was asked whether there was anything unusual in the fact that the parties were able to make a number of decisions in relation to the children and to make them work, but that there were continued problems with the specific issues of health and medical treatment and educational decisions. In that regard, he somewhat astutely, I thought, noted that the parents were able to make, “the practical aspects work but it was still conflictual”, and that that was a matter of real concern.
Mr S commented upon the possibility of pairing off education and health and making that the responsibility of one parent only, perhaps the father, and whether that might be of assistance. He said it would be a means of limiting or blunting conflict between the parties but of course continued to note that the exchanges between the parents in relation to other issues, was still conflictual.
He was also asked whether perhaps an appointment of a family consultant pursuant to the provisions of section 65L of the Family Law Act might assist and he suggested that that might be a viable option, as it would appoint a, “quasi parent for the parents to help them in co-parenting”. He noted however, that at the end of the day that would not be able to continue and someone would have to make the decisions.

His view, very much was that these parents had had enormous guidance and assistance provided to them since the making of the first report and recommendation some years ago and as he put it, he had “hoped that the reports would offer assistance but to date there appeared to have been no substantial changes”, and if that was the case then eventually one parent would have to be elected over the other to make the decisions that were appropriate in relation to the children.
He noted that stability was important and that the continuing uncertainties that existed in the current parenting arrangements would make it more difficult for the children to be accommodated in relation to the matter and to deal with the obvious concerns and issues that already arose, in relation to their lives.
In cross-examination by the solicitor for the father, Mr S was asked to comment about the mother’s demeanour in the witness box that day. Mr S had been given the opportunity to observe evidence taken from the mother and whether it was any different from what he had previously seen. Mr S, an enormously experienced social worker with perhaps 30 plus years experience in the field, noted that he had been, “challenged by the mother”. He found that she had focussed ideas, that she fixed on others and the problems that she envisaged them as having, but took on little about herself.
He was asked whether the mother’s style both in parenting and perhaps dealing with other people was dogmatic and Mr S acknowledged that it was certainly a situation where she had, firm and fixed ideas.
It was noteworthy in particular that Mr S referred to a comment made by Dr C in his assessment, it being the case that Dr C had referred to Mr S’s assessment. Mr S noted that Dr C said that each of the parents had difficulties in removing themselves from the, “bubble of the conflict”.
Mr S was very much of the opinion that the mother was fixed on her own views, was not open to feedback and was determined in her own way, to get her own way.
When asked about the father’s demeanour and appearance, Mr S noted that the father by manner, tone and demeanour presented quite differently to the mother. Mr S assessed him as, “thoughtful and composed” and noted that the father didn’t seek to use the report as a platform to expound his own views. Mr S assessed the father as having a more sensitive approach than the mother and was more inclined to take on board what had been said in the report and that this generally presented as a gentler approach than the mother’s which was simply to impose her own views upon all, including particularly the father and the children.
Mr S was asked about the evidence that had previously been given, to a significant extent about behavioural issues with regard to Y and what he could comment about that. Mr S noted that he was not an expert on attention deficit disorder or attention deficit hyperactivity disorder but noted particularly, that the effect of home conflict upon children was that, “the more children are distracted by conflict at home the more likely they are to act out at school”.
Mr S certainly was of the view that whilst there could be medical reasons for the behaviours of Y, there were also issues that arose in relation to the effect of the circumstances of the home life of the children and that that would need to be examined.
He noted it as perhaps like a “multiple choice”, where the options affecting the child and in particular in this case Y, might be option A, might be option B or might be a combination of both medical and social influences upon the child arising from the home situation.
The mother cross-examined Mr S at considerable length. I gained the distinct impression that the mother was not happy, particularly with the final recommendations that were made by Mr S, in relation to primary responsibility and primary living arrangements that should vest in the father and that she sought to challenge both his professionalism and the basis upon which such recommendations were made.
She challenged the information that he had but he quite properly and professionally responded that he takes on board, not only the information provided, but his observations of the parents, his observations of the children, his observations of the parties’ interactions and of course much other information that becomes available from a number of other sources, including court orders as well as material filed and documents that might have been provided.
Mr S, I think quite comprehensively explained that the information provided just by one party or the other was only a very limited and small factor to be considered, in relation to the final recommendations that were made.
The mother challenged Mr S about the recommendation that he made for X and Y but in this instance particularly X, to spend more time with her father and consequently, less time with her mother, when he had noted that X’s wish was to spend more time with her. Mr S noted that this was a difficulty which had arisen because initially the child sought more time with her but that he had taken into account many other issues including particularly, that X had appeared to have now taken on a role as a parent to the mother and felt responsible for her care and provision, and that that was a matter of particular concern as its effect on a young child in their later years would be significant. As Mr S noted, he was mindful of “myriad factors”.
During her cross-examination of Mr S the mother, on a number of occasions went into, what I would describe as lengthy statements of her beliefs and intents. At one stage, she set out to Mr S the following:
I think I have changed a lot. I have followed through. I have been to mediation. The father is not instigating any changes in his life. I feel I’ve done all I can to keep it out of court. Why don’t you have that impression?
I felt that Mr S had anticipated such an approach by the mother, probably from his experience of dealing with different personalities over years. He responded at length in relation to that question. He said words to the effect:
When I look through the material, it suggests ongoing conflict. It suggests disputes about appointments, medications, counselling and the like. There are still ongoing difficulties in understanding feedback from schools, doctors, etcetera and there are continued changes in residence, school, doctors and the like. Re-partnering was also raised and that gives rise to further instabilities and uncertainties in relation to a children’s life.
In particular he noted that there were concerns that he had with regard to the mother re-partnering, particularly with Mr T, a man who had alcohol and drug-related issues and noted that, the mother wanted everyone to change. She wanted Mr T to change. She wanted the father to change and as Mr S noted she had, “no insight into changes in her own functioning and the needs and benefits that would flow from that”.
During this line of questioning I inquired of Mr S whether it was a case of, “the mother talking the talk but not walking the walk”. Mr S responded that that was perhaps fair comment and that the mother had in psychological terms, “invested in a need for help role”. She had sought the assistance of agencies and practitioners meeting needs for her, and that this was investing in the children “dependant attitudes” as she was exhibiting them.
The mother challenged Mr S in relation to many of his assessments in relation to the mother. She inquired about relationships, domestic violence, assistance sought, healthy counselling and appropriate steps taken and in relation to each of those comments by the mother, Mr S responded that there were appropriate steps being taken by the mother, but in many instances if not all of them, they were taken with a determination on her part to receive an affirmation that what she was doing was right and that what others were doing was inappropriate.
The mother finally suggested to Mr S that she was happy to do anything to make the problems go away, that she wanted mediation that she wanted to work together and she wanted a review of the decision to be made at this time after time passed and then a review of the behaviours of both her and the father. Mr S responded, that between 2006 and 2012 there had been co-parenting issues that continued to lead to dispute between the mother and the father. As he put it, it was,
therefore hard to suggest that we should act in the future in hope when for so long we have acted in despair.
Mr S indicated that his reports had been as he said, “a cry from the heart”, and a guidance for the parents to try and change their ways, but that there had been no changes and the dispute had continued.
The mother suggested to Mr S that it might be a situation of she and the father being able to keep the conflict separate from the children and that the problems particularly being indicated by Y, in relation to behaviour and socialisation were only problems relating to ADHD. Mr S however said, I think quite appropriately, that from all that he had seen, from all that he had observed, and from all that he had read in relation to this matter, he could not agree that these children were not exposed to and involved in the dispute and that it was something that had to be dealt with, by the parents.
The mother suggested counselling and I think, most astutely, Mr S suggested that counselling was not the answer. He suggested that in truth when children go to counselling it’s seen as the children’s problem but in this case it’s really the effect of the parents’ issues on the children that was being sought to be dealt with and that he did not think that counselling would assist the children, whilst the underlying problems of the relationship between the parties remained.
He suggested that leaving equal shared parental responsibility, with a hope that counselling for the parents or the children might ease the way through was not a solution to the problem and noted that counselling was not, “the ultimate panacea”.
He finally commented that the children’s problems here were the problems that had been, “imposed upon them”.
The mother then, I thought, went on the attack with Mr S and suggested that it was all just his opinion and that there was no evidence. That of course flew in the face of so much that had already gone before, including three interviews by Mr S as well as the opportunity to read and peruse hundreds of pages of affidavits and subpoenaed documents. She asked whether it might just be the case of the children being sick and Mr S, I thought again, most astutely noted that he tries to keep an open mind in that regard, but it was the mother who had consistently had the children examined and checked and that there were no indicators of the children being ill.
The fact was that the mother did not appreciate that what Mr S had been trying to do for years in his reports was give guidance and direction to a better way to parent and to co-parent the children and that the mother had, through her various actions and behaviours undermined that, and continued to do so even to the day of trial.
Finally, perhaps almost as another cry from the heart, the mother asked Mr S, “What can I do to show that I’m child focussed, child centred and doing the best I can for the children?” Mr S again, most professionally and I thought most properly responded with words to the effect:
It’s not my place to say where to from here. You want someone to tell you what to do. Really, you need to say, this is what I understand and these are the ways that I can better make changes to deal with the issues in relation to my life and the children’s life.
He finally said, “I have seen no change or shift.”
I was enormously assisted by Mr S’s professional assessment in relation to this matter. He noted that there had been guidance provided, assistance given by him and by many others to both parents but particularly to the mother in relation to the matter and notwithstanding that, she had not changed and had not shifted her views or opinions.
She was, in my assessment, very determined to lay the blame for any difficulties that continued to exist at the feet of others, be it the father or Mr S or anyone else that didn’t agree that she was seeking all the help in the world. She was seeking help but she was seeking also to gain approval of what she decided and determined she wished to do, in relation to the parenting of the children.
Again the distinct impression was that the mother would continue to seek support anywhere and everywhere that she could and that the attendances with various doctors, psychologists and other specialist medical and allied health professionals was designed to finally get an answer that would satisfy the mother that what she had done and continued to do was the right thing, in relation to these children.
I turn now, in light of the very significant comments that I have made already in relation to this matter, to the mother, the father, and to the mother’s partner, Mr T. In that respect I should note at the outset that there was an enormous amount of material filed in relation to this matter and that I have obviously had the opportunity of reading all of that material, as well as considering the evidence of the parties given orally in relation to the matter.
The applicant is the father and I shall deal with him first. I should note at the outset that I have absolutely no doubt as to his love and devotion for his children. It was noted in the report prepared by Dr C that there was nothing that appeared apparent to Dr C that would give rise a concern, as to the father’s significant involvement with the children and, as I noted when commenting upon Dr C’s evidence, the circumstances have developed from there, such that the father’s position is now to seek an order with regard to the children living with him.
In that regard there is obviously much to consider because it would, to a significant degree, involve a change of a very substantial nature in the current arrangements with regard to the children. It was emphasised by the mother on many occasions that she had started out being primarily responsible for the care of the children and having them in her care for the majority of the time.
She noted that she agreed to a shared care arrangement, though it is noteworthy in that regard, and I shall comment upon it later in these reasons, that whilst the mother says that, when it suits her, she agreed to such a course, when it does not suit her to consider the terms of the orders which put in place a shared care arrangement, she was far more determined to suggest that it was, in fact, an order that was imposed upon her by pressure brought to bear by legal representatives, children’s lawyers and the like.
In any event it appears clear that there has been a gradual development in the time that the father sought to spend with the children, such that we now find ourselves in the situation where the father seeks orders for the children to live in his care.
There is much that can be learned from the observations of each of these witnesses in the witness box. Their demeanour is a significant factor in relation to any determination that might appropriately arise in relation to the proceedings. In that respect, therefore, I should note that the father gave me the distinct impression that he was very concerned with the situation that he and the children found themselves in, that he was a well considered witness and one who generally thought long and hard about the issues that were before the court and gave serious consideration to the answers that he gave, in relation to proceedings.
In that respect it was noteworthy therefore that one of the first issues that were raised in relation to this matter related in passing to the names to be used by the children. Counsel for the independent children’s lawyer on the first day of the case, in the first series of questions relating to cross-examination of the father, spoke about the medical appointment which was arranged for the actual day preceding the commencement of the trial.
The father was asked when he had become aware of the appointment and he indicated that that had been noted in a letter of 9 May 2011. Counsel for the independent children’s lawyer noted also that the addressee is the child and it is in the name of Jeffrey, not Hale. The father noted that that was correct and that the address for the communication with the child was also noted as the mother’s address.
It was, if you like, the opening indicator of the hotly contested issues in relation to this matter, where even the name to be used by both of these children in one household or the other was the subject of dispute. It was a situation and a consideration that loomed large in relation to the entirety of the evidence that was given.
The father was able to perceptively indicate why his position in relation to this matter had changed, but also to indicate why he believed the children needed the changes that he proposed. In answer to a question that flowed from a series of answers previously given about the separation between the parties and the effects that that had upon the children, he was asked why he was now seeking variations of the nature that he proposed. He indicated that the children were getting older and, in particular, that Y was having problems being within the two households. He said that there were difficulties that arose from that and he acknowledged that, as was put to him by counsel for the independent children’s lawyer:
In the last three years there had been little that was able to be agreed upon.
The father suggested that he had attempted to reach joint decisions in relation to various aspects of the children’s lives including outside activities, but that the mother had been unresponsive and lacked any cooperation. It was a theme that developed during the father’s evidence and was also clearly evident in the mother’s evidence.
The father was asked, however, whether he had to take some responsibility for the lack of cooperation and at that stage he paused and gave some obvious thought to the answer that he gave in relation to the question before saying words to the effect:
I’m sure there was more I could have done but I did all that I could at the time.
I accept that this is the case. The situation that has existed between the mother and the father has been one that has not improved but, rather, has deteriorated.
The mother, for her part, sought to emphasise that there had been much that had been able to be agreed in relation to arrangements with regard to the children, but the evidence itself flew directly in the face of any such assertion on the part of the mother. The parents fought about the big issues, medical arrangements, attendances at doctors, specialist appointments, institution of medical practices, as well as educational issues including the school that the children were to attend and, of course, I have already commented upon the very poor attendances that were evidenced in relation to the children’s attendance at the school, particularly it would seem on occasions when they had been in the mother’s care and were yet still to attend at the (omitted) State School.
The fact is that those big issues remained in dispute but, in fact, so many of the small issues, and they were commented upon by both parents, remained difficult for the parties. There were occasions, for example, when there were extra-curricular cultural activities that arose on occasions when the children were in one parent or the other’s care. There were difficulties that arose in relation to costumes. There were difficulties that arose in relation to times to be spent by each parent and I must say the general impression that I gained in relation to this matter was that the father attempted to conciliate arrangements with the mother, but that no matter what he gave or conceded, more was sought by her and she then had the temerity to criticise the difficulties that she had in relation to making the small arrangements, in relation to the children.

I am not enamoured of any view that suggests that there should be one additional day in the alternate week, as I am more inclined to think that it would simply be a basis upon which there could be further difficulty, both financially and emotionally, arising from confrontation between the parties, as to who might or might not have responsibilities arising in relation to such arrangements.
I note also the suggestions with regard to the school holidays and in particular the proposals with regard to Christmas holidays being split between the parties. Again, these children are of an age where time spent with each parent can appropriately be drawn out to be a more lengthy period which provides opportunities for holidays to be enjoyed by the children, particularly during the Summer holiday period.
To suggest that there would need to be a weekly or even fortnightly turnabout, as more recently suggested by the father in relation to the holidays, would not, in my assessment, be appropriate. I intend to make orders in relation to school holidays which simply provide for one half of the school holidays, first or second half, to be spent by each parent with the children, and if the other parent, on special days, happens to be in the same locality, then that there would be opportunities for that parent to spend some time with the children, for example, at Christmas, Easter and other special days.
I intend also to include orders in relation to birthdays of the children, the parents and other significant persons and to ensure that there are such opportunities available for each parent to be fully involved in the lives of these children.
The orders of the Court will be:

I certify that the preceding two hundred and eighty-three (283) paragraphs are a true copy of the reasons for judgment of Coker FM

Date: 22 June 2012

ANNEXURE A

Parenting orders sought

That the children namely X and Y born on (omitted) 2003, live with the father.
That the father has the primary care of and sole parental responsibility for the children, while keeping the mother informed on matters pertaining to the children.
That the children live with the father and spend some times with the mother as follows:
(a)In week one, with the mother from Friday 3 PM to Monday 3 PM, and with the father from Monday 3 PM to Friday 3 PM, and
(b)In week two, with the father the whole week from Friday 3 PM to Friday 3 PM
where week one commences on Friday 25 March 2011, and every second Friday thereafter; and week two commences on Friday 1 April 2011, and every second Friday thereafter.
That for school holidays of two weeks’ or greater duration, the children spend each week one falling during the school holidays with the mother, and each week two falling during the holidays with the father, provided that at the discretion of the father the children can have longer periods of holiday time with the father during the Christmas break, where week one and week two are the same weeks as defined in paragraph 3.
That each parent spend time with the children on special occasions at all times as may be agreed between the parties, but failing agreement as follows:
(a)   At Christmas as follows:
(i)     From 3:00pm on Christmas Eve until 11.00am on Christmas Day with the father in 2011 and in each alternate year thereafter;
(ii)    From 11.00am on Christmas Day until 3.00pm on Boxing Day with the mother in 2011 and in each alternate year thereafter;
(iii)   From 3.00pm on Christmas Eve until 11.00am on Christmas Day with the mother in 2012 and each alternate year thereafter; and
(iv)   From 11.00am on Christmas Day until 3.00pm on Boxing Day with the father in 2012 and in each alternate year thereafter.
(b)   On the Children’s birthday as follows:
(i)     That should the children’s birthdays fall on a day when the father is not otherwise spending time with the children then the father is to spend time with the children:
(1.)In 2011 and in each odd year thereafter from 3.00pm on their birthday until 9.00am the following day; and
(2.)In 2012 and in each even year thereafter from 5:00pm the night before their birthday to 3:00pm the following day.
(ii)    That should the children’s birthday fall on a day when the mother is not otherwise spending time with the children then the mother is to spend time with the children:
(1.)In 2011 and in each odd year thereafter from 5:00pm the night before their birthday to 3:00pm the following day; and
(2.)In 2012 and in each even year thereafter from 3.00pm on their birthday until 9.00am the following day.
(iii)   For the purpose of the parents spending time with the children on their birthdays, if that occasion falls on a school day, the parent entitled to spend time with the children will be at liberty to collect the children at the conclusion of school on that day and return them to school the following day, or to the other parent if the following day is a non-school day.
(c)   On the Birthdays of the parents as follows:
(i)     That should the father’s birthday fall on a day when he is not otherwise spending time with the children and a non-school day then the father is to spend time with the children form 9:00am on his birthday until 9:00am the following day;
(ii)    That should the mother’s birthday fall on a day when she is not otherwise spending time with the children and a non-school day then the mother is to spend time with the children from 9:00am on her birthday until 9:00am the following day;
(iii)   That should the father’s birthday fall on a day when he is not otherwise spending time with the children and a school day then the father is to spend time with the children from after school until 9:00am the following day.
(iv)   That should the mother’s birthday fall on a day when she is not otherwise spending time with the children and a school day then the mother shall spend time with the children from after school until 9:00am the following day.
That each parent spend time with the children for the entire weekend upon which Mother’s Day and Father’s Day fall from after school Friday until before school Monday.
Each parent to inform the other within 24 hours of any medical treatment or hospitalisation of either child.
That each parent can contact the children by telephone when in the other’s care at any reasonable time, and must provide the other parent with their home phone number, mobile number/s and email address.

ANNEXURE B

Final orders sought by Respondent

That the children X and Y both born on the (omitted) 2003 live with the Mother.
That the Mother has sole parental responsibility for the children.
That the children live with the Mother and spend time with the Father as follows:
a. (a) In week one with the Father from Friday 3.00pm to Tuesday 9.00am and with the Mother form Tuesday 3.00pm to Friday 3.00pm.
b. (b) In week two with the Mother from Friday 3.00pm until Friday 3.00pm the following week.
Where week one commences on Friday 13^th May 2011 and every second Friday thereafter; and where week two commences on Friday 20 May 2011 and every second Friday thereafter.

Holiday Periods

That during school holidays the children will live with the Mother or the Father on alternate weeks commencing from Friday 3.00pm (or such time as the school day finishes) until 3.00pm on the following Friday when they will move to live with the alternate parent for the next seven days.

Holiday arrangements are to be set to ensure that the children live with the Mother or the Father on alternate Easter Holidays (i.e. Good Friday to Easter Monday) from year to year.

Special Occasions

That each parent spends time with the children on special occasions as may be agreed between the parties, but failing agreement as follows:
(a) At Christmas as follows:
In 2011 and each alternate year thereafter;
(i)From 3.00pm on the 23^rd December until 12.00pm on Christmas Day with the Mother;
(ii)From 12.00pm Christmas Day until 3pm on the 27^th December with the Father;
And in 2012 and each alternate year thereafter;
(i)From 3.00pm on the 23^rd December until 12.00pm on Christmas Day with the Father;
(ii)From 12.00pm Christmas Day until 3pm on the 27^th December with the Mother.
(b) On the children’s Birthday
(i)That should the children’s birthday fall on a day when the Mother is not otherwise spending time with the children then the Mother is (sic) spend time with the children:
(1.)In 2011 and in each odd year thereafter form 3.00pm on the day before their Birthday until 3.00pm on their Birthday; and
(2.)In 2012 and in each even year thereafter from 3pm on their Birthday until 9am the following day
(ii)That should the children’s birthday fall on a day when the Father is not otherwise spending time with the children then the Father is to spend time with the children:
(1.)In 2011 and each odd year thereafter form 3.00pm on their Birthday until 9am the following day.
(2.)In 2012 and in each even year thereafter from 3.00pm the day before their Birthday until 3.00pm on their Birthday.
For the purpose of the parents spending time with the children on their Birthdays, if that occasion falls on a school day, the parent entitled to spend time with the children will be at liberty to collect the children at the conclusion of school on that day and return them to school the following day, or to the other parent if the following day is a non-school day.
(c) On the Birthday of the Parents as follows:
(i)That should the Mothers birthday fall on a day when she is not otherwise spending time with the children and a non-school day then the Mother is to spend time with the children from 9.00am on her birthday until 9.00am the following day;
(ii)That should the Fathers birthday fall on a day when he is not otherwise spending time with the children and anon-school day then the Father is to spend time with the children from 9.00am on his birthday until 9.00 the following day.
(iii)That should the Mothers birthday fall on a day when she is not otherwise spending time with the children and a school day the Mother is to spend time with the children from after school until 9.00am the following day.
(iv)That should the Father’s birthday fall on a day when he is not otherwise spending time with the children and a school day then the Father shall spend time with the children from after school until 9.00 the following day.
That each parent spends time with the children for the entire weekend upon which Mother’s Day and Father’s Day fall.
That when the children are in the Fathers care, the Father make the children available to communicate with the Mother by telephone at all reasonable times and failing agreement on Monday and Wednesday nights between 5.00pm and 5.30pm.
That when the children are in the Mothers care the Mother make the children available to communicate with the Father by telephone at all reasonable times and failing agreement, on each Monday and Wednesday night between 6.30pm and 7.00pm.
That each party shall keep the other informed as to their residential address, email address, and contact telephone number and advise the other of any change to those details within 24 hours of any change.

10. That any party hereby irrevocably authorises any person or institution including but not limited to any doctor, carer teacher hospital, school and any social, sporting or recreational organisation, to release all and any information, in writing reasonably, requested by the other in relation to the children.

11. That in the event that the children require medical or hospital treatment then the parent caring for the children shall inform the other parent at the earliest practical opportunity.

12. That each parent be entitled to attend any public or school social, sporting or educational event involving the children, including but not limited to theatre performances, sporting events, school activities and functions, Christmas parties and other special occasions and that both parties:

(a) Inform the other party of such events in a timely manner; and
(b) Communicate to the other if arrangements are made for the children to attend such an event whilst the child is not in that party’s care.
(c) That the parent who is caring for the children at the time of such events will not hinder access or communication with the children by the other parent whilst attending such events.

13. That each party shall not take the children interstate or internationally without the other parents written consent.

14. That Y be allowed to continue with his Speech Therapy until all his speech issues are resolved as per a Speech Therapy assessment by his Speech Therapy teacher.

Financial Support

15. That the Mother shall have the responsibility for the purchasing of the children’s clothing, including but not limited to school uniforms, shoes, everyday clothes (to be worn on the Fathers time), and that the Father is liable for half of all costs incurred.

In addition to paying all Family Support payments to the Mother as required by the Child Support Agency that
(a) The Father pays all expenses in relation to Y's Speech Therapy appointments to the Mother for the appointments that Y has had to date; which is ($320.00);
(b) The Father and Mother each pay 50% of all future Medical, Dental, and Speech Therapy and Educational costs for the children;
(c) The Father and Mother each pay 50% of all costs related to purchasing school uniforms, sporting or club uniforms required by the children.

ANNEXURE C
FINAL MINUTES OF ORDER PROPOSED BY THE INDEPENDENT CHILDREN’S LAWYER

That all previous Orders be discharged.
Parental Responsibility
That save as provided for in the following paragraph 3 herein, the Mother and the Father retain equal shared parental responsibility for the long term care, welfare and development of the children X and Y born (omitted) 2003 (“the children”).
That the Father have the long term care, welfare and development of the children in respect of the following issues:
a)All education including primary, secondary and tertiary; and
b)All medical (including vaccinations and dental issues, surgery and counselling).
That the Father will inform the Mother and keep her informed in a timely manner and as soon as reasonably possible and practicable of any decisions or changes made by him in the exercise of his responsibilities pursuant to paragraph 3 above including full details of the school or medical practitioners that the children attend from time to time.
That in respect of each other issue concerning the long term care, welfare and development of the child the Mother and the Father shall:
a)Consult with the other parent in relation to the decision to be made; and
b)Make a genuine effort to come to a joint decision about that issue.
That each parent will have parental responsibility for the day to day care, welfare and development of the child (sic) at all times that the child is in their respective care.
Living arrangement for Children
That the children live with the Father other than as provided elsewhere in this Order.
That the children live with the Mother, unless otherwise agreed in writing between the parties from:
a)Week 1: after school Thursday until before school Monday each alternate week thereafter.
b)Week 2: after school Tuesday until before school Wednesday and each alternate week thereafter.
c)For one half of the gazetted Queensland school holiday period being the (sic) with the Mother in the first half in even number years and the second half in odd numbered years.
That the Mother will at all times supervise the children if her daughter R is present.
That changeovers occur at school if it is a school day or otherwise if it is not a school day then at McDonald's (omitted).
Special Occasions
That each parent spend time with the children on special occasions at all times as may be agreed between the parties, but failing agreement as follows:
a)That on the children’s birthdays the parent with whom the children are not living shall spend time with the children as follows:
(i) If a school day from after school until 6.00pm;
(ii) If not a school day from 1.00pm until 6.00pm.
b)On the birthdays of the parents as follows:
(i)That should the father’s birthday fall on a day when he is not otherwise spending time with the children and a non-school day then the father is to spend time with the children from 9.00am on his birthday until 9.00am the following day;
(ii)That should the mother’s birthday fall on a day when she is not otherwise spending time with the children and anon-school day then the mother is to spend time with the children from 9.00am on her birthday until 9.00am the following day;
(iii)That should the father’s birthday fall on a day when he is not otherwise spending time and it is a school day then the father is to spend time with the children from after school until 9.00am the following day;
(iv)That should the mother’s birthday fall on a day when she is not otherwise spending time and it is a school day then the mother is to spend time with the children form after school until 9.00am the following day;
c)At Christmas as follows:
(i)That the father spend time with the children from 2.00pm on Christmas Day until 2.00pm on Boxing Day in each odd year;
(ii)That the mother spend time with the children from 2.00pm on Christmas Eve until 2.00pm on Christmas Day in each odd year;
(iii)That the father spend time with the children from 2.00pm on Christmas Eve until 2.00pm on Christmas Day in each even year;
(iv)That the mother spend time with the children from 2.00pm on Christmas Day until 2.00pm on Boxing Day in each even year.
That the parent who is celebrating Mother’s Day or Father’s Day spend time with the children from 9am until 5pm, if the children are not in their care on the day.
That each party make the children available to communicate with the other parent by telephone at all reasonable times.
Education
That both parties shall be entitled to attend any school, social, sporting or educational event involving the children, including but not limited to theatre performances, sporting events, school activities and functions, Christmas parties and other special occasions and that both parties:
(a)Inform the other party of such events in a timely manner; and
(b)Communicate to the other if arrangements are made for the children to attend such an event whilst the child is not in that party’s care.
Medical
That the Mother ensure the children shall attend upon the (omitted) Medical Centre, or such other medical centre as advised by the Father in respect of the children’s medical and health matters (unless in the case of emergency) and will follow the recommendation of the treating general practitioner including recommendations for treatment plans and any necessary referrals.
In the case of a medical emergency, the parent in whose care the children are shall notify the other parent as soon as reasonably practicable of the emergency, serious illness, accident, or hospitalisation involving the child/ren, including the name and contact details of the treating doctor or hospital.
The parties shall authorise any medical practitioner the children should attend upon to provide the children’s treating GP with information pertaining to the attendance including any treatment prescribed and copies of any reports/plans.
That if a specialist medical appointment is made other than in the case of emergency:
(a)The father will:
i. make enquiry of the doctor for three appointment dates; and
ii.Provide the appointment dates to the Mother with 14 days notice and make an appointment on the date nominated by the Mother which she will provide to the father within 7 days of receipt of the proposed appointment dates.
iii.If the Mother fails to notify the father within 7 days of her preferred nominated date then the Father be at liberty to make an appointment of his choosing and will inform the mother accordingly.

In the event that the Mother is unable to attend a medical specialist appointment the Father will provide the Mother with a written statement from the doctor setting out the treatment plan and diagnosis (if any).
Exchange of Information
That each party shall keep the other informed as to their residential telephone number, work telephone number, email address, facsimile transmission and mobile telephone number and advise the other of any change to those details within 48 hours of any change.
That each party hereby irrevocably authorises any person or institution including but not limited to any doctor, carer, teacher, hospital, childcare institution, preschool, school and any social, sporting or recreational organisation, to release all and any information, (verbal or in writing) reasonably requested by the other in relation to the children.
That during the time the children are with either parent, that parent shall:
i.respect the privacy of the other parent and not question the children about the personal life of the other parent;
ii.Speak of the other parent respectfully;
iii.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.
iv.Discuss these proceeding (sic) with, or in the presence of one or other of the children or permitting any other adult member of the household to do so.
That a Family Court of Australia, Family Consultant is appointed pursuant to s65L Family Law Act1975 (“the Family Consultant”) to supervise or assist the parties with the compliance of the parenting orders and that the parties do all acts and all things necessary to attend upon the Family Consultant for a period of 12 months including complying with any recommendations of the Family Consultant.
Dispute Resolution
That in the event that there is a dispute about the children or about the interpretation, implementation or enforcement of these orders, the parents before making any further application to a Court shall:
i.either attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (as amended) or by the Commonwealth Attorney-General; or
ii.Participate in family dispute resolution with a Family Relationship Centre or a person authorised under s.10G of the Family Law Act 1975 (as amended).
That the Independent Children’s Lawyer be discharged.