Hanley and Hanley
[2014] FCCA 293
•25 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HANLEY & HANLEY | [2014] FCCA 293 |
| Catchwords: FAMILY LAW – Parenting – interim arrangements – change of routine – asperger’s syndrome. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 10B, 10F, 13C, 60B, 60CA, 60CC, 60I, 61C, 61DA, 62G 69ZT, 68L, 60B, 62G, 63DA, 64B, 65DAA, 65F, 67ZBB, 68B, 69ZV, 69ZW, 114 |
| Makita & Sprowles (2001) 52 NSWLR 705 Cowling [1998] FamCA 19 Griffiths (1981) FLC 91-064 Cilento (1980) FLC 90-847 Rainer & Rainer (1982) FLC 91-239 Harrison & Woollard (1995) FLC 92-598 Re R Children’s Wishes [2000] FamCA 43 Johnson & Page [2007] FamCA 1235 Mazorski & Albright [2007] FamCA 520 Deacon & Castle [2013] FCCA 691 Goode & Goode (2006) FLC 93-286 MRR & GR [2010] HCA 4 |
| Applicant: | MR HANLEY |
| Respondent: | MS HANLEY |
| File Number: | PAC 1783 of 2013 |
| Judgment of: | Judge Harman |
| Hearing date: | 7 February 2014 |
| Date of Last Submission: | 7 February 2014 |
| Delivered at: | Albury |
| Delivered on: | 25 February 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Ian Harper & Co |
| Solicitors for the Respondent: | Claremont Legal |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW Penrith |
ORDERS
All prior interim Orders with respect to the children, [X] and [Y], each born [in] 2008 are discharged.
Pursuant to section 61C of the Family Law Act1975 the parents, Mr Hanley and Ms Hanley, shall each have parental responsibility for [X] and [Y] at such times as they are in their respective care.
[X] and [Y] shall spend time with their mother Ms Hanley at all times other than when they are spending time with their father.
[X] and [Y] shall spend time with their father, Mr Hanley:
(a)Each alternate weekend during school terms from the conclusion of school Thursday until 5pm Sunday, first such period to commence the Friday immediately following the making of these Orders and to resume on the first weekend of each fresh school term;
(b)Each alternate week during school terms from after school Thursday until the commencement of school the next day (Friday) in each intervening week, first such period to commence the Thursday immediately following the first period of weekend time above;
(c)For the first half of each short New South Wales school holiday period, as agreed between the parents or, failing agreement, from 10am on the first Saturday of the school holiday period until 5pm on the middle Sunday of the school holiday period;
(d)Such further and/or other periods of time as agreed between the parents from time to time.
Each parent shall be entitled to telephone and speak with [X] and [Y] on each day that the children are not, or have not been, in their care, and between 6.30pm and 7.30pm, and with respect to same:
(a)The parent wishing to speak with the children shall telephone the other parent’s mobile telephone;
(b)Each parent shall ensure that their mobile phone is switched on, charged, in a mobile service area and in credit at those times;
(c)Each parent shall provide such assistance to [X] and/or [Y] as is required to allow them to answer the telephone, but shall otherwise allow them to speak with privacy and without distraction or interruption.
Each parent shall be, and is, hereby restrained from discussing with the children these proceedings or any issue or allegation raised herein, and each parent shall do all things within their power to ensure that no other person does so, save for any report writer commissioned to produce evidence in the proceedings, the Independent Children’s Lawyer, any counsellor agreed by the parents or any doctor or other treating specialist dealing with the children, or any Police Officer or child welfare worker undertaking their duties.
Each parent shall forthwith, and contemporaneous with the event, advise the other of any medical emergency or significant illness experienced by the children or either of them, including sufficient information, consents and authorities to enable each party to speak with any treating doctor, to obtain information regarding the children’s health, prognosis and treatment, and to visit the children if hospitalised.
Each parent shall forthwith, and if they have not already done so, do all things, sign all documents, give all consents and authorities necessary to enable each parent’s details to be recorded with any school or after‑school or vacation care service attended by the children, as both parent and emergency contact person, such as to ensure that each parent can obtain directly from such school or service such information reports (whether written or oral) or other information as they may desire from time to time.
Each parent shall forthwith upon being advised of any specialist medical appointment for the children:
a)Advise the other parent of same in writing (by text message or email);
b)Do all things, sign all documents and give all consents and authorities necessary to enable each parent to attend such appointment or a subsequent separate appointment and to ensure that each parent is fully appraised regarding the children’s health, treatment and prognosis and anything required of them as a parent with respect to same.
For the purposes of the children coming into the care of the mother, the mother shall collect the children from their school, if a school day, and in the event that it is not a school day or either child has not attended school then from the home of the father.
For the purposes of the children coming into the care of the father, the father shall collect the children from their school, if a school day, and in the event that it is not a school day or either child has not attended school then from the home of the mother.
The Applicant shall file and serve all material, upon which he intends to rely at trial no later than close of business 6 June 2014.
The Respondent shall file and serve all affidavit material upon she intends to rely at trial no later than close of business 18 July 2014.
The Applicant, should he consider it necessary or appropriate, shall file an affidavit by him and only him answering any material in reply to the respondent’s affidavits which has not already been addressed in his evidence-in-chief same to be filed no later than close of business on 8 August 2014 and in the event that that evidence is to be called in reply it shall be by filing such affidavit and not otherwise.
The proceedings be listed for call over 9:30am 28 August 2014.
In the event that the parties and the Independent Children’s Lawyer certify in writing that all documents required to be filed as above have, in fact been filed and that the matter is ready to proceed to hearing for an agreed length of trial not exceeding 4 days then:
(a)The call over date 28 August, 2014 will be administratively vacated; and,
(b)Trial dates will be allocated to the matter.
Otherwise dismiss all outstanding interim applications and remove all interim issues from the list of cases awaiting hearing.
IT IS NOTED that publication of this judgment under the pseudonym Hanley & Hanley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1783 of 2013
| MR HANLEY |
Applicant
And
| MS HANLEY |
Respondent
REASONS FOR JUDGMENT
These are proceedings relating to future care arrangements of twins, [X] and [Y] born [in] 2008.
The parties to the proceedings are the children’s parents, being their father Mr Hanley, who is the Applicant, and their mother Ms Hanley, who is the Respondent.
History of proceedings
The proceedings were commenced by an Initiating Application filed by Mr Hanley, 30 April 2013. That application sought parenting orders on both an interim and final basis.
A Response to the application was filed by Ms Hanley on 6 June, 2013 albeit somewhat belatedly.
Contemporaneous with the filing of the Response, an Amended Initiating Application was filed by Mr Hanley varying the relief proposed by him. The variations affected are substantial and significant and dramatically alters the relief that is sought by him.
The Initiating Application filed by Mr Hanley 30 April 2013 had proposed, on a final basis, that [X] and [Y] live with their mother and spend time with their father on what might be described as a substantial and significant basis.
The Amended Application filed 6 September 2013 substantially varied the relief sought and sought that [X] and [Y] live with their father and spend time with their mother alternate weekends from Friday to Monday together with other periods, including school holidays.
The parties have filed a number of documents since the proceedings were commenced.
When the proceedings first came before the Court 6 June 2013, the mother had not filed material. The parties were directed to attend a Child Dispute Conference, which conference occurred that afternoon. The proceedings were otherwise adjourned to the following day for the purpose of interim hearing before Judge Jones who was visiting the Registry and had kindly offered assistance.
The Child Dispute Conference
The Child Dispute Conference Memorandum which was prepared following the appointment on 6 June 2013 raised a number of issues under the heading “Family safety factors”. It was suggested by each of the parties that whilst the other had never physically assaulted them that violence had been perpetrated by the other throwing items and being verbally abusive.
A number of verbal altercations were disclosed and it was suggested by Ms Hanley that on two occasions Mr Hanley had indicated to her during such verbal altercations that he had “come close to hitting her”. Ms Hanley is reported as having perceived that as a threat of physical harm.
It is to be noted that Ms Hanley states in the first of her Affidavits, at paragraph 19 thereof, that there had been no physical violence between the parties.
Appearing at the penultimate paragraph of page 2 of a Report of a psychologist, Dr K, (whom it would seem was referred to in the Affidavit to which the Report is annexed as the psychologist with whom [Y] had consulted but whom it would appear has now provided psychology services to both [Y] and the mother), the mother is reported as indicating that the father had been “mentally abusive” throughout the relationship and had perpetrated physical violence upon [Y] and engaged in inappropriate behaviour towards both children such as kissing them.
Continuing with family safety factors the Child Dispute Conference Memorandum reveals that it was suggested that each of the parents alleged that the other was verbally and psychologically abusive during the relationship, that the father alleged that the mother has and had during the relationship significant and ongoing difficulties with anger and that the mother alleged that the father similarly had difficulties with anger, (although the examples provided had been of some particular age).
It was otherwise suggested by the father that the mother had significant relationship difficulties with members of her family. That is so notwithstanding the father’s evidence as filed that the mother is fairly heavily dependent upon her extended family members, and one would assume thus enjoys some degree of cordiality in those relationships rather than estrangement. The father alleged indeed that he enjoyed a better relationship with the maternal grandparents than the mother did with her own parents. That would not appear to be a present circumstance, if it ever was.
Allegations were also raised, particularly by Ms Hanley but also by the father, as to the children being physically struck, restrained or yelled at well beyond what might be expected as “usual discipline”.
Both parents reported previous difficulties with depression.
With respect to the children, the Child Dispute Conference Memorandum highlighted that the child [Y] had been diagnosed by the psychologist Dr K with an Autism Spectrum Disorder in the nature of Asperger’s. Further material filed since the Child Dispute Conference suggests a more authoritative diagnosis of Asperger’s relative to [Y].
There was, at that time, suggested to be some controversy between the parties with respect to the diagnosis and its acceptance. However, the evidence of Ms Hanley, whilst seeking to infer or imply that the father was not accepting of the diagnosis, relates, at paragraph 40 of her second Affidavit filed 14 August 2013, that the father had not attended the first appointment with a Dr R, who provided said specific diagnosis (Mr Hanley suggests he had not been advised of the appointment) and upon attending a second appointment arranged between Dr R and [Y] and being advised of the diagnosis, had said to Dr R, “The diagnosis scares me”. I do not accept that this statement supports the inference that the father is not accepting of the diagnosis. Indeed, it would appear to be an entirely normal and appropriate response.
The Child Dispute Conference Memorandum suggested under the heading “Issues impeding resolution” that the parents had little if any communication with each other and suggested, as a consequence of that raised at the conference, that there were “initial concerns about
Ms Hanley’s willingness to facilitate the children’s relationship with
Mr Hanley”. It is to be noted that at the time that the matter came before the Court and contemporaneous with the filing by Mr Hanley of his Initiating Application that the time which had been occurring between he and the children, (albeit on a fairly minimal and largely supervised basis, supervision being provided by the maternal grandparents), had ceased.Ms Hanley suggested that there were a number of reasons for this, particularly relating to expense in transport.
Suggestions were made by the Family Consultant for the parties to attend a number of courses and programs within the community. They have ultimately been, at least in part, undertaken. It was suggested that a Family Report should be prepared.
Past interim Orders and their operation
At the time that the matter came before Judge Jones, she had available to her evidence filed by each of the parties as each party had filed an affidavit. Judge Jones also had the benefit of the Child Dispute Conference Memorandum.
A hearing proceeded and it would appear as a consequence, at least in part, of the father’s concession that he did not have appropriate accommodation to accommodate the children on an overnight basis and thus did not press that portion of his application, Orders were made as follows:
a)That the parents have equal shared parental responsibility for the children;
b)That the children live with their mother;
c)That the children spend time with their father each Wednesday from 10am to 1.30pm and each Sunday from 10am until 5pm.
Changeovers were prescribed to occur at a particular franchised establishment, and additional specific issues Orders were made regarding telephone communication, provision of information regarding the children’s medical appointments (with the intent that both parties could or would attend), and a number of other Orders which are not germane to this determination.
The proceedings were otherwise specifically further adjourned for interim hearing to 9 September 2013 such listing anticipating that the husband would, by that time, have obtained different accommodation and then press his application for overnight time.
On 9 September 2013, the proceedings came before me. On that date, a further interim hearing occurred and further material had been filed by the parties and each of them. Indeed, by that time the Orders of Judge Jones had ceased to be complied with. The mother had ceased to make the children available having raised allegations of ongoing difficulties, to which I will return shortly.
Following interim hearing 9 September 2013, all prior Orders were discharged and Orders made in their place as follows:
a) That the parents, pursuant to section 61C, each have parental responsibility at such times as the children are in their care;
b)That the children live with their father from 10 am till 1.30 pm each Wednesday and from 10 am till 5 pm Sunday, being the same times as provided by Judge Jones’ orders; and
c)That the children live with their mother at all times when not living with their father.
On 9 September 2013, an invitation was also extended to the Department of Family and Community Services to intervene in the proceedings on the basis that the evidence of each party, if ultimately accepted, would suggest that neither party was an appropriate carer. That invitation was declined. An Order was also made for the appointment of an Independent Children’s Lawyer.
The proceedings were briefly adjourned to return for further mention and interim hearing, it being clear and specific at that time that the father’s interim application had not been finally determined, as further evidence was to be made available, and the interim hearing on that date had been, in essence, to address the breakdown of Orders that had previously been made by Judge Jones.
When the proceedings came before the Court on the next occasion, 16 October 2013, the Independent Children’s Lawyer appeared for the first time. A number of further interim parenting Orders were made by consent and which are of little consequence to this determination.
The proceedings were otherwise adjourned for interim hearing to 9.30 am, 7 February 2014 and on the basis that a minute of consent Orders for the appointment of a Part 15 Expert would be filed for the purpose of orders being made in chambers. And a Report available before disposal of all interim applications
Orders were ultimately filed and orders made 18 December 2013, appointing an Ms H, clinical psychologist, as the Part 15 expert, and enumerating the terms of reference for the report to be commissioned from her.
Thus the proceedings came before me on Friday, 7 February 2014 for further interim hearing.
Serial interim hearings
I am loath to allow the circumstances of this matter to be taken to suggest a precedent for serial interim hearings. The circumstances of this matter have led to the case returning before the Court on four occasions when consideration has been given to interim issues.
On the first occasion the matter was before the Court, 6 June 2013, the matter could not be dealt with as the parties were to attend a Child Dispute Conference that afternoon and which did not conclude until late in the day.
The matter was dealt with on 7 June 2013 before Judge Jones. The interim determination was not finalised on that day as the mother had sought to file further material and the father’s position changed and, thus, it was only appropriate to determine arrangements during the adjournment.
When the proceedings returned on 9 September 2013 events, as it were, had overtaken the matter and, thus, whilst Judge Jones had quite appropriately adjourned the proceedings for more complete determination and for the purpose of allowing each party to file the material they were desirous of relying upon, there were then urgent circumstance to be addressed regarding the breakdown of time arrangements. It was on that basis, and having considered the fresh issues that had been raised at that time, that further Orders were made, including a further adjournment for interim hearing and the appointment of the Independent Children’s Lawyer whose input into the determination of interim issues was desired and ultimately obtained.
Material considered
By the time the matter reached interim hearing on 7 February 2014, the following documents were relied upon by the parties.
In the case of the father:
a)The Amended Initiating Application filed 6 September 2013;
b)The Affidavit of the father affirmed 5 September 2013, filed 6 September 2013;
c)The Affidavit of the father affirmed 4 February 2014, filed 5 February 2014;
d)The Minute of Orders sought by the father, as handed up in Court,
e)The final document relied upon in the father’s case was a Response to an Application in a Case filed by the father 6 September 2013.
In the mother’s case, I have read and considered each of the documents filed by her, comprising:
a)The Response filed 6 June 2013;
b)The Application in a Case filed 14 August 2013;
c)The Affidavit of the mother sworn 30 May 2013, filed 6 June 2013;
d)The Affidavit of the mother sworn 1 August 2013, filed 14 August 2013;
e)The Minute of Orders proposed by the mother, as handed up in Court;
f)The Report of Dr K which is, in fact, an annexure to the mother’s first Affidavit;
g)An Occupational Therapy Evaluation undertaken by “[T]” and which Report is undated, but which is suggested to follow an attendance for examination 19 November 2013 (when [Y] was five and a half years of age).
I have been referred to and have read the Report of Ms H, which was released by Order 6 February 2014.
The parties have not had significant time to read and consider Ms H's Report. However, I note that:
a)It has been made clear to the parties, and as I hope will be apparent from these reasons, that the interim hearing 7 February 2014 is in no way in response to the release of the Report. The interim hearing date was fixed and envisaged as following upon the release of the report and it was on that specific basis that the interim application had not been concluded.
b)The interim proceedings which have been commenced by Mr Hanley by the filing of his Initiating Application had been determined by the Orders that were made by me on 9 September 2013.
c)Immediately prior to the above interim hearing the mother had filed an Application in a Case, enumerated above, which raised fresh issues for interim hearing and, thus, it is, that application which was adjourned and is now heard.
d)The Report had been provided to the parties the day prior to mention. It had been anticipated in the Orders made in chambers that the report would only be available one or two days prior to the interim hearing date and the parties were fully aware of that and provided their consent to adjournment for interim hearing on that basis.
e)No application for adjournment was made by either party, both of whom were represented by competent Counsel.
f)Whilst the Report had only been made available to the parties the preceding day, the matter was not dealt with until late in the day and, thus, I am satisfied each had sufficient opportunity to take account of the Report and provide instruction to their Counsel.
g)The Report comprises part only of the evidence in the proceedings. It is not the disposition of the proceedings. The Part 15 Expert offers opinion to the Court based upon their observations, and that reported to them. Makita & Sprowles (2001) 52 NSWLR 705 issues may well arise regarding that relied upon by the author of the Report and, in this case, they most certainly do.
h)The Report, whilst addressing the terms of reference, does not contain any specific recommendations and, thus, to that extent, neither party could be suggested to have been put in the position of resisting or opposing the Report’s recommendations. Indeed, that is neither the Court’s business nor the place of the report within evidence.
It is the Court’s role to take into account the evidence of the Report writer, together with all other evidence, to balance that evidence, tested, however it may be so tested, time permitting, and to then determine as a tribunal of fact the facts of the case, and to then judicially determine the controversy between the parties by reference to those facts.
It should also be noted that each of the parties has filed in these proceedings a notice of abuse, alleging abuse or family violence by the other. However, that which is contained within those documents is clearly set out in the parties’ Affidavit evidence, to which I now turn.
The parties’ evidence
The mother, for her part, suggests that the father had, prior to the separation of these parties, which occurred as a common fact 1 October 2012, very little involvement in the care or upbringing of the children. The mother, in fact, states in her material at, for instance, paragraphs 10 to 13 of her Affidavit:
During the entire marriage Mr Hanley worked full-time as a [omitted]. Mr Hanley worked six days per week. Mr Hanley did not play a very active role in caring for the children.
I was the parent responsible for feeding the children, bathing them, supervising them, taking them to Doctors’ appointments and playing with them.
The only time that Mr Hanley was required to care for the children on his own was when I was in hospital for one month in 2011.
During the period that I was in Hospital my parents, Mrs & Mr P assisted Mr Hanley in caring for the children. The children stayed at my parents’ home approximately three nights per week.
That is of some relevance and significance, particularly the last portion thereof, (together with other aspects of the evidence to which I will return) in light of the mother’s stern and steadfast objection and opposition to the children spending overnight time with their father or, at least, doing so for some months hence, and then a very slow and gradual introduction thereof is proposed, pending final hearing.
Directions for preparation for final hearing will be made at the conclusion of these reasons. Hearing dates will be approximately six to eight months hence.
The delay for the parties will not be substantial. However, parties’ proposals reflect very different perspectives as to how the children’s time with their father and the relationship occasioned thereby will progress.
The father, for his part, asserts that his involvement with the children was far more substantial than Ms Hanley suggest. The father indicates in his Affidavit material that his involvement was extensive. Indeed, his material would suggest, commencing at paragraph 9, that he was so significantly involved in the children’s care that he would attend to the majority of matters which Ms Hanley has asserted were her sole domain.
The father asserts in support of that proposition that Ms Hanley went shopping, [omitted] for her [omitted] business, fed her horses, and like activities throughout the morning whilst he was home from his work as a [omitted] between 9.45am and 2.15pm, and that he would then return home again early in the afternoon, after [omitted] another shift, and would resume the substantial care of the children.
The parties are, thus, entirely at issue as to the past history of care of the children.
It is to be noted at that point, and this will be dealt with as part of the legislative pathway, that past parenting arrangements are not determinative of future arrangements as ordered by the Court. Indeed, authorities such as Cowling [1998] FamCA 19, Griffiths (1981) FLC 91-064, Cilento (1980) FLC 90-847 and Rainer & Rainer (1982) FLC 91-239, to the extent that they have sought to establish precedent whereby, in interim proceedings, the Court would mirror or reinstate arrangements that existed prior to separation, or prior to determination, are no longer good law.
Past arrangements do have some relevance. It is, however, in aiding the Court in determining what arrangements might best, prospectively; meet the children’s best interests through demonstrated and potentially measurable outcomes. In light of the vast factual dispute as to past reality that is not easily done in this case.
The mother also raises concerns, commencing with her first Affidavit and onwards, regarding the father’s suggested behaviours towards the children. These are particularly set out in the mother’s Affidavit, sworn 30 May 2013 under the heading “My concerns”, and stating at paragraph 20:
I have concerns about Mr Hanley’s parenting of the girls.
These are then related as:
a)An incident when the children were one and a half years of age, when the mother suggests [Y] was tied to her bed with a ribbon;
b)A suggested incident in 2011, whilst the mother was in hospital, when it is suggested that the father had locked the child, [X], in the laundry overnight and the child was distressed and screaming;
c)Another incident in 2011 when the mother suggests she was at the shops, the children were left in the father’s care, and she returned home to observe both girls in the bathtub, unsupervised, and with [X] “about to push [Y]’s head under the water”;
d)Concerns suggested regarding the father’s physical discipline of the children; and
e)Suggested concerns, commencing in or around April 2013, wherein [X] said to her mother, “Can I kiss you?” and the child is suggested to have then put her lips on the mother’s lips and kept them there for five seconds, moving her head from side to side, and when told to stop this replied, “But that’s what Daddy does to me”.
It is suggested by the mother that the father had indicated to her during the marriage, at some unspecified time – noting the parties were together in a relationship from 1999 until their separation 1 October 2012 – that the father had disclosed to her, “I am gay”, and that when it had been raised with him on two subsequent occasions during the marriage that “he did not deny that it was so”. How that is suggested to be relevant or a criticism is not at all clear especially in light of the mother’s suggestions, (which is as high as I can place them), of sexual inappropriateness by the father towards the girls.
Finally, the mother alleges that the father is not apprised of the children’s medical needs or conditions, not accepting of them, and/or less able to deal with and address them than is the mother.
In her second Affidavit the mother returns to her theme of concerns with respect to the father. She indicates that, following the making of the interim Orders on 7 June 2013, that immediately a deterioration in the children’s behaviour commenced, particularly [Y]’s.
[Y] is a child whom the parties agree was diagnosed, at an early age, with an insomnia condition, which has made sleeping difficult for her. She has since been diagnosed; it would seem common ground – although there is some uncertainty with respect to it – with Asperger’s. I will turn to the evidence with respect to that shortly which evidence is far from satisfactory.
The mother suggests that, after the father’s first period of unsupervised time that [Y] thereafter, on 11 June 2013, two days after the father’s time with the children, attended preschool and the mother was contacted by the school, as [Y] was “uncontrollable”. It is suggested by the mother that she arrived and, with the assistance of others, calmed [Y] down. A note with respect to that incident, prepared by [omitted] Preschool and addressed “To Whom It May Concern” is annexed to the Affidavit.
The difficulty I have with that evidence, let alone as to its form, is that, clearly, [Y] was experiencing some significant behaviour difficulties prior to this occasion. The totality of the preschool’s notes are not before the Court and, thus, it is impossible to discern whether there had been any previous concerns or incidents. What is clear, however, is that that which is set out at the commencement of Dr K’s Report annexed to the mother’s Affidavit and dated 22 March 2013, which suggests that [Y]:
...has been exhibiting a number of difficulties. Ms Hanley reported that [Y] has huge behavioural meltdowns and can’t calm herself down..
(See the first paragraph, page 2 of that Report, annexure A to the mother’s Affidavit).
Thus, it is difficult to discern whether there has, in fact, been a change for the worst or a continuation, in [Y]’s behaviour following unsupervised time and, if so, what the cause is. It is also possible that the behaviour is simply a continuation of [Y]’s prior behaviours.
If the behaviour has exacerbated, it may be for any number of reasons. The mother clearly suggests and infers in her material that it is solely as a consequence of some perceived distress for the child, or some other circumstance directly relating to, and arising from, the child’s unsupervised time with the father.
It is then suggested that the child’s sleep difficulties, which had somewhat abated, began to return. The mother suggests that following the incident referred to of 11 June 2013 that she was holding a fundraising party at her home on Saturday, 15 June, the day before [Y] was to spend time with her father. The child was sleeping at the home of the maternal grandparents and the mother was contacted and told by her mother – again, leaving aside issues as to the form and inadmissibility of the evidence – to say that [Y] was spitting and scratching and throwing things and would not calm. Some intervention occurred and ultimately the situation was settled by the maternal grandmother.
What is significant in that regard is the tacit corroboration of the father’s allegation that the children are quite familiar with spending overnight time with their grandparents and have been since their birth and prior to the separation of these parents and certainly subsequent to their separation.
There is no qualm suggested on the part of the mother, in having [Y] and [X] away from her care overnight and in the care of the maternal grandparents for that evening, nor any suggestion that they were unable, when there was what is described in the mother’s language to Dr K as a “meltdown”, in dealing with and resolving those issues.
The mother’s evidence, in her second Affidavit, outlines a catalogue of complaints and suggests immediate and significant deterioration of [Y]’s behaviours, leading up to an attendance by the mother and [Y] upon Dr R when it is suggested that Dr R indicated to the mother (again leaving aside issues as to form and inadmissibility):
She’s lost confidence let her sleep wherever she feels comfortable and happy to be until I can get you an emergency appointment.
[Y] thereafter has slept with the mother in her bed. There is no follow up in the Affidavit evidence to suggest with whom the emergency appointment was or whether it ever occurred. One can only infer it was an appointment with Dr R which appointment has clearly occurred subsequently as the mother then suggests that on or about 2 July 2013, she attended an appointment of Dr R’s office and was advised by Dr R that [Y] was “fully Asperger’s” and prescribed medication.
It is suggested the medication has been used thereafter to good effect and that it has helped greatly in settling [Y]’s behaviour.
The mother then suggests that on or about 8 July 2013, [X] again indicated that, “daddy is still kissing me on the lips. he goes like this,” and [X] then used her hand and head to imitate kissing actions. It is suggested that further difficulties occurred at the preschool and that on 9 July 2013, further an appointment occurred with Dr R as previously referred to and both parties were apprised of the suggested diagnosis.
The mother suggested immediately following this appointment, on 10 July 2013, [X] began to complain that father had hit her and it is suggested that four bruises were observed on the child’s leg and which were then suggested by a Doctor, Dr B, to be fingermark bruises and thus a cause of significant concern. A letter is provided from [omitted] Medical Centre dated 10 July 2013, addressed to “Dear Sir/Madam” indicating:
On examination, the patient has four bruisings to her right lower leg.
At the previous interim hearing 9 September 2013, photographs of the bruises were tendered. Following all of that evidence, Orders, as referred to above, were made by me which reaffirmed the Orders of Judge Jones. I made clear that I was not sitting in judgment of the Orders of Judge Jones. The application before the Court that day was a continuation of the Initiating Application which Judge Jones had determined so far as Orders to apply for a period during the adjournment and which arrangements had broken down through Ms Hanley withholding time and/or requiring that it would be supervised by her parents, (being the arrangement that had been in place prior to the Orders of Judge Jones and expressly rejected by Her Honour).
To the extent that I refer to the Orders of Judge Jones being “reaffirmed”, it is with the greatest of respect to and in concurrence with her view without having had the benefit of her reasons for judgment.
The significant issues that are raised in the proceedings by the parties relate to:
a)Suggested dysfunction in communication between them;
b)Suggested mental health or other behavioural disorders of each parents; and
c)Suggested allegations of risk.
Issue is also raised by reference to and based solely upon the suggested diagnosis of Asperger’s relevant to [Y]. By reference thereto the mother asserts that the Orders proposed by the father are simply not in the child’s best interests, that issue I will deal with separately and distinctly.
I make clear at this point that to the extent that each party seeks to give evidence as to the mental state or predisposition of the other, I reject that evidence as it is in no way in admissible form.
Section 69ZT of the Family Law Act 1975 (Cth), whilst it allows and permits certain evidence to be admitted which would otherwise be excluded by specified portions of the Evidence Act 1995 (Cth), is not carte blanche to allow the parties to simply lead such material as they desire without any concern as to its probative value, source or qualification.
Section 69ZT does nothing more than to provide that certain portions of the Evidence Act do not apply. The portions of the Evidence Act which are suggested to not apply do not include portions of the Evidence Act relating to expert evidence. To that end, Mr Hanley asserts that he has certain qualifications in psychology and has, by reference to his training and experience and use of his own copy of DSM-V (Diagnostic and Statistical Manual of Mental Disorders – 5th edition), sought to diagnose the mother as suffering from Asperger’s Syndrome and possibly other conditions. That evidence has simply not been taken into account.
To the extent that the mother asserts similar issues, although not with such specific diagnosis, offered with respect to the father, again, that evidence is rejected. It is without qualification, context, or basis.
The proposals of the parties
The father, by his Minute of Order, proposes a significant change to current arrangements. That is not to suggest that significant changes may not be found to be warranted and/or in the children’s best interests. I simply observe that they are a substantial and significant change to the present arrangement whereby both children spend time with their father, at best, for a period of seven hours at a time.
The Orders sought by the father are in the following terms:
(1)That the children live with their father:
(a)Each alternate weekend from 3pm, Friday to 9am, Monday;
(b)Commencing 14 March 2014 [being some four weeks hence] each alternate weekend from 3pm, Friday to 3pm, Wednesday, and
(c)Thereafter from 11 April, [being some eight weeks hence], on a week about arrangement.
The mother, for her part, proposes Orders on the following basis:
(1)That the father spend time with the children until the end of term 1, 2014 for the day on each of Saturday and Sunday of each alternate weekend, thereafter together with each alternate Monday from after school until 6 pm.
(2)With the commencement of term 2, 2014, the time would extend to commence 10am, Saturday and conclude 12noon, Sunday, and that then from mid-May 2014, that the father’s time extend to 5pm Sunday.
(3)That during school holidays, the father will spend additional time on Tuesdays and Thursdays from 10am till 5pm and other times as may be agreed between the parties.
(4)The above is subject to a two-page list of proposed restraints against the father, including that he:
(a)Not physically discipline the children;
(b)Give [Y] her medication;
(c)Provide sustagen to [Y];
(d)Not allow [Y] to watch television one hour before bed;
(e)Provide alternate sleeping accommodation for the children other than the bunk beds which he has deposed to presently having for them;
(f)That the father get up to [Y] in the night if and when needed;
(g)That the father supervise [Y] at all reasonable times and in particular so that she does not go onto the balcony of the father’s accommodation being a unit on the first floor of a block;
(h)That the father not interrogate the children about the mother;
(i)That in the event that the children are admitted to hospital, that the father remain with the children until they receive medical attention;
(j)That the father not lock the children in their bedroom at night;
(k)That the father attend upon Dr R to be shown how to correctly restrain [Y] if required and if she becomes violent;
I have raised with Counsel for the mother that such restraints were:
a)Unnecessary; and
b)If to be ordered, should be neutralised so as to apply to both parties.
Both propositions were rejected and met with some disquiet.
The Independent Children’s Lawyer has not given any specific proposal as to the Orders the Court might make. That is not a criticism. It is not the role of the Independent Children’s Lawyer to either determine the proceedings or agitate a specific position.
Whilst section 68L of the Family Law Act imposes an obligation upon the Independent Children’s Lawyer to form an independent view as to what is in the children’s best interests by reference to evidence that is available, that does not compel that the Independent Children’s Lawyer propose and agitate a specific position. It is entirely appropriate that it not be so.
The Independent Children’s Lawyer does, however, propose that overnight time should commence prior to final hearing but perhaps as a compromise between that sought by the mother (it being deferred for a further period of approximately eight to ten weeks), and that of the father (that it commence forthwith), that there might be a delay of some weeks.
Thus are the proposals of the parties and the Independent Children’s Lawyer and the judiciable issue which the Court is called upon to determine.
[Y]’s diagnosis of Asperger’s
The first mention of [Y]’s diagnosis with Asperger’s occurs as a single sentence at paragraph 40 of the mother’s Affidavit sworn 30 May 2013. It suggests that [Y] was in or about March 2013 taken to see Dr R who then referred [Y] to see a psychologist, Ms W, who [Y] saw once before being referred to see a further psychologist, Dr K.
It is to be noted that all such referrals and appointments occurred after the physical separation of the parties. The father suggests that he was not advised of any of the appointments nor/thus did he attend them. He also suggests he was not advised of any information gleaned therefrom.
The paragraph then concludes:
Dr (sic) K diagnosed [Y] with Asperger’s. [Y] has another appointment with her specialist, Dr R, 31 July 2013 in relation to her diagnosis.
The mother suggests at paragraph 41, that following the appointment with Dr K the father was advised that [Y] had been diagnosed with Asperger’s.
The father certainly confirms that he was given some advice following the appointment. His evidence being that he received a text message or email telling him that it was so, with little, if any, further detail.
The mother then annexes a copy of a Report of Dr K. That Report, again, has some difficulties as to its admissibility in light of how it is sought to be introduced into evidence. In any event, no objection was taken to it and thus it is before the Court.
The Report suggests an assessment occurred on 27 February 2013, at which time [Y] was four years and eight months of age. The Report is dated 22 March 2013 and headed “Confidential Psychological Assessment Report”.
As previously indicated, at the commencement of page 2, the Report refers to an interview occurring in the context of [Y] having exhibited a number of difficulties, including “huge behavioural meltdowns” and an inability to self-soothe or calm. The Report then indicates (at the second paragraph, on page 4):
Based on the current assessment, observations and questionnaires, it is evident that [Y] is meeting DSM-IV diagnostic criteria for Pervasive Developmental Disorder-Not Otherwise Specified (PDD-NOS). This term is intended to imply that it is a developmental condition that affects social interaction and restricted patterns of behaviour in children with age-appropriate language skills. For some children with these types of difficulties, the inability to deal with novel and changing situations causes problems in socialising as the child may feel overwhelmed and uncertain of the appropriate social rules. Children will therefore respond with either extreme externalising behaviours or may require reassurance and comfort.
It also indicates at the fourth paragraph, on page 4:
Children with Autism Spectrum Disorders tend to be visual learners.
It then goes on to suggest, in the same paragraph:
They [i.e. children with Autism Spectrum Disorder] need specific information and all the important and relevant details in order to know exactly what they are to do and not to do. As the environment becomes more organised and meaningful, anxiety decreases and independence increases. Focus should be made on the quality of work rather than quantity…
One can, at the very best, infer from that contained in Dr K’s Report that perhaps some of the generalised terms regarding “children with Autism Spectrum Disorders” apply to [Y]. The Report does not make it expressly clear. In any event, that is the best that can be inferred. What that would suggest is a difficulty in dealing with novel and changing situations on [Y]’s part. The evidence cannot be put any higher.
Also tendered, and to which no objection is taken, is an Occupational Therapy Evaluation from [T]. That Evaluation suggests at page 2:
Behaviourally, [Y] can be easily frustrated if things don’t go her way. She typically has one-two tantrums per day. It is difficult to always determine the trigger for her upset, as she can be easily frustrated or overwhelmed. She often has challenges with transitions, as well. [Y] can become quite aggressive and will lash out when upset.
[Y]’s parents… find [Y] to be a bright little girl who does well academically. They are concerned about her social skills and ability to regulate her arousal. They hope to gain a better understanding of the underlying causes of [Y]’s difficulties and provide support for [Y].
That portion of the Evaluation is suggestive that the complaints regarding [Y]’s behaviour after spending unsupervised time with her father and her behaviour at her grandmother’s and at preschool are far from extraordinary as regards [Y]. Clearly, the child is having tantrums and acting out badly.
On page 4 of the Evaluation, it is suggested that [Y]’s behaviour was rated at the completion of task by reference to each of the number of scales. It then suggests:
[Y] has mild difficulty sustaining concentration on the directed task, was impulsive in approaching gross tasks and had difficulty regulating her level of arousal if the task was too challenging for her.
Again, that is somewhat generalised rather than specific to [Y].
On page 6 of the Evaluation, portions relied upon with some force in the mother’s case, the following two paragraphs are suggested as relevant:
[Y] has difficulties grading her arousal and emotional levels to meet the environmental demands and can quickly deregulate when met with frustration. She has some difficulties with how information gets prioritised for her.
In the following paragraph, it is suggested:
Modulation is a skill that most of us take for granted.
It is clear that the Evaluation suggests that [Y] has a difficulty in modulation:
When we effectively and efficiently modulate, the myriads of information that come into our nervous system on a moment-by-moment basis we are able to selectively attend and our cognitive energy is reserved for tasks that typically require this capacity. However, for [Y], modulation of information doesn’t happen as automatically. Therefore, there is a lot of cognitive effort that goes into tasks that should be more habitual. This makes sense of her need for routine and seeking predictability, but also her difficulty with regulating her emotional levels and behavioural responses. Not all of [Y]’s behaviours can be attributed to disruptions in her sensory processing, but enough challenges are noted that an underlying sensory processing difficulty could be contributing to some of her behaviours.
In the final paragraph of the Evaluation, page 7, it concludes:
[Y] also presents with social challenges. [Y] has difficulty sustaining a dynamic interaction with a peer that allows for sharing ideas and cooperative problem solving. She can become easily frustrated, angry, and aggressive. She can be supported in her social interactions by maintaining an appropriate sensory diet that allows her nervous system to remain in an optimal place of arousal. She can also be supported in this by becoming self aware of where her arousal level is, and learning appropriate strategies that can help her stay in a regulated place.
The mother’s case is put squarely and bluntly: [Y] has been diagnosed with Asperger’s and thus it is counterintuitive to suggest that there should be any change to arrangement or any significant change. The Court is invited to simply accept that that is so on the basis that the diagnosis of Asperger’s is offered.
Section 144 of the Evidence Act allows the Court to take account and rely upon information in the public domain that is generally accepted. There is no such generally accepted information available upon which this Court can, as it would appear it is suggested it should, base a decision.
The Court is dependent upon determining these proceedings by reference to evidence in these proceedings and relevant to this child. The only evidence that is available is of a broad and generalised nature making statements such as those quoted above, including statements commencing with “Some children with Asperger’s.”
The Reports do not make clear that [Y] was included within that cohort of “some children”. Indeed, it is difficult to extract anything from the Reports that are relied upon which gives any foundation to the submissions that are put in the mother’s case.
The Part 15 Report
One also has the Report of Ms H.
There is nothing in Ms H's Report or that annexed to it which suggests that Ms H has any clear or specific qualification or experience regarding diagnosis, treatment of, or comment upon Asperger’s.
I make that point clearly at this time, as there is also nothing in the material provided to the Court at the time that the request was made for Ms H’s appointment that would suggest that it is so. One would presume that given that the parties have each consented to Ms H’s appointment, and that the parties and the Independent Children’s Lawyer had proposed her appointment and recommended it to the Court, that they have each satisfied themselves that Ms H has necessary and requisite skills, qualifications and experience to allow her to address issues in dispute in these proceedings, including to make comment upon the manner in which the specific diagnosis relative to [Y], the diagnosis of Asperger’s, would impact upon Orders which would be or would not be in her best interests.
That is not apparent from the Report.
The Report is not, however, entirely flawed and unhelpful. The report suggests, commencing with the interview with Mr Hanley, that he perceived that Ms Hanley is:
…a very angry person and abusive towards him during their marriage, and that this had occurred in front of [X] and [Y], who often sought comfort from him when [their mother] was angry. (penultimate paragraph, page 4)
It was suggested by Ms Hanley that there is some risk or concern to the children, and in particular [Y], spending greater time with their father, as he is not accepting of, nor understanding of, [Y]’s diagnosis of Asperger’s.
That is addressed as regards Mr Hanley in the second paragraph of, page 5, wherein it is reported:
In response to questions of whether he accepts [Y]’s diagnosis of an Autism Spectrum Disorder (ASD), Mr Hanley said he had read Dr K’s report, which makes sense to him. However, before this he had very limited information, and didn’t know how the diagnosis had been made. He said that he has not been provided with information in relation to his daughter’s medical needs in the past six months, nor has he been given notice of appointments in a timely way which will allow him to get time off work to attend.
I can only infer, as I am asked to, that there had been some initial doubt with respect to the diagnosis due to lack of information and involvement, but there is now perhaps, and it is only perhaps, some greater acceptance of it.
Certainly, the father’s evidence, particularly that in his most recent Affidavit, suggests that he was not only not told of appointments and information, but that he has been actively misled, so that he has been told times, dates, and places which are entirely inaccurate and but for his own enquiries, this would have caused significant inconvenience for no purpose.
In speaking with Ms Hanley, it is reported by Ms H as follows, (in the last paragraph, on page 7):
When asked her views around where [X] and [Y] should live, Ms Hanley indicated she wants the girls to live with her. She said she doesn’t want [X] and [Y] to have overnight contact with their father, although said she would consider this when they are older (10 years) and able to care for themselves. Ms Hanley believes [X] and [Y] have been affected by the breakdown of the relationship between Mr Hanley and herself. She said that [X] is loving the attention she gets from Mr Hanley on contact visits, and thinks she would cope with increased contact. However, Ms Hanley said that [Y] had told her she is “frightened” of Mr Hanley, and [Y] has had episodes of very difficult behaviour following contact. Although this has settled down somewhat, Ms Hanley said she does not think [Y] will cope with increased contact and disruption to her daily routines. She indicated that she supported telephone calls between the girls and Mr Hanley, and agreed these should proceed with some level of privacy for [X] and [Y].
That is another of Mr Hanley’s complaints: that he rarely, if ever, is able to get through on the telephone and that when he does the calls are monitored and interfered with.
The mother’s concerns with respect to physical discipline and other issues are also raised, and mention is made of the suggested concerns of sexualised behaviour, as to which the mother suggests she was “shocked”.
The children were both interviewed. It is to be remembered that they are young children just six years of age. They are not, thus, children whom either party would appear to suggest would have significant weight attached to their views by reference to authorities such as Harrison & Woollard (1995) FLC 92-598 and also see Re R Children’s Wishes [2000] FamCA 43. To the extent that any such submission might be suggested or inferred, they are rejected.
[X], when interviewed, suggested to Ms H, (page six), that she did “fun stuff with mummy”, as well indicating, “I always want to live with daddy, because I love him.”
Much was made that the children have indicated and expressed a clear view to Ms H that they wish to “live” with their father. However, I am not satisfied at this point that I can either:
a)Place significant weight upon the children’s views, for reasons that will be expanded upon, but which are largely connected to the children’s age, their enmeshment in conflict, and in the case of [Y], her diagnosis with Asperger’s and the impact that may have and would appear to have (from that which is of use contained in the medical and semi-medical Reports provided) upon her cognisance and capacity to express a clear and independent view; and,
b)As a matter of language, it is unclear whether the children are suggesting that they have a desire to live with their father as against living with their mother, or whether they are simply suggesting by “live with” that they wish to spend more time with him or whether they are wishing to stay with him over night or to, in fact, live with him full time.
I am not persuaded that the latter interpretation can or should be taken at this time and pending further exploration at final hearing.
That is particularly so as clearly there is nothing put (see Re R Children’s Wishes) to the children so as to explore how they would react if an alternate proposition were put to them such as “when would you wish to see your mother if you lived with your father”.
In any event, [X] does not suggest concern with respect to her father, but in fact suggests a desire to see or spend more time with him.
When asked directly whether she wants to stay at daddy’s house, which is the interpretation of “live with” I prefer to adopt at this time, [X] is reported, (at the top of page 7), as responding, “Yes. I want to see him. I miss him.”
[Y], similarly, indicates that she misses her daddy, is quoted as saying, “I wish I lived with daddy,” and, “I would like to, but mummy says daddy can’t do it,” and, “Daddy can look after us.” Importantly, she indicates that she spends significant time with her maternal grandparents, and that they visit her at her home, and she sometimes goes to their home. It concludes with [Y] being reported as saying that she loves her mummy.
What I am satisfied that I can significantly take from the children’s views is that which is concluded at the top of page 11 of the Report in the following terms:
During the interviews [X] and [Y] did not identify or speak about any behaviour of their parents that they found uncomfortable. Ms Hanley may benefit from education around age appropriate sexual behaviours and concerning sexual behaviours for children aged five to seven years.
I can infer from that portion of the Report that:
a)The children do not perceive any risk or danger. I accept that this alone is not the test. The Court must form its own independent view as to whether there is an unacceptable risk as discussed in Johnson & Page [2007] FamCA 1235 (amongst others). However, I have some comfort that when it is suggested that [X] and [Y] are physically and verbally abused, exposed to significant behaviours suggested to be of concern and are suggested, particularly in the case of [Y], to be scared of their father that they do not report to the objective Report writer any such concern or perception of their own;
b)Secondly, I can take from the comments of Ms H that she has formed the view that Ms Hanley requires some guidance and assistance with respect to interpreting and forming a fresh and different interpretation.
The assessment of risk is also dealt with, albeit briefly and, to be blunt, unsatisfactorily, at paragraph 13 of the Report. It indicates:
Mr Hanley has acknowledged the use of physical discipline with [X] and [Y] in the past and takes responsibility for that behaviour. He stated he is committed to the behaviour not occurring again.
I pause to note that the mother’s evidence is that to deal with [Y]’s behaviours she holds her down and holds her down until [Y] is exhausted. The mother gives that evidence frankly and candidly, and she was not criticised for it. It is suggested to be consistent with the advice she has received as to how to deal with those meltdowns, tantrums or rages. Mr Hanley is critical of the mother, however, and suggests that this is indicative of some underlying morbidity or disorder on the mother’s part. I do not accept that is so and there is no evidence to support the allegation.
Otherwise with respect to risk the following is offered:
Mr Hanley and Ms Hanley recognise the need to encourage open communication with their children in the home around issues of being safe and talking about times they don’t feel safe, observing privacy rules, telling the truth and reinforcing with [X] and [Y] that they can talk to them about anything. With respect to age appropriate sexual behaviours, Ms Hanley and Mr Hanley appear to have limited understanding of child development and appropriate sex behaviours.
Mr Hanley and Ms Hanley independently stated they want their children to be safe from abuse, neglect and family violence. The greater risk to [X] and [Y] currently appears to be the degree of acrimony between Mr Hanley and Ms Hanley which is being conveyed to the girls. Conflict between parents makes it very difficult for children to cope with separation from their mother or to experience security in the care of their father.
In short, the types of Orders that are sought by the mother are simply inappropriate. They, perhaps, suggest something of the mother’s attitude, rather than enlivening the Court’s jurisdiction.
Maturity, sex, lifestyle and background of the children
These are young children of six years of age.
[Y] has a diagnosis of Asperger’s. There is, regrettably, no real evidence before the Court as to the symptomatology, treatment or management of same. Thus, the Court cannot specifically tailor Orders that will meet any specific recommendation of a treating doctor (nor the Part 15 Expert) in that regard. It is a matter for the parties to produce that evidence should they wish it to be taken into account.
Aboriginality
It is not suggested that the parties, or either of them, nor the children, are from an Aboriginal or Torres Strait Islander background.
Attitude to the child and responsibilities of parenthood
I am concerned that each parent, in different ways and at different times, has demonstrated through their evidence a deficit in their attitude towards their responsibilities as parents and, particularly, an ability or failure to disentangle the children’s needs and interests from their own or the children’s views, perceptions and, indeed, safety from their own views and perceptions of same. However, that, taken into account in the increasing time that will occur and its schedule, is otherwise addressed, I am satisfied, above.
Family violence
I am satisfied that is addressed above.
Family violence orders
There are no family violence orders enforced, nor has there been application for one, it would seem.
Whether it is preferable to make the order that will least likely lead to the institution of future proceedings
This, again, speaks to the issue regarding the mother’s distress.
I accept that the mother’s views are genuinely held. However, they would not appear to be based in any objective reality. That being so, however, I am conscious of the tortuous maxim “one takes one’s victim as one finds them” [without intending to suggest or imply that the mother is “a victim”].
To ensure that matters advance at a pace whereby the mother’s capacity to go along with it, as it were, rather than rail against it and make further fresh application to the Court, as occurred immediately following the interim Orders made by Judge Jones, I must take the mother’s attitudes into account. If nothing else I must take those views and attitudes into account to avoid future proceedings. However, that will not lead to what is described by the mother’s Counsel as a “cautious approach”. As already indicated it is difficult to understand what “cautious” means in this context. If I accept the father’s evidence, a cautious approach is to immediately move to equal time or the children spending more time with their father than with their mother.
On the mother’s evidence, a cautious approach would mean, if evidence were available to support the submissions she has instructed her Counsel to put – and the absence of such evidence is as a consequence of the mother’s failure to call it – moving in a slow, steady and deliberate regime towards the father spending increased time with the children. But, even on that basis, it would be far more extensive time than I believe the mother considers appropriate, noting that she had related to the Report writer only some weeks ago that she opposed overnight time, at all, “...until the children are 10 years old and able to look after themselves”, demonstrating abundantly, in my mind, the mother’s clear inability to accept the father as a person with any capacity to meet the children’s needs.
I do not accept that the father is without capacity and thus I propose to make Orders for substantial and significant time, Orders that will enable the father, particularly as he is available, to be involved in the children’s weekend, school holiday and weekday time. Orders which, by reference to section 65DAA(3), allow him to be involved in events of significance for the children and himself, as well as involved in the children’s daily routine, and thus to “parent” these children and not simply be a person who spends time with them.
By undertaking parenting, the father will be able to become a more full and complete parent to these children. That will bring great benefit to them and will, in the fullest sense of the legislation and the objects and principles underlying it, allow the father to have a meaningful involvement, engagement and relationship with these children, without a corresponding undermining or diminution of the meaningful nature of the mother’s relationship, involvement and engagement with them.
I certify that the preceding two hundred and sixty three (263) paragraphs are a true copy of the reasons for judgment of Judge Harman.
Associate:
Date: 25 February 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Remedies
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Procedural Fairness
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