HARLE & NORCOTT (No.3)
[2020] FCCA 22
•23 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARLE & NORCOTT (No.3) | [2020] FCCA 22 |
| Catchwords: FAMILY LAW – Interim parenting – high conflict case – whether interim orders need to be revisited in view of expert’s report – where Father seeks interim relocation. |
| Legislation: Family Law Act 1975 (Cth), s.102NA(2) |
| Cases cited: Harle & Norcott [2018] FCCA 2551 |
| Applicant: | MS HARLE |
| Respondent: | MR NORCOTT |
| File Number: | WOC 276 of 2018 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 12 December 2019 |
| Date of Last Submission: | 12 December 2019 |
| Delivered at: | Wollongong |
| Delivered on: | 23 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Cook |
| Solicitors for the Applicant: | Bowral Legal |
| The Respondent appeared via telephone. |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW Campbelltown Family Law |
INTERIM ORDERS
Live With
The children W born in 2007, X born in 2009, Y born in 2011 and Z born in 2013 (“the children”) live with the Mother.
Parental Responsibility
The parties have equal shared parental responsibility for the children save and except:
(a)In the event that the parties cannot reach agreement with respect to a decision effecting major long-term issues, then the Mother will have the final decision making in respect to that issue; and
(b)The Mother will advise the Father of any such decision she makes as soon as is practicable; and
(c)This Order expressly permits the Father to obtain any information about the children’s education, medical health, extracurricular activities and residential details from any service provider attended by the children.
X, Y and Z shall remain enrolled and attend Town L Public School.
W shall remain enrolled and attend Town F High School, commencing in Term 1, 2020.
If the Father Lives in Queensland
School Holidays
The children will spend time with the Father during the NSW school holiday periods as follows:
(a)Commencing in term 1, 2020 for one half of each of the school holiday periods, on a week about basis as follows:
(i)In 2020 the Father to have the first week of the school holiday period commencing the Saturday after the last day of the school term and concluding at the 7th day thereafter and each alternate week thereafter; and
(ii)At all other times the children will be with the Mother.
Changeover
For the purposes of Order 5 herein:
(a)The parents are to facilitate the children flying to Queensland to spend time with the Father, and the Mother and the Father shall equally be liable for all costs associated with the children when travelling to and from Queensland for the purposes of spending time with the Father.
(i)Where the children are required to fly to Queensland in order to spend time with their father, unless otherwise agreed in writing, the Father shall within 28 days prior to the commencement of his time with the children shall provide the Mother with a copy of the flight itinerary for the travel to and from Queensland.
(ii)Where the children are required to fly to Queensland in order to spend time with their father, unless otherwise agreed in writing the Mother shall facilitate the children flying to Queensland and in doing so will ensure their safe boarding of their flight and the Father shall collect the children from the gate at the terminal at which the children land; and
(iii)Where the children are required to return to New South Wales in order to return into the Mother’s care, unless otherwise agreed in writing, the Father shall facilitate the children flying to New South Wales and in doing so will ensure their safe boarding of their flight and the Mother shall collect the children from the gate at the terminal at which the children land.
(b)In the event that the parents are unable to equally share the costs of the children’s flights in accordance with the above Orders, changeover shall be facilitated by the parents driving the children by car and meeting at an agreed midway point between the Mother’s and the Father’s place of residence at the commencement and conclusion of the time the children spend with the Father.
If the Father Lives in New South Wales
During School Terms 1, 2 and 3 2020
The children spend time with the Father as follows:
(a)From the date of these Orders from afterschool Friday to 5:00pm Sunday in each alternate weekend; and
(b)From afterschool to 8:00pm Wednesday in the off week and each alternate week thereafter.
Father’s Special Days
If the children would otherwise be with the Mother, the Father will spend time with the children as follows:
(a)On the children’s birthdays as follows:
(i)On a school day from afterschool to 7:00pm; or
(ii)On a non-school day from 2:00pm to 7:00pm.
(b)On the Father’s birthday:
(i)On a school day from afterschool to 7:00pm; or
(ii)On a non-school day from 2:00pm to 7:00pm.
(c)On Father’s Day from 9:00am to 5:00pm.
Mother’s Special Days
If the children would otherwise be with the Father, the Mother will spend time with the children as follows:
(a)On the children’s birthdays as follows:
(i)On a school day from afterschool to 7:00pm; or
(ii)On a non-school day from 2:00pm to 7:00pm.
(b)On the Mother’s birthday:
(i)On a school day from afterschool to 7:00pm; or
(ii)On a non-school day from 2:00pm to 7:00pm.
(c)On Mother’s Day from 9:00am to 5:00pm.
Easter and Christmas
The children spend time with the Father during Christmas as follows:
(a)In 2019 and all odd numbered years, from 10:00am 26 December until 10:00am 29 December;
(b)In 2020 and all even numbered years from 6:00pm 24 December until 10:00am 26 December.
In the event Easter falls outside the school holiday period, the children spend time with the Father as follows:
(a)From 9:00am on Good Friday until 9:00am Easter Sunday in years ending in odd numbers; and
(b)From 9:00am on Easter Sunday until before school on Tuesday in years ending in even numbers.
School Holidays
The children will spend time with the Father during the NSW school holiday periods as follows:
(a)Commencing in term 1, 2020 for one half of each of the school holiday periods, on a week about basis as follows:
(i)In 2020 the Father to have the first week of the school holiday period commencing after school on the last day of the school term and concluding at 4:00pm on the 7th day thereafter and each alternate week thereafter; and
(ii)At all other times the children will be with the Mother.
Changeover
Changeover shall take place at the Town F McDonalds family restaurant as follows;
(a)At the commencement of the time the children spend with the Father, the Mother is to take the children to Town F McDonalds, park her car, take the children into the McDonalds restaurant, advise the Father by text message that the children are inside the McDonalds restaurant, return to her car and remain there until she observes that the children have been collected by the Father.
(b)At the conclusion of the time the children spend with the Father, the Father is to take the children to Town F McDonalds, park his car, take the children into the McDonalds restaurant, advise the Mother by text message that the children are inside the McDonalds restaurant, return to his car and remain there until he observes the children have been collected by the Mother.
Restraints
The Mother and Father are both restrained from speaking with or discussing these proceedings with the children or allowing any third party to speak with or discuss these proceedings with the children including but not limited to any filed material, any reports or documents before the Court and any information relating to Court attendances.
Anchor Program
The Mother and Father shall do all acts and things to engage the children with the Anchor Program.
IT IS NOTED that publication of this judgment under the pseudonym Harle & Norcott (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 276 of 2018
| MS HARLE |
Applicant
And
| MR NORCOTT |
Respondent
REASONS FOR JUDGMENT
Introduction
This case continues to be about four children: W, 12 years old, soon 13; X, 10 years old, soon 11; Y, 8 years old; and Z, 5 years old.
This is the third published Reasons for Judgment relating to these children, the previous ones recorded as [2018] FCCA 2551 and [2019] FCCA 1676. The children continue to presently live with their mother, and spend time with their father.
The intractable conflict between the parents continues. It is not intended to set out historical matters, as these were all comprehensibly dealt with in previous Judgments, particularly the one delivered on 12 June 2019. The orders made on that date suspended the then existing orders, provided for the children to live with their mother, and to spend time with their father each alternate Saturday from 10:00am until 6:00pm.
The matter came back before the Court on 29 August 2019 because of difficulties the parents were experiencing with changeover.
On 11 October 2019, the Regulation 7 Family Report of Ms N of that date, was released to the parties. The matter came back before the Court on 18 October as a result of the release of the Report. An order was made under section 102NA(2) of the Family Law Act 1975 (hereafter referred to as “the Act”) in relation to cross-examination. The hearing dates that had been allocated, 9 to 11 December, were vacated, and an Interim Hearing was held on 12 December 2019. The purpose of the Interim Hearing was to consider whether, and if so how, the parenting arrangements should be changed to reflect the recommendations made by Ms N. Ms N's Report will be discussed, in detail, below.
These Reasons for Judgment explain the orders as made, following the Interim Hearing on 12 December 2019. However, as the Court knew that it would not be able to deliver Reasons for Judgment before the Christmas recess, the parties were encouraged to, and in fact did, enter into consent orders to ensure that the children spent time with their father during the December/January school holidays. The other important development was that the Father had returned to his home in Queensland, as a result of being able to secure work within his field of expertise in south eastern Queensland and northern New South Wales. The consent orders entered into between the parents provided for the children to spend time with their father in Queensland from 27 December 2019 to 12 January 2020, with the parents meeting in City O and City P.
The competing proposals
The Mother’s proposal was that the children continue to live with her, that parental responsibility be shared, save in respect of the few issues, and that the children spend time with their father during school holidays if he continued to reside in Queensland, but otherwise spend substantial and significant time with their father should he live within a reasonable proximity of the children.
The Father’s proposal was that there be equal shared parental responsibility, save as regards a number of issues; that the children live with him in Queensland and that changeover take place in Queensland. It was not entirely clear to the Court what the Father’s proposal was for the children to spend time with their mother, but during submissions it became apparent that it certainly included school holidays, and could include time during the school terms, provided the Mother was responsible for collecting and returning the children.
The Independent Children's Lawyer, doing the best he could in circumstances where so little was, in fact, known about the Father’s living arrangements, supported the Mother’s proposal. This was primarily based on the recommendations contained in the Report.
It was common ground between the parties that notwithstanding the orders in place, the children have not spent time with their father since the end of September 2019.
The material relied on
The Independent Children's Lawyer relied on the Report of Ms N of 11 October 2019. In addition, the Independent Children's Lawyer filed a useful case outline document on 11 December 2019.
In the Mother’s case, reliance was placed on:
a)Affidavit of Ms Harle sworn and filed 29 November 2019;
b)Affidavit of Ms Harle sworn and filed 12 August 2019;
c)Affidavit of Ms Harle sworn 13 March 2018 and filed 14 March 2018; and
d)Case outline document filed on 9 December 2019.
In the Father’s case, reliance was placed on:
a)Affidavit of Mr Norcott affirmed and filed 9 December 2019;
b)Affidavit of Mr Norcott affirmed 24 September 2019 and filed 14 October 2019;
c)Affidavit of Mr Norcott affirmed and filed 26 August 2019;
d)Affidavit of Mr Norcott filed 23 May 2019;
e)Affidavit of Mr Norcott affirmed 12 September 2018 and filed 14 November 2019; and
f)Case outline document filed on 9 December 2019.
The cases summarised
The Father’s case was that he had returned to what he had described as the family home in Queensland, the place from which, according to the Father, the children were abducted from and taken to New South Wales two and a half years ago. He returned to Queensland because of the availability of work for him. He felt that it was the children’s view to return to Queensland and live with him. Even though he could not articulate a precise proposal for the children to spend time with their mother, he submitted that there was no reason not to allow contact with their mother. He was even prepared to meet halfway. If the Court ordered, however, that the children live with their mother and spend time with him, then his first preference was that the Mother pay all costs associated with this, though he could try to meet half the costs. The nearest airport was either Region Q or Brisbane, about an hour’s drive away from the family farm.
The Mother’s case emphasised the need for continued stability for the children, and keeping them, so far as possible, in their current school, which is a safe haven for them. The Father’s proposal was characterised as a relocation, which was firstly discouraged in the Family Report, and secondly, would be to a place in a factual vacuum. Very little was known about the children’s proposed residential circumstances, where they would go to school, etc.
The Independent Children's Lawyer’s case was that relocation on an interim basis was opposed, but he was certainly not prepared to rule it out as an outcome on a final basis. The only circumstances that would warrant the Court reconsidering its earlier detailed consideration of what was in the best interests of these children, was the fact that the Father had chosen to relocate, but otherwise little had changed in terms of the family dynamics, or the needs of these children. In terms of the children’s wishes, however, the situation continued to be complex. W preferred to live with his father. X is reluctant to even spend time with his Father, whilst the other children do want to spend time with their Father.
The Independent Children's Lawyer emphasised the importance of the Family Report. The Court agrees. Other than the Father’s voluntary relocation back to Queensland, the availability of the Family Report is the only new development in this case. Accordingly, close consideration will need to be given to it.
The applicable law
The applicable law continues to be that set out in earlier the Judgments, so will not be repeated here.
The Report of Ms N
Ms N's Report was based on interviews conducted in the Wollongong Registry on 16 and 17 September 2019, including observations between the children and their mother and father, as well as subsequent telephone calls, and emails with relevant persons. It is clear that Ms N had available to her the documents filed by the parties in the proceedings to date.
Ms N sets out the Father’s description of his living circumstances at paragraph 4 of the Report. This is important, as the Father otherwise discloses very little about those circumstances in his affidavits. Paragraph 4 records:
Mr Norcott indicated he resides in Town M Queensland on a 500-acre farm. He stated the accommodation is a number of renovated shipping containers that has one bathroom and three bedrooms. He stated he has no address in Sydney.
Ms N noted, no doubt based on what the parents told her, that with the Mother living in Town F, in the Region G of New South Wales, and the Father living in Queensland, the driving distance between the two residences was about 11 to 12 and a half hours, with the distance being about 1000 kilometres. At paragraph 22, the Father explained to Ms N that his view was that the Mother could relocate back to Queensland as she has family and friends there. His proposal for the Mother to spend time with the children was set out at paragraph 24 and this was that she could have contact with the children: “… whenever she wants, weekends, school holidays there would be no restrictions and she has lots of family and friends in Queensland.”
He then went on to indicate at paragraph 24:
... he would relocate from New South Wales to somewhere on the northern New South Wales border should he have full time care of the children as “that is where the work will be for a number of years”.
The Court observes that the vagueness of the Father’s proposals about where he and the children would live (and who else would be living there), should the Court so order, continued at the Interim Hearing. He could not iterate, with precision, whether the children would be living with him in Town M or somewhere else. He made reference, during submissions, to a particular local high school, but it was not clear to the Court how that could be reconciled with his statement that they could also be living in northern New South Wales.
Ms N recorded the mutual allegations and denials that each parent makes about the other in relation to violence, abuse, unwillingness or inability to communicate, and what the Court might describe as pathological distrust. These are all matters consistent with the parents’ presentation to the Court, and have been discussed in earlier Reasons for Judgment.
At paragraphs 110 to 140, Ms N sets out the relevant observations following her conversations with various teachers at the children’s schools. For example, the Principal at Town L Public School explained that the school was: “… trying to create a safe space here for the children to learn, and everyone here cares about them”.
The Principal observed a change in the children’s behaviour since they commenced spending time with their father. W and X had become quite aggressive. She was very concerned about the children having adequate psychological and family support intervention.
W was described by his current teacher as being: “... a very sensitive young man who can be quite caring, however can be very unpredictable and thinks people are always out to get him”.
The teacher described W as very bright and intelligent, but caught up with what is happening in the family, referring to the fights. Recently, W’s behaviour was disrupted, and this seemed to have aligned with contact visits. W’s teacher had observed him being very angry, and aggressive in and out of the classroom.
Z’s current teacher explained there were no concerns about his behaviour in the classroom or playground. She was concerned about his development and progress at school.
Y’s teacher described her as quiet and tearful when she first comes to school, but then settles down. She is doing well academically and has many friends. She is protective of her brother, Z.
X’s former school teacher described him as affectionate, smart and sensitive. Last year, X had filled in a booklet during child welfare classes, in which he wrote: “‘can’t trust Mum or Dad’ because ‘my Dad hurts me, and my Mum swears at me’”.
She had noted a change in X, from being very excited about seeing his father last year, to speaking quite negatively about his father this year.
The parental relationship is described at paragraphs 141 to 145:
[141] Ms Harle spoke about her frustrations with the communication and ongoing issues with Mr Norcott regarding spending time with the children. She stated she wanted the children to have a relationship with their Father, however “he makes it impossible”.
[142] Ms Harle indicated they have “not been able to agree on much since the separation”.
[143] Ms Harle requested the changeover location to “not be at my residence as I need privacy too, it is a bit creepy; how did he know the address, I have not told him, and it was not in the Court documents”.
[144] Ms Harle indicated she would “love to be able to talk to him [Mr Norcott] about the children, but “there is never an easy conversation or text”. She reported there was always an issue “if he didn’t like my answer or wanted more information, or him just accusing me of something’.
[145] Mr Norcott preferred to be able to text or email Ms Harle as he stated, “I just get yelled at on the phone”.
Both parents agree that the children needed psychological assistance, but they could not agree about actually bringing this into reality.
Ms N, of course, met with each of the children and records what occurred, and what was said. Some of these will be set out at length. They are very powerful.
In relation to W, the record of his interview, it is found at 153 to 161:
[153] W (aged 12 years at the time of interview) was eager to speak about his family. He started to talk about Mr Norcott immediately after the purpose of the day was explained to him while he was drawing.
[154] W began to explain that Mr Norcott has “found a place up there [in Queensland] to help me with school. Mum [Ms Harle] got me one, but all she did was teach me the ABC’s and I already know that stuff, I hate learning stuff I already know”.
[155] W stated, “she [Ms Harle] lies about a lot of things, like when we were leaving Queensland, she said we were just visiting friends and we had a fight on the way as I wanted her to take me back, I refused to get into the car, we didn’t even get to say goodbye to Dad”.
[156] W went on to say, “and the thing with X it didn’t happen as she says, I was there. He [X] got into trouble and Dad smacked him and X doesn’t like that. He [Mr Norcott] did kick X but it was in his shin. We were all there in the unit, we all saw it”.
[157] W indicated that there is nothing he is worried about with either his Mother or Father. He stated that he is “old enough to be able to say what I want”, and asked “how do I get to go and live with my Dad?”
[158] W added, “I want to go and live with Dad in Queensland, all my older siblings are there too, and Mum doesn’t let us see them either”.
[159] W indicated that he is concerned for Ms Harle as “she still thinks I need her to tell me what to wear, she is very controlling, I think I can dress myself now”. W stated that he was happy with the clothes he had chosen for the day of the Family Report interviews.
[160] W reported that “it is hard, both Mum and Dad say mean things about each other, they are always fighting”. W also indicated he and X “we fight a lot too, X hangs out with some, you know, not good kids and he says really bad words, like the F[Fuck] and C[Cunt] word”.
[161] W conveyed that “Dad hit me, but he didn’t’ mean it”, and “it hasn’t happened again”.
The Court observes that W has expressed a strong view to live with his father, who has clearly spoken with him about details such as where he would go to school in Queensland. What is apparent to the Court, however, is that the Father’s proposals are by no means as clear as what W thinks.
The report of the interview with X is found at paragraphs 162 to 168:
[162] X (aged 10 at the time of interview) was eager at first to talk, however when the conversation turned to speaking about the family, X asked to leave and then hid under the lounge in the office. The Family Consultant sat on the floor and spoke softly to X.
[163] About himself, X indicated that he “likes soccer, have some friends at school, and likes playing outside more than inside”. X said he finds “it hard to sit and learn at school, I can’t think”.
[164] X said that “both Mum and Dad make me feel bad, they both hit and yell at me, I’m always the one in trouble. Even my brothers and sister yell at me too”.
[165] X asked if the Family Consultant could “stop Mum and Dad fighting, I just want them to stop”. When asked if there are things that worry X, he said, “Mum [Ms Harle] lies, for example she will steal money from Mr R and then blame me, and if I tell Mr R she would lie and I would get into trouble”.
[166] In relation to Mr Norcott, X stated, “I want to spend more time with Dad [Mr Norcott], maybe one or two nights”. X was asked about being hit by Mr Norcott. X said, “yes, he [Mr Norcott] hit me, but it wasn’t like she [Ms Harle] said”.
[167] When asked if he could change one thing, X said “world peace” because he doesn’t like arguing. When asked about changing something in his family, X said, “Can you take me to an orphanage so I can get new parents?”. X went on to ask if “someone can help me, I have no one to help me”.
[168] At the end of the interview, X was taken back to the waiting area, he saw Mr Norcott and ran over and jumped on his shoulders. Mr Norcott was sitting in one corner playing chess with W. Y and Z were playing with Ms Harle and Mr R in the other corner at the other end of the waiting area.
X’s words are poignant and powerful. If only his parents were listening.
Y and Z’s interviews are recorded at paragraphs 169 to 176:
[169] Y (aged 8 at the time of interview) spoke of her school, being in Year 2 at school and that “I have no friends at school, sometimes I play with the girls who are mean to my face so I’m not alone”. Y said that she likes school and is “good with schoolwork”.
[170] Y said that she is “worried about Mum and Dad, they both say bad things to us and about themselves”. Y said that she does not “know how to help them, they just fight all the time”.
[171] Y stated that she is worried about “the boys, they fight a lot, and say lots of bad words, but Mum doesn’t help, W broke X’s fingers”.
[172] When asked about what she would like to happen, Y stated she would like to “live with Dad and spend time with Mum”.
[173] Z (aged 5 at the time of interview) was spoken to while he played with the sand pit. At times Z was more engaged in playing with the sand than talking.
[174] Z said he doesn’t like that, “Dad and Mummy fight a lot” and “I don’t get to see Dad that much, I miss him”.
[175] Z said he likes “Mum [Ms Harle] gives me cuddles” and “we laugh a lot with Dad we play games and do things”.
[176] Z said he would, “like to sleep at Daddy’s home”, but was unable to say where that was.
The dissonance between Y’s report that she has no friends at school, and her teacher’s observations, are notable.
The parents’ perception on their relationship with the children is set out at paragraphs 177 to 178:
[177] Ms Harle stated she and “the kids have been through the ringer and back, but we are doing ok”. She stated she had “lost control, but after the therapy we were back on track”. As previously mentioned, Ms Harle raised concern about all the children’s health and wellbeing, but “especially W and X given all they have been through”.
[178] Mr Norcott described it was “hard to have a relationship when I have been so restricted, but it is slowly coming back”. “The kids love spending time with me, the younger two though, it’s like I don’t know them that well” due to the limited time he has spent with them.
Ms N records her observations of the interactions between the children and their parents at paragraphs 180 to 199.
Ms N’s evaluation commences with a discussion of the parental conflict, and this is set out at paragraphs 200 to 204:
[200] W, X, Y and Z appeared to have relationships with each parent that was determined by who they were with and what was happening at the time. During their individual observations with each parent, each child appeared to engage and relate to both Ms Harle and Mr Norcott in a positive and affectionate manner.
[201] In front of the other parent, the children’s behaviour changed, and it was noted that this may be interpreted by each of the parents as a dislike for the other parent, however it may be the result of the parental conflict on the children. Children in high parental conflict situations eagerly try to appease the parent they are with to the detriment, at times, of the other parent. This is to ensure their relationship with each of the parents is preserved and they are not subject to negative behaviour or statements from the parent.
[202] The parents appear to continue to be in high conflict and this does not seem to have improved over time with the Court’s intervention, despite the separation being a number of years ago. It is therefore considered unlikely the conflict will abate into the future and it appears the children will continue to be exposed to this conflict. It appears Ms Harle and Mr Norcott are both preoccupied with the conflict and unable to focus on the needs of the children. The children reported that both parents speak negatively about each other in their presence and this is an indicator that neither parent can protect the children from the conflict.
[203] Children who are subjected to ongoing parental conflict can be seriously negatively impacted in the short and long term by this experience. It can adversely affect their social relationships leading to maladaptive and anti-social conflict resolution skills of their own, which it appears the children are already exhibiting as indicated through the school reports. This in turn can lead to unhealthy and poor ability to form long lasting relationships into their adulthood. Further, the parental conflict may affect each of the parental relationships with each of the children by causing the children to reject one or both of their parents, as well as negatively impacting on their sibling relationships. This may have already occurred with the poor relationships demonstrated between the siblings.
[204] Continued exposure to parental conflict may lead to vulnerabilities in the children’s mental health. They can experience anxiety and depression that can impede, not only on their peer and social relationships, but their capacity to learn and obtain an education.
She discusses the children’s mental health, and the parent’s mental health, at paragraphs 205 to 210. The family violence allegations are discussed at 211 to 216.
The co-parenting relationship is discussed at 217 to 226:
[217] As previously mentioned, the nature of the co-parenting relationship appears to be very poor and is not likely to change. The parents both reported concerns and made allegations of each other. Given the high conflict between the parents, it is considered likely that if they share parental responsibility they will engage in further ongoing conflict and this is likely to impede decisions being made for the children’s ongoing health and social wellbeing.
[218] Due to the conflict about the children’s mental health needs, they are currently receiving no treatment or support which has likely increased their own negative mental health states. The conflict has impeded the needs of the children and their access to services which may very well have improved their wellbeing and resilience in the face of the extent of the parental conflict. Should the conflict continue, there is a risk that the children will lose their relationship with one or both of their parents.
[219] Given the nature of the parental relationship, a shared care or an arrangement involving significant and substantial time with each parent is contraindicated. It is also complicated by the fact that Mr Norcott reported he would move back to Queensland; however it is unclear if he does only have time to spend with the children it be done in New South Wales unless there is prior travel approval. If Mr Norcott relocates to the Town F area, it is likely to negate difficulties with transitions between the parents as change overs could take place via school pick up and drop off times; should time with Mr Norcott be considered as an appropriate option.
[220] The children have not spent significant time with Mr Norcott since the separation of Ms Harle and Mr Norcott and this is likely to have affected the children’s relationship with Mr Norcott. Due to the children’s ages and difficulty of the situation with the parental conflict, is it not recommended that any of the children’s views be given determinate weight by the Court.
[221] If the children do not spend any time with either parent, it is likely to be experienced as difficult for them. W, X and Y all appeared concerned about their interview with the Family Consultant and what they said about each of their parents. W, X and Y appear to be building a general distrust of both parents due to the level of conflict and impact the situation is having on their relationships.
[222] W and X appear to be the most affected by the conflict with their behaviours and outbursts, considering their own, the school and parental accounts during interviews. They may benefit from having counselling to identify support and develop strategies to help them manage their family environment and build resilience.
[223] It is considered that none of the children should ever be in such a position they can not speak or display positive emotions to the other parent; however, it appears both W and X have engaged in behaviour that seeks to please either parent. For example; W not engaging with Ms Harle during the initial observation and X not wanting to enter the observation room with talk of Mr Norcott being there.
[224] Ms Harle’s initial reaction was that X was scared of Mr Norcott, however the observation indicated X and his father have a positive, affectionate relationship. It may also be that the parents interpret the behaviour of the children incorrectly and use it to fuel their ongoing parental conflict. It may be the children feel as if they have to take sides and with the conflict, shuffle between the two.
[225] In the children’s observation sessions, it seemed that the children played more cohesively and demonstrated concern for each other and sought Mr Norcott’s assistance in managing differences, compared with Ms Harle’ observation time. The exact reason for this is unknown but it may be because of the children’s perception about each of their parents, and their perceptions about the parents’ capacity to provide for them.
[226] Taking everything into account, and in particular the parental dynamics, it is recommended the children live primarily with one parent who can meet their emotional, psychological and health needs.
Of particular concern to the Court is the likelihood, if not the reality, that the children’s mental health needs are not being adequately addressed because of the parental conflict.
Ms N discusses matters of child safety and wellbeing at paragraphs 227 to 228, and education at paragraphs 229 to 231.
She discusses relocation at paragraphs 232 to 236. It is clear that the Father had foreshadowed to her not only that his final proposal was for relocation back to Queensland, but that he was planning to move back to Queensland, as at the time of the report interviews. Given the Father’s proposal for interim relocation, these paragraphs bear reproduction:
[232] Mr Norcott is seeking orders that allocate him sole parental responsibility and for the children to be given permission to relocate to Queensland. Given the children have been reported to have established a safe place within their school in New South Wales and have a support network during this high conflict time, it may be detrimental for the children to relocate to an unknown area (as Mr Norcott indicated it would be Northern New South Wales and the children have never lived there) away from their teachers and Ms Harle who has cared for them for their entire lives.
[233] While W has indicated he has not been able to see his step siblings, there was limited information provided by Mr Norcott that indicated W previously had an ongoing relationship with his step siblings. Therefore, this raises questions about W’s motivation for indicating this. It may be W is seeking further support from someone other than his parents, this, however, is a matter for the Court to determine.
[234] There are several areas for the Court to consider in a relocation; the Court’s determination regarding family violence and unacceptable risk, the Court’s determination regarding abuse and neglect, the impact a relocation could have on the children’s ability to maintain a regular relationship with their current support network; the financial cost of flights and other travel and given the high level of conflict, this is likely to be a continued area of conflict which would encapsulate the children; and the emotional and psychological wellbeing of the children given their parents’ current mental health states.
[235] While Ms Harle has previously made decisions for the children on her own without consent from Mr Norcott, she has alleged that she has done so for the best interests of the children and herself due to family violence and this is a matter for the Court’s determination.
[236] Similarly, Mr Norcott indicates that he has also acted with the children’s best intention in mind. When Mr Norcott has made decisions without discussion or inclusion of Ms Harle it has compounded with the parental conflict and served to exacerbate the situation rather than provide any assistance.
Ms N’s recommendation is found at paragraphs 237 to 242:
[237] Given the concerns regarding parental conflict and the impact this report may have, it is recommended this report be released in Court and the Independent Children’s Lawyer meet with the children to discuss any further Orders made by the Court.
[238] That W, X, Y and Z, Mr Norcott and Ms Harle engage with a Court appointed Child and Family Psychiatrist assessment and the outcome be provided to the Court prior to Final Orders being made.
[239] The Court make Orders preventing the parents engaging in any services, assessments or treatment that has not been approved by the Court.
[240] The parents each complete a mental health assessment with results provided back to the Court prior to Final Orders being made.
[241] That consideration be given to the children being involved with the Anchor program to support them and manage their parents’ high conflict and develop coping strategies and build resilience in a group environment with their peers.
[242] That dependent on the Court’s determination regarding the risk identified above, consideration be given to allocating sole parental responsibility to one parent.
Ms N’s recommendations for a psychiatric assessment precipitated the vacating of the hearing dates in December. This is a matter that will need to be attended to, however, before a final hearing can be allocated. The Court trusts that the Independent Children's Lawyer will take this on-board, if he has not already done so.
It was not possible to cross-examine Ms N, given the available time to deal with the interim application. Ms N’s evidence, nonetheless, remains the only independent and expert evidence in this case. Her impressions of the family are consistent with this Court’s impression of the family since the proceedings commenced in 2018. These children are caught in the middle of an intense and intractable parental conflict. Even though the parents are both obviously intelligent and, it would seem from the material they have filed and the matters put on their behalf, that they at least know in an academic sense how their conflict is adversely affecting their children, but in an emotional sense they simply remain unable to disconnect. This is a great tragedy for the children.
Orders in the best interests of these children?
The Father had ample opportunity to consider Ms N's Report by the time of the Interim Hearing. He proposed a relocation, even though at paragraph 232 Ms N warns about the detrimental impact on the children of removing them from a support network that they have at this particular time. Clearly, the Father’s presentation to the Court is of a highly intelligent and articulate man. And yet notwithstanding a paragraph in terms as clear as paragraph 232, which emphasised consistency and stability for the children, the Father could not even articulate a clear proposal about, for example, how long the children would live with him in Town M before they moved to New South Wales, and what impact that might have on them of changing schools in his care. Mr Norcott did not engage, in his case, with paragraph 233, that invited him to consider, and explain to the Court, the relationships that the children, particularly W, has with members of the paternal family. The Father’s poorly articulated proposal for the children to spend time with their mother, reflects a poor understanding of the need for the children to have their mother’s consistent presence in their lives, even if she has parental deficits.
The Father does not consider how, consistent with paragraph 238, the children could engage in a psychiatric assessment if they were living with him in Queensland. How would the children be involved in programmes to support them manage the intense parental conflict that is playing out around them?
With great respect to the Father, whose passion for his children is undoubted, he seemed to advance a proposal which is what he wanted, rather than what the children needed, even in relation to W.
The Mother’s proposal is more closely aligned to what is in the best interests of the children, at least for the time being. There are significant problems in her case, many of which are mentioned in the Report, and foreshadowed in earlier Reasons for Judgment. But for the time being, she provides the children the stability they need. The children should continue to live with her. The order for equal shared parental responsibility proposed by her should be made. The order provides that if the parents cannot reach agreement about major long term issues, the Mother will make the final decision in that regard.
The Mother proposed that X, Y and Z, remain enrolled at Town L Public School. The Court is satisfied that that school provides the children with the safe haven they desperately need, given the parental conflict. The Mother proposes that W attend Town F High School commencing term 1 2020. It is clear that his preference is to attend another school, but his parents cannot afford to send him there. In the circumstances, and even though there is a real risk that there will be consequences for the parents, particularly the Mother, her choice remains the only practical one.
The Mother then makes proposals for the children to spend time with their father, depending on whether he chooses to remain in Queensland, or return to New South Wales. If he lives in Queensland, then the children would spend time with him during the New South Wales school holidays, over Christmas for about two weeks and then for about half of each of the other school holidays.
The Mother proposed that the Father be liable for all costs associated with the children when travelling to and from Queensland for the purposes of spending time with him. Both parents pleaded impecuniosity in terms of meeting the cost of travel. It may be that the only practical solution for the parents, which ensures that the children spend time with their father, is to replicate the arrangements that they entered into for the current December/January school holidays i.e. they meet at an approximate halfway point.
The Court has reservations as to whether travelling by road will be sustainable for the children. The Mother proposed travel by air, and the Court would make orders that provide that the children can travel by air if the parents can each pay for one journey, but, if they cannot, then the changeover will be affected at a nominated midpoint, with the children travelling by car.
Should the Father live in New South Wales, however, the Mother’s proposal for the children to spend time with their father will be adopted. This means they will spend time with their father each alternate weekend from after school on Friday to 5:00pm on Sunday, and each alternate Wednesday afternoon. Her order includes special days and school holidays. These orders are appropriate.
Subject to the matters set out above, further interim orders will be made in terms of the orders proposed by the Mother. However, the existing injunction about parental conduct, communication, relating to the children, will be maintained.
Once the Independent Children's Lawyer is able to indicate a timetable for expert psychiatric evidence, the Court will give this the earliest possible hearing date. The situation for these children is precarious.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 23 January 2020
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Expert Evidence
-
Jurisdiction
-
Procedural Fairness
0
2
2