HILLIARDS & WILLMOTT
[2019] FCCA 2468
•3 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HILLIARDS & WILLMOTT | [2019] FCCA 2468 |
| Catchwords: FAMILY LAW – Parenting – competing live with applications – 4 children all diagnosed as having special needs – risk of harm - assessment of capacity to meet children’s needs – best interests – where children have been living other than in accordance with orders. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60B, 60CC, 61DA, 65DAA, 60CG, 69ZT |
| Cases cited: Makita (Australia) Pty Ltd v Sprowles (2001) NSWLR 705 |
| Applicant: | MS HILLIARDS |
| Respondent: | MR WILLMOTT |
| File Number: | PAC 3808 of 2011 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 3 - 7 December 2018 and 5 - 6 August 2019 |
| Date of Last Submission: | 6 August 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 3 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Friedlander |
| Solicitors for the Applicant: | Higgins Lawyers |
| Appearing for the Respondent: | In person |
| Counsel for the Independent Children's Lawyer: | Mr Maddox |
| Solicitors for the Independent Children's Lawyer: | Sarah Bevan Family Lawyers |
ORDERS
All prior parenting orders with respect to the children X born … 2004, W born … 2005, Y born … 2007 and Z born … 2009 (“the children”) are discharged.
The father shall have sole parental responsibility for the children.
The father is to keep the mother fully informed, in a timely manner, of all decisions being contemplated by him, and then decisions made by him in exercise of his sole parental responsibility, and in making any such decisions, he must take into account any input provided by the mother.
The children shall live with the father.
The children shall spend time with the mother as follows:
(a)Commencing on Friday 6 September 2019 and each alternate weekend thereafter from the conclusion of school on Friday until the commencement of school on Monday;
(b)In the school holidays following terms 1 and 3 from the conclusion of school on the last day of the school term for the children until 5pm on the 8th day thereafter;
(c)In the school holidays following term 2, for a period of 12 days:
(i)To conclude at the commencement of the first school day in term 3 for students at the children’s school; and
(ii)To commence at 9am on the day which is 12 days prior to the day referred to in order (5)(c)(i) above, being the conclusion of that period.
(d)In the summer school holidays in 2019/2020 and each alternate year thereafter:
(i)From 5pm on 24 December to 5pm on 3 January; and
(ii)From 5pm on 20 January to 5pm on 27 January.
(e)In the summer school holidays in 2020/2021 and each alternate year thereafter:
(i)From the conclusion of the last day of school on which students are to attend in term 4 to 5pm on 24 December; and
(ii)From 5pm on 10 January to 5pm on 20 January.
(f)On the weekend on which Mother’s Day falls from the conclusion of school on Friday to the commencement of school on Monday.
(g)At other times as agreed between the parties in writing.
For the purpose of changeovers which do not occur at school, the parties are to effect changeover in the carpark of McDonalds at Suburb E.
The parties shall refrain from making critical or derogatory remarks in relation to the other party in the presence or hearing of the children, and each party must do all things necessary to ensure that no third person makes critical or derogatory remarks in relation to the other party in the presence or hearing of the children.
The father must provide the mother, in a timely manner, with full details of all appointments scheduled for the children with a health care professional, and the outcome of all such appointments.
The father is to allow the children to spend time with and communicate with the paternal grandparents at all reasonable times in accordance with their wishes.
The parties must keep the other party informed of:
(a)Their current address and contact telephone numbers and advise the other party of any changes to these details within 7 days of such change occurring;
(b)All medical issues suffered by the children with such notification to be prompt, but in the case of emergency, as soon as practicable; and
(c)All medication prescribed for the children.
Each party is to notify the other party within three hours of any admission of the children to a hospital or of receipt of treatment by a medical practitioner including issuing a script for medication and provide the said hospital or relevant medical practitioner with all consents necessary for the other party to discuss the child/ren’s diagnosis and treatment with the medical practitioner.
The parties shall be at liberty to telephone the children at all reasonable times whilst the children are in the care of the other party.
IT IS NOTED that publication of this judgment under the pseudonym Hilliards & Willmott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3808 of 2011
| MS HILLIARDS |
Applicant
And
| MR WILLMOTT |
Respondent
REASONS FOR JUDGMENT
Introduction
W, X, Y and Z have not had an easy or particularly settled childhood. The four siblings are the children of the applicant father and the respondent mother. Their paternal grandparents were also embroiled in the parenting proceedings for a period of time, but are no longer parties.
To say that the last 20 months or so have been particularly unstable for the children is an understatement. The Court is aware that the time it has taken for this matter to be heard and reasons for judgment delivered has not been an easy period for the parties and has likely had an impact on the children.
The ultimate decision as to where the children should live and what time they should spend with the parent they are not living with, took much careful deliberation. The Court in its deliberations has tried to be sensitive to the children’s wishes. The children are of varying ages and maturity, personality and understanding. They do not understand to the requisite level their parents’ strengths, their vulnerabilities or their shortcomings. Ultimately, they are all still children and it is the Court’s view that they do not know and cannot know, for reasons which are explained herein but which are different for each of the children, what is in their best interest.
If this means living with a parent who they might not choose to live with but who looks after them in the best manner possible, then this is the correct choice. If this means not living with the parent with whom they might say they prefer to live, until they are mature enough to make such life-long decisions themselves, then this is the correct choice. The burden of who they live with should not be placed upon them. Such a burden has already significantly contributed to the mess the children are in at present. It has not helped their interests.
It is clear that each of the parents believes they love these children dearly and that each believe they only want the best outcome for the children. Each parent has a significantly different view about what this outcome ought to be. There is a significant distrust and conflict between the mother and the father and indeed the paternal grandparents and the father.
Relevant Legal Principles
The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in the children’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm than to the benefit to the children of having a meaningful relationship with both of their parents.
A meaningful relationship “is one which is important, significant and valuable to the child”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the children.[3]
[2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]
[3] McCall & Clark at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the children’s best interests being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[4]. The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[4] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)
[5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the children or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the children’s best interests or reasonably practicable, then the Court must consider the children spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[6]
[6] MRR v GR [2010] HCA 4 at [15]
The children’s story so far
The mother and father were married in … 2002. They lived together as a married couple for just over eight years. During the time they lived together, they had four children:
a)X was born on … 2004 and is currently 15 years of age;
b)W was born on … 2005 and is currently 13 years of age;
c)Y was born on … 2007 and is currently 12 years of age; and
d)Z was born on … 2009 and is currently 10 years of age.
The parents separated on 16 December 2010. Following the parents’ separation, the children lived with the mother for a period of approximately five months.
The father is now married to Ms A. They have two children together, C, who is approximately three years old and B who is approximately 18 months old. Ms A has a child from a previous relationship, T who is approximately six years old.[7]
[7] This information is gathered from the Family Report dated 9 August 2018.
2011
In April 2011 the mother received notification from Centrelink that they would be ceasing all payments to her as they held sufficient evidence that the children were not living in her primary care. The mother says that this was not the case but she was unable to convince Centrelink otherwise.
As a result of the cessation in Centrelink payments the mother was unable to financially provide for the children and was therefore “forced” to allow the children to live with the father and was “forced to return to full-time work”. The children living with the father was a choice which the parents made, each of them for their own reasons. The Court does not accept the mother’s implied assertion that her decision for the children to live with the father was not made freely or after careful consideration by her as to what she considered might be best for the children.
The mother says that one month later the father drafted some consent orders providing him with sole parental responsibility for the children, for the children to live with him and for the children to spend day time with the mother each alternate weekend.
The mother did not seek any legal advice and the parents applied to the Family Court of Australia, for parenting orders to be made by consent.
On 19 August 2011 final orders were made by the Family Court of Australia that inter alia:
a)The father have sole parental responsibility for the children;
b)The children live with the father; and
c)The children spend day time only with the mother each alternate weekend and every Wednesday.
It is clear from the Court record that the father was legally represented at the time of the making of those orders. At the time the parents approached the Family Court for parenting orders by consent an Application for Consent Orders would have been prepared and filed, such application requiring both parties’ signatures. There is no evidence that the mother was coerced into signing the Application for Consent Orders or that she did not give her informed consent to the making of such orders. There is no evidence of duress.
The mother says that she felt at the time that “there was no other option” as she was unable to provide for the children and that she was fearful of the father. The mother does not assert that her fear was such that her consent was vitiated. The mother says she regrets the decision. There was no application by her to discharge those orders.
In 2011, the mother commenced a romantic relationship with Mr D, whom she has had two children with. The mother and Mr D were later married.
2012
The father deposes that following separation, the children regularly saw psychologist Ms F. The father does not explain how the children came to see the psychologist, nor does he go into any detail as to how the sessions progressed. It is not apparent from any of the evidence how long the children saw Ms F for, except that the consultations stopped when X started attending the same hobby classes as Ms F’s daughter. The father said in his oral evidence that he took the children for psychological help because they were having issues. It is not known whether the father or anyone else was present during the sessions the children had with Ms F, and if so, whether he/she was always present or at what frequency.
It appears from material annexed to the father’s affidavit that the children started seeing Ms F in March 2012.[8]
Mr G from Family Services was visiting the family once a week. Mr Willmott was concerned about the children due to the split up with their mother. Mr Willmott was also concerned about the care of the children when they were in their mother’s care. Mr G referred W to see Ms F to assist him with his high anxiety levels.[9]
[8] Psychometric Assessment Report by Ms H dated 30 May 2012 at page 12 Affidavit of Mr Willmott filed 25 October 2018.
[9] Psychometric Assessment Report by Ms H dated 30 May 2012 at page 12 Affidavit of Mr Willmott filed 25 October 2018.
W was diagnosed with Asperger’s Syndrome by Ms H on 30 May 2012. The referral to see Ms H came from Ms F.
The father notified the mother of the diagnoses for W and the mother consequently met with W’s referring psychologist to discuss the report. The father sent a copy of the report concerning W to the mother only in October 2013.
Y was diagnosed with Asperger’s Syndrome by Ms H on 10 July 2012. The referral came via Y’s general practitioner. Ms H and Ms F were provided with permission by the father to discuss Y’s diagnosis with the mother. The mother did not meet with either Ms H nor Ms F to discuss Y’s needs. The father sent a copy of the report concerning Y to the mother only in October 2013.
The mother gave birth to her fifth child, V on … 2012.
2013
The relationship between the father and the paternal grandparents began to deteriorate in 2013.
X was diagnosed with Autism Spectrum Disorder on 23 August 2013 by Ms H. In late 2013 the father started engaging with services to assist X, as recommended by Ms H. In February 2014 X was provided with an individual support plan.
Shortly after the report for X became available, the father notified the mother via email of the outcome. The mother replied to the father that “if she continues to misdiagnose any of my children with things they do not have then i will be reporting her to the board of psychologists and having her license removed.” Consequently, the mother attempted to engage with Ms H and as a result of such engagements, Ms H notified the father that she could no longer work with the family.
From this point, the father stopped sharing information with the mother about the children’s treatment.
In August and October 2013, around the time that she was notified of X’s diagnosis, the mother sent the father some emails. Those emails read as follows:
… you FUCKED my life over big time and now my kids are being fucked over by their dad… and if you continue to go ahead and either medicate my daughter for something she does not have then I will be seeking out a lawyer and having her removed from your custody.”[10] And “Im glad you gave me those reports… im mortified and now that i. have this I cant wait to show my solicitor No wonder I had concerns… Thanks for passing it on, I will now use it to my advantages.[11]
[10] Email dated 30 August 3013, Affidavit of Mr Willmott filed 25 October 2018 at page 85
[11] Email dated 13 October 2013, Affidavit of Mr Willmott filed 25 October 2018 at page 85
2014 - 15
In 2014, the father was able to organise for Y to receive occupational therapy using government funding.
The mother gave birth to her sixth child, U on … 2015.
A further set of final consent orders were made in the Family Court on 18 February 2015 for:
a)The children live with the father;
b)The father have sole parental responsibility for the children;
c)The child X to spend time with the mother each alternate weekend (overnight);
d)The other three children to spend time with the mother each alternate Saturday in accordance with their wishes; and
e)That the children spend time with the mother during school holidays.
The mother’s evidence is:
Each time the Consent Orders were drawn up by the father. I just agreed with them. I signed the Consent Orders without obtaining proper legal advice. I felt helpless and overwhelmed by the situation.[12]
[12] Affidavit of Ms Hilliards filed 24 October 2018 at [15]
The Court does not find that the mother simply went along with the proposals put by the father. She was aware that she could obtain legal advice, and it seems that she was obtaining legal advice about parenting matters at least as at October 2013. She is no wall flower. Her decision to agree to the parenting arrangements and orders might have been influenced by different factors (including her new relationship and her two youngest children[13]) but there is no evidence to find that her consent was in some way vitiated or not informed.
[13] Albeit she was not cross-examined about such possibilities
In about May 2015, X’s school counsellor provided a report which indicated that X may have possible language difficulties which could be impeding her academic progress.
2016
In or around 2015-16, in an entirely child unfocused way, the father asked the children to each write a letter to the mother expressing their choice about spending time with her. The father explained in cross-examination that he deeply regrets the children doing this and that it was done on the recommendation of a psychologist. The father conceded that such letters were entirely inappropriate and placed the children in an awkward position.
Between July 2013 and the end of 2015 the mother only spent time with X and not the other children. It was the father’s evidence that after spending time with the mother, the children would have nightmares and were upset. He therefore decided that it was not in their best interest to spend time with the mother. The father also said that the mother would often cancel time with the children or was otherwise inconsistent with spending time with them. The mother asserts that the father simply refused to make the children available and took every opportunity to undermine the children’s relationship with her.
In 2016, X, W and Y were accepted into the National Disability Insurance Scheme (NDIS). It took the father some time to arrange services through the various providers funded by the NDIS.
A third set of final consent orders were made in the Family Court of Australia on 28 April 2016 as follows:
a)That the father have sole parental responsibility for the children;
b)The children live with the father; and
c)The children spend time with the mother during school holidays.
The mother began spending time with all of the children again in the school holidays following the making of further consent orders on 20 April 2016.
2017
In March 2017 X was assessed by a speech pathologist, who concluded that she had moderate expressive language delay and that her receptive language skills were in the low average range. It was recommended that X undergo regular speech therapy sessions.
In March 2017, W was assessed as meeting the criteria for a mild intellectual disability.
In about May 2017, the father also took Z to see a psychologist. The father was of the view that Z was finding social situations and interactions difficult. At the time, Z was behaving poorly, and the strategies which the father was implementing were not achieving any meaningful results. Indeed, the strategies which the father was implementing, on the advice of a psychologist, were proving to be more trouble than they were worth. Z was subsequently diagnosed with Oppositional Defiant Disorder in June 2017.
In June 2017, both Y and X were further assessed by Ms J, Psychologist. The assessments were sought by the father to gain an evaluation of the children’s cognitive, academic, emotional and adaptive behaviour. The report for X indicated a slow processing speed and recommended further testing, whilst the report for Y indicated that her adaptive functioning was in the low range.
In October 2017, the father learnt about an appropriate specialist who works with children and adolescents with serious emotional and behaviour issues. He took Z for a further assessment. She was diagnosed with Autism Spectrum Disorder, and several recommendations were made.
After receiving the diagnosis and being provided with information and advice, the father commenced applying different strategies in managing Z’s behaviour.
In the early half of 2017 the relationship between the father and the paternal grandparents deteriorated even further and the father ceased contact with them. In December 2017 the paternal grandmother saw the mother by chance and the mother agreed for the children to spend time with the paternal grandparents when they would ordinarily be in the mother’s care. The children did not see or spend time with the paternal grandparents until after the children began living with the mother.
2018
Prior to the school holidays at the conclusion of the fourth school term in 2017, the parents agreed for the children to spend time with the mother from 20 December 2017 to 30 January 2018. In early January, the mother sent to the father an email asking if the children could live with her on a full-time basis. The children commenced living with the mother in January 2018 by agreement with the father. The mother’s proposal was for the children to spend time with the father when he wanted, but certainly every second weekend and half holidays. “And if you wanted to see them on a day that was not on your time then you could, I wouldn’t have an issue with it because you are their dad.” The mother also proposed that she would not be asking the father for child support. The father agreed to this proposal.
On 15 February 2018, the children called the father and asked if they could continue living with the mother. The father said that he reluctantly agreed, believing that the mother would keep her word and that he would be able to maintain a meaningful relationship with the children.
The parents further agreed that the children would not be attending school; that is, that they would not be enrolled in their new schools close to the mother’s residence, until such time as the mother signed a binding child support agreement. The mother agreed to sign the agreement by 17 March 2018. The agreement was never signed. The children did not attend school during much of the first term in 2018. The children did not spend time with the father as proposed.
Things went from bad to worse between the parents. In a text message sent to the father in March 2018, the mother said “… No you will not be seeing the kids this Saturday. I told you we won’t be here. If you turn up and try to cause drama then I will be contacting the police.” This was in response to the father informing the mother that he no longer agreed to the children living with her and that they needed to return to live with him.
The mother commenced these proceedings on 23 March 2018 with the filing of an Initiating Application and supporting documents for interim and final parenting orders in her favour.
On 23 March 2018 the father filed an urgent recovery application. He was notified on 26 March 2018 that the mother had already commenced proceedings.
The Court dealt with the matter on an urgent basis on 6 April 2018, when Judge Dunkley made interim orders for the children to live with the mother and to spend time with the father.
On or about 13 April 2018, Z told the father that he did not have to worry about her behaviour anymore because she “fixed it at mum’s. She smacks it out of me. Her smacks are so hard they leave red marks for three days.” On 14 April 2018, the father noticed sores on Y’s legs which she had been picking. He was also told by Z that she had had an itchy throat for three weeks, which indicated to the father a flare up of the child’s asthma. The mother did not take either Z or Y to the doctor. It was the father who took Y to the doctor on 20 April 2018 when she was prescribed a topical cream. The father provided the mother with the script which the mother did not have filled.
In April 2018, the children told the father that the mother and Mr D were getting divorced, but that they were not allowed to talk about it. In May 2018, the mother and Mr D each obtained the protection of an Apprehended Domestic Violence Order against the other. At the time the mother deposed that they were on speaking terms to make arrangements for Mr Hilliards to spend time with the children U and V.
On 16 May 2018, Z called the father in a distressed state. She told him that the mother had threatened to take her to L Hospital to have her committed as a mental health patient, and that she had tried to drag her to the car with Y’s assistance. Z was apparently pinned down by the mother.
The matter proceeded to interim hearing on 23 May 2018 and oral reasons for judgment were given the following day by Judge Dunkley. On 24 May 2018 the Court made orders for the children to live with the mother pending final hearing and for the children to spend time with the father alternate weekends from Friday after school to Monday before school and in the other week from Wednesday after school to Friday before school. On 23 May 2018, the Court made orders restraining the mother from allowing the children to be left alone in the presence of Mr D .
Despite being advised of the ongoing need for speech therapy for W and X, the mother failed to ensure that they regularly attended their speech therapy sessions. By June 2018 X had missed three appointments and W one.
In July 2018, the mother advised the father that X was to receive orthodontic treatment. The father was not invited to participate in decision making process nor was he provided with sufficient information as to what treatment was proposed and organised for X, despite the order for the parties to have equal shared parental responsibility for the children. It later became apparent, that it was the paternal grandparents who had organised for this orthodontic treatment to occur.
An expedited family report was ordered by the Court, which was completed on 9 August 2018 but not released until September. In August 2018 the children began spending increased time with the paternal grandparents during times that they were meant to be living with the mother pursuant to interim orders of this Court. The children lived between the mother’s household, the paternal grandparent’s household and the father’s household. There was little stability and routine for them. Z particularly had stopped spending time with the mother, and instead was spending time between the father’s home and the paternal grandparent’s home.
On 22 August 2018, the mother yelled at W for being in the boot of her car. According to W who told the father, the mother had said to get out “or I will slit your throat”. When W returned to the father’s care on 2 September 2018, he was reportedly still upset and frightened. The father called the police and reported the matter. W was interviewed. The mother provided her own version of events to the police which differed to the one which was provided by W. Her evidence to this Court was that she said “he makes me so angry sometimes that it makes me want to slit my throat.” In any event, W remained with the father between 2 September 2018 and 15 September 2018.
On 14 September 2018 the matter was set down for final hearing on 5, 6 and 7 November 2018.
On 28 September 2018, the mother sent the father a message asking for Z to spend the school holidays with him. She apparently did not want to travel with the mother to Canberra, which is where the mother had told the father she and the children were going.
On 5 October 2018 the mother, X and Y travelled to Victoria with the mother. W stayed behind, it appears with the paternal grandparents. Ultimately, X refused to return with the mother.
X called the father on 8 October 2018 saying she wanted to stay a few extra days. The father messaged the mother and said “I’m ok with X staying with your friend in Canberra a few extra days. I will arrange pickup with her.” The mother replied “Ok. That’s fine. She will message you and let you know where you are meeting her.”
The mother’s evidence is that the father was aware that her plans had changed to travel with the children to Victoria, rather than Canberra. The mother asserts the father knew of her change of plans because W had told him.
On 11 October 2018 the paternal grandparents received a telephone call from X whilst she was in Victoria stating that she had contacted the Department and told them that she was scared to return to her mother or father. X subsequently sent the paternal grandmother a text message saying that she would not get back in the car with the mother to return from Victoria. The father says that this is the first time he learnt that X, Y and the mother were not in Canberra. He tried communicating with the mother to find out where X was. His texts were sent a little after 11pm. The text exchange was as follows:
Father: Where is X!!!!?????
Apparently she’s not in Canberra?
?????
Mother: You no (sic) where she is. I am trying to sleep now leave me ALONE.
Father:No I don’t know where she is! My parents have just rung me and said she’s not in Canberra!
If she’s not in Canberra then where is she???
The mother then replied with “Fuck off I will talk to you tomorrow. You inconsiderate man. My household are asleep. I told you to leave me alone. Now DO IT.” And then: “If you text me again I will call the cops.”
The paternal grandparents did not tell the father where X was when they called him. It is clear from the evidence that he was kept in the dark about what was happening with X at the time. On 16 October 2018 the father filed an Amended Application in a Case seeking a recovery order for X.
On 20 October 2018 the paternal grandparents drove to Victoria and had the following conversation with X:
You will be safe at our house. There is a recovery order out for you by your dad. It is your decision to come and we will not force you to come with us, we have been told the police will come and get you if you do not come back. Would you talk to your children’s lawyer tomorrow morning if we wait another night?
X told the paternal grandparents that the father’s house had different rules for the other three children (being Ms Willmott’s biological children), that they are forced to eat food and that she is scared that the punishment of Z would begin again. X also said that she was scared the mother would hurt her physically, that she did not want to hear about what her mother did with men, that she can’t keep disciplining her mother’s other children, that she was worried about not being able to do her homework and that she cannot handle swapping houses anymore.
X did not return with the grandparents but instead was collected by the mother on 28 October 2018 and returned to Sydney. On 2 November 2018 X self-placed with the paternal grandparents where she remained living for a number of months.
The paternal grandparents filed an Application in a Case on 29 October 2018 seeking to be joined to the proceedings as the child X was refusing to return to her mother or father’s care and was living with the paternal grandparents.
The Court heard the joinder application on the first day of hearing, being 5 November 2018, and granted leave to the paternal grandparents to be joined to the proceedings. As a result, the final hearing was adjourned to 3 December 2018 for a further three days’ final hearing and the Court ordered the preparation of an urgent updated Family Report.
The updated Family Report was released to the parties on 28 November 2018 and was sent by priority post to the parties’ legal representatives that day.
The matter proceeded to final hearing on 3 December 2018 and continued until completion with submissions being completed on 7 December 2018.
After the conclusion of the evidence and closing submissions, the Court reserved its reasons for judgement. This occurred on 7 December 2018. A significant difficulty for the Court at the time was the lack of reliable and probative evidence in the proceedings.
2019
Following a careful consideration of the evidence on the Court’s own motion the matter was re-listed for further directions on 19 June 2019 and the parties directed to file further evidence in respect of matters which were particularly concerning to the Court and in respect of which the Court formed the view that it needed further evidence so that it could reach its decision. After making orders for the filing of further evidence, the matter was listed for a further one day hearing on 5 August 2019. The matter did not conclude in the one day and final submissions were made on 6 August 2019.
At the time of final hearing in December 2018 the mother lived in Suburb M. She then moved to Suburb E in or about February 2019. As at August 2019, the mother says she continues to live in Suburb E, although she has been spending significant time at Suburb N with her new partner.
The paternal grandparents filed a Notice of Discontinuance on 5 July 2019. They did not participate in the second trench of the hearing.
The children have continued to live a disrupted life.
The children have spent very little time with the father since the December 2018 hearing. So much so, that from March 2019, none of the children have been spending any time with the father. The mother has simply not facilitated such time, and neither have the paternal grandparents, who have continued to be involved in the children’s lives despite no longer being parties to the proceedings.
The father is now separated but living under the one roof with Ms A. His evidence is that he and Ms A are trying to work things out and that it is their intention to remain together if at all possible. Both the father and Ms A remain involved in the care of their children.
Primary and Additional Considerations
Ultimately there were two matters which took on the most importance in the proceedings. These were whether the children were at risk in the father’s care due to family violence and whether they were at risk in the mother’s care due to her not being able to meet their needs.
The Children’s Views and Nature of their relationships; Maturity, sex, lifestyle, background and relevant characteristics
Whilst not defined by their diagnosis, all four children have special needs. They are all different and each one of the children is unique.
Assessments of X
In July 2013, X was the subject of a psychological assessment by Ms H. X was assessed after a structured interview, and using a “Conners 3 – Rating Scale – Parent & Teacher Form” as well as a “Social Responsiveness Scale (SRS) – Parent & Teacher Form.” At the time of that assessment X was nine years old. She was referred for assessment by her General Practitioner. Ms H noted that “X presented with low mood and anxiety”. It appears from the report that X was seen by Ms H and asked a number of questions. Her presentation during the interview appears to have been observed by Ms H. It is not clear from the report whether the father was present during the interview and observations of X or how and if X’s presentation was utilised in the assessment.
According to Ms H’s report, the “Conners 3” is a questionnaire designed to assess the symptoms of attention deficit hyperactivity disorder (“ADHD”) and related problems in children. In respect of the parent’s report, the “Symptoms Counts” were highly met for ADHD Inattentive, while the “Symptoms Counts” were not met on the teacher’s report. Ms H then noted that based on the parent’s report, an ADHD classification was highly indicated with a 98% probability while based on the teacher’s count, an ADHD classification was poorly indicated with a 19% probability.
The report further reads that in respect of the SRS, once again, the parent scale and the teacher scale were not on par. On the parent scale, the father rated X in the severe range for social awareness, social cognition, social communication, social motivation and autistic mannerisms, while on the teacher scale X was rated in the normal range for the same things.
There was no cross-examination of the father in respect of the matters which he is said to have reported to Ms H nor was it explored in any of the evidence why it appeared on face value that the observations of X by the father were so different to the observations of X by her classroom teacher.
Ms H then concluded “Based on the current assessment, X is currently meeting DSM-V diagnostic criteria for Autism Spectrum Disorder (ASD)”. It is not clear from the report how the two different ‘scores’ as between the parent’s report and the teacher’s report in respect of both the Conners 3 and the SRS were reconciled and therefore how the conclusion was reached by the report writer.
On 15 March 2017 and 21 March 2017 X attended a speech pathology assessment with Ms O, speech pathologist at the referral of the father. It is reported that the father had concerns about her language skills. X attended the assessment with her stepmother, Ms A .
X’s expressive and receptive language skills were assessed using the “Clinical Evaluation of Language Fundamentals – Fourth Edition” being a standardized assessment tool used to measure comprehension and expressive abilities for children of X’s age.
X’s results for overall language ability demonstrated that she had “moderate difficulties”, her auditory comprehension ability results were “within the low average range expected for her age” and her verbal expression ability results indicated that she had “moderate difficulties”.
Ms O reported that these results will impact X’s ability to complete tasks and follow instructions, to communicate with her peers, teachers and family and may impact her ability to successfully produce text types within the classroom. Ms O reported that X’s spelling and writing skills were within the range expected for her age.
Further, X’s reading and comprehension were assessed by Ms O using the “PROBE-2 reading comprehension and assessment”, a test used to measure a child’s reading level, ability to comprehend what is read and reading behaviours. The results indicated that X was within the range expected for her age for reading, she presented with moderate difficulties for her age and level of schooling regarding comprehension and she was within the range expected for her age regarding reading rate.
Overall, Ms O’s assessment results for X concluded that:
X presents with a moderate expressive language delay/disorder, phonological awareness difficulties and moderate reading comprehension difficulties. X’s receptive language skills are within the low average range expected for her age. However, X has severe difficulties with semantic relationships …. And mild difficulties with word classes. …. It is recommended that X commence therapy to improve her expressive and receptive language skills, phonological awareness and reading comprehension.
On 23 May 2017, 22 June 2017 and 8 June 2017 X was further assessed by Ms J, psychologist to assess her current cognitive, academic, emotional and adaptive behaviour at the request of her father. In Ms J’s report dated 30 June 2017 it is reported that X’s stepmother, Ms Willmott “is concerned about X’s academics and social and emotional functioning, as this appears to be below that of others her age” and that X has many strengths including “being very helpful, kind and patient”.
On 22 June 2017 the father completed a “Conners Comprehensive Behaviour Rating Scale-Parent Version” to assess a range of X’s behavioural, emotional, academic and social issues.
On the father’s completed questionnaire X was rated as having “very elevated range for social problems, academic difficulties and mathematic difficulties”, however all other scales were within the normal range.
The report of Ms J does not suggest that the Conners Questionnaire was provided to X’s teachers to complete, therefore no comparison is available between parent/teacher scores.
On 8 June 2017 the father completed the “Adaptive Behaviour Assessment System – Third Edition” parent report being a standardised test used to assess an individual in all nine specific adaptive skills areas of communication, community use, functional academics, home living, health and safety, leisure, self-care, self-direction and social.
The results of the parent report indicated that X suffered with difficulties in multiple areas of adaptive functioning and her overall adaptive behaviour was characterised as “lower functioning than a majority of children her age”.
Again, the report of Ms J does not suggest that this test was provided to X’s teachers to compare with self-reported results of the father.
On 23 May 2017 X was assessed using the “Weschler Intelligence Scale for Children – Fifth Edition” being an individually administered assessment that measures cognitive ability. The results for this test were broken down into subcategories and reported as follows:
a)Verbal Comprehension Index – X can understand and follow instructions, verbalise meaningful concepts, think about verbal information and express herself using words at a level that is slightly below other same-aged peers;
b)Visual Spatial Index – X can complete visual reasoning activities such as information or tasks presented non-verbally at a level slightly below most children her age;
c)Fluid Reasoning Index – X’s performance in this index suggested that her ability to solve problems, apply logical reasoning, think abstractly and understand complicated concepts was below that of other similar aged children;
d)Working Memory Index – this index was a comparative strength for X as it was her highest score demonstrating that she has the ability to concentrate and attend to information that is presented to her; and
e)Processing Speed Index – X’s performance in this area was in the extremely low range and indicated that she had significant difficulties processing and comprehending information presented to her at a rate that is age appropriate.
The overall assessment of X’s cognitive ability was reported as “in the very low range”.
Further on 23 May 2017 X’s academic functioning abilities were assessed using the “Wechsler Individual Achievement Test, Third Edition, Australian Standardised Edition”. This test was individually administered to assess areas relating to the school curriculum such as listening, speaking, reading, writing and mathematics skills.
X’s overall academic functioning was in the average range for reading, low average range for oral language, in the very low range for mathematics and extremely low range for maths fluency.
Assessments of W
In May 2012, W was the subject of a psychometric assessment by Ms H, a clinical child and adult psychologist. The referral for the assessment came via Ms F. The father provided, it appears, all of the background information which Ms H took into consideration. While there was a reference to W’s teacher, it is a reference to what that teacher had reported to the father. Therefore, it is also information which came from the father. There was no cross-examination of the father in respect of the matters which he is said to have reported to Ms H.
The method of assessment included a structured interview, “Wechsler Intelligence Scale for Children”, “Wechsler Individual Achievement Test II – Selected subtests”, “Child Behaviour Checklist (6-18) – Parent & Teacher Form” and “Social Responsiveness Scale (SRS) – Parent & Teacher Form”. W was six years and seven months old at the time of the assessment. Ms H noted that “W has been experiencing high levels of anxiety. W has been having academic difficulties”.
On the “Child Behaviour Checklist”, the father rated W in the clinical range of severity for thought problems, and borderline range of severity for anxiety/depression and attention problems. All other subscales were within the normal range (including for withdrawal/depression). On the teacher scale, W was rated in the clinical range of severity for anxiety/depression, withdrawal/depression and attention problems.
According to Ms H’s report, the “Social Responsiveness Scale” (SRS) is a questionnaire that investigates the various dimensions of interpersonal behaviour, communication, and repetitive/stereotypic behaviour that are characteristic of Autism Spectrum Disorder. On the parent scale, the father rated W in the severe range for autistic mannerisms and the normal range for social awareness, social cognition, social communication and social motivation. The total score was in the normal range (55T). Ms H then noted that some children with very mild “high functioning” autism spectrum conditions may be rated in the upper end of this range (55T to 59T). On the teacher scale, W was rated in the severe range for social cognition, mild to moderate range for social awareness, social communication and autistic mannerisms and normal range for social motivation. Total score was within the mild to moderate range, which according to Ms H was typical for children with mild or “high functioning” Autism Spectrum Disorders and higher functioning children with Asperger’s Disorder.
The “Wechsler Intelligence Scale for Children” and “Individual Achievement Test” are both individually administered tests. In respect of the Individual Achievement test four selected subtests were administered to W. It is not apparent why this was done from the body of the report.
Notwithstanding a recognition that there was a discrepancy between certain index scores with respect to the intelligence scale, which indicated that some caution must be taken when interpreting the Full Scale IQ, Ms H nonetheless appears to have based her opinion of W’s results indicating a mild intellectual impairment on the Full Scale IQ of 69 which indicated that his abilities lay in the extremely low range and at the 2% for children of his age. Why she did this was not explained in the report.
It is also unclear from the report why the opinion that W meets the diagnostic criteria for Asperger’s Disorder was given, in circumstances where the results of the SRS also place the child in the “normal” range. What Ms H concludes is that “Based on the current assessment, observations and questionnaires, it is evident that W is meeting DSM-IV diagnostic criteria for Asperger’s Disorder”. Why these matters are “evident” is not explained in the report.
In 2017 a further assessment was carried out for W by Ms J. The reason for the second assessment was to investigate W’s cognitive abilities in light of the “previous inconclusive congitive assessment”.
On 11 March 2017 the father completed the “Conners Comprehensive Behaviour Rating Scale – Parent Version” questionnaire.
The results of the questionnaire completed by the father revealed that W demonstrated very elevated scores in the areas of emotional distress, worrying, social problems, academic difficulties, language skills, math, spearation fears and perfectionistic/compulsive behaviour.
The report of Ms J dated 22 March 2017 does not suggest that this test was provided to W’s teachers to compare with the self-reported results of the father.
On 28 February 2017 W was assessed using the “Wechsler Intelligence Scale for Children – Fifth Edition” being an individually administered test to measure cognitive ability.
The results for this test were broken down into subcategories and reported as follows:
a)Verbal Comprehension Index – W scored within the low average range indicating he may have difficulty understanding and following instructions, verbalising meaningful concepts, thinking about verbal information and expressing himself using words;
b)Visual Spatial Index – his mental rotation skills and ability to understand part-whole relationships is particularly weak when compared to his other abilities, and he will have considerable difficulty with information presented non verbally such as graphs, diagrams and mathematical pictures;
c)Fluid Reasoning Index – W’s skills in this area were in the low average range, his performance in this index suggested that his ability to solve problems, apply logical reasoning, think abstractly and understand complicated concepts may be behind that of other similar aged children, however this was still a comparative strength for him;
d)Working Memory Index – W’s short term and working memory skills were in the very low range which indicates that in comparison to his peers he may have difficulty concentrating and attending to information that is presented to him impacting his ability to remember instructions or material read; and
e)Processing Speed Index – W’s performance in this area was in the very low range indicating he may be processing and comprehending information in a very slow manner compared to his peers.
On 20 March 2017 the father completed the “Adaptive Behaviour Assessment System – Third Edition” parent report being a standardised test used to assess an individual in all nine specific adaptive skills areas of communication, community use, functional academics, home living, health and safety, leisure, self-care, self-direction and social.
The results of the parent report indicated that W suffered with difficulties in multiple areas of adaptive functioning and his overall adaptive behaviour was characterised as “significantly lower functioning than that of almost all children his age”.
Again, the report of Ms J does not suggest that the “Adaptive Behaviour Assessment – System” test was provided to W’s teachers to compare with self-reported results of the father.
Ms J concluded that considering the behavioural, cognitive and adaptive functioning assessment of W in 2017 he met the criteria for a diagnosis of a mild intellectual disability, stating that:
W is meeting the DSM-5 diagnostic criteria for a diagnosis of a Mild Intellectual Disability…. W’s diagnosis of Asperger’s Syndrome from the DSM-4 is outdated as it has been replaced by ‘Autism Spectrum Disorder’ in the more recent DSM-5. It is recommended that this now be updated to … Autism Spectrum Disorder with accompanying intellectual impairment.
Assessments of Y
In June 2012, Y was the subject of a psychological assessment by Ms H. Y was assessed using an “Achenback Child Behaviour Checklist (1 1/5 – 5) Parent & Teacher Form, and Social Responsiveness Scale – Parent & Teacher Form”. At the time of the assessment Y was five years old. She was referred for the assessment by her General Practitioner. “Y presented with sleep disturbance, academic difficulties, is easily distracted and often daydreams, and has social difficulties”. It appears Ms H interviewed Y and also made some observations of her behaviour. It is not clear how these factored into the assessment. The father it appears, provided all of the background information, including information apparently pertaining to how Y was performing and behaving at school (except in so far as her teacher answered questionnaires).
In respect of the “Child Behaviour Checklist” on the parent scale, the father rated Y in the clinical range of severity for sleep problems and borderline range of severity for withdrawal symptoms. All other subscales were rated within the normal range. “On the DSM-Oriented Scales, Y was rated in the borderline range of severity for Pervasive Developmental Problems (Asperger’s Disorder, Autistic Disorder).” She was rated within the normal range for Affective Problems, Anxiety Problems, Attention Deficit/Hyperactivity Problems and Oppositional Defiant Problems.
On the teacher scale, Y was rated in the clinical range of severity for withdrawal symptoms and borderline range of severity for attention problems. On the DSM-Oriented Scale, Y was rated in the clinical range of severity for Pervasive Developmental Problems and borderline range of severity for Affective Disorders and Anxiety Problems.
On the Social Responsiveness Scale, which is a questionnaire that investigates the various dimensions of interpersonal behaviour, communication and repetitive/stereotypical behaviour that are characteristic of autism spectrum disorders, the father rated Y in the severe range for social cognition, social communication, social motivation and autistic mannerisms and in the mild to moderate range for social awareness. The total score was in the severe range, which is strongly associated with a clinical diagnosis of Autistic Spectrum Disorder.
On the teacher scale, Y was rated in the severe range for social cognition and social communication, and mild to moderate range for social awareness, social motivation and autistic mannerisms. Her total score was also in the severe range.
In Ms H’s opinion, based on the assessment observations and questionnaires, she concluded that Y met the diagnostic criteria for Asperger’s Disorder. It was also recommended that she be reviewed in 12 months’ time to confirm the diagnosis.
On 8 June 2017 and 22 June 2017 Y was further assessed by Ms J at the request of the father to gain an up to date evaluation of her cognitive, academic, emotional and adaptive behaviour.
On 22 June 2017 the father completed the “Conners Comprehensive Behaviour Rating Scale – Parent Version”.
The results of the questionnaire completed by the father revealed that Y was in the elevated range for emotional distress, and was in the very elevated range for social problems, academic difficulties, language problems and mathematic difficulties.
The report of Ms J dated 30 June 2017 does not suggest that the “Conners Comprehensive Behaviour Rating Scale” test was provided to Y’s teachers to compare with self-reported results of the father.
On 8 June 2017 the father completed the “Adaptive Behaviour Assessment System – Third Edition” parent report being a standardised test used to assess an individual in all nine specific adaptive skills areas of communication, community use, functional academics, home living, health and safety, leisure, self-care, self-direction and social.
The results of the parent report indicated that Y suffered with difficulties in multiple areas of adaptive functioning and her overall adaptive behaviour was characterised as “significantly lower functioning than a majority of children her age”.
Again, the report of Ms J does not suggest that this test was provided to Y’s teachers to compare with self-reported results of the father.
On 8 June 2017 Y was assessed using the “Weschler Intelligence Scale for Children – Fifth Edition” being an individually administered assessment that measures cognitive ability. The results for this test were broken down into subcategories and reported as follows:
a)Verbal Comprehension Index – Y’s skills in this area were within the average range, she was able to understand and follow instructions, verbalise meaningful concepts, think about verbal information and express herself using words at a level that is comparable to other same-aged peers. This index was a comparative strength for Y;
b)Visual Spatial Index – Y’s skills in this area were in the low average range meaning that she was completing visual reasoning activities at a level slightly below her peers;
c)Fluid Reasoning Index – Y’s skills in this area were in the low average range meaning her ability to solve problems, apply logical reasoning, think abstractly and understand complicated concepts was slightly below that of similar aged children;
d)Working Memory Index – Y’s short term and working memory skills were in the very low range meaning in comparison to others her age she has significant difficulty concentrating and attending to information that is presented to her; and
e)Processing Speed Index – Y’s performance in this area was in the low average range.
The overall assessment of Y’s cognitive ability was reported as “in the low average range”.
Further on 8 June 2017 Y’s academic functioning abilities were assessed using the “Wechsler Individual Achievement Test, Third Edition, Australian Standardised Edition”. This test was individually administered to assess areas relating to the school curriculum such as listening, speaking, reading, writing and mathematics skills.
Y’s overall academic functioning was in the low average range for oral language, average range for reading, low range for mathematics and very low range for maths fluency.
Assessments of Z
On 8 June 2017 Z was assessed by Ms P, Registered Psychologist. She was accompanied to the assessment by Ms A. On parental history in an interview with Ms A, Z’s behaviour was found to meet the criteria for Oppositional Defiant Disorder. Both Ms A and Z’s teacher, who also partook in the assessment by providing information, indicated that Z struggles to build and maintain friendships and that she has difficulties with her play skills.
On 1 December 2017 Z attended upon Dr Q following referral from Dr R of AA Family Practice. Dr Q’s letter dated 1 December 2017 states as follows:
Based on today’s assessment and the information provided by her dad, the clinical presentation is consistent with a diagnosis of Autism Spectrum Disorder.
Dr Q recommended further assessment of her cognitive abilities, strengths and functional and support needs and for an NDIS package to be made available to Z.
On 26 April 2019 Z attended upon Ms J for further assessment. The purpose was to gain a recent evaluation of Z’s cognitive, academic and behavioural functioning. The test conducted were the Wechsler Intelligence Scale for Children, Wechsler Individual Achievement Test and Conners Comprehensive Behaviour Rating Scale – Parent.
The father reported many behavioural concerns, including emotional outbursts and physically lashing out. The father reported that Z lacks empathy, that she is quite immature for her age, and that she can be a very strong willed girl.
During the assessment process, Z presented as a friendly and polite girl, who was quite inquisitive about the assessment. She was happy to answer questions and engage in conversation, she had good eye contact. The assessment found that Z was in the high average range for overall full scale IQ score. The results indicated that the rate at which Z problem solves, applies logical reasoning, understand complicated concepts and processes information is at a rate similar to same-aged peers. It was Ms J’s opinion that Z is a very bright young girl, with particular strengths in her use and understanding of language, working memory and visual spatial abilities. It was recommended that whenever possible it was important for Z’s family to provide a stable and predictable home life.
Weight given to assessments of children
While the hearsay rule[14] and the opinion rule[15] are excluded due to s69ZT of the Act, this does not necessarily mean that simply because evidence is admitted by virtue of these proceedings being Division 12A[16] proceedings, that such evidence is reliable and probative.
[14] s59 Evidence Act 1995 (Cth)
[15] s76 Evidence Act 1995 (Cth)
[16] Family Law Act 1975 (Cth)
In respect of the hearsay rule, there is a general exception where evidence which would otherwise be excluded because of the hearsay rule, if it is a business record, would generally be admissible. It appears that the reports would fall within the business records exception to the hearsay rule. The father was not asked whether the assessment reports were prepared or obtained for the purpose of conducting, or for or in the contemplation of or in connection with, an Australian proceeding.
The Court is also mindful of the exception to the opinion rule in respect of what are usually known as “expert opinions” that is, opinions which are based on specialised knowledge.[17] The authorities[18] are clear that such opinions are only admissible where:
a)so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert (in this regard, the issue for the court is not whether the facts are proved to any particular standard of proof but rather where there is evidence which, if accepted, is capable of establishing the existence of the facts[19]);
b)and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way (once again, if there is evidence, which if accepted, is capable of establishing the existence of facts); and
c)it must be established that the facts on which the opinion is based form a proper foundation for it.
[17] s79 Evidence Act 1995 (Cth)
[18] Makita (Australia) Pty Ltd v Sprowles (2001) NSWLR 705 at [85]
[19] Rhoden v Wingate [2002] NSWCA 165 at [86]
None of the experts who assessed the children were witnesses in the proceedings, nor were subpoenae issued for them to appear. The reports were therefore not able to be tested.
The Court has a general discretion under s135 of the Evidence Act1995 (Cth) if the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial, misleading or confusing or cause or result in an undue waste of time. No application was made to exclude the reports; that is there was no objection to the reports being admitted into evidence in the proceedings.
This of itself does not mean that the reports have to be accepted by the Court as reliable, probative or even relevant. The Court accepts that they are evidence that the children have been diagnosed at various times, but the veracity of the diagnoses appears troubling.
However, the assessments which are in evidence appear to have been conducted by persons with appropriate qualifications. They are based on parent feedback, classroom teacher feedback and independent assessment of the child by the person conducting the test. If there was a discrepancy between the parent’s reported concerns and the teacher’s assessment of the child this no doubt would have been apparent in the assessment. The Court expects that those conducting the assessments are skilled enough to be able to identify whether the assessment are based on sufficient information, and indeed whether the results of the individual testing of the child correlate with the reported concerns of a parent and/or teacher and if this has any effect on the assessments.
None of the opinions were tested, that is, there was no cross-examination, not only of those providing the opinions but also of those who provided information upon which part of the opinion was based. The father was not cross-examined about the information he provided. It is not clear why this forensic decision was made.
Overall, and not withstanding some reservations the Court has about the various assessments, the reports are evidence in the proceedings. There was no serious challenge to any of the opinions expressed and indeed concessions were made in respect of their admissibility and probity such that they are given significant weight.
Family Reports
The views of the children are the subject of two family reports.
During the interviews for the first family report, dated 9 August 2018 but released 13 September 2018, X presented as a friendly and polite girl. She said that the arrangements to spend time with her parents had changed significantly over time and that she did not completely understand why this had happened. She said to the family consultant that the father wanted the children back and that she had always found it hard to swap between houses. X described the mother as “nice” but that she often got annoyed with Z, or if she and her siblings did not do something they were asked to do. X said that her mother takes things away or yells, but that she does not hit her. X said the mother sometimes smacks Z and U, and that Z lashes out a lot while at the mother’s home. X said Z does not behave the same in the father’s home.
X said that she gets along with T, C and B. She said that Ms A can be nice but can also get annoyed with her and her siblings. X said that she does not feel close to Ms A . In respect of her father, X said she gets along well with him but sometimes feels confused, because both parents tell her things which conflict with each other. X said that both of her parents had spoken negatively about each other. X was worried that she may get in trouble from the father for saying things to the family consultant, and that Ms A would likely be upset with her and not talk to her, which caused X to feel sad.
W presented as a polite but reserved boy. He stated that he worries and that sometimes he feels panicked and finds it hard to breathe. He said when he feels like this he tells the mother, the father or Ms A . W said that the living arrangements changed because he missed his mother and wanted to live with her. W denied that he was scared of either parent and also described Ms A as “nice”. W said that while he was living with the father, the mother would sometimes call and that the father would always ask him if he wanted to speak to her.
Both X and W identified being worried about Y and Z being left alone at the father’s home.
Y presented as a softly spoken and sensitive girl. She said that she was worried about what the father will say and whether he will be angry with her, because he is protective of Ms A . Y reported an incident where her and Z were home alone at the father’s home. She said that she was scared and that she did not want to be alone at either of her parents’ homes. Y said that the father does not let her telephone the mother but that the mother does let her telephone the father. Y considered that the father was being mean and not telling the truth when he told her that the mother was a “bad” mum. Y said she did not like that her father thought she was disabled. She said she feels anxious about being away from the mother, even while she is at school. Y felt that the father and Ms A did not really understand how she felt about the mother.
Z presented as a confident and assertive girl. She said that she fights with her half siblings U and V and that the mother always blamed the fights on her. She said that she sometimes listens to her mother but sometimes does not. Z said that the father takes her side but the mother does not. She also said that the mother had told her to tell the family consultant that she wanted to live with her but that her father had told her to say whatever she wanted.
The children were observed with the mother and their half-siblings U and V. They were also observed with the father, Ms A and their half-siblings C and B, and also their step-sibling T. According to the family consultant, W appeared to take responsibility for managing his siblings’ behaviour in the observation room with the mother. Z was much more relaxed in the observations session with the father than with the mother. Y only interacted with the parents and more so with the mother.
The parents have an extremely poor co-parenting relationship. It is a situation which is longstanding and which has only become more entrenched during these proceedings. There is no indication that the parties’ ability to co-parent will change. The children have knowledge of and have been exposed to the parental conflict.
The family consultant in the first family report was of the opinion that if the conflict between the parents continued and the children remained exposed to it, they may lose their relationship with one or both of their parents.
As noted earlier, a second family report was prepared in the proceedings after X started living with the paternal grandparents. It was completed by the same family consultant as the first family report.
During the November 2018 interviews, X reported that:
a)She would like to spend time with her siblings every weekend but that she did not mind if she did not live with them;
b)There was an incident where the mother had threatened W and told him that she would slit his throat. Although X did not think that her mother would actually carry through with the threat, she was worried about the mother making more threats. X said the mother can be very angry and that she yelled a lot, particularly at Z. According to X, the mother was not as angry when Z was not there. X stated that she did not like it when her mother was on the phone as she then paid less attention to her. She also reported that the mother speaks negatively of the father.
c)In the past, the father used to yell at Z and lock her a room or outside if she misbehaved. Z is now better behaved, but X remained concerned that the father would return to his previous behaviour. She questioned whether the father was only being nice now so that she and her siblings would live with him. X also said that the father previously did not provide the children with enough food and that he made them drink large amounts of water prior to meals. X also said the father treated the younger children differently and more favourably.
d)She was scared of how the father would react to her saying negative things about him, and that she was particularly worried the father would not talk to her again.
Y while speaking to the family consultant in November 2018 said she did not like spending time with the father because she continued to feel anxious about the mother. She reported that she does not want to leave the mother and therefore does not spend much time with the paternal grandparents either. Y was particularly upset at the prospect of living with the father and only spending time with the mother. She said that she worries the mother is “lonely” without her and her siblings.
W said that the current arrangements were all right but that he would prefer to live with the mother rather than the father. When he was asked about worries in the father’s home, W declined to answer. He said he does not want to hurt anyone’s feelings and that he “got in trouble” after the last family report interviews. He would not comment further on the topic.
This time round, Z presented as a reserved girl who did not engage extensively in interview. Z said that the father used to lock her inside a room or lock her outside when she was naughty but that these things did not happen anymore. She said that the father now sends her to her room if she is frustrated.
It was the family consultant’s opinion that by the time of the second family report, X had presented as a child who had chosen to remove herself from a conflicted family situation. It was the consultant’s opinion that X should remain living with the paternal grandparents.
Ms A was interviewed by the family consultant, but did not otherwise give evidence in the proceedings. The father’s case was criticised because of this. The insights which Ms A has into the children’s behaviours and feelings is quite impressive. For example, she was able to recognised the children’s stress at the high conflict situation they found themselves in and was herself upset at not being able to help the children.[20]
[20] See first Family Report at paragraphs 29-33
The family consultant in the first report foreshadowed a likely scenario for the children if they remained embroiled in the conflict between the parents. That scenario was realised when X decided that she didn’t want to have very much to do with either of her parents.
The report further read:
106. The children have been subject to ongoing disputes about their living arrangements. They have endured multiple changes in their parenting arrangements, and this has included periods when they have not spent time with both parents. The parents appear to continue to be in high conflict, and this does not appear to have improved over time, although their separation occurred approximately eight years ago. It is therefore unliky that the conflict will abate in the future, and it seems likely that the children wil continue to be exposed to their parents’ conflict. This may indicate that one or both parents are preoccupied with the conflict, and unable to place the children’s needs above this. The children reported that both parents have spoken negatively to them about the other parent in the past. This may be another indicator that the parents are unable to protect the children from the conflict, and unable to priories the children’s needs above their own.
107. Children who are subjected to ongoing, chronic parental conflict can be seriously negatively affected by this experience, both in the long and short term. It can adversely affect their relationships with one or both parents, and case them to reject one or both parents. It can negatively affect their sibling relationships and peer relationships, and can lead to them developing poor, maladaptive and social conflict resolution skills on their own. They may then have difficulty forming and maintaining healthy relationships into their adulthood.
108. In addition, exposure to parental conflict can lead to serious vulnerabilities in the children’s mental health. They may experience anxiety and depression, which can affect all domains of their lives. These children are reportedly already vulnerable due to their additional needs, and it is unlikely that their parents’ conflict is helping them manage those issues. Instead, it may be seriously undermining their ability to manage their additional needs, and may be placing such stress on them that their additional needs are exacerbated.
It was the mother’s belief, as at March 2019, that X, W and Y were “all of age to decide if they wish to see” the father. Whilst their biological ages might be such that their wishes would be given some weight, their level of maturity and understanding is not. Once again, to place the burden on these children of deciding (as they had to decide previously) about whether they would see one of their parents is a totally unfair burden on them. The father has through the proceedings demonstrated a higher level of insight than the mother in respect of the impact placing such a burden on the children has had.
The further this matter progressed along the path of litigation, the worse the children’s relationship with the father appeared to be, notwithstanding the limited time the children were spending with the father after April 2018. This is what the family consultant opined might happen. The ongoing conflict between the parents was identified by the family consultant as having the potential to force the children to choose between the parents or at least to severely compromise their ability to have a relationship with both parents.
The Court finds that the reason why the conflict was heightened to the degree it was during the litigation is to a large extent because of the mother’s inability to focus on the children’s needs and because of her inability to meet those needs. She has also failed to ensure the children continued to have a relationship with the father. The orders did not help. They had the children travel between the two homes in a disruptive manner, they made the children’s lives more difficult. The children started spending time with the paternal grandparents because the mother could not cope with the demand of parenting them. The paternal grandparents started taking on more and more of the burden, to the exclusion of the father and at the mother’s invitation.
Allegations of Risk and Family Violence
The mother says that the father would engage in abusive behaviour towards her almost weekly throughout their relationship which made her feel intimidated and terrified of him.
She says that he would lose his temper easily and that he was controlling in the sense that he would take her car keys or leave the car without any petrol so that she was unable to drive anywhere, her money was paid into his bank account which he would empty and give her a small portion each fortnight and that he would shout at her at tell her “you need psychiatric care, your kids hate you, I’ll put you in K Psychiatric Hospital” and would call her “a mental case”.
The mother asserted that in the early years after separation the father would “constantly” threaten her that he would “get custody of the kids”. She says he would repeatedly contact Centrelink and tell them that the children were not in her primary care. The father was cross-examined about these allegations. The father confirmed that he advised Centrelink the children were not in the mother’s care primarily, that he provided them with information as to the living arrangements for the children. He said he did so after such information was sought by Centrelink.
The mother says the father had been unforgiving if she was running late to collect the children and that he would not wait and that he will not allow her to spend any extra time with the children unless she followed his demands.
The mother has been concerned about the children’s wellbeing in the father’s care, in particular that they are under nourished and not fed appropriately. The mother says she has sent the children birthday presents and cards which have been returned to her un-opened.
In her affidavit the mother states:
33. Throughout the entire 7 year period that the children lived with the Respondent, he would rarely answer my calls. He would simply say “it is the children’s choice whether they speak with you or not”.
34. All of my children have been alienated from me. There was an extensive period of almost two years where I had not seen the children at all except X. This also meant that they did not form any relationship with their half siblings.
35. X participated in hobby in 2011 and I was denied the opportunity to attend any of her activities. The Respondent said to me word to the effect “it is only for family members, you are not her family”. This occurred every year until 2017 when I was finally permitted to attend.
The mother explains in her affidavit that she became increasingly worried about the safety and wellbeing of the children in the father’s care. The mother raises the following concerns in her affidavit:
37. …the children always appeared under nourished and under-weight. They were starving and ate excessively when they were staying with me. Z would often have severe headlice…X too would frequently have headlice.
38. Z would tell me that she would be locked outside or in the garage, sometimes for hours each time. When I asked her “why?” she would say “if I have a fight with T, Dad would lock me out for hours”. She would also say that she was regularly made to go to bed without any food as punishment and went to school the following day starving.
The mother asserted that whilst they were living with the father that all of the children have complained to her that they are hungry when in the father’s care and that on occasion the children have asked their teachers for food at school.
The mother believes that the father withdrew the children’s enrolment at S School due to the school raising concerns with the father about the well-being of the children. It was around this time also that the father cut all contact between the children and the paternal family.
The paternal grandparents reported that the children have raised concerns about the father’s treatment of them whilst in his care which mirror many of the concerns that are raised by the mother in her evidence.
Given the paternal grandparents decision to discontinue their application, without any explanation to the Court as to why this is so, the veracity of the allegations they make against the father must be viewed with some reservation.
The Court does not accept the suggestion that the father did not appropriate feed the children while they were living with him, or that he was excessive in his discipline. The Court accepts the father’s explanations as to why the children might have viewed certain events in particular ways, particularly noting their vulnerabilities and anxieties, and limited capacity to reason in a mature manner due to their ages, life experiences and needs.
Capacity and Attitude of the parents
The father deposes that he has always been the parent responsible for meeting the majority of the children’s needs. He says the mother would complain that she was unable to look after the children because it was too hard. He says the mother’s ability and willingness to care for the children further diminished as the children aged and their needs became greater due to their medical diagnoses.
The father provides some examples of the mother’s failure to meet the children’s needs include not having Z’s asthma medication filled or taking her to a doctor when her asthma was increasing, and failing to get the children to various medical and specialist appointments such as when W broke his arm whilst in the mother’s care.
The mother has felt shut out from her children’s lives for much of the time that they were living in their father’s care, for example the mother was not made aware of the extent of the children’s special needs and diagnoses, she was not consulted or advised of any assessments. The father did provide the mother with some copies of reports after the assessment had taken place.
Whilst the father did have the benefit of an order for sole parental responsibility, it would have been insightful of him to involve the mother in the assessment process so that the children would be better assisted.
The mother’s evidence is that it was not until April 2018 when the father filed his Affidavit that she learned of the true extent of the children’s special needs. This may be so, but it is in large part due to the mother not being accepting of the various diagnoses from time to time.
The Court accepts that the father believed he had good reason not to further involve the mother after the 2013 assessments were made available to her. However, had the mother been involved it is unlikely that she would have reacted in the same manner to the assessments which were conducted. Her involvement in the assessment process, no doubt, would have made her feel included. The difficulty with the mother feeling excluded from these important matters is that she does not ultimately accept full-heartedly the various diagnoses and assessments. Although her evidence is that she does do so, her actions and particularly text messages and emails to the father disclose her true feelings and beliefs.
Having observed the parents in the witness box over periods of some hours, it is the Court’s view that the mother believes that the father was and is abusive towards her. She is simply incapable of seeing the father’s actions and manner as anything but malevolent. The mother’s dislike of the father is palpable. She appeared to be volatile and unable to deal with the reality of the situation which was facing her children.
The first family report noted that although the mother disputed some of the children’s diagnoses she did not dispute all of them. It was therefore unclear to the family consultant why the mother had not been proactive in attending to the needs that she accepted that some of the children have. The family consultant was of the opinion that this “would be considered as neglect.” The family consultant was also of the opinion that if the mother had not ensured the children’s attendance at school due to an inability to manage the children’s educational needs then this would be considered neglect.
Prior to December 2017:
a)X had been receiving support from disability service providers using NDIS funding five days a week, focused on increasing life skills social skill building, community inclusion and access and academic support;
b)W had been receiving support from disability service providers using NDIS funding five days per week. The support he was receiving was focused on increasing life skills, social skill building, community inclusion and access and academic support;
c)Y had been receiving support from disability service providers using NDIS funding four days a week focussed on increasing life skills, social skill building and academic support.
The mother had deposed as at October 2018:
I will be continuing to attend upon all of the children’s medical, dental and orthodontic needs. I will ensure that the NDIS assistance is reinstated and continue for this as long as need be. I have also engaged the services of “Brighter Futures” who are assisting me currently and into the future.
As at July 2019, with orders for the children to live with her since April 2018, the mother was yet to attend upon the children’s medical, dental and orthodontic needs. Since coming into her care at the beginning of 2018, the children have had many absences from school, and they have not been to all of their appointments, such as for example speech therapy. The mother has at times sought to heavily rely on the paternal grandparents to ensure that the children have been able to attend school and has permitted them to make decisions, without any recourse to her or the father, about the children attending upon medical or associated treaters.
The mother is a person of limited capacity to care for the parties’ children. This has been demonstrated by her actions and decisions throughout the years post separation. She does not seem to accept responsibility for the impact of her decisions upon the children, but rather blames the father for the decisions which she has made, at least impliedly so.
The father has been more than frustrated with what he perceived to be the mother’s lack of engagement with the children. Her rather flexible way of parenting is not something which resonates with him. Likewise, the father’s parenting style is not something which resonates with the mother. The parents are two very different people. They are clearly not compatible and for different reasons are not capable of working together for the benefit of their children.
The mother’s approach has been to shirk responsibility. Whilst she means well she simply does not have the capacity (or perhaps willpower) to follow through with what the children’s needs require. This is not because she does not love the children. She loves them very much. She simply has too much on her plate. She does not have the necessary support and she does not have the necessary skills. The problem however, is that she either unaware of her inadequacies or does not know how to address them.
The father also has inadequacies. His are of a different kind. He is too regimented in his ways. He is inflexible. Whilst this may serve him well while the children are young, it will not serve him well when the children, as X now is, move further into their teenage years. However, it is the Court’s view that he has at least limited capacity of self-reflection which will benefit the children.
This however is not a beauty contest between the parents. It is an assessment based on the evidence as to which of them is better able to meet the children’s needs and ensure, as much as possible, that they grow up to be healthy, happy individuals. Ideally, these children would have a warm and loving extended family surround them. Ideally, they would have their parents agree and co-operate.
The father has been assessed to pay child support but his evidence is that he is not able to pay the amount assessed. The mother has limited means.
Likely effect of change; Practical difficulty and expense of children’s time with parent
The opinion of the family consultant in the first family report was that any further changes in parenting arrangements may be difficult for Y in particular to manage, and she may feel distressed at not spending time with the mother. It is also likely, in the opinion of the family consultant that W and X would experience difficulty in changing their parenting arrangements again.
However, such difficulties would be less of a risk for the children in the long term than would a parent’s incapacity to meet their special needs. The father has at least demonstrated a limited capacity to change his approach to the children, whilst the mother has not.
An added difficulty for the children, given the mother’s current circumstances, is where they would live if they were to live with the mother. The mother’s case was very fluid in respect of her proposed arrangements going forward. She easily entered a new relationship and exposed the children to a new figure in her life without any proper consideration for their feelings and welfare. The children have also had the added trauma of learning about the mother’s latest pregnancy and then the loss of that foetus.
Time with children, the likelihood of further proceedings and other matters
It is difficult to understand, because of limited evidence, precisely the manner in which the parents have complied or not complied with parenting orders concerning the children over the years. It appears that none of the orders have ever been fully complied with, and that the parents really used the orders as a broad blue-print for what might be applicable.
Certainly since the interim orders were made in May 2018, the children did not live with the mother and spend time with the father in accordance with the orders. By about October 2018, X had started living with the paternal grandparents, W and Y were living with the mother and spending alternate weekends with the father while Z was living with the father and not spending time with the mother, but rather the paternal grandparents.
Since December 2018 to date, there has been even less compliance with the interim orders. The children’s relationship with the father has been severely curtailed. They have not been spending any time with him for reasons which are objectively, simply not good reasons. Neither parent has throughout the children’s lives post separation, done their utmost to encourage the children’s relationships with the other parent. The mother has been severely hurt over the years by what she perceives is the father’s campaign against her. She has taken the view that it is now the time that she gave as good as she got. This much is clear from the text messages which she had sent to the father after the matter was adjourned in December 2018. For example “No you wont (sic) be having the kids I told you that. I have full support from my solicitor. Im (sic) not breaching orders.” And “I told you kids are not going. What part dont (sic) you understand ?” Her attitude to the father is in fact, quite appalling.
It is quite possible that no matter what orders the Court makes these parties will find their way back to Court. What might turn the matter to a less litigious path would be if the parents put the children’s needs first and foremost, such that they learnt or at least tried to learn to appreciate and understand the viewpoint of the other parent, rather than using the children as pawns in their unhealthy game.
There were significant difficulties with at least some of the mother’s evidence, which have resulted in the Court coming to the conclusion that where the evidence of the parents is in conflict, the Court accepts the evidence of the father rather than the evidence of the mother. For example, the mother deposed in October 2018 “since December 21 December 2017 all four children have lived with me continuously with the consent of the Respondent father.” This was clearly incorrect at the time of the affidavit. It is an embellishment.
Parental Responsibility
The capacity by these parents to co-operatively make decisions in respect of their children’s long term health and welfare is non-existent. The parents have for years been at tug of war with each other in respect of what is in their children’s best interest. They both lack the ability to make shared decisions in respect of the children’s health. They do not trust each other or each other’s decision making capabilities. Indeed, their distrust is so significant that it impairs their ability to make reasoned decisions in respect of the children, particularly so the mother.
It is imperative that these children’s needs are met. They are particularly vulnerable because of their special traits. The children’s capacity to grow into mature and capable adults will be significantly compromised if their needs are not met. As such, it is important that the decisions in respect of their long term health are capable of being met. It is for this reason that the presumption of equal shared parental responsibility is found to have been rebutted. The Court has already made findings in respect of the parents’ capacity to meet the children’s needs. The father has the greater capacity to do so. It is for those reasons that the Court finds that it is in the children’s best interest for the father to have sole parental responsibility.
Conclusion
The living arrangements for X, W, Y and Z have since their parents’ separation been a moveable feast. Whilst there has been a period of years where they were living with the father, their ability to spend time with the mother had been curtailed. The children have suffered as a result and each in their own different way. Since December 2017, the roles had been reversed, and the children’s ability to spend time with the father had been curtailed.
The father was very measured in his manner. It is easy to come to the view that he appears controlling, difficult and inflexible. However, it is also easy to come to the view that his manner and appearance are not deliberate or with intent to harm, but are simply features of his personality which are highlighted in a highly artificial environment such as the courtroom. The Court is mindful that the father was a self-represented litigant. His case was very well prepared. That would have taken a significant intellectual and emotional toll on him. To have to advocate for himself, prepare cross-examination of the mother and the family consultant, make submissions and answer experienced counsel, are very difficult things to undertake. To do that task well requires an incredible amount of concentration and discipline. The father ran his case well. To add to this, the proceedings were in respect of his own children. He has been patient and courteous throughout the proceedings.
The father has been a strict but capable parent. He has tried his best to understand and meet the children’s needs. Whilst there remains a shadow in respect of the various allegations which have been levelled at him, not only by the mother, but by his parents and also via the children, there is simply insufficient evidence to make a finding on the balance of probabilities that the children are at risk of either physical or psychological harm in the father’s care. Likewise in respect of Ms A , the father’s wife.
On the balance of probabilities the evidence is not sufficient to warrant the making of any injunctions in respect of Ms A , even though at first glance such might be appropriate safeguards. In the father’s household at present, the burden that would be placed on the father and the children if there was to be any restraint in respect of the children being left alone in the care of Ms A , would simply be too much. The risk that his household would become dysfunctional as a result of any such injunction is too great.
The mother on the other hand has not been sufficiently proactive in meeting the children’s needs. She is simply overwhelmed and lacks the initiative and drive to do what is needed. She is clearly a parent with great love for her children, and the children will benefit from having an ongoing relationship with her.
This was always a finely balanced case. The result is one where reasonable minds might differ. The risk to the children if their special needs are not met is simply too high. It is ultimately this matter which tipped the balance in favour of an order for the children to live with the father.
For all of these reasons, orders are made as set out at the forefront of these Reasons.
I certify that the preceding two-hundred and thirty-two (232) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 3 September 2019
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Remedies
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Fiduciary Duty
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Procedural Fairness
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