Isaac & Isaac
[2013] FCCA 136
•24 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ISAAC & ISAAC | [2013] FCCA 136 |
| Catchwords: FAMILY LAW – Application for final parenting orders – competing applications for live with orders – allegations of and existence of family violence – concerns as to mother’s mental health and capacity to promote children’s relationship with father – evidence of independent experts – concerns as to children’s best interests if they remain in current environment – effect of change – position of Independent Children’s Lawyer – whether orders in children’s best interests. |
| Legislation: Family Law Legislation Amendment (Family Violence and Other Measures) Act 2001 (Cth) |
| Cases cited: Saunders & Saunders (1976) FLC 90-078 Hall & Hall (1979) FLC 90-713 Mulvany & Lane [2009] FamCA 76 Collu & Rinaldo [2010] FamCAFC 53 Goode & Goode [2006] FamCA 1346 Lennon & Lennon [2011] FamCA 571 Simpson & Hamlin (1984) FLC 91-576 |
| Applicant: | MR ISAAC |
| Respondent: | MS ISAAC |
| File Number: | DGC 400 of 2012 |
| Judgment of: | Judge O’Sullivan |
| Hearing dates: | 2-3, 5, 8-11 April 2013 |
| Date of Last Submission: | 29 April 2013 |
| Delivered at: | Dandenong |
| Delivered on: | 24 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms P. Byrnes |
| Solicitors for the Applicant: | Macpherson & Kelley Lawyers |
| Counsel for the Respondent: | Mr A. Lovering |
| Solicitors for the Respondent: | Macgregor Solicitors |
| Counsel for the Independent Children’s Lawyer | Ms M. Stavrakakis |
| Solicitors for the Independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
All previous parenting Orders be discharged.
The father have sole parental responsibility for the children [X], born [in] 2001 and [Y], born [in] 2005 (“the children”).
The children live with the father.
Subject to paragraphs 5, 6, 7, 8 and 9 herein the children spend time and communicate with the mother as agreed in writing between the parents.
The mother forthwith attend upon a psychiatrist for the purposes of assessment and treatment and the mother comply with all reasonable directions and recommendations of the said psychiatrist.
The mother provide the said psychiatrist referred to in paragraph
5 herein with copies of the following reports:(a)Psychiatric report prepared by Dr E dated 26 July 2012 relating to the mother and the father.
(b)Family Report prepared by Dr N dated 5 September 2012.
(c)Supplementary Family Report prepared by Dr N dated 12 March 2013.
(d)A copy of the Reasons for Judgment together with a copy of these Orders.
The mother provide the father with a report from the said psychiatrist confirming the psychiatrist’s diagnosis, prognosis, treatment and the mother’s compliance with prescribed medication.
The mother provide the father with a report from the said psychiatrist to confirm the mother’s mental health does not adversely affect her capacity to parent the children.
The mother authorise the said psychiatrist to communicate directly with the father regarding, inter alia, the mother’s diagnosis, prognosis and treatment.
As soon as practicable but in any event within 48 hours the Independent Children’s Lawyer and Dr N meet with the children for the purpose of informing the children about these Orders.
The Independent Children’s Lawyer provide Dr N with a copy of the Reasons for Judgment and Orders made herein.
The Mother be and is hereby restrained from taking the children, or either of them, to any counsellors, therapists, psychologists without the father’s written consent.
The mother and father shall not use any form of physical punishment on the children, or either of them.
That [X], born [in] 2001 and [Y], born [in] 2005 are restrained from leaving the Commonwealth of Australia.
That Mr Isaac (“the father”) and Ms Isaac (“the mother”) their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the said children [X], born [in] 2001 and [Y], born [in] 2005 from the Commonwealth of Australia.
IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch list until the Court orders its removal.
This order does not prohibit the taking or sending of the child from Australia to a place outside Australia if it is done with the consent in writing (authenticated as prescribed in accordance with Regulation
12 of the Family Law Regulations)Within 7 days of the date of these Orders the mother provide the father with the children’s passports and the passports be retained by the father.
The father, his servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the mother to or in the presence or hearing of the said children or any of them, and from permitting any other person so to do.
The mother, her servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the father to or in the presence or hearing of the said children or any of them, and from permitting any other person so to do.
That subject to these orders the mother otherwise be restrained from contacting (including by text message, Facebook, Skype or phone call) the children when they are in the father's care unless she obtains his prior written consent.
The father be listed forthwith as the emergency contact person at the children's school and he provide a copy of these orders to the school and any other school the children or either of them attend.
The father be permitted to provide a copy of these orders to any medical, speech therapist or other treating professional of the children.
The mother be permitted to receive school reports for the children directly from the children’s schools at her expense.
That both parties be and is hereby restrained from discussing these proceedings or showing the children documents in these proceedings or permitting any other person to do so.
That both parties follow the recommendations of any treating paediatrician or other professional in relation to [Y]'s diagnosed learning difficulties.
That each party provide the other with at least 28 days advance written notice of any intended change to their residential address or telephone number.
The father keep the mother informed of:
(a)any serious illness, injury or other significant condition of either of the children;
(b)any medical emergencies involving the children as soon as practicable;
(c)any treating professional in relation to [Y]'s learning or behavioural issues.
The Independent Children’s Lawyer provide a copy of these Orders to the [omitted] Magistrates’ Court at [omitted] to be placed on the intervention order proceedings file, case number [omitted].
Subject to the above the Order for the appointment of the Independent Children’s Lawyer be discharged.
Pursuant to s.65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All extant applications be otherwise dismissed and removed from the Pending Cases List.
IT IS NOTED that publication of this judgment under the pseudonym Isaac & Isaac is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 400 of 2012
| MR ISAAC |
Applicant
And
| MS ISAAC |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a case about [X] born [in] 2001 and [Y] born [in] 2005 (“the children”). The applicant, Mr Isaac (“the father”) is the children’s father. The respondent, Ms Isaac (“the mother”) is the children’s mother.
The father and the mother are in dispute over what parenting orders under the Family Law Act 1975 (“the Act”) should be made for the children.
In these reasons I will endeavour to explain why I have made the orders set out at the beginning of this judgment.
Background
Before doing so it is timely to set out the background facts and procedural history.
On the basis of the uncontentious or agreed background facts in the parties’ affidavits, an agreed chronology was prepared which was marked as an exhibit in these proceedings. However where in these reasons there is a statement of fact those are, unless otherwise specified, findings of fact.
The father is aged 45 and the mother is 37 years of age. The mother has lived overseas in [omitted]. In 1997 the father arrived in Australia and shortly thereafter his first marriage ended. In March 2000 parties commenced cohabitation. On [omitted] 2001 the eldest child, [X] was born. [X] is now aged 11. There were proceedings for intervention orders in 2002.
On [omitted] 2003 the parties married. In late 2003, 2004 and again in 2005 there was police involvement with the parties following family violence complaints. On [omitted] 2005 the second and youngest child, [Y] was born. [Y] is now aged 7.
In 2006 [X] commenced school initially at a catholic primary school then at [O] Primary School followed by [M] Primary School after a dispute involving the mother and another family at the former school led to an intervention order being made against the mother. Police involvement with the parties due to domestic violence complaints continued in 2006, 2007 and 2009.
On 8 October 2011 the father moved out of the matrimonial home.
On 4 January 2012 Senior Constable W applied for an interim intervention order for the mother and the children with the father named as the respondent. On 30 January 2012 the interim intervention order was granted in favour of the mother and the children.
On 14 February 2012 the father commenced these proceedings by filing an initiating application which was abridged to be heard on
14 March 2012.
On 25 February 2012 the mother and the children made statements to the police. On 27 February 2012 at the hearing into the intervention order at the Magistrates’ Court a final order was made by consent of the parties (without admissions) and the children’s names were removed from the order.
One day later the mother made a further application to vary the intervention order to include the children’s names again. On
28 February 2012 the children were formally interviewed by the police.
On 3 March 2012 [X] attended upon Ms L, psychotherapist to commence therapy and continued to attend on a fortnightly basis.
On 14 March 2012 the father’s initiating application had its first return date before this Court at Dandenong. On that day both parties were represented and the Court made interim consent orders. The Court also made orders for the parties and the children to attend a section 11f child inclusive conference on 3 April 2013, a conciliation conference was listed on 21 May 2012 and the matter was adjourned for mention on 3 April 2013.
On 2 April 2012 the intervention order hearing was held at the [M] Magistrates' Court. A final intervention order was made by consent, without admissions, including the children and the order contained the usual exemption for orders made under the Act. That order expired on 27 February 2013.
On 3 April 2012 the proceedings commenced by the father returned before this Court for hearing. On that day the section 11f conference was held with the children and an oral report was provided to the Court by the family consultant. The Court made orders for the appointment of an Independent Children’s Lawyer and the Department of Human Services was requested to intervene in the proceedings. The matter was adjourned for mention on 7 May 2012. The Department did not intervene.
On 7 May 2012 the matter again returned to this Court for hearing.
By this time the Independent Children’s Lawyer was on the record, both parties were represented there were interim orders made by consent. There were orders that both parties obtain psychiatric assessments and for a family report to be prepared. The Court also made orders and directions for final hearing in relation to both parenting and property. The proceedings were adjourned to
14 November 2012 for final hearing on both parenting and property.
On 8 May 2012 the father was charged by the Victoria Police for criminal damage to the former matrimonial home, 4 counts of recklessly causing injury, animal cruelty and unlawful assault.
The father was also charged with breaching the intervention order as a result of Skype messages to [X] between 31 January 2012 and
15 February 2012.
On 24 and 25 July 2012 the parties attended upon Dr E for the purposes of psychiatric assessments. On 26 July 2012 the psychiatric reports prepared by Dr E were released to the parties. On
3 August 2012 the parties then attended for interviews with Dr N for the purpose of preparing the family report.
On 8 August 2012 [X] ceased attending upon Ms L.
On 21 August 2012 the parties attended a Conciliation Conference at Dandenong pursuant to the orders made on 14 March 2012. The parties entered into final property orders by consent at the Conciliation Conference.
On 5 September 2012 Dr N’s family report was released to the parties which recommended immediate resumption of the children’s time with the father.
On 19 September 2012 the father’s criminal charges came before the [M] Magistrates' Court. All of the charges against the father were withdrawn by police save for the charge of breach of intervention order in relation to the Skype messages to [X], to which the father pleaded guilty[1] and received no conviction.
[1] See exhibit A5 for the detail of the exchange between father and son such as “miss you” and “how are you”
In late September 2012 there was correspondence between the solicitors for the parties and the Independent Children’s Lawyer. No agreement was reached on what time the children should spend with the father.
On 10 October 2012 the mother’s lawyer wrote to the father’s lawyer proposing the commencement of unsupervised time with the children. An agreement was reached and on 13 October 2012 the father commenced spending unsupervised time with the children from 1.30 pm to 5.30 pm, followed by 3 further events on 14 October 2012,
20 October 2012 and 21 October 2012 for the same duration.
On 23 October 2012 the father filed an amended initiating application seeking inter alia that the children live with him. On 27 October 2012 both children spent unsupervised time with the father from 1.30 pm to 5.30 pm.
On 28 October 2012 the father was concerned that [X] may have been attempting to record a conversation with him using a recording device in his pocket. [X] refused to spend time with the father. [Y] spent time with the father from 1.30 pm and 5.30 pm.
On 2 November 2012 the children spent overnight time with the father. On 5 November 2012 the mother made a complaint to the police while the children were in the father’s care claiming the children were scared and needed to be returned to her. The police spoke to the children and did not take any action.
On 14 November 2012 the parenting proceedings returned to this Court. Both parties were represented and there were interim consent orders for inter alia the parties to have equal shared parental responsibility, the children to live with the mother and spend time with the father each alternate weekend and every Wednesday evening.
On 14 November 2012 orders and directions for final hearing on parenting issues were also made including an order for the preparation of an updated report. The final hearing date was subsequently relisted.
On 16 to 19 November 2012 both children spent time with the father from after school Friday until the commencement of school on Monday in accordance with the interim consent orders.
The father collected the children from school on 21 November 2012 and spent overnight time with the children until the commencement of school on Thursday morning in accordance with the interim consent orders.
The children spent the weekend with the father on 30 November 2012 until 3 December 2012 and the children were returned to school at the commencement of school on Monday morning pursuant to the interim consent orders. On 5 December 2012 the father attended the children’s school to collect them and [X] was not happy about going to spend time with his father. The mother arranged to collect [X] from school and only [Y] spent time with the father.
On 12 December 2012 [X] spent time with the father. There was as an incident at [omitted] beach. This was the last time [X] spent time with the father.
On 14 December 2012 the mother took the children to [M] Police Station. [X] made a statement alleging violence against him which the father denied. The police contacted the father and advised him that the children would not be spending time with him for the weekend occurring on 14 to 17 December 2012.
An application was made for a variation of the intervention order on behalf of the mother on 14 December 2012. That application said:
“The victim in this incident is the son of the respondent and AFM. During a consensual custodial visitation approximately 2 weeks ago the AFM’s son and his younger brother were at the respondent’s house. Both boys were playing a game using a hand held console. The respondent has walked up to [X] and hit him across his head. The hit was unprovoked and [X] had a headache for two days as a result. On Wednesday the 12th of December 2012 the respondent has picked up [X] and his brother after school. Took them swimming down at [B]. For some reason the respondent has told [X] not to go near his brother. [X] has found a large star fish on the beach, he has asked the respondent if he could show his brother. The respondent has given his consent, as [X] has turned away the respondent has kicked [X], this has resulted in bruising to his leg. [X] is scared to go with his father on visits. When spoken to [X] breaks down and cries for fear of more assaults. Police and the AFM are seeking a variation to the original intervention order to exclude [X] from any visitation by the respondent (Family Law Court). Please remove the clause that allows family access.”[2]
[2] Annexure ‘LI-34’ of the mother’s affidavit sworn on 28 March 2013
The reason given for the application to vary the intervention order referred to above was:
“I seek to:
Have the order varied to exclude the respondent from having any visitation or access rights to 11 year old [X] pursuant to clause 9 of the existing orders. As well as suspending the current Family Law Court order pursuant to 68R of the Family Law Act.
The reasons/grounds for the application are:
During visitation pursuant to the Family Court Orders the respondent has walked up to 11 year old [X] and hit him across the head. [X] had a headache for 2 days as a result. On 12 December 2012 the respondent has kicked [X] resulting in a bruise to his leg. [X] is scared of his father and is in fear of more assaults. Confirmed by police interview.”[3]
[3] Annexure ‘LI-35’ of the mother’s affidavit sworn on 28 March 2013
On 19 December 2012 the application to vary the intervention order came before the [omitted] Magistrates Court. An interim order, naming the mother and the children as affected family members, was made
ex parte by Magistrate [omitted] against the father in the following terms:[4][4] Annexure ‘LI-36’ of the mother’s affidavit sworn on 28 March 2013
“The Court orders that the respondent must not:
1.Assault, harass, threaten, intimidate or commit family violence against the protected person(s) at any time. Note: The Family Violence Protection Act 2008 denies family violence as behaviour by a person towards a family member of that person that is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening, coercive, or in any other way controls or dominates a family member and causes that family member to feel fear for the safety or well being of that family member or another person. Family violence includes behaviour that cases a child to hear or witness or otherwise be exposed to the effects of these behaviours.
2.Intentionally damage any property of the protected person(s) or threaten to do so.
3.Attempt to locate, follow the protected person(s) or keep them under surveillance.
4.Publish on the internet, by email other electronic communication any material about the protected person(s) including social sites.
5.Contact or communicate with a protection person by any means including phone, text and email.
6.Approach or remain within 10 metres of a protected person.
7.Go to or remain within 200 metres of [address omitted] or any other place where a protected person lives, works or attends school or child care.
8.Get another person to do anything the respondent must not do under this order.
9.The respondent may:
(a) do anything that is permitted by a Family Law Act order, a child protection order or a written agreement about child arrangements; if made after today and in contemplation of this application, but subject to paragraph 10 of interim.
(b)communicate with a protected person through a lawyer or mediator; or police.
(c)arrange and/or participate in counselling or medication; or
(d)go to the home of a protected person, in the company of a police officer or a person chosen by the applicant, to collect personal property by phone arrangement But only if the respondent does not commit family violence while doing so.
10.Further order that no child contact pursuant to s91(1) and (2) of the Family Violence Protection Act & on the basis of the evidence before the Court and being satisfied that the safety of a child may be jeopardized by contact with the respondent – the respondent must not:
(a) live in the same place as; or
(b)spend time with or have contact with; or communicate with [X] protected by this order until further order of a court made after consideration of this application and conditions of this family violence protection order.
11. OTHER order:
That pursuant to paragraph 14 of the interim order made by the Federal Magistrates Court of Australia on 14 November 2012 that the Independent Children’s Lawyer speak to the children, and is granted liberty to make any submissions deemed appropriate on the return date.
This intervention order expires on 7/1/2013, unless extended or varied prior to that time. The current interim intervention order will remain in place until this final intervention order is served on the respondent.” (emphasis added)[5]
[5] There was no reference in that order to either ss.68P, 68Q, 68R, 68S or 68T of the Act
The father was not at that hearing and did not consent to the order.
The father was served with the interim intervention order that evening. On the same day the father attended the children’s school to the collect the children in accordance with the interim consent orders. The mother was also present at the children’s school. [X] left with the mother. The father took [Y] home with him. The Police did not remove [Y] from the father’s care.
On 20 December 2012 the father filed an application in a case seeking that the children reside with him. That application was listed for hearing on 25 March 2013. On 21 December 2012 the mother also filed an application in a case seeking to suspend the interim consent orders made on 14 November 2012 in relation to [X] and that [X] attend counselling. That application was also listed for hearing in this Court on 25 March 2013.
On 22 December 2012 the father collected [Y] from school and spent time with him in accordance with the interim consent orders.
The child [X] did not spend time with the father. The father returned [Y] to the mother’s care on 1 January 2013. This was the last occasion the child [Y] spent time with the father.
The application to vary the intervention order was listed for mention in the [M] Magistrates' Court on 8 January 2013. That hearing was adjourned for a contested hearing before Magistrate [omitted] on
21 January 2013.
On 10 January 2013 the mother, who was by this time unrepresented, sent an email to the father’s lawyer stating that she consented to the father spending time with [Y] from 15 January 2013 to 27 January 2013 provided that the father returned [Y] for 21 and 22 January 2013 so that he can attend a wedding. The father agreed to those arrangements.
On 15 January 2013 the mother failed to attend changeover with [Y] for [Y] to spend time with the father.
On 21 January 2013 the parties return to the [M] Magistrates' Court for a contested hearing over the intervention order. The variation application was dismissed and the following orders were made:
“The following person/s are protected by this order:
First Named Affected Family Member – Ms Isaac
Second Named Affected Family Member - [Y]
Third Named Affected Family Member – [X]
The Court orders that the respondent must not:
1.Assault, harass, threaten, intimidate or commit family violence against a protected person(s) at any time. Note: The Family Violence Protection Act 2008 denies family violence as behaviour by a person towards a family member of that person that is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening, coercive, or in any other way controls or dominates a family member and causes that family member to feel fear for the safety or well being of that family member or another person. Family violence includes behaviour that cases a child to hear or witness or otherwise be exposed to the effects of these behaviours.
2.Intentionally damage any property of the protected person(s) or threaten to do so.
3.Attempt to locate, follow the protect person(s) or keep them under surveillance.
4.Publish on the internet, by email or other electronic communication any material about the protected person(s) including social sites.
5.Contact or communicate with a protected person by any means including phone, text and email.
6.Approach or remain within 10 metres of a protected person.
7.Go to or remain within 200 metres of [address omitted] or any other place where a protected person lives, works or attends school or childcare.
8.Get another person to do anything the respondent must not do under this order.
9.The respondent may:
(a)do anything that is permitted by a Family Law Act order, a child protection order or a written agreement about child arrangements;
(b)communicate with a protected person through a lawyer or mediator; or police
(c)arrange and/or participate in counselling or mediation; or
(d)go to the home of a protected person, in the company of a police officer or a person chosen by the applicant, to collect personal property by phone agreement BUT ONLY IF the respondent does not commit family violence while doing so.
This interim intervention order will last until final order, unless varied or revoked; or if the application is withdraw.” (emphasis added)
As will be clear from the above, this last order removed the purported suspension of the interim parenting orders made in November 2012 in this Court. The proceedings in the [M] Magistrates' Court were adjourned sine die pending the outcome of these proceedings.
On 24 January 2013 the father filed a contravention application which was listed on 25 March 2013. On 26 January 2013 the father attended the children’s school to collect them. The mother was already in attendance at the children’s school and took the children home with her.
On 31 January 2013 the mother took the child [X] to see Ms P. [X] attended approximately weekly after this.
On 5 February 2013 the mother filed an application in a case which sought to “withdraw” the orders made on 14 November 2012, for the mother to have sole parental responsibility and for the children’s time with the father to be supervised at a contact centre. The mother also sought orders for the children to attend counselling and for their names to be removed from the Airport Watch List.
The child [X] attended upon Ms P for the last time on 7 March 2013. On that day, the mother’s current solicitors filed a notice of address for service.
On 12 March 2013 an updated family report was prepared by Dr N and released to the parties.
The father filed a further amended initiating application on 22 March 2013. The father sought in his application for the children to live with him and spend time with the mother in accordance with Dr N’s recommendations. The Independent Children’s Lawyer filed an outline of case on 27 March 2013. The mother filed further affidavits in support and an outline of case on 28 March 2013.
The final hearing
The final hearing occurred over the course of 2, 3, 5, 8, 9, 10 and
11 April 2013. Ms Byrnes of Counsel appeared on behalf of the father and Mr Lovering of Counsel appeared on behalf of the mother. Ms Stavrakakis of Counsel appeared on behalf of the Independent Children’s Lawyer.
Material relied upon
At the commencement of the hearing and after the various interim and other applications of the parties were finalised,[6] Counsel for the father told the Court her client relied on the following documents at final hearing:
[6] See orders made on 2 April 2013 and 3 April 2013
(a)his further Amended Initiating Application filed 21 March 2013;
(b)his affidavit filed 14 February 2012;
(c)his supplementary affidavit filed 1 March 2012;
(d)Dr E’s Psychiatric Report filed 9 October 2012;
(e)Dr N's Family Report filed 19 September 2012;
(f)his trial affidavit filed 23 October 2012;
(g)his supplementary trial affidavit filed 8 November 2012;
(h)his affidavit of filed 20 December 2012;
(i)his affidavit filed 24 January 2012;
(j)his further trial affidavit filed 22 March 2013.
(k)Dr N’s Updated Family Report filed 25 March 2013; and
(l)his updated case outline filed 28 March 2013.
Counsel for the mother told the Court that his client relied on the following documents at final hearing:
a)her application in a case filed 5 February 2013 (which was marked and without objection, treated as the mother’s amended response filed the same date);
b)her affidavits filed 7 March 2012, 18 April 2012, 28 October 2012, 21 December 2012, 5 February 2013 and 28 March 2013;
c)the affidavit of Ms H filed 28 March 2013;
d)the affidavit of Ms P filed 28 March 2013;
e)the affidavit of Ms L filed 27 March 2013;
f)the affidavit of Ms V filed 28 March 2013;
g)the affidavits of Father P filed 5 November 2012 and 28 March 2013; and
h)the affidavit of Mr M filed 5 November 2012.
Counsel for the Independent Children’s Lawyer told the Court her instructor for the purposes of the final hearing relied on:
a)Dr E’s Psychiatric Report filed 9 October 2012;
b)Dr N's Family Report filed 19 September 2012;
c)Dr N’s Updated Family Report filed 25 March 2013; and
d)the amended outline of case filed 23 March 2013.
The Court also had regard to a number of exhibits that were tendered in evidence. Those exhibits were:
Exhibit No. Description of Exhibit A1 Intervention Order R1 Family Violence initial intake assessment from subpoenaed material from Family Life Joint Chronology (agreed) R2 Bundle of mother’s affidavits A2 Transcript of police conversation with the child [X] A3 Bundle of Leap Records A4 Annexure 11-1 of Applicant’s affidavit filed 23/10/2012 A5 Skype entries from father dated 31/01/2012, 01/02/2012, 06/02/2012, 07/02/2012 & 09/02/2012 A6 Case Note dated 9/12/2012 A7 Victoria Police Withdrawal Report
The father
In his further amended application filed on 22 March 2013 the father sought the following orders:
“1.That the Husband and the Wife have equal shared parental responsibility for the children of the marriage:
[X] born [in] 2001; and
[Y] born [in] 2005;
("the children")
2.That the children live with the husband and spend time with the wife in accordance with the recommendations of the Family Report writer, or otherwise on such terms and at such times as this Honourable Court considers appropriate in all the circumstances.
3.That the wife’s time with the children be suspended on the following occasions:
(a)Father’s Day;
(b)The husband’s birthday;
(c)Each of the children’s birthdays in even numbered years;
(d)From 9.00 am on 24 December to 9.00 am on
27 December each year;
(e)From 10.00 am on Good Friday until 2.00 pm on Easter Sunday in odd numbered years;
(f)From 2.00 pm on Easter Sunday until 5.00 pm on Easter Tuesday in even numbered years;
(g)At all others times as agreed between the parties.
4.That for the purposes of changeovers which do not occur at the children’s schools, each party will collect the children from the other at the commencement of their time with them.
5.That each party provide the other with at least 28 days advance written notice of any intended change to their residential address or telephone number.
6.Each of the parties advise and keep the other advised of:
(a)any serious illness or injury sustained by either of the children during periods that the children are in their respective care;
(b)any medical emergencies involving the children as soon as practicable.
(c)particulars of treating medical or health professionals treating the children.
7.That both parties be entitled to receive all relevant information in relation to the children’s schooling including:
(a) school reports;
(b) school photos;
(c) details of school functions;
(d) attending parent/teacher interviews;
and that both parties forthwith sign all forms and do all things necessary to permit the children’s schools to provide copies of all of the above to the parties directly.
8.That the wife be restrained from taking the children to any counsellors, therapists, physiologists or other forms of psychological treatment without the husband’s consent.
9.That both parties and their servants and agents are restrained from taking or sending or attempting to take or send the children from the Commonwealth of Australia.
10.The Marshall and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.
11.The Court requests that until further order the Australian Federal Police place the names of the children on the Airport Watch List at all points of international arrivals and departures in Australia for the purposes of preventing removal of the children from Australia in breach of these orders.
12.That the wife immediately deposit with the Registry Manager any Australian passports of the children to be held in safe custody, with such passports to be released only upon further Order of this Honourable Court or with written consent of the parties.
13.Such further and other orders as this Honourable court deems appropriate.”
At the conclusion of the hearing and in final submissions filed 17 April 2013 the father sought the following orders:
“1.That all previous orders be discharged.
2.That the Husband be granted sole parental responsibility for the children of the marriage:
[X] born [in] 2001; and
[Y] born [in] 2005;
("the children")
3.That the children live with the Husband.
4.That the Wife be and is by herself, her servants and agents, restrained from removing or attempting to remove the children or either of them from the care of the Husband or any person with whom the Husband has placed them or authorised their placement.
5.That the children communicate and spend time with the Wife as agreed in writing between the parties.
6.Any communication or time spent in accordance with paragraph 5 of orders is conditional upon the Wife’s compliance with the following each of the following conditions:
(a)The Wife consulting a psychiatrist for the purposes of a full psychiatric assessment and diagnosis and she commence and maintain such therapeutic treatment or other intervention (including medication) as recommended by that psychiatrist (“the psychiatrist”) or such other psychiatrist or psychologist as is recommended by the psychiatrist and at the first appointment with the psychiatrist she provide him or her with copies of the following documents:
(i) The Family Report of Dr N dated 5 September 2012 and the Supplementary Report of Dr N dated 12 March 2013;
(ii) The Psychiatric Assessment of Dr E dated 26 July 2012;
(iii) A copy of the reasons for judgment published with these orders as well as a copy of these orders made as a result of the final hearing in these proceedings conducted on 2,3,5,8,9,10 and 11 April 2013;
(b)The Wife providing a copy of the documents set out in paragraph 6(a)(i)-(iii) of these orders to her treating General Practitioner.
(c)The Wife obtaining a psychiatric report from the relevant treating psychiatrist and/or psychologist indicating any diagnosis, the number and dates of the Wife’s attendances, any medication she was required to take, whether she has complied with the recommended treatment and after considering the issues raised in the documents set out in paragraph 6(a)(i)-(iii) of these orders confirming that there are no reasons why she should not spend time with or communicate with the children in accordance with paragraph 5 of these orders (‘the psychiatric report”); and
(d)The Wife providing a copy of the psychiatric report to the Husband and providing the psychiatrist who prepared the report with an irrevocable authority authorising him or her to discuss the diagnosis, treatment and prognosis of the Wife with him.
save that until the Wife spends time with the children she be permitted to send a birthday card and/or small gift to the children on their birthdays and providing the card and gift pose, in the Husband’s view, no risk to the emotional or physical health of the relevant child he ensure that the relevant child receives the card or gift for their birthday.
7.That subject to these orders the Wife otherwise be restrained from contacting (including by text message, Facebook, SKYPE or phone call) the children when they are in the Husband's care unless she obtains his prior written consent.
8. That the Husband be listed forthwith as the emergency contact person at the children's school and he provide a copy of these orders to the school and any other school the children or either of them attend.
9.That the Husband be permitted to provide a copy of these orders to any medical, speech therapist or other treating professional of the children.
10.That the Wife be permitted to receive school reports for the children directly from the children’s schools at her expense.
11.That both parties be and is hereby restrained from discussing these proceedings or showing the children documents in these proceedings or permitting any other person to do so.
12.That both parties be and is hereby restrained from denigrating the other or any member of the other’s family in the presence of hearing of the children or permitting any other person to do so.
13.That both parties follow the lawful recommendations of any treating paediatrician or other professional in relation to [Y]'s diagnosed learning difficulties.
14.That each party provide the other with at least 28 days advance written notice of any intended change to their residential address or telephone number.
15.The Husband keep the Wife informed of:
(a)any serious illness, injury or other significant condition of either of the children;
(b)any medical emergencies involving the children as soon as practicable;
(c)any treating professional in relation to [Y]'s learning or behavioural issues.
16.That the Wife be restrained from taking the children to any counsellors, therapists, psychologists or any other form of psychological treatment without the Husband’s written consent.
17.That each of the parties be and are hereby restrained by him or herself or by his or her servants or agents from applying any form of physical punishment to the children.
18.That both parties and their servants and agents are restrained from taking or sending or attempting to take or send the children from the Commonwealth of Australia without the written consent of the other parent AND IT IS FURTHER ORDERED THAT the Australian Federal Police place the name of the children on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the children from Australia in breach of these orders.
19.That as soon as practical the solicitor for the Husband serve a sealed copy of this order on the Australian Federal Police at Melbourne and it is requested that the officers of the Australian Federal Police and the police forces of the States and Territories give force and effect to these orders.
20.That the Wife forthwith and no later than 48 hours from the making of these orders deposit with the Registry Manager of this court any Australian passports of the children to be held in safe custody, with such passports to be released only upon further Order of this Honourable Court or with the written consent of the parties.
21.That the Independent Children’s Lawyer and Dr N meet with the children for the purpose of informing the children about these orders and for this purpose the ICL provide Dr N with a copy of these reasons for judgement and the orders made herein.
22.That the Husband through his solicitors send a copy of these orders to the Magistrates Court at [omitted] in relation to proceedings Case Number [omitted].
23.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
24.Such further and other orders as this Honourable Court considers appropriate.
25.Orders sought by the parties.”
In submissions in reply filed 29 April 2013 the father’s position was:
“The [father] agrees with paragraphs 10, 13 and 14 of the proposed orders for the ICL in so far as they differ from the orders sought by him. He is otherwise not opposed to the orders proposed by the ICL in that they are similar to the orders he seeks.
The [father] agrees with the submissions of the ICL.”
The mother
In her response filed in March 2012 the mother had sought inter alia orders for “joint parental responsibility” for the children to live with her and spend time with the father at a contact centre.
In her amended response filed in October 2012 the mother sought inter alia that the parties have “joint care and responsibility” for the children and they live with her and spend time (unsupervised) with the father each alternate weekend.
In what was ultimately treated as her further amended response filed
5 February 2013, the mother sought the following orders:
“1.That the Orders of 14 November 2012 be withdrawn.
2.That the wife have sole parental responsibility for the children of the marriage:
(a) [X] born [in] 2001; and
(b) [Y] born [in] 2005.
3.That the children live with the wife and spend time with the husband in a supervised contact centre, upon the husband providing Certificates of Completion to the wife:
(a)Intensive anger management course;
(b)treatment plan from his treating psychiatrist for his adjustment disorder;
(c)attends an alcoholic rehabilitation course and a
12 month monitoring program;
(d)adheres to medical advice as to the youngest child [Y]’s special needs;
(e)provides access to an Asthma pump at all times for [X].
4.That the wife be permitted to take the children to counselling with counsellors, therapists, psychologists and any other form of psychological treatment.
5.That the husband remove the children from the Airport Watch List immediately.
6.That the Honourable Court allow these Orders.”
At the conclusion of the hearing, and in final submissions filed on 19 April 2013, the mother sought the following orders:
“1.That all previous orders be discharged.
2.That the Wife be granted sole parental responsibility for the children of the marriage:
[X] born [in] 2001; and
[Y] born [in] 2005;
("the children")
3.That the children live with the Wife.
4.That the children spend time with the father as follows:
4.1. At a supervised contact centre commencing as soon as both parties have signed all such documents and done all such things to enable such time to commence at the supervised contact centre.
4.2. That the Husband’s time with the children not progress to unsupervised until the Husband completes the following:
a) Anger Management Course.
b) Treatment plan from a Psychiatrist.
c) Attends and completes an alcohol rehabilitation course over 12 months and provides proof of the completion of same to the Wife.
d) The husband and the children attend upon a family therapist in order to undertake family counselling.
5.The Husband provide an asthma pump at any time [X] is in his care.
6.The Wife be permitted to take the children to counselling as required by the children with counsellors, therapists, psychologists or any other mental health treatment provider.
7.That the Wife be permitted to provide a copy of these orders to any medical, speech therapist or other treating professional of the children.
8.That both parties be and is hereby restrained from discussing these proceedings or showing the children documents in these proceedings or permitting any other person to do so.
9.That both parties be and is hereby restrained from denigrating the other or any member of the other’s family in the presence of hearing of the children or permitting any other person to do so.
10.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.”
Independent Children’s Lawyer
In the amended outline of case filed 28 March 2013 the preliminary view of the Independent Children’s Lawyer was:
“The Independent Children’s Lawyer’s preliminary view is that the children have the right to have an ongoing and meaningful relationship with the father and they should be given every opportunity to do so.
On considering the evidence before the Court as to the mother’s behaviour in preventing the children from spending time with the father and Dr N’s concerns in relation to the children’s psychological and emotional health and their likely alienation from the father if they remain living with the mother, it is open to the court to make an order that the children live with the father.”
At the conclusion of the hearing and in final submissions filed 23 April 2013 (and in light of the evidence at the final hearing) the Independent Children’s Lawyer submitted the following orders were in the children’s best interests:
“1.All previous parenting Orders be discharged.
2.The father have sole parental responsibility for the children [X], born [in] 2001 and [Y], born [in] 2005.
3.The children live with the father.
4.Subject to paragraphs 5, 6, 7, 8 and 9 herein the children spend time and communicate with the mother as agreed in writing between the parents.
5.The mother forthwith attend upon a psychiatrist for the purposes of assessment and treatment and the mother comply with all reasonable directions and recommendations of the said psychiatrist.
6.The mother provide the said psychiatrist referred to in paragraph 5 herein with copies of the following reports:
(a)Psychiatric report prepared by Dr E dated 26 July 2012 relating to the mother and the father.
(b)Family Report prepared by Dr N dated 5 September 2012.
(c)Supplementary Family Report prepared by Dr N dated 12 March 2013.
(d)A copy of the Reasons for Judgment together with a copy of these Orders.
7.The mother provide the father with a report from the said psychiatrist confirming the psychiatrist’s diagnosis, prognosis, treatment and the mother’s compliance with prescribed medication.
8.The mother provide the father with a report from the said psychiatrist to confirm the mother’s mental health does not adversely affect her capacity to parent the children.
9.The mother authorise the said psychiatrist to communicate directly with the father regarding, inter alia, the mother’s diagnosis, prognosis and treatment.
10.The Independent Children’s lawyer and Dr N meet with the children for the purpose of informing the children about these Orders. The Independent Children’s Lawyer provide Dr N with a copy of the Reasons for Judgment and Orders made herein.
11.The Mother be and is hereby restrained from taking the children, or either of them, to any counsellors, therapists, psychologists without the father’s written consent.
12.The mother and father shall not use any form of physical punishment on the children, or either of them.
13.The usual Orders be made to add the names of the children to the Airport Watch List.
14.Within 7 days of the date of these Orders the mother provide the father with the children’s passports and the passports be retained by the father.
13.The ICL provide a copy of these Orders to the Magistrates’ Court at [omitted] to be place on the intervention order proceedings file.
14.The Order for the appointment of the Independent Children’s Lawyer be discharged.”
The psychiatric report
Orders made on 7 May 2012 provided for the preparation of a psychiatric report on the father and the mother. The report prepared by Dr E noted:
“I have been requested to provide a psychiatric assessment of the Husband and Wife as per Court Orders on 7th May 2012 in regard to matters involving the children of the marriage, [X] (dob [omitted] 2001 aged 11) and [Y] (dob [omitted] 2005 aged 6½). This is matter in which serious allegations of abuse are alleged by the Wife against the Husband who allegedly controlled her, swore at her, belittled and pushed her, and that not only did those things happen to her, but also to the children who were similarly threatened and abused. The Wife makes further allegations of a similar nature in respect to the post-separation period, alleging in addition that the family dog was injured and that aspects of property were damaged. She communicated a number of these matters to her GP, Dr A during the marriage and is currently having psychiatric treatment in respect to those issues.
For his part the Husband denies the Wife’s allegations, characterising her as angry, violent and of controlling temperament which impacted negatively on the relationship throughout. He alleges that the Wife had a difficult upbringing involving sexual abuse and was placed in foster care, the result of which was that she had a short temper and was prone to violent outbursts throughout the marriage, and spent much of the marriage ‘playing peacemaker’ and complying with her often unreasonable demands in order to avoid further outbursts of rage from her.
In addition, the Husband alleges that the Wife has used her knowledge of the foster care system to threaten him and remove the children from his care. In addition, the Wife had heated and verbal disagreements with Teachers and members of staff at [X]’s school. The Wife was evicted from a [omitted] school camp in January 2011 because of her arguments and abuse of the teaching staff. She had a physical fight with one of the parents at [M] Primary School and had been to multiple Doctors with whom she also has frequent arguments. The parties had been sleeping in separate rooms since late 2010.
In addition to the Affidavit material, I note the copy of a Consultant Memorandum to the Court dated 11th April 2012 prepared by Ms D noting the allegation by the parents of significant physical, verbal and emotional violence in their relationship pre- and post-separation to which the children had been exposed, the presence of a current Intervention Order against the Husband naming the Wife and the children in need of protection, counter allegations about each of the parents’ inappropriate physical discipline of the children, together with the Husband’s perception that the Wife was obstructing his relationship with the children and had been coaching them.
There was further reference to the toxic and destructive relationship dynamics between the parents and the children’s expressed view and wish not to spend time with the Husband.
Ms D made the recommendation that an Independent Children’s Lawyer be appointed, that the children’s time with the Husband be reserved in the interim as a result of the significant allegations of physical abuse perpetrated by him towards the children, those allegations having been investigated by Victoria Police and the Child Abuse Unit, that the parents attend a post-separation co-operative parenting course, that the Wife follow up with a paediatric assessment of [Y] in regard to his language development and academic difficulties, and that a Family Report be considered.”
Dr E made the following assessment of the mother:
“Re : MS ISAAC
…
DIAGNOSIS
Ms Isaac has an Adjustment Disorder with Depressed and Anxious Mood.
SUMMARY
Ms Isaac impressed as a vulnerable, unusual person whose presentation varied across the assessment. Initially she was rather unforthcoming and had a distanced approach to the interview.
Ms Isaac described a difficult upbringing, claiming that she was rejected and unsupported by her mother, and sexually abused by her stepfather. Whilst citing herself as at all times having a normal approach to life with a range of interests and friendships, her account in regard to the longstanding abuse which was provided in graphic detail and her insistence on returning to her husband because he had lovely eyes was difficult to comprehend and understand.
Given her developmental history of rejection and abuse,
Ms Isaac is likely to be more vulnerable than most, and her unmet needs from childhood may well have led her to continue to try and love her husband despite the abuse he allegedly meted out to her. She did acknowledge at different times that she similarly was angry and frustrated, leaving open the possibility as described by Mr Isaac that she may have participated actively in the conflict between the parties.
Overall, Ms Isaac impressed as a woman who was recovering from a difficult marriage and has developed features of a chronic pain syndrome with associated depressed and anxious mood. Despite the vibrant description of the domestic violence, she did not present with features of trauma which is normal in such cases. She continues to attend her GP for support and more recently, describes a helpful relationship with her Psychologist.
Ms Isaac referred to the children’s similar difficulties and has arranged for treatment for them.
Dr E made the following assessment of the father:
Re : MR ISAAC
Mr Isaac duly attended for his assessment at the appointed time and date and following a brief discussion, indicated that he understood the nature and purpose of the interview. He confirmed that dates of marriage and separation.
In contrast to his wife, Mr Isaac provided a cogent account of his upbringing, marital experiences and issues involving the children. Essentially he denies the thrust in general and specific terms of his wife’s accusations involving him and the children, matters in related to domestic violence enacted on her by him, and the circumstances and veracity of Ms Isaac’s claims against him involving the Intervention Orders and the current situation which has resulted in him having no contact with the children.
…
DIAGNOSISMr Isaac has an Adjustment Disorder with Depressed Mood in remission.
SUMMARY
In contrast to Ms Isaac’s description of him, Mr Isaac appeared genuine in his account and gentle in his disposition.
His developmental history was indicative of a normal upbringing. There was no history provided by him of domestic violence, assaults or undue aggression on his part. He denied the thrust of his wife’s allegations that he has a criminal history and had attempted to drown his first wife in the bathtub.
During his school years Mr Isaac [sport omitted]. On completion of his schooling, he [occumpation omitted]. Following the end of his first marriage, he gave up contact with his daughter due allegedly to pressure brought upon him by Ms Isaac. It was his account that she was prone to violent outbursts, was frequently intemperate, demanding, and involved the Police for various spurious and false reasons during their marriage. According to him, the allegations are unsubstantiated and manufactured.
Mr Isaac denied the thrust of those and through his Lawyers has sought to rebut her claims via information from various subpoenaed sources ([M] Primary School, the Department of Human Services, Victoria police, [omitted] Animal Care Vet, and the [omitted] Medical Centre). Mr Isaac continues to seek contact with the children with whom he said he always had an excellent relationship. He believes that Ms Isaac has turned the children against him. He became depressed in the immediate post-separation period (six months). His psychiatric symptoms are now in remission.
In contrast to Ms Isaac’s assertions and allegations, Mr Isaac’s general presentation was not consistent with her description of him. Based on his account, he does not suffer from a Personality Disorder. His depressive symptoms are now in remission. He does not currently present with a psychiatric condition which would render him a risk to the children.”
In the psychiatric report having set out the basis for the examination of and presentation and diagnosis of each of the parties, Dr E in light of that information and his diagnosis, provided the following opinion:
“OPINION
1.Ms Isaac and Mr Isaac present vividly contrasting and vastly differing accounts as to their experiences and perceptions of their marriage. Each cite the other as the cause of the marriage breakdown and both make claims as to abuse of the children by the other.
2.Ms Isaac’s presentation was unusual. She appeared tired and worn, and complained of neck and shoulder pain.
Her vivid account of horrendous abuse from Mr Isaac was not accompanied by any traumatised response or symptoms normally evident in such circumstances. Despite her unremitting account of such abuse, she readily attested to missing Mr Isaac and acknowledged that she had continued to live with him because she still loved him. She described a neglectful and abusive upbringing, aspects of which she described as being re-enacted in her marriage. She has now brought criminal charges against Mr Isaac through the Police who have now taken out an Intervention Order on behalf of her and the children. No contact is occurring between Mr Isaac and the children because of her allegations.
3.Mr Isaac’s presentation to myself differed markedly from the description provided by Ms Isaac. Indeed, in contrast to her account, he was a man of large powerful build, of quiet gentle demeanour, who provided an understated account as to his upbringing and marital circumstances.
He strongly denied the various allegations levelled against him by Ms Isaac, namely that he has a criminal background, tried to drown his first wife in the bath, had injured the dog, and attacked her and the children.He strongly believes that the evidence from other sources in regard to these matters will prove Ms Isaac’s accusations to be false. In that respect, he has subpoenaed records from [M] Primary School where he alleges she was an abusive and difficult presence and the local Vet in respect to the family dog. In addition, his former wife has prepared an Affidavit by way of rebuttal of Ms Isaac’s claims involving abuse of her by him.
4.In contrast to Ms Isaac, Mr Isaac described a normal upbringing, childhood and family life. Apart from mild symptoms of depression which have now resolved, he does not describe current psychiatric symptoms. On the basis of his account, he would not be regarded as suffering from a Personality Disorder and would not be regarded as a risk to his children, with whom he continues to seek contact.
5.At this time, an in-depth Family Court Report has not been completed. This is a matter in which the sifting of evidence by the Court will be required in order to determine the truth or otherwise of the respective accounts. Having assessed both the parties, notwithstanding those considerations,
I was left with considerable reservations involving Ms Isaac’s presentation and her account.
6.I have not seen the children and my report needs to be read accordingly.”
Family report
An order was made on 7 May 2012 for the preparation of a family report. The family report was prepared on the basis on interviews with the parties in August 2012 and released in September 2012, said:
“Paragraph 4 of Consent Orders made on 7 May 2012 provided for psychological assessment and the preparation of a family report regarding the children,
[X], [born in] 2001 and aged 11 years
[Y], born [in] 2005 and aged 6 ¾ years
The parties separated in late 2010 and lived together under the one roof until October 2011.
In this dispute they have each made allegations and counter allegations of serious anger management problems and psychiatric issues in the other parent. Both parents claim the other was morbidly jealous and controlling.
Ms Isaac alleges that Mr Isaac was violent and abusive towards herself and the children throughout her relationship with him. She claims that he hit, teased, and belittled them, and is careless with the children’s safety. Ms Isaac does not believe the children have any significant relationship with their father and further that exposure to him will leave them open to physical and emotional abuse by him. She believes that the children do not want to see their father and, while she made some comments to suggest that she would agree to supervised time between the boys and their father, she also argued there is little value in it for the children.
In January 2012, I understand that Ms Isaac attended a mediation service and detailed her allegations about Mr Isaac’s abuse of her and the children. Subsequently, the police interviewed [X] and Mr Isaac in currently facing criminal charges of animal cruelty (in relation to his alleged treatment of their pet dog who was euthanized late in 2011), and charges of property damage (in relation to kicking a door), and recklessly causing injury to Ms Isaac, [X] and [Y] (charges relating to holding Ms Isaac by the neck, hitting [Y] and pulling [X] by his hair in an incident which allegedly occurred in October 2011 shortly before the parties separated).
Mr Isaac considers that Ms Isaac has significant mental health issues. He claims that she has made up allegations that he has abused her and the children, but he also considers that she believes her false allegations. He is currently seeking that he spend time with the children each weekend from after [omitted] school on Saturday until 8 pm Sunday and each Tuesday and Thursday evening until 8 pm.”
There is no such indication in relation to this matter. I am satisfied that it is not in the children’s best interest to have these parents attempting to make joint decisions about issues to do with their major or long term issues. These parties have a complete inability to communicate with each other and their relationship is characterised by negativity and a profound mistrust of the father by the mother.
The evidence in this case makes clear that the mother has excluded the father from the decision making process on long term issues affecting the children. The best examples of this is the evidence of regarding the mother taking the eldest child to inter alia firstly Ms L and then Ms P even in the face of the clear recommendations of Dr N’s first report and the interim orders.
In this case, it seems to me that the very long standing conflict and, sadly, its apparent intractability, points against the duties, powers and responsibilities attending to parental responsibility being exercised “equally.” I find that the presumption is rebutted by reference to the children’s best interests.
I accept and find that:
·the children need someone to be able to make decisions on long term issues;
·the evidence demonstrated the mother and the father have no capacity to communicate and co-operate;
·if the children live with the mother it is not in their best interests to exclude the father from decision making on long term issues for them; and
·if the children are living with the father the only sensible way that decisions on long term issues could be made would be for the father to have sole parental responsibility.
I accept the submission made by the Independent Children’s Lawyer and will order, if the children live with him that, the father will have sole parental responsibility for the children. The Independent Children’s Lawyers proposed orders in this regard are I am satisfied in the children’s best interests. Whilst it is necessary for the children’s sake (and in their best interests) to repose in the father sole parental responsibility for the reasons set out above I will make the orders sought by the father to provide information to the mother about the children and for him to receive same.
As a result of the declaration and order just referred to, the pre-conditions for the operation of s.65DAA of the Act don’t apply.
The power of the Court to make parenting orders is not then conditioned upon that section (see MRR v GR [2010] HCA 4; (2010); 240 CLR 461). Of course, that does not preclude orders which effect either equal time or “substantial and significant time” as defined as parenting orders for the children in this case subject to the Court being satisfied they are in the children’s best interests.
Equal time or substantial and significant time
The orders sought by the parties have been set out earlier. In light of the discussion of the relevant s.60CC factors I am not satisfied that equal time for the children with each of their parents is in their best interests or reasonably practicable. Given the mother’s particular circumstances referred to above, her hostile attitude to the father and the inability of the parties to co-operate or communicate such an arrangement would be likely to lead to further disputes and to a significant (and adverse) burden on the children and that would not be in their best interests.
On the evidence before the Court and after careful consideration and in light of the findings referred to earlier I have decided that it is in the children’s best interests to live with the father. On the evidence at the hearing I find for the children’s sake that it is necessary (and that is in their best interests) that there be a change of residence here and whilst there will be some short term difficulties the long term benefits outweigh those difficulties.
It is clear on the evidence before the Court that the father has never sought to interfere with the children’s relationship with the mother.
I am not satisfied the mother understands the seriousness of the issues raised and the concerns about her capacity to provide for the children’s emotional needs or the opportunity for them to have a meaningful relationship with both parents nor her need for ongoing intensive professional help.Given the evidence of the independent experts in this case, which
I accept, I am not satisfied the mother currently has (or without proper psychiatric and psychological treatment is likely to have) the ability to provide the children with stability, predictability, protection and the opportunity to have a meaningful relationship with the father or to protect them from the risks identified in the evidence to their psychological and emotional welfare from her behaviour.Whilst the father is untested as a residential parent (at least post separation) the evidence of Dr N, which I accept, is that he impressed both in her observations of his interactions with the children and as having a child focused approach to parenting. I am satisfied that the father recognises a change in the children’s living and parenting arrangements will require a substantial adjustment for them and that he will do all that he can to help them manage that adjustment including (subject to the need to ensure that the mother gets the professional assistance she needs) ensuring the children have the opportunity to develop a meaningful relationship with and spend time with the mother.
Another vexed issue in this case is the amount of time the children should spend with the mother. The evidence of Dr N was that it was not necessary or in the children’s best interests for the change of residence to be phased in. However when asked whether there should be a moratorium on the children’s time with the mother after the change of residence Dr N’s evidence made plain that whilst that matter was not without difficulties and there were arguments for and against in this case, in her opinion, the balance (and the children’s needs) told in favour of a moratorium pending the mother getting the necessary psychiatric and psychological treatment.
Dr N’s evidence was that such an arrangement whilst difficult particularly for the youngest child would be more likely to promote the children’s best interests as it would allow them to settle in and re-adjust to the routine in the father’s household. It would also allow time for the mother to seek assistance and at the same time free the children from the possibility that ongoing conflict between the parents and/or manipulative behaviour by the mother would impact adversely on them in the short and long term.
It can be expected that children will experience an upheaval with any change of residence. The independent expert evidence in this case, which I accept, considered and rejected the option of a phase in of any change of residence. The evidence was very clear as to the real benefits to the children that would follow from a change of residence in both the short and long term.
Without professional psychiatric and psychological assistance being provided to the mother, I am not satisfied the parents (either individually or collectively (even assuming that will be possible)) will be able to sustain the disciplined structure (both in relation to spend time arrangements and coming to grips with their new surroundings) both children will need following the finalisation of these proceedings. On the evidence before the Court I am not satisfied that the mother will get the necessary psychiatric and psychological assistance voluntarily. Until she does I am not satisfied it is in the children’s best interests or reasonably practicable for the children to spend substantial and significant time with the mother. I am satisfied that the requirement for the mother to get such assistance and any necessary treatment is essential to protect the children’s best interests and promote their short and long term welfare. I will make an order in the terms sought by the Independent Children’s Lawyer to that effect.
Whilst the provisions of the orders sought by the Independent Children’s Lawyer which will be orders of the Court in respect of both treatment and associated conditions may seem onerous I am satisfied they strike an appropriate balance between the benefit to the children of having the opportunity to have a meaningful relationship with both parents into the future and proper concerns about and risks to their safety and welfare arising from the mother’s illness and her behaviour.
Subject to the mother getting that psychiatric and psychological assistance as sought by the Independent Children’s Lawyer then an arrangement that will give the children a strong home base with the structure and necessary direction both children need, will provide the necessary arrangements and circumstances to exist to allow the parents to come to an agreement in the future and allow for the continuation of the substantial involvement of the mother with the children being in their best interests. There is also, in light of the evidence heard at the hearing, the need for the children’s sake (and to protect them from further harm or exposure to ongoing conflict) for certain restraints on both parties along the lines sought by the father.
Other issues/orders
The remaining issue is whether the names of the children should placed on the Airport Watch List. The father seeks that the names should be placed on the Airport Watch List as does the Independent Children’s Lawyer. The mother opposes this.
In submissions filed after the conclusion of the hearing the father’s position was that given the strengths of the mother’s views, her actions since separation, her mental health she could not be trusted to travel overseas with the children or to hold their passports. The Independent Children’s Lawyer supported the father’s application for the children’s names to be placed on the Airport Watch List as given the mother’s history of non compliance the Court could not be satisfied the mother would adhere to Court orders. There was no reference to this issue in the mother’s written submissions but her position on this issue was as set out in her material.
Section 65Y(1) of the Family Law Act 1975 makes it an offence for a parent to take a child out of the Commonwealth of Australia if a parenting order is in force. However section 65Y(2) provides it can be done with the consent in writing of both parents or an order of a Court exercising jurisdiction under the Act.
At the conclusion of these proceedings there will be a parenting order in place for the children. There was no application made by the mother to travel outside of Australia with the children and there was no evidence of her plans to do so. There was however evidence that the mother has lived overseas, and travelled regularly overseas to visit family and friends there. It would also appear that some of the countries she has travelled to previously are not Hague Convention countries.
Given the position of the Independent Children’s Lawyer I have determined in light of the discussion of the relevant section 60CC factors that the best approach is to err on the side of caution and as a result order that the children’s names be placed on the Airport Watch List.
Conclusion
The parties to these proceedings had what could only be described as a turbulent relationship. The conflict between them has continued after separation and the children have suffered as a result of what has occurred since.
The mother’s case was the father was violent and the children are frightened of him and in relation to the eldest child resistant to spending time with him no matter how much she encourages him.
The father denied the mother’s claims, says that the mother has been engaged in a campaign to prevent the children seeing him and is unable to promote the children’s best interests because of the illness diagnosed by the independent experts in this case.
The children have been living with the mother since separation and only seen the father for limited periods of time. The independent experts and their evidence in this case, which cannot be ignored, is that the mother is suffering from a mental illness and the children’s best interests are at risk whilst they are remain in her care. In some cases untreated mental illness can have a profound effect on someone’s ability to fulfil the responsibilities of parent. The evidence is this is such a case and the children are at risk in the mother’s care and their best interests would be more likely to be met if they lived with the father and spent time with the mother when she gets appropriate treatment.
Having heard the evidence during the final hearing (including the opinion and recommendations of the only independent experts whose evidence was tested in cross examination), in light of the submissions made by each of the parties and the discussion of the relevant statutory considerations set out above the Court finds the children’s best interests would be met by making orders as sought by the Independent Children’s Lawyer save where not otherwise noted above.
For the reasons set out above I am satisfied the orders set out at the beginning of these reasons for decision are in the children’s best interests.
I certify that the preceding three hundred and fifty four (354) paragraphs are a true copy of the reasons for judgment of Judge O’Sullivan
Date: 24 June 2013
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