Jasink & Sordi
[2024] FedCFamC1F 577
•29 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jasink & Sordi [2024] FedCFamC1F 577
File number: MLC 1012 of 2017 Judgment of: MCNAB J Date of judgment: 29 August 2024 Catchwords: FAMILY LAW – PARENTING – Where final parenting orders were made by consent in December 2017 providing for equal shared parental responsibility, the children to live with the mother and spend substantial time with the father – Where the mother commenced fresh proceedings on the basis that the oldest child’s enuresis and anxiety was borne from family violence perpetrated by the father and his capacity to parent was compromised – Where the mother’s claims are unfounded and contrary to expert evidence – Where the oldest child has received a preliminary diagnosis of ASD and ADHD – Where the mother is fixated and unwavering in her belief that the father is the cause of the children’s presenting issues – Where an order for equal shared parental responsibility is not in the best interests of the children as the mother is unable to cooperate with the father – Where the evidence is indicative of the mother failing to exercise parental responsibility in the best interests of the children – Orders for the father to have sole parental responsibility and for the children to spend equal time with the parents – Father to make decisions regarding the children’s schooling as an exercise of parental responsibility.
FAMILY LAW – CHILD SUPPORT – Application for departure by the mother – Where there was no evidence of the mother having served the application on the Child Support Registrar – Where even if the application was served, there are no special circumstances established to entertain the application – Application dismissed.
Legislation: Child Support (Assessment) Act 1989 (Cth) ss 116, 117
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAC.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.13, 2.02, 2.31
Cases cited: Aish & Greco [2014] FCCA 2283
Fitzwater & Fitzwater (2019) 60 Fam LR 212
Isles & Nelissen (2022) FLC 94-092
Rice & Asplund (1979) FLC 90-725
Division: Division 1 First Instance Number of paragraphs: 145 Date of hearing: 29 April-3 May 2024 Place: Melbourne Counsel for the Applicant: Ms Johnson Solicitor for the Applicant: Resolve Conflict Lawyers Counsel for the Respondent: Ms Metherell Solicitor for the Respondent: Sayer Jones Counsel for the Independent Children's Lawyer: Mr James Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 1012 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SORDI
Applicant
AND: MR JASINK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCNAB J
DATE OF ORDER:
29 AUGUST 2024
THE COURT ORDERS THAT:
1.All extant parenting orders be discharged.
Parental Responsibility
2.The father have sole parental responsibility for the children X born 2012 and Y born 2015 (“the children”).
3.For the purpose of exercising sole parental responsibility:
(a)Save in the event of an emergency, the father contact the mother in writing not less than 7 days prior to making any major long-term decision with respect to the children and with such communication to set out the issue at hand and the father’s proposal;
(b)The mother may respond to any such communication in writing within 3 days thereafter detailing her position with respect to the issue;
(c)The father consider the mother’s position; and
(d)The father inform the mother in writing of the decision he has made within 7 days of making that decision.
4.For the purpose of facilitating paragraph 3 herein, the mother provide the father with her residential address, telephone number and email address and keep him informed of any changes to this information within 7 days.
5.In default of the mother’s compliance with paragraph 4 herein, compliance with paragraph 3 of this order is dispensed with.
School
6.The parties do all acts and things and sign all necessary documents to forthwith enrol the children at schools as follows:
(a)For primary School commencing Term 1, 2025:
(i)At C School; or in the alternative
(ii)At D School; or in the alternative
(iii)At E School; and
(b)For Secondary School:
(i)At F School; or in the alternative
(ii)At G School,
AND FOR THE PURPOSES OF FACILITATING THIS ORDER, from Term 1, 2025, the father reside within the children’s school zone in the event the mother does not reside within the children's school zone at that time and this is required by the school(s).
Living and Spend Time Arrangements
7.The children live with the parties on a week-about basis, with changeover to occur at the conclusion of school on Monday (or 3.30pm if a non-school day).
School Holidays
8.The children spend equal time with the parties during school holidays which follow terms 1, 2 and 3 in accordance with paragraph 7 above, such that the usual week about arrangement continue through the school term holidays.
9.The children spend equal time with the parties during long summer holidays as follows:
(a)When the long summer holidays commence in an even year, the mother have the first half (save for Christmas special days) and the father have the second half;
(b)When the long summer holidays commence in an odd year, the father have the first half and the mother have the second half;
(c)Where there is an uneven number of nights, the children spend an additional night with the mother if it is an even year and an additional night with the father if it is an odd year;
AND FOR THE PURPOSES OF FACILITATING THIS ORDER
(d)School holidays commence from the conclusion of school on the last day of the school calendar term from the school the children attend;
(e)School holidays conclude at the commencement of school on the first day of the school calendar term for the school the children attend;
THEREAFTER
(f)The week about arrangement provided for at paragraph 7 resume from the commencement of Term 1, with the children to remain in the care of the parent with whom they are spending the second half of the school holidays for Week 1 of the school term until the following Monday.
Special Occasions
10.The usual arrangements for the children outlined at paragraphs 7–9 above be suspended and the children spend time with the parties on special occasions as follows:
(a)On the children’s birthdays, with the parent who is not otherwise spending time with the children that day, from the conclusion of school until 7.00pm if a school day and from 11.00am until 3.00pm if a non-school day;
(b)With the mother on the Mother’s Birthday from the conclusion of school (or 3.30pm if a non-school day) until the commencement of school the next day (or 3.30pm if a non-school day);
(c)With the father on the Father’s Birthday from the conclusion of school (or 3.30pm if a non-school day) until the commencement of school the next day (or 3.30pm if a non-school day);
(d)With the Father on Father’s Day weekend from the conclusion of school on the Friday preceding Father’s day (or 3.30pm if a non-school day) until the commencement of school on Monday (or 9.00am if a non-school day);
(e)With the mother on Mother’s Day weekend from the conclusion of school on the Friday preceding Mother’s day (or 3.30pm if a non-school day) until the commencement of school on Monday (or 9.00am if a non-school day);
(f)With the father for Christmas from 5.00pm Christmas Eve until 10.00am Boxing Day;
(g)With the father for Easter from the conclusion of school on Thursday until the commencement of school (or 9.00am if a non -school day) on the Tuesday immediately following Easter Monday;
(h)With the father for cultural days of significance being:
(i)From the conclusion of school (or 3.30pm if a non-school day) on the night of a cultural event until the commencement of school (or 9.00am if a non-school day) the following day; and
(ii)From the conclusion of school (or 3.30pm if a non-school day) on the night of a cultural festival until the commencement of school (or 9.00am if a non-school day), the following day.
(i)With the mother for religious special days being:
(i)The first night of a religious holiday from 3.15pm until 8.45am the following day;
(ii)The last night of a religious holiday from 3.15pm until 8.45am the day following the second night of a religious celebration; and
(iii)The first two days of a religious celebration from 8.45am on the first night until 8.45am on the day following the second night,
AND FOR THE PURPOSES OF FACILITATING THIS ORDER, the mother notify the father of the dates of the religious special days no less than 7 days prior and in the absence of receipt of notice, the time arrangements provided for at paragraph 10(i) herein be suspended and the usual time arrangements continue.
11.The parties are hereby at liberty to agree to such other arrangements for the children’s care in writing from time to time.
Changeover
12.Unless otherwise agreed, all changeovers not occurring at the children’s school take place at Coles Suburb H.
The children’s Treatment
13.The parties continue to facilitate X’s attendance on J Psychology at such frequency as may be recommended by Dr K and/or Dr L and with the parties to meet the costs of her attendance equally.
14.The parties engage J Psychology to complete an ADHD and ASD assessment of X, at the parties’ equal expense.
15.The parties facilitate X’s attendance on a female paediatrician to support the diagnostic process regarding ASD and ADHD, to address her enuresis, encopresis and anxiety, and to determine whether medication is appropriate at the parties’ equal expense.
16.The parties facilitate Y’s attendance on J Psychology at such frequency as may be recommended by Dr K and with the parties to meet the costs of Y’s attendance equally.
Communication and Information
17.The parties communicate directly by text message or email (or by telephone, if urgent) in relation to any issues concerning the care and welfare of the children.
18.The children be at liberty to communicate by telephone and video call or other electronic means with the parent with whom they are not spending time at any reasonable time and the parent with the care of the children facilitate the children doing so upon request by the children.
19.The parties each be at liberty to:
(a)Liaise with any medical, educational or other professionals involved with the children and obtain all information and documents ordinarily made available to parents; and
(b)Attend all significant medical and educational appointments and school functions/events or sport events concerning the children at which parents are ordinarily in attendance.
20.The parties keep each other informed of:
(a)All significant medical issues concerning the children and any appointments relating to same; and
(b)Any significant injury suffered by the children whilst in their care.
21.Both parties be at liberty to attend any school activities that a parent would usually attend.
22.The parties be at liberty to enrol the children and have them attend extra-curricular activities during the time the children spend in the enrolling party’s care and refrain from enrolling the children in activities which require attendance during times the children are in the other parent’s care, save for if the activity is agreed in writing between the parties AND FOR THE PURPOSES OF THE CHILDREN’S ENROLMENT IN ACTIVITIES, each party be solely responsible for any activity in which they choose to enrol the children.
23.Both parties adopt the same method of addressing X’s enuresis and encopresis as may be recommended by X’s treating professions including:
(a)Obtaining and utilising a bed alarm; and
(b)Period (or equivalent) underwear to be worn only at school or in public or at night on an interim basis to assist X to become attuned to the sensation of wetting herself, with both parties to endeavour to assist X transition out of period underwear.
24.The parties notify each other in the event the children are absent from school at the earliest opportunity.
Restraints
25.The mother be and is hereby restrained by injunction from:
(a)Co-sleeping with the children;
(b)Showering/bathing with the children; and/or
(c)Allowing the children (or either of them) to be absent from school on a school day save for in circumstances of illness, and where the children miss two consecutive school days, she obtain a medical certificate which specifies the children’s aliment and provide it to the father.
26.Without admitting necessity, the parties be hereby restrained by injunction from:
(a)Abusing, belittling, insulting or otherwise denigrating the other party, or their family in the presence or hearing of the children or any other person to do so;
(b)Discussing these proceedings with the children, or in the presence and/or hearing or quizzing the children about their time with the other parent;
(c)Facilitating the children’s access to documents in these proceedings, including in hard or soft copy; and
(d)Providing court documents to other persons/organisations in the absence of leave from the Court.
27.The mother make the children’s library bags, X’s glasses and other equipment for school available to the children for their time with the father and those items transition between households at changeovers.
Travel
28.The parties forthwith do all acts and things and sign all necessary documents to obtain and then keep current Australian Passports for the children, with the costs to be met equally by the parties and once obtained, the passports be held by the father.
29.The father make the children’s passports available to the mother no less than 7 days prior to the intended travel and no later than 7 days following the conclusion of the travel, the passports be returned to the father.
30.The parties be authorised to remove the children from the Commonwealth of Australia for the purposes of overseas travel provided that:
(a)The traveling parent has provided the other parent with 30 days written notice for travel, including flight itineraries and all accommodation details, including telephone numbers and websites where available;
(b)The travel occur to Hague convention countries, unless otherwise agreed in writing;
(c)The travel occur during the children’s time with that parent pursuant to these Orders, unless otherwise agreed in writing;
(d)The travelling parent is to ensure that the children receive all appropriate vaccinations to travel as recommended by the children’s treating medical practitioner; and
(e)The other parent has provided their written consent to the travel, with such consent not to be reasonably withheld AND FOR THIS PURPOSE IT IS NOTED that travel is not subject to the parties facilitating telephone time save for as otherwise provided herein.
Miscellaneous
31.The father be at liberty to provide a copy of these orders to:
(a)The children’s General Practitioner;
(b)X’s Clinical Psychologist at J Psychology or any other Clinical Psychologist the parties agree she is to attend;
(c)Y’s Psychologist at J Psychology or any other Clinical Psychologist the parties agree she is to attend;
(d)The children’s school(s); and
(e)Any other medical, therapeutic or allied health professionals working with the children.
32.The father be at liberty to provide a copy of Ms M’s updated Family Report to:
(a)J Psychology;
(b)X’s Speech Pathologist;
(c)X’s Paediatrician; and
(d)Any other medical, therapeutic or allied health professionals working with the children.
33.Within 14 days, the mother reimburse the father for one half of the cost of the updated Family Report prepared by Ms M in the sum of $4,675.
34.The mother’s Application for child support departure orders be dismissed.
35.The Independent Children’s Lawyer be discharged.
36.All extant applications be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jansink & Sordi has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McNab J
INTRODUCTION
This matter concerns the parenting arrangements between Ms Sordi (“the mother”) and Mr Jasink (“the father”) for X born 2012 (aged 11 years) and Y born 2015 (aged 8 years) (“the children”).
The first proceeding between the parties was initiated in February 2017 and concluded by consent orders made on 20 September 2018. The mother commenced these proceedings in January 2022 where she raised issues regarding the father’s capacity to parent and family violence.
The hearing of this matter proceeded from 29 April 2024 to 3 May 2024. The issues that the parties require the Court to determine are:
(1)Parental responsibility;
(2)Schooling;
(3)Whether the child spends five night per fortnight or seven nights per fortnight with the father in circumstances where the current orders provide for there to be equal shared time between the parents; and
(4)Whether there should be orders for a departure from assessed child support payable by the father.
BACKGROUND
The father was born in Country N migrating to Australia in 2001. The parties married in 2005. The mother alleges that the marriage was dominated by family violence perpetrated on her by the father. This is denied by the father. The parties separated in January 2017 with divorce being granted in mid-2018.
In 2017, an interim intervention order was made against the father.
The father issued an Initiating Application in this Court on 6 February 2017.
Final parenting orders were made by consent on 15 December 2017 by Judge Wilson (as he then was) in the Federal Circuit Court of Australia (as the Court was then known). Those orders provided, inter alia, for graduating spend time between the father and the children in conjunction with an order for equal shared parental responsibility for the children.
The father states that the mother did not facilitate time with the children in accordance with the final orders.
In 2020, the father sent a screenshot to the mother containing a message from O Company about her father’s electricity being disconnected for non-payment of his bill, the mother reported this as a breach of the FIVO to Victoria Police. The father was charged, pleaded guilty and was subject to a Diversion.
Further, in 2020, the father allegedly came within 5 metres of the mother at a changeover at P Centre. The mother reported a breach of the FIVO and the father was charged and pleaded guilty, receiving a same day Diversion.
The mother obtained a final full exclusion IVO against the father, without admissions, from 2020 to expire in 2022.
The mother deposes to taking X to a GP in 2020 due to “significant anxiety” resulting in “nightmares and nocturnal enuresis” as a result, she says, of the conduct of the father. The GP referred X to a paediatrician for a psychological referral. Following an appointment with the paediatrician, X was referred to Q Psychology. The father alleges he was not advised or consulted.
In 2020, whilst attempting to attend a paediatrician appointment for X, the mother was advised that she could not enter the hospital due to COVID-19 restrictions as Y was also present. The mother says that this caused her, along with other external stressors, to collapse. She was hospitalised and was subsequently placed on an ‘Assessment Order’ with Child Protection being notified. The children were placed into the care of the father, but the mother alleges that the father withheld the children from her.
In 2020 the mother attended R Centre where she reported being a victim of family violence. Child Protection concluded their investigation in late 2020 with a case plan allowing the children to spend time with the father in accordance with final parenting orders.
In 2021, the mother raised concerns that the father was not taking the children to school and/or collecting them early from school. The father submitted that school attendance records showed near perfect attendance during times the children were in the father’s care whilst they showed a number of absences per year between 2020 and 2023 when the children were in the mother’s care.
In 2021, the mother attended upon S Centre with the children and obtained a report. The father was not consulted about the attendance or for the purposes of the report. The report was based on information provided by the mother of allegations of family violence which were denied by the father.
The mother deposes to a deterioration of X’s behaviour throughout 2021 where her bedwetting and nightmares continued and allegations of the father calling her “pissypants”. This would culminate in late 2021, where the children stated that the father had physically abused them with a SOCIT interview occurring in early 2022. The investigation was discontinued by Victoria Police in late 2022.
Following what the mother alleged to be continuing abuse of the children perpetrated by the father, she initiated proceedings in this Court on 7 January 2022. The mother’s Notice of Child Abuse Family Violence or Risk, filed contemporaneously with her Application, restates her ongoing concerns raised during the previous proceedings and thereafter.
In 2022, X vomited on herself at school due to motion sickness on the bus. The school nurse contacted the father when the mother was uncontactable and the father came to the school with a fresh uniform. The mother complained to the school principal that this was a breach of the final parenting orders and the FIVO. The father was not charged.
The father filed his Response on 18 February 2022, where he alleges that the mother refuses to facilitate a paternal relationship and unilaterally ceases time.
The matter came before a Senior Judicial Registrar (“SJR”) on 22 March 2022 for an Interim Defended Hearing to determine whether the matter be dismissed pursuant to Rice & Asplund (1979) FLC 90-725. The Senior Judicial Registrar made orders that the final parenting orders be reinstated, the matter be adjourned to October 2022 and a Family Report be prepared by Ms M.
On 11 October 2022, the Senior Judicial Registrar made orders, inter alia, for the children to spend time with the parties on a week-about basis, X to attend upon a clinical psychologist and the mother to continue attending Ms T for medical treatment.
Between the period of 2022 to 2023, the father observed X wetting herself more frequently and relying on period underwear implemented by the mother instead of going to the toilet.
In 2023, X commenced attendance on Dr K at J Psychology. Dr K prepared a report with recommendations in mid-2023 and provided a preliminary diagnosis of autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD) for X.
During a Directions Hearing before a Judicial Registrar on 28 June 2023, the matter was listed for a Compliance and Readiness Hearing and referred back to Ms M for an updated Family Report.
In 2023, the mother and father were contacted by the school after X was found alone in the school bathroom crying and stating she “wants to disappear” and “kill herself”. The father facilitated X’s attendance on a psychologist the day after the incident.
Orders were made on 8 November 2023 by Judge Harland for the matter to be transferred to Division 1 of the Federal Circuit and Family Court of Australia with an estimated hearing time of 5 days.
The mother states in her trial affidavit filed 10 April 2024 at [37] that X now, in addition to experiencing enuresis, has experienced the onset of encopresis (soiling herself).
PROPSALS
By way of her Further Amended Initiating Application, the mother seeks that:
(1)The parties have equal shared parental responsibility for the children;
(2)The children live with mother;
(3)In week one, the children spend time with the father from the conclusion of school Wednesday until the commencement of school on Friday;
(4)In week two, the children spend time with the father from the conclusion of school Friday until the commencement of school on Monday;
(5)During school holidays the children spend time with the parties on a week-about basis;
(6)The parties engage Ms U as a Parenting Coordinator;
(7)The children continue to be raised as religious;
(8)The parties adhere to the recommendations of the children’s medical practitioners;
(9)The children remain enrolled at V School; and
(10)The father continue to pay periodic child support.
However, at the commencement of the hearing, the mother provided a document containing orders sought, altering her position to her having sole parental responsibility for the children.
In contrast, the father seeks in his Reply that:
(1)The father have sole parental responsibility for the children;
(2)The children live with parties on a week-about basis;
(3)The children be enrolled at F School or in the alternative, G School;
(4)The mother engage a clinical psychologist to address her anxiety, personality difficulties and potential traits of ASD; and
(5)The children continue attending upon their psychologist.
The Independent Children's Lawyer (“ICL”) broadly supported the father’s application where they state:
4.Based on the available evidence, and subject to the testing of evidence, the Independent Children’s Lawyer supports the Father’s proposal for sole parental responsibility. The Independent Children’s Lawyer holds particular concerns in circumstances that the current information suggests that the Mother has been obstructive with respect to the engagement of recommended supports for the children, and unwilling to follow recommendations with respect to her own treatment to address concerns.
In the course of final submissions, counsel for the ICL confirmed their support for the father having sole parental responsibility and was largely supportive of the father’s position in general.
MATERIALS RELIED UPON
The applicant mother relies upon:
(1)Outline of Case filed 26 April 2024.
(2)Applicant’s affidavit in reply filed 23 April 2024.
(3)Financial Statement filed 23 April 2024.
(4)Affidavit of Ms W filed by ICL on 22 April 2024
(5)Amended Application for Final Orders filed 10 April 2024.
(6)Applicant’s trial affidavit filed 10 April 2024.
(7)Affidavit of Ms AA filed 10 April 2024.
(8)Affidavit of Ms BB filed 10 April 2024.
(9)Affidavit of Dr CC filed 10 April 2024.
(10)Affidavit of Ms M filed 10 April 2024.
The respondent father relies upon:
(1)Father’s Second Further Amended Response to Initiating Application filed 17 April 2024.
(2)Father’s Financial Statement filed 17 April 2024.
(3)Father’s Affidavit filed 17 April 2024.
(4)Affidavit of Ms DD filed 17 April 2024.
(5)Single expert Affidavit of Ms M filed 10 April 2024 annexing first Family Report dated 15 August 2022, Questions and supplementary reports dated 23 September 2022 and the updated Family Report dated 30 March 2024.
The ICL relies upon:
(1)Affidavit of Ms M (Updated Family Report) filed 10 April 2024
(2)Subpoena to V School filed by the ICL on 11 April 2024.
(3)Subpoena to EE Medical Centre filed by the ICL on 12 April 2024.
EVIDENCE
Both parties have filed very lengthy affidavits. I do not intend to set out all the evidence of the parties or to seek to make findings to resolve or comment on each dispute that has been set out in the lengthy affidavit material. I will refer to the evidence which is relevant to the decisions I am required to make under the Family Law Act 1975 (Cth) (“the Act”).
I am loath to make comment in relation to the presentation of the parties before the Court unless it is strictly necessary to do so. I understand that parties in these types of proceedings are experiencing extreme stress and the way that they present in court may not be representative of their presentation out-of-court. In this case, however, it is necessary to make comment in relation to the respective presentation of the parties. The mother’s presentation was concerning. She had great difficulty confining her answers to the questions that were framed and was very concerned to engage in quite lengthy speechmaking by which she sought to put herself in the best light and the father in the worst. She was repeatedly asked to contain herself but seemed either unable or unwilling to do so. She seemed unable to make concessions or acknowledge where she may be mistaken.
The father’s evidence during cross examination was responsive and I got the impression that he was seeking to exercise restraint in the way that he responded to questions. He was not seeking to go out of his way to make derogatory remarks regarding the mother. He gave the impression of a person who was financially and emotionally overborne by the circumstances which he found himself in, being a second round of major litigation in relation to these children. His evidence in relation to his concerns and enquiries regarding the children’s schooling was compelling and generally, he gave the impression of a person who was concerned for his children.
The mother’s trial affidavit deals extensively with evidence in relation to family violence allegedly perpetrated by the father prior to final orders being made in 2017. I do not refer to this in detail as those matters were raised and dealt with in 2017 when parenting orders by consent were made on 15 December 2017.
Significant parts of the mother’s affidavit evidence comprise her stating opinions regarding the medical opinions expressed by treating doctors or trying to summarise those opinions. She also offers her view in relation to the contents and recommendations made by the Family Report writer Ms M.
Where there is conflict between the evidence of the mother and father, I prefer the evidence of the father.
The Family Reports of Ms M
The current Family Report in this matter was prepared by Ms M and dated 30 March 2024. Ms M provided a previous report dated 15 August 2022 along with a supplementary report on 23 September 2022 in response to questions provided by the parties’ solicitors.
For the preparation of the first report, Ms M interviewed both parents and the children. At [194] of that report Ms M expressed the following view in relation to the children:
194.The children’s interviews are crucial in this matter as their descriptions align with the father’s account of events and negate most of the mother’s concerns. The children revealed that the father tapped [Y]’s knee playfully, [X] did not see the incident in which the mother thought the father would assault her, and [X]’s somatic complaints preceded the mother allowing her to stay home from school rather than time with the father. Neither child expressed ever being fearful in the father’s presence. It is extremely likely that the children’s anxiety issues reflect the mother’s own anxiety and separation difficulties.
Ms M expressed the opinion that the father does not present with a diagnosable disorder but that the mother presents with symptoms of anxiety and an unspecified personality disorder, including obsessive-compulsive traits, perfectionism, rigidity, suspiciousness, paranoia and catastrophic thinking. It also said that she “displays anger and resentment towards the father and her personality traits cause her to become “tense, anxious, controlled and controlling””. She also stated that psychometric testing indicated defensive and positive impression management that suggested that the mother’s self-report cannot be relied upon as accurate.
Ms M at [198] of the first report stated that the risk to the children of abuse or neglect whilst in the father’s care was rated as low, whereas the mother’s level of risk was rated as low to moderate. Ms M stated that it was essential that the mother addresses her personality and anxiety issues to reduce the impact that they have on the children and that contact and communication between the parents are well managed to minimise the risk that the children are exposed to conflict between the parents or the maternal distress.
In her first report, Ms M expressed the view that a parallel parenting approach be adopted with the children spending week about time with each parent. She also recommended that the parents have equal shared parental responsibility for the children on the basis that each of the parents were capable of making long term decisions in the best interests of the children. That opinion was subject to the parents appointing a parenting coordinator to assist them in decision-making.
Further, at [170] of that report, Ms M reported that X stated that the mother had spoken in strongly disparaging terms about the father, saying that the father is “unkind, rude, and not very nice and that she calls him “a scumbag” and “a liar””. The child was also aware that the mother’s image for the father on her phone was a snake “as she thinks he is evil.” The mother was reported to interrogate the children after visiting the father. The children made no reports of the father making derogatory comments about the mother.
In her second report, and in her evidence before the Court, Ms M gave unequivocal evidence that the best interests of the children would be served by the father having sole parental responsibility and the children spending equal time with each parent. Ms M was of the view that the mother did not act in the best interests of the children, was financially motivated and possessed her own unaddressed mental health issues.
At [14] of the mother’s trial affidavit she gives evidence that she filed an urgent application in this Court in January 2021 as she had genuine concerns for the children’s health and well-being and that she had seen the children’s health deteriorate over the last five years. She stated that one of the main reasons for initiating proceedings was that child, X, had begun wetting herself again after having been out of nappies for around four years. The mother expressed the opinion that this occurred following an incident of family violence which she says the child had observed in 2020 at a changeover which is canvassed at [10] herein.
In relation to this, it is noted that at [168] of the first report, Ms M stated after having interviewed X,
168.[X] said she has never been scared or worried with either parent. She could only recall her parents arguing on one occasion and stated that she was not worried at the time, but it made her feel uncomfortable. She was referring to the incident [in] 2020. She said she heard yelling, and her mother ran off, but she did not see her parents’ faces, what happened, or what her parents with saying. The mother has suggested that this incident triggered extreme anxiety, nocturnal enuresis, and nightmares, but she said she was not sure that her parents were even angry and that she has only ever had occasional nightmares, and not for ages, usually triggered by something spooky in a […] movie.
Further, when referencing Dr K’s suggestion that the mother presents with ASD, she deposes:
234.…she cannot shift her view that the father is responsible for the children’s presenting issues and abuse, even when presented with evidence to the contrary, a diagnosis, or other more logical explanations.
Ms M infers that such beliefs permeate the mother’s parenting having negative consequences for the paternal relationship. Ms M noted that for the second report the children presented for their interviews stating that they wanted ““99:1” time arrangements or no time with their father” with the children conceding that “they discussed this beforehand, and this was what their mother wanted.” However, Ms M says that the children have been observed by various professionals who remarked that they have a close relationship with their father and enjoyed spending time with him. As such, she attributes such remarks from the children at the interview to the “extraordinary level of maternal influence” and afforded no weight to the comments.
She observes that in her first report she deemed it “essential” that the mother addressed her mental health issues, which she has failed to do. The mother has attended upon Dr CC for numerous sessions since 2023. Dr CC expressed the opinion that the mother presented with an adjustment disorder and post-traumatic stress disorder. She also expressed the view that the mother’s mental health issues do not appear to have significant impacts on her daily life, and she suspected that her prognosis will vary depending on the outcome of this matter. She stated that if the children’s time is reduced, she expected her symptoms will worsen and if the time with the children remains the same or increases her symptoms will remain steady in the short term and may improve over time.
Notwithstanding this, Ms M noted that the mother had failed to engage with the appropriate psychological support. Ms M expressed this opinion on the basis that the psychologist the mother had attended was a forensic psychologist and not a clinical psychologist. Ms M gave evidence under cross examination that a clinical psychologist’s area of expertise is psychopathology, treating it and diagnosing it. Conversely, forensic psychologists work in the interface between the legal system and psychology rather than with a deep knowledge of psychopathology and the treatment of psychiatric disorders. Ms M did not accept the diagnosis that the mother suffered from post-traumatic stress disorder. Ms M stated:[1]
The diagnosis of post-traumatic stress disorder is only given when the person has believed that they were going to die, or somebody else was going to die, or they’ve experienced significant sexual abuse. It cannot be diagnosed otherwise, and the symptoms are incredibly severe for re-experiencing that those symptoms, not being able to function at all. So if the mother is not able to function at the moment, that’s a concern for her care for her children. So I would suggest that this is not the case.
[1] Transcript p 59 L 30.
Ms M also expressed the opinion that the psychometric testing of the mother indicated that her self-reporting was unreliable and that her self-reporting to the forensic psychologist could not be relied upon to find a diagnosis of post-traumatic stress disorder.[2]
[2] Transcript p 59 L 45.
In a similar respect, Ms M notes that the mother is seemingly avoiding addressing X’s issues in circumstances where she is awaiting a formal diagnosis, although a diagnostic label would not alleviate X’s presenting issues. In contrast, she states that the father has taken proactive measures to support X and has made himself more available irrespective of a diagnosis.
Ms M noted that when interviewed, the children stated they had never been scared, worried, or uncomfortable with either parent. In her supplementary report, she remarked that the mother was not acting in the children’s best interests by seeking an extension to the IVO and in her evaluation found no basis for the application. Further, as noted above, she says that the children were at a higher risk of abuse or neglect with the mother.
After having each of the parties complete a Personality Assessment Inventory, Ms M concludes that the mother is not a reliable historian in terms of the parties’ dispute. She states that the previous report not only negated concerns about the father but raised issues regarding the mother making false allegations and the children manifesting the mother’s anxiety issues. She expressed the opinion that the mother is not child-focused and is insistent on portraying the father negatively, neglecting the children’s needs in the process.
Ms M supports the father’s application for sole parental responsibility in circumstances where the mother cannot communicate effectively, dismisses the father’s views without consideration despite the father being logical and child-focused and prioritises her faith and finances over the best interests of the children.
In relation to schooling, Ms M supports the children moving to E School and G School due to the financial burden, lengthy travel time and the non-responsiveness of the current school, V School, in dealing with X’s needs.
Ms M recommends that the parties and the children continue engaging with medical practitioners and if a child misses consecutive days of schooling a medical certificate is provided to the other party.
She advises against a reduction in the mother’s time seeing as it would go against the children’s expressed wishes and will likely expose them to further litigation.
Dr CC
Dr CC, the mother’s treating forensic psychologist, gave evidence in court and affirmed an affidavit dated 10 April 2024.
Dr CC is not of the belief that the mother has a personality disorder and rejects many of the assertions made by Ms M. As was outlined above, she has diagnosed the mother with an adjustment disorder in conjunction with post-traumatic stress disorder. In relation to an ASD diagnosis for the mother, Dr CC believes a full assessment would be appropriate to determine any diagnosis, although she has not identified any autistic traits. However, Dr CC concedes that she has not completed an ASD assessment nor is she an expert in autism presentations within adult women.
She denies that the mother has not addressed her mental health symptoms citing the treatment provided to the mother by her fortnightly for over a year.
Dr K
Dr K, the child’s psychologist, gave evidence at the hearing and her report dated 20 June 2023 was tendered and marked as ‘A9’ and reflects the preliminary diagnosis of ASD and ADHD for X.
Dr K deposed that change of itself is not an issue for the children, rather the way that the change is implemented and managed. She expressed the view that the current time arrangements for the children with the parties is unproblematic.
For the purposes of preparing the second report, Ms M interviewed Dr K and Dr L, who is a provisional psychologist working with Dr K and X. The substance of the interview is set out at [66]-[78] of the second report, where, relevantly, Ms M records Dr K stating:
73.[Dr K] questioned whether [Ms Sordi] may also be on the autism spectrum as she is very literal in terms of what she hears and reports. She does not know why the mother is fixated on delaying proceedings for a diagnosis, when they are already working within an ASD/ADHD framework. [Dr K] is of the view that it is important that Court proceedings are finalised to reduce the associated pressure, stress, and anxiety experienced by X.
74.[Dr K] said that both parents are very capable and willing to listen and follow advice. They have each been provided with a handbook about neurodiversity. However, [Dr K] believes that if the mother does not trust professionals, she will be difficult to work with.
75.Although [X] appears to be relaxed when she arrives with her father, when she attends with her mother, [Dr L] has sensed that [X] has been coached and [X] appears more dishevelled and unclean, with messy hair and stained clothing. [Dr K] suspects that the mother picks her battles with [X] and [X] does not like having her hair done due to ASD related sensitivity. [X] will have a tantrum with the mother and the mother will not push her further, whereas the father bought a Tangle Teezer to assist, also demonstrating he cares.
At [124] of the second report, Ms M deposes to Dr K initially agreeing that the mother has personality issues, before questioning whether her symptoms may be related to a diagnosis of ASD instead. Ms M accepted that personality traits may be better explained by an ASD diagnosis but stated that further assessment was required. Ms M then makes further comment at [234] of her second report that the mother’s struggle with perspective-taking and fixated beliefs, as evidenced by her immovable view that the father is responsible for the children’s presenting issues even when presented with evidence on the contrary, is a common feature of ASD. In her recommendations in the second report, Ms M advises that the mother may wish to explore a potential diagnosis of ASD.
LEGAL PRINCIPLES
Orders in respect of children are made under Part VII of the Act where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
BEST INTERESTS – PRIMARY CONSIDERATIONS
Section 60CC(2)(a)
The Benefit of the Child having a Meaningful Relationship with Both Parents
The point of difference in this case regarding the children’s time with each parent is limited to the question of whether that time is 7 or 5 nights per fortnight with the father. Given this, whichever arrangement the children are subject to will see them having the benefit of a meaningful relationship with each parent, however, I accept the father’s concerns that if the children were to spend more time with the mother, this creates further opportunity for the mother to undermine the children’s relationship with the father. The extra time also exposes the children to the anxieties of the mother generally and her views regarding the father.
In her second report, Ms M makes reference to the children having warm relationships with both parents. Whilst Ms M does conclude at [239] that the children’s relationship with the mother is dysfunctional on some levels, there is a loving relationship between the children and the mother and the children benefit from having a relationship with her.
Section 60CC(2)(b)
The Need to Protect the Child from Physical or Psychological Harm from being Subjected to, or Exposed to, Abuse, Neglect or Family Violence
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm and from being subjected or exposed to abuse or violence. The question that may be asked is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent.
In relation to unacceptable risk, in Isles & Nelissen (2022) FLC 94-092, the Full Court adopted Austin J's dissenting judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212, which emphasised that risk assessment is a predictive exercise that involves evaluating the potential seriousness of harm in the context of the probability of its occurrence. The Court stated that the higher the chance of harm the greater the risk and risks of harm must be considered even if they are improbable eventualities. The Court also noted that a comparatively small risk of serious harm can justify action in child-related proceedings, while the virtual certainty of slight harm might not. The Court highlighted the need for trial judges to assess not only the potential harm but also the probability of such harm occurring. The Court may conclude that an unacceptable risk exists based on an accumulation of factors, even if each individual factor is not proven on the balance of probabilities. Finally, the level of confidence in a prediction of future risk will be based on the factual findings underlying the prediction.
Section 60CC(2)(b) – alleged physical abuse
There is no submission made by either party and the ICL at the final hearing that either parent exposes the children to physical abuse. The mother had, by way of a Notice of Child Abuse Family Violence or Risk filed on 7 January 2022, made numerous allegations including that the father was a perpetuator of family violence, there was a risk that he would abduct the child and take them to Country N, he had threatened to harm the children in 2016 and that the father had engaged in abusive behaviour by shouting at the mother and children. Notwithstanding these allegations, the mother is now urging the Court to make orders for the children to spend 5 nights per fortnight with the father (as opposed to the 7 nights that he currently spends with them and as sought by him as final orders).
Section 60CC(2)(b) – alleged “serious psychological harm”
The mother submits that she is concerned that the children will be exposed to the conflict between the parents and at the commencement of the hearing urged the Court to make orders that the parties engage a parenting coordinator to manage that conflict. I do not regard that as a viable ongoing solution to the deal with the conflict between the parties. I find that the mother is the source of much of the conflict and did not appear to be particularly amenable to avoiding conflict. Such an arrangement would involve the parties having an ongoing expense and the framework by which the parenting coordinator would operate was not apparent in the sense that it was not made clear what decisions the coordinator would assist the parties with, how the decision would be made and the process by which the parties engaged with the coordinator.
The mother has in the course of this proceeding, particularly in her Notice of Child Abuse Family Violence or Risk, alleged that the father has exposed the children to psychological risk because of his anger towards the mother. By that Notice she stated:
3)The children's fear of [the father's] anger is so extreme it has caused [X] significant anxiety where she fears he is going to harm me, [Y] and herself and as a result she experiences frequent nightmares. [X] has exhibited signs of regression and since mid-2020 experiences bedwetting when she has previously slept dry. [X] has also displayed signs of emotional distress which has been observed by her teachers at school during 2021 including being sad, teary, difficulties expressing her needs, a lack of confidence and difficulties regulating herself when something unexpected happens. There are days when her anxiety and fear prevent her from attending school because she wants to stay home and be cared for by me. Furthermore, her anxiety increases on days when [Mr Jasink] has had/or is going to have overnight care for the children.
The report from Dr K does not support a finding that X is afraid of her father or that her bedwetting arises from anxiety about her father. Dr K’s report of 20 June 2023 addresses the mother’s view that the child’s enuresis arises from her anxiety about spending time with the father. The psychologist noted that the child experienced bed wetting across both households and the issue of the child being reprimanded for bedwetting was raised with the child who responded as follows:
[X] has spontaneously shared with [Dr L] that she may have lied when referencing getting into trouble for her toileting accidents by her father to Mum at home and during one of our sessions She stated that her father did not actually reprimand her when he came to know about a toileting accident that had happened at home. [X] demonstrated remorse and mentioned that she will not lie about such things again. This is consistent with our observations of her interactions with him on one occasion where she attended with Dad after having an accident at school immediately prior to getting in the car to attend a session. He calmly purchased new “Mickey mouse “underwear on the way to session and she reported feeling happy and at ease with the way they had managed the situation together He reiterated to her in session that she was not “in trouble”. [X] appeared to understand and acknowledge this to be true. [Mr Jasink] has been receptive to our recommendation of consistent use of “Bonds period undies” at his house to aide in preventing embarrassing accidents at school for [X]. This underwear is something that [Ms Sordi] had introduced and is a sensible suggestion that benefits [X] at present.
Dr K did observe that X experiences significant anxiety, however, did not attribute that to the behaviour of the father but rather as her response to parental separation and arising from her neurodivergence.
The father submits that the mother has exposed the children to psychological harm due to the following:
(1)As a result of being exposed to these proceedings;
(2)Being exposed to the mother’s very negative views of their father and her ongoing failure to support the father in his role; and
(3)The mother’s insistence that she has been and continues to be the victim of family violence and exposes the children to that view. The father points to [31] of the second Family Report where it was said that the mother had alleged that the father continues to engage in coercive control but failed to provide any examples which constituted family violence.
I find that there is a risk of the children being subjected to psychological harm by reason of the mother’s negative attitudes and opinions of the father, the basis of which have not been substantiated before the Court. The fact that the child X is aware that the mother regards the father as a ‘snake’ and is able to recount the negative comments that she makes about the father, does raise concerns that the mother will actively work to undermine the children’s relationship with the father which presents as a psychological risk to the children. To reiterate, whilst there is a risk arising from the mother’s pursuit of proceedings and making unsubstantiated allegations against the father, neither party is submitting that the other parent should spend no time or that the time be supervised.
BEST INTERESTS – ADDITIONAL CONSIDERATIONS
Section 60CC(3)(a)
Any Views Expressed by the Children and any Factors, such as the Children’s Maturity, that the Court Thinks Relevant to the Weight it Should Give to the Child’s View
As noted above at [53], considerable care must be taken with the views expressed by the children to Ms M and I accept the opinion of Ms M that the children’s view that they wish to spend ‘99:1’ time with the mother and no time with the father is an expression of the children’s enmeshment with the mother and I accept that no weight should be placed on those views. The evidence from the children’s treating psychologists and other health professionals indicate that the children have a close relationship with the father. The description of the children happily playing with their father at the contact session conducted by Ms M for the purposes of the second report stands in stark contrast to the negative views expressed by the children prior to that session, which are summarised at [219] of the second report.
Section 60CC(3)(b)
The Nature of the Relationship of the Children with Parents and other Relevant Parties
The children have a close relationship with both parents and with the father’s wife.
Section 60CC(3)(c)
The Extent to which each of the Children’s Parents has Taken, or Failed to Take, the Opportunity to Participate in Decisions, Spend Time and Communicate with the Children
The father alleges that the mother has failed to keep him informed or communicate in relation to the children’s health and education. The father has sought to participate in decisions in relation to health and spend time and communicate with the children but has been undermined by the mother in that regard. By way of example, the mother has stalled the child X’s treatment which I deal with further below.
Section 60CC(3)(ca)
The Extent to which each of the Children's Parents has Fulfilled, or Failed to Fulfil, the Parent's Obligations to Maintain the Children;
The mother has raised issues in relation to the assessment of child support payable by the father. The father has been paying child support to the mother as assessed and is up to date with his payments. In addition to child support payments, the father has also paid out-of-pocket medical therapy expenses, extra-curricular expenses and school-related expenses. The father has also paid for the Family Reports without the mother contributing her share for the cost of same. Orders are made which address this.
Section 60CC(3)(d)
The Likely Effect of any Changes in the Children’s Circumstances, including the Likely Effect on the Children of any Separation from a Parent/Grandparent they have been Living with
Orders for week about time with each parent represents a continuation of orders that were made in October 2022. The children will be able to communicate with each parent in accordance with the orders. Ms M noted in her second report that X’s psychologists indicated that the equal time arrangements were working and Ms M did not support a change to the current equal time arrangements or a reduction in the mother’s time with the children.
The continuation of the current arrangements is unlikely to have significant effects on the children.
Section 60CC(3)(e)
The Practical Difficulty and Expense of Children Spending Time with and Communicating with a Parent and whether this will Substantially Affect the Children’s Right to Maintain a Relationship with Both Parents on a Regular Basis
The parents live approximately 35 minutes apart and the children can maintain a relationship with both parents on a regular basis. In relation to the practical difficulties associated with the children’s schooling, a change of school to the Suburb H and Suburb FF area is likely to reduce the practical difficulties associated with the current arrangements where the children are being educated at a school in Suburb GG.
Section 60CC(3)(f) and (i)
The Capacity of Parents or any other Persons to Provide for the Needs of the Children and their Attitudes to the Children
The second report at [136] raises issues in relation to the mother’s capacity to provide for the needs of the children which needs are high. That is said to arise from the mother’s mental health and emotional conditions. Ms M recommended that the mother engaged with a clinical psychologist in order to assist her. Based on the behaviours of the mother as revealed by her in the affidavit evidence and by her conduct in court, serious questions were raised as to whether that treatment has been effective. I am concerned that it seems that a significant amount of effort has been expended on Dr CC and the mother in making a victims of crime compensation application which is said to arise from family violence allegedly perpetrated by the father rather than engaging with a psychologist for the purposes of addressing the issues clearly raised by Ms M in both her first and second reports.
The psychiatric and psychological reports in relation to the father do not indicate that he has any lack of capacity to provide for the needs of the children. His evidence in relation to the enquiries made in relation to schools for the children was cogent and compelling and it was apparent that he had spent considerable time conducting research and evaluating the information he received so as to best consider the educational needs of the children.
The child, X, has also been given a preliminary diagnosis of ASD and ADHD by Dr K and there appears to have been some reluctance by the mother to accept the diagnosis. As set out at [19] of Ms M’s second report, the mother expressed that she disagreed with the diagnosis and she viewed ASD as a disability rather than neurodivergence, although now sees it as a “gift from god”.
Ms M opined that the mother continues to blame family violence for X’s anxiety despite Dr K attempting to help her understand that the anxiety could be arising from ASD. It is likely that if the mother continues to harbor such an attitude towards these issues faced by X, it will be of determinant to the child.
Ms M also attempted to contact V School and G School to ascertain their religious inclusivity and capacity to support X in light of her likely diagnoses of ASD and ADHD. V School did not respond, whilst G School responded outlining supports that can be offered to X.
Section 60CC(3)(g)
Maturity, Sex, Lifestyle and Background of the Children/Parents
The mother is both from Country HH and Australia and is of a certain faith and the father is from Country N and of another faith. The father is happy for the children to be brought up in the mother’s faith and his correspondence with the mother takes into account observance of religious festivals by the mother and the children.
The mother gives evidence the parties were married in a religious ceremony although the father denies that he ever converted to the mother’s faith or has practiced as such. There is no evidence that the father has attended a place of worship of the mother’s faith other than for the purposes of getting married or that the parties attended the place of worship together after the marriage.
The father says that the parties were married in a place of worship and then had a wedding in Suburb JJ where the mother walked down the aisle. He gives evidence that the children do not wear cultural or religious garments. The father is opposed to orders that he be required to do all things necessary to support the children’s religious practices whilst in his care but says that he is happy for the children to spend special religious days with the mother. He says that neither parent has pressured the children into participating in any particular faith since their birth but that the children have had the benefit of participating in family functions on religious days, with the emphasis being on family rather than religion. I do not accept that the father has been derogatory of the mother’s religion or discouraged the children from participating in it.
From reading the affidavit evidence and having regard to the evidence before the Court, the attendance of the children at a school that teaches the mother’s faith as its religious study and has an emphasis on language studies may not reflect the interests of both parents and the children. The father has not said the children should not observe or be taught about the mother’s faith but disagrees with the emphasis on this at their current school.
Section 60CC(3)(h)
Whether the Children are Aboriginal or Torres Strait Islander Children
This is not a consideration.
Section 60CC(3)(j) and (k)
Any family violence involving the child or a member of the child’s family and if a family violence order applies or has applied to the child or a member of the child’s family.
The mother has alleged that the father is a perpetrator of family violence and in her Application she raised alleged incidents of family violence said to have occurred primarily prior to the resolution of proceedings on 15 December 2017.
When these proceedings were issued the mother raised allegations of family violence as directed to her and the children in her Notice of Child Abuse Family Violence or Risk, such that she sought orders that the father’s time with the children be limited and supervised.
In the mother’s Outline of Case, when addressing these subsections, the mother expressly does not assert that the children are at risk of physical violence in the father’s care and as to Family Violence orders, she stated that it was not applicable. In 2022, the mother had sought an extension of a FIVO that had been made in or around 2017 by consent and without admissions by the father. The application for the extension of the Order for a 10-year period alleged that the mother and children had been exposed to ongoing family violence including psychological, emotional, physical and financial abuse and neglect perpetrated by the father. The father opposed any extension of the Order and the matter was fixed for a contested hearing. On the day of the contested hearing the mother abandoned her application and an ex parte interim order was struck out.
Notwithstanding the lack of any submission in her Outline of Case regarding family violence, the mother sought to pursue claims at the hearing and by her affidavit evidence that the children had been subjected to excessive physical discipline and being shouted at and verbally abused by the father in 2020. The mother sought to raise claims that had been investigated and not proceeded with by Child Protection and SOCIT and she pressed that the child X had reported to a doctor and a paediatrician in 2020 that she was scared of the father and this is what had caused anxiety. These matters were not raised in passing at the final hearing but were pressed.
I do not accept that the evidence supports a finding that the father has perpetrated family violence since 2017 and by that finding it should not be taken that I accept that he perpetrated family violence prior to that time. I do not accept that the father has refused to engage in processes that might assist the children’s physical and psychological health. He did not accept the referral of the children to a program run by S Centre because that content of the program was predicated on the presumption that the children were victims of family violence.
The father has comprehensively and convincingly responded to the mother’s allegations that he is a perpetrator of family violence and that he was abusive towards the mother and children. His affidavit evidence at [139]-[270] details his efforts to be involved in decisions regarding the children’s health and education is detailed and his conduct has been reasonable. Where he has made mistakes, he has acknowledged them.[3]
[3] Father’s trial affidavit at [270].
For the reasons outlined about, I do not accept that the father has subjected the children to a risk of psychological harm as a result of any alleged family violence. The mother is not asserting any risk of physical harm as a result of such.
Section 60CC(3)(l)
Whether it would be Preferable to make the Order that would be Least Likely to Lead to the Institution of Further Proceedings
Orders for equal time are likely to lead to greater stability and it is hoped that if the mother and father effectively parent during this time without a great deal of complications, this might lead to a reduction in conflict and the possibility of future litigation. The father sought orders that the mother be compelled to attend a psychologist to address her mental health. The difficulties arising from such an order is that it is likely to involve ongoing supervision by the Court and likely to lead to further litigation. Further, requiring the mother to undergo ongoing treatment is unlikely to be effective unless the mother accepts the basis of such an order being made, which, given her evidence, is unlikely.
Section 60CC(3)(m)
Any other Factors or Circumstances that the Court Thinks is Relevant
Not applicable.
CONCLUSION
Parental Responsibility s 61DA
I am satisfied by the evidence that because of the mother’s attitude towards the father there is a fundamental incapacity for the mother to cooperate with the father and that leads me to conclude that it is in the best interests of the children for there to be orders that the father have sole parental responsibility. The mother’s attitude towards the father permeates much of her evidence before the Court to the extent that she was prepared to be less than honest with the Court and I believe that behaviour carries through in her conduct with the father and other health professionals that she deals with. One striking example can be found in correspondence surrounding a hearing date that was fixed before a Senior Judicial Registrar on 22 March 2022. The mother had sought an adjournment of this hearing date and by letter from the father’s solicitors to the Associate to the Senior Judicial Registrar, the solicitors urged that the hearing date be maintained and advised the Court that the father was seeking to marry his long-term partner in 2022 and wished for the children to attend. He required court orders for that to happen as the mother was at that time withholding the children.
In an email to the Court dated 11 March 2022, the mother sought an adjournment of the hearing beyond the end of March 2022 stating that she was suffering from the effects of Covid. In that email she advised the Court that she did not know that the father was due to marry his partner in 2022. She advised the Court that she thought that the father’s decision to marry his partner may only be a recent decision which appears to have been made after the wife had instigated court proceedings on 7 January 2022.
That narrative does not accord with the mother’s communications with a friend in 2022 which provided:[4]
[Ms Sordi] OMG […]. Yesterday I had to provide a statement to police and I filed my affidavit with the court regarding my decision to withhold the girls.
Anyway, as I’m trying to get info to identify the snake and he’s partner to serve him papers on Monday, I stumbled across the website.
[4] Exhibit A27.
The website referred to is a website created around the then impending marriage of the father and his partner.
The text messages go on:
[Ms Sordi] Now I know why his mum is coming here.
[Ms Sordi] He’s going to be livid with me,
[Ms Sordi] I couldn’t have chosen worst timing.
The mother’s comments to the Court that she was not aware of the impending marriage of the father and his partner was misleading. As a result of the mother visiting the website regarding the wedding, she would have been aware that it had been planned prior to 7 January 2022.
The mother raises concerns about the father’s capacity to coparent and to prioritise the health and well-being of the children and comply with court orders[5]. I find that these concerns are not well-founded. In fact, the evidence demonstrates that it is the mother who has failed to cooperate at times. The appointment of a psychologist to assist X is such an example.[6]
[5] Mother’s trial affidavit at [36].
[6] Exhibit R12.
On 11 October 2022, interim orders were made for the children to live with the parties on a week about basis commencing 17 October 2022 and for X to be referred to a clinical psychologist working with children who has a good understanding of family court issues. The orders of 11 October 2022 provided at paragraph 13(e) that “The Mother shall instruct her lawyers to sign a joint letter of referral in the terms annexed to the Father’s Amended Response filed 4 October 2022.”
On 12 October 2022, the solicitors for the father wrote to the mother’s solicitors enclosing a joint letter to be sent to Dr K of J Psychology and which required the mother’s signature. The terms of the joint letter of referral were in the same form as the letter annexed to the father’s amended response filed 4 October 2022.
On 21 October 2022, the father’s solicitors again wrote to the mother solicitors asking for the return of the co-signed joint letter noting that: “it is likely [X] will be placed on a wait list, our client is keen to commence intake without further delay.”
The father solicitors wrote again on 12 January 2023 at which time the mother had still not returned the co‑signed joint letter to the psychologist. The father’s solicitors had corresponded directly with the psychologist’s practice to try and arrange times for X’s therapy to commence. That correspondence was copied to the mother’s solicitor. The letter of 12 January 2023 included the comment:
The parties engaged in a correspondence exchange on this issue significantly prior to the October Interim Orders. Now that our client has been in a position to secure appointments with a professional recommended by [Ms M], he is hopeful your client will participate so [X]’s therapy is prioritised.
On 23 January 2023, the solicitors for the mother wrote to the solicitors for the father seeking amendments to the joint letter of instruction.
On 9 February 2023, the solicitors for the father wrote to the solicitors for the mother (the delay having been caused by the father’s solicitor being ill) pointing out the terms of the orders of 11 October 2022 in relation to the joint letter but agreeing to a number of changes (but not all) proposed by the mother in the interests of having the matter progress.
On 28 February 2023, the solicitors for the mother wrote to the solicitors for the father raising concerns about the regime of treatment proposed by Dr K. Dr K had proposed that she see X on six occasions and then transition to another psychologist in the practice of lesser experience but under the control of Dr K. The mother expressed concern about the qualification of the second psychologist and stated:
Given our client’s concerns about (the second psychologist’s) qualifications, our client proposes that [X] attend upon one of the other psychologists at [J Psychology], preferably at their [Suburb KK] office, as agreed between the parties or failing agreement, as nominated by the ICL.
…
Once the practitioner is agreed upon, our client will then sign the joint letter of engagement.
The solicitors for the father responded with a detailed letter of 3 March 2023, which set out the full chronology of their attempts to have X seen by Dr K, noting that the mother had more than 4 months to make enquiries regarding psychologist and it had been almost 2 months since she had been notified that appointments had been arranged with Dr K.
By letter dated 3 March 2023, the mother’s solicitor enclosed the signed joint letter to the psychologist. The information that was to be provided to assist the psychologist was also the subject of court order.
I note that after the Joint letter was signed and sent to Dr K, the mother then sent her own letter dated 26 March 2023[7]to Dr K setting out a narrative which was entirely her own and highly contentious. Notwithstanding that the mother had been the cause of not getting the child into treatment in accordance with the Court orders made on 11 October 2022, the mother stated: “I have tried for so long to get [X] the help and support she needs to best navigate life, build her resilience and thrive. So, I feel very relieved that you will both be treating her very soon.”
[7] Exhibit R15
I have set out this exchange of correspondence as it demonstrates how difficult it has been for the father to deal with the mother on a matter of significant importance for X and on a matter which was subject to specific court orders. The mother’s approach was entirely uncooperative and was not in the best interests of the child. The mother’s resistance to getting medical assistance for X, as noted by Dr K and Ms M, does not bode well for the hope of any cooperative parenting on these matters. Given the nature and severity of these issues, the granting of sole parental responsibility to the father is in the children’s best interests.
There are other instances of this kind of behaviour including exchanges regarding the children’s school. This evidence in particular persuades me that an order for shared parental responsibility will not operate in the best interests of the children because of the level of conflict between the parents and I am concerned that the mother will not act in the best interests of the children if she was to have sole parental responsibility because she seems more concerned with causing the father grief rather than acting in the best interests of the children. The evidence does not support a finding that the father has acted in relation to the health issues facing the children in a way other than in their best interests. By way of example, this is demonstrated by evidence of his attention to allied health professional appointments for X [8]
[8] Exhibit R14.
Schooling
Decisions about education form part of the core of parental responsibility. Given that I will make orders that the father should assume parental responsibility for the children, it will fall to him to make decisions about where the children should attend school. The father has given evidence that he wishes to have the children removed from the school that they currently attend, V School. The father’s reasons for wishing to change schools are identified at [99] of the second report by Ms M. In summary he does so because he is concerned:
(1)About the amount of travel involved for both parents;
(2)That X is experiencing social difficulties and does not have a strong friendship group;
(3)That the school has failed to respond to the needs of X and support her;
(4)The costs of the school fees impose a burden (though not to the extent of the fees as identified at [99] of the second report which overstated the extent of the fees);
(5)That the school has been inadequate in responding to ordinary enquires made by the father regarding attendance or counselling records;
(6)The school has an emphasis on one type of religious education and no other faith is taught[9]; and
(7)The school has introduced arrangements for a half day of school each Wednesday and that would cause major inconvenience as both parents work during ordinary school hours.
[9]This is confirmed by a school report for Semester 2 Report 2022 which shows the religion and values class is entirely concerned with the teachings and practices of the mother’s faith.
The mother wished for both children to remain at V School next year and her reasons for doing so are summarised at [100] of the second report. The mother saw the benefits of:
(1)Stability;
(2)Maintaining established relationships;
(3)Supports provided by the school;
(4)Connection to community programs and a place of worship;
(5)That the children wish to remain at the school;
(6)The academic performance; and
(7)The school is arguably non-denominational.
At [228]-[231] of the second report, Ms M considered the proposals and reasons of each parent in relation to the schooling options for the children. Whilst I am not bound by any recommendation of Ms M, I do find that her summary of each of the positions adopted by each parent is comprehensive and accurate (save for an error in relation to the cost of education at V School). At [229] – [230] Ms M expressed the opinion:
229.The father presented a very strong case for changing the children’s school, and it is recommended that the children transition to [E School] and [G School] at the start of 2025, when [X] begins high school, and all students will be new to the school. Whilst [V School] offers a good education and connects the children to their [mother’s] faith, the excessive burden of private school fee and lengthy travel times cannot be ignored. The father pays 75% of the private fees and cannot afford to continue doing so. The current arrangement is not sustainable.
230 [V School] has not been adequately responsive to [X]’s needs and has excluded the father, whereas [G School] made an excellent initial impression. [G School] has an excellent academic record without the high costs and offers the children the opportunity to live in proximity to the school and engage in extracurricular activities with friends in the same community, which is important for [X]’s social skills development. [G School] has established programs to support students with ASD and anxiety issues, but [V School] presented as “chaotic”, and at times, non-responsive in the face of [X]’s difficulties. [V School] offers limited diversity compared to the broader community and is not inclusive with regard to students of other faiths.
The Court is not in a position to finally determine the extent to which V School has failed to respond to X’s needs and it is not necessary to do so. The father has expressed cogent reasons why a change of school would be in the children’s best interests apart from those matters. It is of concern that the school initially required the father to subpoena attendance records of his daughter rather than handing them across, and once subpoenaed, indicated that they did not have or had lost the records. Dr K noted in her report dated 20 June 2023[10] that attempts by her practice to obtain information from V School had been unsuccessful. Ms M was not able to obtain information from the school either. At [76] and [77] of the second report, Ms M recorded Dr K and Dr L expressing this opinion regarding choice of schools:
76.Both [Dr L] and [Dr K] are of the view that the father has been excluded by the children’s current school. [Dr L] stated that the school has not returned her calls, have no record of them, and seems chaotic. He expressed that the school’s response to [X] disclosing suicidal thoughts was inappropriate and she does not have confidence that they know how to support [X] given her neurodiversity.
77.[Dr K] said that she is not opposed to [X] changing schools between grade 6 in year 7 when a lot of children are changing schools at this time. She believes the mother is more concerned about religion than seeking the best to support [X] in light of her probable diagnoses of ASD and ADHD.
[10] Exhibit A9.
I regard the father’s evidence regarding his experience with dealing with the school and the results of his enquiries regarding the alternative schools as compelling and rational. The father has given good reasons why it is in the best interests of the children to change schools.
Child Support Departure Application
By her Further Amended Initiating Application filed 10 April 2024, the mother made an application for child support departure orders.
The respondent father opposed orders being made or for that application to be considered. This is due to the application having not been served in accordance with r 1.13(1)(a) and (4)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). The mother was required to serve the Child Support Registrar with a copy of the departure application at least seven days prior to the final hearing in accordance with r 2.02 and 2.31(b) of the Rules. There was no evidence that this had been done. Counsel for the mother stated that the Registrar had been served with the application on the first day of the hearing, however, there was no evidence of service filed. There was no explanation provided for the failure to serve in accordance with the Rules and urgency was not raised as a reason for non‑compliance. For these reasons the application fails for want of service in accordance with the Rules.
If I am wrong in relation to the question of service, I am not satisfied that the applicant has established that special circumstances exist pursuant to s 117 of the Child Support (Assessment) Act 1989 (Cth), such as to satisfy the court that an order ought to be made pursuant to s 116 of that Act, and my reasons for this finding are as follows:
First, the mother has sought orders in relation to child support in the Administrative Appeals Tribunal and at annexure “MS-33” to her trial affidavit, she attaches a Notice of Decision of the Tribunal dated 2023 where the mother sought a review of periodic payments made as a result of an administrative assessment. The most recent administrative assessment was made in April 2024. Given that the mother has submitted to the administrative process she has a right to review to the specialist tribunal. In Aish & Greco [2014] FCCA 2283 the Court found at [38]:
38.Finally, the father has just got a result from an objection decision. He still has his rights of appeal to the Social Security Appeals Tribunal. A s.117 application, in my view, is wholly inappropriate. It is clear that the father’s application has no reasonable prospects of success, whether they are retrospective back to seven years or prospective as from now.
The most recent administrative assessment was made in 2024 and the mother had rights of review in the Administrative Appeals Tribunal in relation to that assessment.
Second, the mother by her departure application seeks additional orders that the father meet 70% of private health insurance premiums for the children together with 70% of all medical expenses. The father gives evidence at [326][c] of his trial affidavit that he is currently paying for private health insurance premium payments for the children under his own health insurance policy and that he is meeting substantial out-of-pocket medical expenses. He has met the costs of allied health professionals gap expenses. The mother has not established that special circumstances arise in this case such as that which would persuade the Court to be satisfied that there are grounds for making a departure order.
In light of all of the evidence canvassed above, I will make the orders as sought by the father with amendments. There remains an issue regarding the father being reimbursed for one half of the cost for the updated report prepared by Ms M. The orders of a Judicial Registrar on 28 June 2023 at paragraph 7, saved the question of the mother’s contribution to the report to be determined at final hearing. The orders also contain a notation which notes that the mother opposed the engagement of Ms M for the preparation of another report.
The parties are not in receipt of funding from Victoria Legal Aid. The mother’s costs incurred from March 2022 to April 2024 was $210,260 with a further E$61,485 for the final hearing. The father’s costs billed from the commencement of the 2022 proceedings until April 2024 was $189,148.33 with E$93,508.64 for the final hearing. The father deposes to having sourced funds from the sale of assets and credit cards/personal loans. The level of costs borne by these parties is extraordinary.
I will make such an order that the mother pay her share of the costs as both parties had the benefit of the Family Report and the mother required Ms M for cross-examination.
I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 29 August 2024
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