Keats and Keats

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEATS & KEATS

[2015] FCCA 1595

Catchwords:
FAMILY LAW – Parenting – interim – children separated.

Legislation:
Family Law Act 1975

Applicant:

MR KEATS

Respondent:

MS KEATS

File Number:

SYC 2268 of 2015

Judgment of:

Judge Henderson

Hearing date:

26 May 2015

Date of Last Submission:

26 May 2015

Delivered at:

Sydney

Delivered on:

27 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr Gutierrez

Solicitors for the Applicant:

Kyle Family Lawyers

Counsel for the Respondent:

Mr Rosic

Solicitors for the Respondent:

Rowlandson & Co Solicitors

Solicitors for the Independent Children’s Lawyer:

Ms Doring

ORDERS

The parents shall have equal shared responsibility for the children Mr Keats born (omitted) 1999 and Y born (omitted) 2011.
The children shall live with the mother.
Y shall spend time with the father from 3pm Thursday to 6pm Friday commencing 28 May 2015 and continuing each alternate week thereafter.
Y and X spend time with the father as follows:
(a)From 9am Saturday to 6pm Saturday commencing 5 June 2015 and continuing each alternate weekend thereafter.
(b)On Y's birthdays if she is not in the father's care, from 3.00pm to 6.00pm.
(c)On Father's Day from 4pm on the Saturday before Father's Day to 4pm Father's Day.
(d)At Christmas from 3pm Christmas Day until 5pm Boxing Day commencing in 2015 and continuing each alternate year thereafter.
(e)At Christmas from 9am Christmas Eve until 3pm Christmas Day commencing in 2016 and continuing each alternate year thereafter.
(f)At any other time as agreed between the parties.
For the purposes of the father spending time with the children in accordance with these orders the mother shall deliver the children to the father at the maternal grandparents place of residence at the commencement of each period and the father shall return the children to the mother at the maternal grandparents place of residence at the conclusion of each period.
The father's time with the children is suspended as follows:
(a)In the event the children are in the father's care on their respective birthdays then the mother shall spend time with the children on their respective birthdays from 3pm to 6pm.
(b)On Mother's Day from 4pm on the Saturday immediately before Mother's Day 4.00pm Mother's Day.
(c)At Christmas from 9am Christmas Eve until 3pm Christmas Day commencing in 2015 and continuing each alternate year thereafter.
(d)At Christmas from 3pm Christmas Day until 5pm Boxing Day commencing in 2016 and continuing each alternate year thereafter.
That the parents are restrained from:
(a)Denigrating the other parent in the presence of or hearing of the children and shall do all things necessary to ensure that children do not hear third parties denigrating the parents.
(b)Physically disciplining the children and shall do all things and act necessary to ensure that no third party physically disciplines the children.
(c)Discussing these proceedings or the breakdown of the parental relationship with the children in the presence of the children or causing or permitting any third party to do so.
Each party must keep the other informed of his/her current landline, email and mobile telephone number.
That the parties notify each other in the event of any illness or injury occurring to the children whilst in their care and provide full particulars of any medical practitioner, health service provider or institution attended by the children and provide any authority and direction necessary to enable to other party to obtain all necessary information concerning the children.
Pursuant to section 65DA(2) of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Keats & Keats is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 2268 of 2015

MR KEATS

Applicant

And

MS KEATS

Respondent

REASONS FOR JUDGMENT

The matter of Keats was an interim application concerning parenting arrangements for the parties’ children Z, born (omitted) 1997, soon to be 18, X, born (omitted) 1999, now aged 16, and Y, born (omitted) 2011, three and a half. The hearing was heard yesterday, 26 May 2015.
Presently X and Y live with their mother. Z lives with their father. Z does not see his mother. X does not see his father, which results in both boys not seeing each other. Y however spends daytime with her father each week. This fracture of the children’s relationship with each other and their parents lies solely at the feet of the parents and no one else. The level of dysfunction in the parties’ relationship, their conduct and behaviour and attitude to each other witnessed by their children and at times directed to them has resulted in children separated from parents and each other.
Ms Gutierrez of Counsel acted for the wife, Mr Rowlandson for the father and Ms Doring was the Independent Children’s Lawyer.
The material I read was as follows:
For the wife an initiating application filed 14 May 2015, affidavits of 13 May and 23 May 2015.
Exhibits were extensive in this matter and although these are named the mother’s exhibits, the father also had documents that I read in these exhibits.
Exhibit 1 was the Department of Family and Community Services file.
Exhibit 2 a file of (omitted) Hospital in relation to the parties’ son, Z.
Exhibit 3 the (omitted) Psychology documents again in relation to Z.
Exhibit 4 Dr D documents in relation to the mother and the family generally.
Father’s exhibit 1 (omitted) documents.
Father’s exhibit 2 (omitted) Hospital documents again in relation to Z.
Court exhibit 1 was the child dispute memorandum dated May 2015.
The short chronology is as follows:
The husband is 43, the wife 38.
They commenced cohabitation in 1996 when the mother was very young, only 18 years of age if my maths is correct.
In 1997 the parties married.
Z was born, then X.
The father was a (occupation omitted). He took some stress leave in 2000.
X was diagnosed with autism spectrum disorder in June 2003 and fortunately for X he has participated in early intervention programs which have assisted him greatly.
The mother was a stay at home mother throughout this relationship.
In 2005 the father resigned as a (occupation omitted) and X commenced attending special kindergarten at (omitted) and remained there until he attended year 7.
In 2005 the mother was prescribed to take Ritalin for an ADHD complaint which she found had bad side effects.
The father commenced work at the (employer omitted) as a (occupation omitted) in 2007.
Z, their eldest boy, was diagnosed with Asperger’s or a form of Asperger’s disorder in 2008.
The mother begins to complain that parties’ relationship and tensions in the household, particularly relating to finances and behaviour, began to deteriorate and escalate from 2008 onwards.
The father began to see a Dr P and he was diagnosed, he says, with ADD and Asperger’s traits and prescribed dexamphetamine which he continues to take today.
The mother is referred to a Dr R, psychiatrist, in 2009 and again dexamphetamine is prescribed by her, together with an antidepressant. The mother found the medication difficult and she ceased that medication.
X began seeing Dr T, a paediatrician at (omitted) in 2009/2010.
The mother says in about 2010 the father’s coercive controlling behaviour towards her of her escalated.
The father asserts in 2011 the mother became more aggressive towards him saying things like, “You are a cunt, you are a fucking psychopath”.
However, the parties underwent some form of in vitro fertilisation or such other form of assisting them to have their third child, Y, who was born on (omitted) 2011 despite this alleged behaviour.
The father makes complaints throughout his affidavit which commence in 2013 that small amounts of his medication are missing.
The mother sees her GP, Dr D and is prescribed Zoloft in about November 2013 and from that time on she has continued with that medication and she says it has had a positive impact on her affect since that time.
The really concerning issues commence in about July 2014 when the parties’ eldest boy, Z, commences his first of many attempts of suicide in 2014.
2014 was the time the parties separated and no one – including the father – can say anything other than the home environment in 2014 was hostile, aggressive and extremely unsettled.
Z takes his first overdose of tablets on 28 July 2014 and is taken to (omitted) Hospital.
The father commences employment at (employer omitted). He had ceased his employment with (employer omitted) in about 2013-2014.
Z is released into his parents’ custody.
One month later on 11 August 2014 he has a further suicide attempt and he is admitted to the (omitted) Unit under the supervision or Dr M at (omitted) Child and Adolescent Mental Health Team. He is hospitalised for a substantial period of time – about seven weeks.
The mother claims Z discloses family violence to his psychologist, Ms M. The mother asserts the father tries to stop Z accessing this psychologist.
The father and the mother at times complain of missing tablets of dexamphetamine.
The father then complains that the mother calls the police on him on 11 September 2014 without reason. The police attend the home and leave.
The mother has spoken to a social worker at (omitted) Unit about what she said was domestic violence experienced by her during the relationship and the police visit follows this.
A home visit from the Department occurs at the home on 13 September 2014. I will refer to that later.
There is another departmental visit on 16 September 2014 with the FaCS workers. I will refer to that later.
On 19 September 2014 there is an interview with the mother at the home.
The mother moves out of the home on that occasion with X and Y, and signs a safety plan.
On 23 September 2014 the father signs a safety plan with the department including that he will move out of the home and live with his parents. The mother and children move back.
The father continues to attend the home, the mother says without her permission.
The father forcibly enters the home in 3 October 2014 on the mother’s claim, and ultimately the father returns to the matrimonial home and the mother leaves.
On 29 September 2014 Z’s psychologist, Ms M, speaks to the department about the father’s presentation as aggressive and controlling. The father complains to a senior psychiatrist about this lady and she is removed as Z’s psychologist.
The mother says that she was receiving help from (omitted) but the father complained about that service this assistance was stopped by them in October 2014.
Z is discharged on 3 October 2014 from the mental health unit.
On 3 October 2014 the mother, X and Y move out of the matrimonial home to the maternal grandparent’s home.
There is an incident between Z and his mother on 9 October 2014, and although the mother says she didn’t use the words the father says there was certainly an altercation between she and her son and given his fragile state that is extremely concerning.
Z and the mother have a further altercation on 12 October 2014 which given his fragile emotional state is most concerning.
The mother says the altercation occurs because the father involved Z in the parental relationship and Z wanted to discuss this with her and she refused to do so.
The father commenced to spend overnight time with X and Y and he did so until he retained Y from her mother in April 2015 despite having entered into an undertaking to return her.
The matter was brought to the court after this failure to return and I made an order for Y to be returned to her mother.
Z makes another attempted suicide on 19 October 2014 by taking 30 aspirin and he goes to (omitted) Hospital.
The father removes Z from the Child Adolescent Mental Health Service in 20 October 2014.
Two police officers attend the former matrimonial home after his time and interview the father in relation to domestic violence and for reasons unknown to me, Z becomes very extremely upset and he sends his mother, it is asserted, a text message that he never wants to see her again because she tried to involve him in her allegations of domestic violence against the father.
This is a big ticket item for the father – the allegations of domestic violence made against him by the mother. The father says the mother said to Z, “Just fuck off and go and die”, on 14 November 2014 and on 15 November 2104 Z attempts a further suicide by ingesting 40 Nurofen tablets.
The father says the words the mother said to her son were the trigger for this event. Z was taken to (omitted) Hospital.
X starts to be concerned about spending time with his father. He has not spent any time with his father for some time now.
Z has commenced a (studies omitted) at (omitted) University and he has completed cognitive therapy with Mr J, a clinical psychologist.
A very strange thing occurs on 9 January 2015. The mother sends the father a text message:
X won’t be going this weekend. You can pick Y up if you wish.
The mother said X was becoming more resistant to spending overnight time with his father. Given his age she was not able to force him. The father responds by saying he will only collect both children and strangely does not spend time with even Y for several weeks. That is something for a final hearing for the father to explain his thought processes at that time.
On 26 February 2015 the father signed an undertaking to collect and return Y alternate weekends and that she would not be left alone with the paternal grandfather. The paternal grandfather and his aggressive behaviour looms quite large in this matter as well, particularly for X.
On 12 April 2015 the father sends the mother a text message:
I will not be returning Y.
The mother commences proceedings and I make the orders.
For the father I read his case outline.
An affidavit of his filed 19 May 2015 and his response of 29 May 2015, together with the exhibits previously referred to.
The subpoenaed material is voluminous and distressing to read. The affidavits are voluminous and distressing to read.
The mother alleges that the father perpetrated domestic violence against her throughout the relationship, being abuse, control and coercion, yelling, pushing and demeaning and belittling her.
The father denies any allegations of domestic violence in his affidavit and asserts that the mother has serious mental health issues. He told Ms B at the child dispute meeting and as reported in the memorandum that the mother’s problems were:
Mr Keats raised serious concerns about Ms Keats’ mental health. He fears for the safety of the children –
That is an interesting comment given she was a stay at home mother and he went to work. He went on to say –
saying that Ms Keats suffers from anxiety and depression, body dysmorphic disorder, significant mood swings in an extreme nature where she’s extremely present one minute and vitriolic and accusatory in the next, takes his and Z’s medications to self‑medicate and suicidal idealisation. She tries to hide evidence of bruising and impetigo which might reflect badly on her.
The mother’s allegations of violence to Ms B were:
She provided a history of psychological and verbal abuse by the father. She said he would pick her up and lock her out of the house during arguments, that she feared returning inside. She acknowledges he never struck her and there were numerous loud arguments in front of the children and believes this has impacted most on the boys. She acknowledges she has yelled at times.
Thus we have blanket denial from the father about any poor behaviour of his and if there is yelling it comes from the mother and the mother asserting that she too behaved poorly at times but that the father was the aggressor.
What is startling about the child dispute memorandum is the mother acknowledges she has yelled at times. There is no such acknowledgement from the father. In fact, he lays blame for the difficulties that his family has experienced at the mother’s feet.
This admission by the mother of poor behaviour is confirmed in her affidavit at paragraphs 63 and paragraph 98 of her affidavit of 15 May 2014 and indicates and demonstrates that the mother has the capacity to take responsibility for her poor behaviour and reflect upon the consequences of that for her children. She told Ms B that this behaviour has had an effect on her children:
…the numerous loud arguments in front of the children and believes this has impacted most on the boys.
Thus the mother has some insight and has a reflective capacity on this issue. I could discern no such evidence from the father in his affidavit or what he said to Ms B or from submissions made on his behalf at the bar table of such a capacity of acknowledging responsibility for the impact of poor adult behaviour upon children or any reflection of the needs of the children not being met due to parental behaviour.
The father’s affidavit and his words to Ms B and his opinion is that the mother has a significant mental illness and thought the dysfunction in his family and children is due to her behaviour. That comes out in paragraphs 51, 55, paragraph 190, 191 and 215 of his affidavit. All fault is at the feet of the mother.
This belief of the father is also reflected in the subpoenaed material. That is, his comments to social workers, psychiatrists, doctors and the like about the mother being mentally unsound or unstable and having said at one point she suffered form an undiagnosed significant borderline personality disorder. The subpoenaed material being his comments to third parties confirms his attitude to his family’s difficulties. The mother.
On three occasions the father objected to health professionals helping Z and the wife. The first one was Ms M, whose notes support Z’s disclosure of domestic violence in the home and the father not being supportive of Z seeing his mother again.
Secondly, the father complains about Ms M, Z’s psychologist, on 29 September 2014 and she is removed.
This is the same day that Ms M spoke to the Department of Community Services and describes the father’s presentation to her as aggressive and controlling.
The father objects to a particular worker providing support to the mother from (omitted) in October 2014, and this support to the mother ceases.
On 20 October 2014 the father removes Z from the Child and Adolescent Health Service run by the (omitted) Area Health Service at a time when Z had attempted suicide by taking medication on 28 July 2014 and 11 August 2014, and then he attempted a further suicide on 19 October 2014. Yet the father removed him from that program on that very next day after his attempt on 19 October. Z went on to have a further attempt on 15 November 2014.
The father’s position on these concerning events about his son is that it is due to the poor relationship Z and his mother have. The mother and Z arguing, the mother telling him on 14 November 2014, “Just fuck off and go and die”, and that this is the reason for his son’s concerning behaviour. He says the relationship has now broken down because the police came to speak to the father in November 2014 about domestic violence allegations that the mother said Z had made against his father, Z had done no such thing and Z became very upset about this and has not really dealt with his mother since that time.
The father says there is no record of any further attempts at his life since November 2014. He is at university, doing well and those two things coincide with Z no longer spending any time with his mother. So the father puts two and two together and says that the boy is much better not seeing his mum and his mental health has improved.

This gloss cannot be the whole story and the father’s lack of insight and inability to take any responsibility for his son’s distress is noted in the following father’s exhibit 2, the (omitted) hospital notes, 15 August 2014:
Z reported his suicide attempt was due to pressure of exams and also upset with the father over the idea of not being able to repeat year 12.
This was something his father did not want him to do repeat. There is nothing about the poor relationship with his mother. Z’s comments are consistent with the mother’s description of the father’s coercive and controlling behaviour during the relationship.
On 20 October 2014 the progress notes at the hospital:
Whilst in in patient, Z’s family dynamics unravelled, highlighting the conflicting relationship between parents. The Department of Community Services report was made due to the domestic violence allegations by the mother.
The notes state that Z had made a remarkable progress following that suicide attempt but he needed ongoing psychological assistance.
On 10 September 2014:
The father apologised to the staff about the way he had spoke to them on the phone earlier in that day, that is, “Wanting to pick my son up now, it’s not necessary for him to have group or individual sessions”, and speaking in a curt and abrupt manner to them.
On 2 September 2014 the father called the unit where his son’s staying and says:
The mother’s not able to come. She can’t deal with the stress. Y’s unwell, she’s unwell. I will be the point of contact, not the mother. The mother has had enough stress.
That coercive, controlling behaviour, “I’m in control, cut the mother out of the loop” is evident here. Throughout the phone call the reporter noted
Mr Keats was speaking in an aggressive and intimidatory tone and used inappropriate language at times.
The father apologised for this behaviour when he came to the unit on the next occasion. These are examples of what the mother says in her affidavit was the way the father interacted with her during the relationship.
On 28 August 2014:
Z says relationship with his parents is negative, there’s lots of arguing and disagreements. They fight a lot, verbal abuse, throwing objects at each other. He had uncertainty about any physical abuse. The mother was verbally abusive to him when he attempted to calm her down.
These are Z’s words. This description of the way the parents reacted and dealt with each other is more consistent with the mother’s evidence than the father’s evidence that only the mother was the aggressor and not him. Such behaviour is family violence under the Family Law Act.
On 27 August 2014 the mother reports the domestic violence in their relationship to the staff at the unit. Reading the (omitted) Hospital notes which are the mother’s exhibit 2, 19 October 2014 being an assessment’s made of Z:
Z feels the issues between his parents are his fault.
What a sadness for this boy as nothing could be further from the truth.
The father stated the mother has an undiagnosed borderline personality disorder and has refused to see any medical practitioner. That is an untruth and can only have been said by the father to denigrate or minimise the mother. There is no evidence to which Mr Rosic took me to indicate that the mother has an undiagnosed personality disorder or refuses to seek medical treatment. In fact, the evidence is to the contrary.
Her behaviour, the father went on, is the cause of the marriage breakdown. The father accepts no responsibility for the breakdown of his relationship and lays blame solely at the feet of the mother. This cannot be correct. On 19 October 2014 Z reports:
I blame myself for my parents’ divorce.
What Z did – as I read the notes – was tell the truth about how his parents react to each other and this resulted in reports being made due to his description of his parent’s behaviours.
His father pulled him out of CAHMS programme after this for no good therapeutic reason I could see. Perhaps he did so for his own selfish reasons because the father is absolutely certain there is no domestic violence in his relationship by him to the mother and he wants any comment of that excised from any record.
The father has acted to cover up any disclosures by Z of domestic violence or physical or verbal altercations rather than listen to his son and understand how his son saw his mother and father’s relationship, reflect upon this and show insight.
The mother shows insight. She has accepted that this behaviour was impacting poorly on her sons. She has told Ms B, she has told other health professionals. However, I am concerned that the father’s needs to protect his good name or whatever it is he is protecting may overwhelm the needs of his son or children.
Z said further :
They verbally abuse me and my brother. They used to swear at us for no reason.
That is domestic violence under the Family Law Act and children being subjected to abuse in their parents’ care.
On 19 October 2014 the father was informed by the staff at the unit that Z did not want to see him at that particular time. When the father was informed of this the notes report:
The father became verbally aggressive and demanded my name.
Indicating the coercive behaviour of which the mother describes. Ultimately Z did see his father on that day.
On 15 November 2014 Z reports his mother said to him, “Fuck off and die”. This is an appalling thing to have said to a child if indeed it is said. Whether it is or not said, that’s what Z heard. That’s what he reported and the mother should seriously look at her own conduct in light of her son’s fragile mental health at that time.
Going to the Department of Community Services file, Ms T is the caseworker. X disclosed to Ms T on 19 October 2014 that he witnessed the paternal grandfather yelling and screaming at his mother while she was holding Y, behaviour that the mother says the father exhibited towards her during the relationship.
The paternal grandfather’s behaviour is nothing short of appalling, unnecessary and he has no part of this dispute despite what he may think. His son is a big boy who can take care of himself. Similar behaviour is described by the mother in her affidavit.
Whether the father likes it or not, the Department of Community Services file describes the parents’ behaviour as adults throwing things at each other as X witnessing domestic violence and that the children are at risk of harm in their parents’ care.
The Department noted that the risk factors were domestic violence and mental health concerns. Dr O, a treating doctor, rang the departmental caseworker and was concerned about the influence of domestic violence on the children but not of a physical abuse nature.
The mother confirms that there was no physical as such abuse but there was certainly domestic violence under the Family Law Act.
Dr M was concerned that the father had access to information on the departmental file as he was or had been a Department of Community Services worker and she didn’t want the father to have access to that material.
Ms T said at one point that she did not see there was domestic violence, just difficult family dynamics and that the father and mother could each have access to the subpoenaed material and medical notes of their son.
On 18 September 2014 Ms T does a home visit and she describes conflict and fear. Police had been called by the mother as the father was agitated when he realised the department and police were now aware of the home difficulties due to Z’s honest response to questions asked and the mother had been fearful for her safety. Police came and could see nothing to report at that time.
This visit enraged the father. He was very upset about this and that came through to Z.
X said at the home visit he doesn’t like his parents fighting, loves his mum a lot, he would prefer it if his father left and that he and his mother remain in the house.
Ms T reports:
During the interview, Mr Keats did not appear to accept responsibility for his son’s condition and denied any causal link between the behaviour between he and his wife or his son’s mental health.
That is a breathtaking lack of parental insight into the impact of poor parental behaviour on children. The father went on to say he believed the problems stem from the mother’s poor mental health, again a constant theme the father raises, that the mother’s poor mental health is at the root of all evil. Ms T went on to say:
I advised the father that Ms Keats’ presentation was consistent with someone who has suffered long-term domestic violence. I asked him to leave the home as I did not believe what he was saying and I had identified a danger. The father didn’t leave. The mother, Y and X left.
Ms T also reported she heard Y then aged two and a half saying “fucking cunt” on several occasions. We then have the seesawing of the father agreeing to leave but returning when the mother and children are there and ultimately the mother leaving to live with her parents. The father has remained in the home with Z. The mother, X and Y who is only three have had to leave the matrimonial home.
Now, the question for me is what is the mother’s mental health status? The father believes she suffers from an undiagnosed borderline personality disorder and has significant mental problems.
I will read out the report from Dr R, psychologist, on 2 July 2010 which is in Dr D’s notes. He says this:
The mother attended for review on 11 June 2010. Since the last attendance she ceased all medication, having ceased both dexamphetamine and Endep. At 11 June 2010 Ms Keats is feeling well. She attempted to cease smoking but relapsed. I have indicated to her most strongly that in the event of her falling pregnant smoking would be absolutely contraindicated.
Dr D himself writes:
She’s on Zoloft and progressing well.
That is the status of the mother’s mental health and the father would do well to desist from his constant reference to the mother’s non-existent undiagnosed borderline personality disorder. It can only be a fabrication and it can only be designed to deflect his responsibility for his poor family dynamics and minimise the mother’s role in the children’s lives.
Despite the father saying on 22 October 2014 to a caseworker at the (omitted) Area Health Service that he would ensure Z saw his mum because Z said on this occasion on 22 October 2014:
Whilst overall Z was noted to be doing well with far less black and white thinking and reduction in anxiety, it is noted that since discharge he feels stuck to his parents which leads to a build-up of hopelessness.
The team worked primarily with his father around limiting the expression of anger and negative thoughts about Z’s mother.
That anger and those negative thoughts continue today. The father accepts no responsibility.
Z thought his father had made significant progress in this regard and he would be able to get his dad’s support. His mother was advised of the concerns about Z being triangled between his parents. Z’s father expressed his intention to talk with her further about this. There were conflicting ideas about how much time Z should spend with his mother. His father thought it would be detrimental for Z to see his mother; however, Z clearly expressed that being cut off from his mother would increase his distress.
Yet he has been cut off from his mother.
This was negotiated and ultimately his father agreed contact was important regardless of his own concerns and that it would be arranged in the coming weeks.
The father says through Mr Rosic the reason Z doesn’t see his mother is because of the false allegations she made against the father of domestic violence and that Z had said this and involving the police coming to the home in November 2014. Why that should stop this boy seeing his mother I simply do not understand. I understand from the father’s point of view this is a most serious issue. However, he’s not managing to protect his son from his concerns and now the relationship has broken down.
The history of the relationship described by the mother in her affidavit and to Ms B is far more consistent with the objective subpoenaed material I have read out at length and X and Z’s words than the father’s story in his affidavit of he being the parent subjected to domestic violence and the mother being the aggressor. Any such positive finding is of course a matter for a final hearing and I will take that issue no further.
The issue really is Y’s time with the father. I accept what the mother says that X has agreed with her that he will attend daytime with his dad when Y is there but he doesn’t want to spend overnight. He’s 16 and I will not make any order other than what the mother says she can carry out namely daytime only.
The father has no capacity to have Z spend time with his mother and given he’s nearly 18 there’s little this court can do. I am satisfied the mother will be able to have X spend time with his father.
It is clear to me that there is no physical harm to the children from either of their parents or in the parents’ care. Both parents behave poorly at times. Y has spent overnight time with her father in October, November, December 2014, January, February 2015 until the father retained her and she spent this overnight time with the mother knowing this whole history, the father’s poor behaviour, his attitude and conduct and there was no complaint about it.
What has arisen since that time is that the child had a vaginal infection. The mother’s concerned something may have happened during her time in the father’s care but she’s also very careful not to judge or accuse anyone of anything. Today I do not see that as a significant factor unless it goes further, of harm to the child in the father’s care.
Going to the matters I must under the Act.
I will not rebut the presumption of equal shared parental responsibility at this stage. That responsibility must be shared. X is a child who has special needs, Y is very young and these parents have a long way to go. Although there is evidence of poor behaviour and abuse relating to what I regard as family violence under the Family Law Act this is an interim application and pending further order I will not rebut the presumption of equal shared parental responsibility. The parties have shared it and can continue to share it, albeit with some difficulty.
Having not rebutted that presumption, I must consider whether there ought to be an order for equal time. That is not an order sought. It would be inappropriate with Y’s young age and X’s wishes and his age of 16.
Significant and substantial time again that is not an order in the children’s best interests due to Y’s young age at this time.
I do not have the benefit of a report from a family consultant establishing the nature of the child’s relationship with each of her parents and where her primary attachments are and her capacity to be away from a primary carer for a lengthy period of time. X would not agree to any such order. Given his age, it is not practicable that I make such an order.
So the question is what order should I make for time. The father agitated for four nights a fortnight. The independent children’s lawyer said one overnight time each week. The mother said keep the orders as they are, that is daytime only, and X will attend with his sister on Saturdays when he attends with his father.
Looking at the factors under section 60C(2), (3) the children have benefited from a meaningful relationship with their father. Y is of young age and I find that the mother has been her primary carer. She has been a stay at home parent, the father has gone to work. I would be concerned that she did spend lengthy periods of time away from her primary carer, particularly in this unsettled time when there has been toing and froing.
Y was used to living with her mother, father, Z and X, and now she lives with X and her mother in her maternal grandparents’ home.
Going now to the issues. The children have been subjected to abuse in their parents’ home from both their parents. They have been yelled at and sworn at. Whether the father is the greater perpetrator I do not know. At this stage however, as I have said, the mother’s story is more consistent with the objective evidence than is the father’s.
Y’s wishes. Y is too young for wishes. X’s wishes are being taken into account by the court and he will only spend daytime.
The insight of the parents. At this preliminary stage I find the mother has demonstrated a greater insight than the father into the needs of her children and the impact of adult behaviours upon children. The father has demonstrated none. However, both parents have limited capacity to put the needs of the children before their own and both parents have demonstrated their inability to protect the children from their own poor behaviours.
Impact of change. Y is now only spending daytime. She is approaching age 4 in (omitted). I accept her mother may feel stressed about Y being in her father’s care overnight. However, I cannot identify any risk now that was not there in October, November, December, January, February and no report of harm of this child spending time with her father other than complaints of hygiene and the vaginal infection.
I have formed the view that the Independent Children’s Lawyer’s position of one overnight period a week is too much at this stage given the mother’s recovery from what she said was a domestic violent and coercive relationship.
However, I do not accept the mother’s position that daytime only is all that Y can cope with. It is important that children are put to bed, have breakfast with, have lunch with and lead a normal day through to night to next morning time with their parents. Overnight time is enriching. It is part of a normal day to day routine and it is important Y shares that with her father.
I have formed the view on the evidence that the order I will make is that Y will spend two overnights each month with her father, otherwise daytime on Saturday with X will attend with his sister.
I will make the other orders sought by the Independent Children’s Lawyer which do not appear to be particularly disagreed with and are protective orders.
I won’t make any orders for holiday times at this stage. The parties can work that out. I simply was not addressed on those issues.
I will make the orders sought by the Independent Children’s Lawyer about non‑denigration of the parents in the presence of the hearing of the children, otherwise the orders and directions I made about this matter and its final progress will continue.

I certify that the preceding one hundred and fifty-nine (159) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 11 June 2015

[2015] FCCA 1595

27 May 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Procedural Fairness

Remedies