KEITH & KEITH

FAMILY COURT OF AUSTRALIA

KEITH & KEITH

[2015] FamCA 154

FAMILY LAW – CHILDREN – Final Orders – primary issue to be determined being which parent the children will live with – children previously in primary care of father – where parties separated by significant distance - consideration of best interests of the child – the role of the paternal grandmother as a caregiver – orders made for equal shared parental responsibility – children live with father and spend substantial and significant time with mother.

Family Law Act 1975 (Cth) s 60CC, 61DA, 65DAA

MRR v GR (2010) 240 CLR 461

APPLICANT:

Mr Keith

RESPONDENT:

Ms Keith

FILE NUMBER:

ADC

4093

2013

DATE DELIVERED:

12 March 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

17 - 19 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mrs Tinning

SOLICITOR FOR THE APPLICANT:

Voumard Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Anderson

SOLICITOR FOR THE RESPONDENT:

Jo-Anne N Milen & Associates

Orders

That the parties have equal shared parental responsibility for the children B born … 2006 and C born … 2009.
The children live with the father.
The children live with the mother as follows:-
(a)on each alternate weekend from 5.30pm Friday until 5.30pm Sunday SAVE AND EXCEPT that if the following Monday is a public holiday or a pupil free day THEN time shall be extended to 5.30pm on that day;
(b)for half of all school holiday periods;
(c)on special occasions including Christmas, the children’s birthdays, the mother’s birthday at times to be agreed between the parties;
(d)such further and other times as may be agreed between the parties.
That the handover of the children between the parties shall take place at E Town or at such other place as the parties may agree PROVIDED that the father shall use his best endeavours to personally attend.
That the mother be restrained and an injunction is hereby granted restraining her from leaving either of the children unsupervised by her in the presence of Mr D.
That the parties and each of them are restrained from taking the children to any psychologist, counsellor, therapist or psychiatrist for any assessment, treatment or counselling unless both parties shall agree in writing to do so.
That all matters be removed from the Pending List of Cases.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Keith & Keith has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4093 of 2013

Mr Keith

Applicant

And

Ms Keith

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Amended Initiating Application filed in the Federal Circuit Court of Australia on 11 December 2014, Mr Keith (“the father”) sought parenting orders in respect of the two children of the relationship namely, B born in 2006 (“B”) and C born in 2009 (“C”).
The father seeks the following orders:-
(1)That the parties have equal shared parental responsibility for the children.
(2)That the children live with the father.
(3)That the children spend time with the mother as follows:-
(a)On each alternate weekend from 5.30pm Friday until 5.30pm Sunday;
(b)For half of all school holidays;
(c)On special occasions including Christmas, the children’s birthdays, the mother’s birthday at times to be agreed between the parties;
(d)Such further or other times as the parties may agree.
(4)That all handovers do take place at E Town.
(5)That the mother be and is hereby restrained by injunction from leaving either of the children unsupervised by her in the care of Mr D.
Ms Keith (“the mother”) relies upon her Response filed 2 December 2013, but essentially she seeks orders in similar terms to the father save that the children live with her and spend time with him. She also seeks that handover should occur at the Service Station in F Town on G Street (and not E Town as previously sought and the arrangement currently in place). In addition, whilst not an order sought in her Response, at trial the mother agrees to the order of restraint ensuring that the children are not left unsupervised in the presence of Mr D.
Whilst the focus is clearly upon who shall have the primary care of the children, the orders as sought by each of the parties are significantly influenced by the mother residing at H Town and the father (and currently the children) residing at I Town. The distance is approximately 175 kilometres and taking into account where the children are likely to go to school, other than school holiday time, special occasions and other agreed changes to the parenting arrangements, it would not be practicable or perhaps even possible for the children to spend longer than Friday after school to Sunday evening each alternate weekend during school term time with the parent with whom the children do not primarily reside.
To that extent the focus of the Court is of narrow compass. Somewhat surprisingly, but to the credit of the parties, they are able to agree on a number of parenting issues in respect of the children and accordingly they each seek general orders as to other aspects of parenting once the primary issue has been determined namely, with which parent the children will predominantly reside.

PROCEEDINGS

The trial commenced before me on 17 February 2015 following the file being transferred that day to this Court from the Federal Circuit Court of Australia. There was no opposition to the transfer from counsel on behalf of the parties and I was prepared to receive the matter on the basis that in all reasonable respects it was ready for hearing.
The trial concluded on 19 February 2015 following three days of evidence. Case Outline documents were filed on behalf of each of the parties and received by me. Final submissions were heard and judgment reserved on 19 February 2015.
The applicant father relied upon the following documents:-
(1)Amended Initiating application filed 11 December 2014
(2)Trial Affidavit of father filed 11 December 2014
(3)Trial Affidavit of father in response filed 9 February 2015
(4)Trial Affidavit of Ms J Keith (“the paternal grandmother”) filed 9 December 2014
The mother relied upon the following documents:-
(1)Response to Initiating Application filed 2 December 2013
(2)Trial Affidavit of mother filed 23 January 2015
(3)Affidavit of Ms K annexing report of Dr L filed 3 July 2014
There was no Independent Children’s Lawyer appointed in the proceedings, but pursuant to an order of Judge Mead dated 30 January 2014, the Court was assisted by a report by family consultant Ms M dated 28 April 2014. The family consultant was called and cross examined by counsel for the parties. In addition to the evidence of Dr L, the mother also relied upon evidence given by her general practitioner Dr N substantially contained within two medical reports being Annexures G and H to the mother’s trial affidavit.
At the commencement of the proceedings I made reference to the attention that I have given to the provisions of Division 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular, I carefully enunciated the provisions and principles set out in s 69ZN.
I expressed to counsel my initial position namely, that in terms of the applicability of the provisions of the Evidence Act 1995 (Cth), I did not consider that exceptional circumstances were either self-evident at the commencement of the trial or indeed likely to be presented during its currency and as such, I should not deviate from the provisions of s 69ZT. Counsel did not make any contrary submissions.
There was general agreement that I would exercise my discretion to the extent that I would consider or disregard evidence presented. Even in circumstances where evidence is received but would in the ordinary course be otherwise inadmissible, it is a matter of the weight that I give to such evidence. I also have regard to Rule 15.13 of the Family Law Rules 2004 (Cth) in terms of my general ability to exclude evidence notwithstanding the relevant provisions of the Evidence Act has been dispensed with.

BACKGROUND

The father was born in 1967. He is 37 years of age. He has recently commenced to own and operate a small business in the I Town area. He has four employees and it is his evidence that the business commenced its operation from late November 2014. In evidence the father concedes that at present there is no money being generated, but he has confidence that the business is viable. The relevance of the father’s business operation is that it provides a geographical link with the I Town area and supports the father’s continued residence with the children in the home of their maternal grandmother. It is also as a result of the hours of work engaged in by the father that requires the assistance of his mother to supervise the children at times he is not able to do so.
The question of geography is relevant to the proceedings in that the mother resides at H Town, the father in O Town.
For her part, the mother was born in 1971 and is aged 44 years. Historically the mother has had employment as a technician, but her evidence is that currently she is studying for a diploma in a different field. That the course requirements are apparently not significantly onerous and the Court should understand that she is available to provide care for the children without the need to rely on others for assistance with supervision.
Neither of the parties appear to have re-partnered, but the mother admits that she remains friends with Mr D following their separation in November 2013. The issue of the mother’s relationship with Mr D is of significant impact in terms of the orders that were made during the course of the proceedings, but also relevant to the generally agreed position that Mr D is an undesirable influence in respect of the children and that they should not be permitted to come into contact with him notwithstanding his continued friendship with the mother. Fortunately the parties agree on appropriate orders to reflect this position.
In 1989 the mother met and married her first husband Mr P. There are three children of that relationship namely Ms Q aged 24, Ms R aged 21 and Mr S aged 19.
It is an unfortunate aspect of the proceedings that the mother has a fractured relationship with Ms Q and Ms R.
Following the birth of Ms R, the mother was allegedly diagnosed with Scheuermann’s Disease causing the mother’s spine to be deformed and has the sequelae of ongoing and debilitating back pain. The physical and mental health of the mother are significant aspects of these proceedings and perhaps even pivotal in better understanding the factual background, but also the orders that each of the parties seek.
The parties met following the mother’s separation from her first husband and formed a relationship in 2000 whilst at T Town. The parties commenced their cohabitation in 2002 when the father moved into the mother’s rental accommodation at H Town. Upon learning that the mother was pregnant with B the parties married in 2006.
B was born in 2006. At that time and up until 2012 and possibly the commencement of the father’s current venture, he was employed as a driver. The mother did not work and it is agreed between the parties that the mother fulfilled the role of primary caregiver to the children in circumstances where the father was away from the home for extended periods. That is not to suggest that when he returned from his driving he did not have a good relationship with the children. It is the father’s case that notwithstanding the rigors of his employment he would do what he could to spend his time with the children whenever that was possible. It is his contention that when available he would provide the greater care of the children than the mother. He gave evidence of the parenting activities that he would engage in with the children but whilst it was conceded by the mother that when available the father would help and assist her, she rejects the contention that he provided anything approximating their primary care.
Ultimately any focus on the provision of primary care during this period is likely to be a barren exercise. Demonstrably, the father now has and during the relationship had a strong and loving relationship with the children. That does not detract from the mother’s relationship with them. It is likely that the overwhelming care of the children was undertaken by her by sheer dint of the father’s absence from the home.
C was born in 2009. By that time the mother’s health had deteriorated. The relationship between the parties was unhappy and the mother’s health was adversely impacted upon by her back pain, her feelings of depression and a complication surrounding the birth of C namely, a uterine rupture. The mother’s parenting obligations were also made more difficult by the need to focus upon various adverse health considerations affecting C in circumstances where the mother says the father was generally not available.
The difficulties for the mother appear to have reached a nadir in July 2010 with the attendance of the mother on a general practitioner to obtain a mental health treatment plan. It is not controversial that at that time the mother was clearly depressed, experiencing significant pain and had difficulty coping with the circumstances of a deteriorating marital relationship and the ongoing complexities of parenting the children taking into account their various health and behavioural challenges. The mother was referred to a psychologist to assist in the treatment of what was then considered to be a likely diagnosis of depressive illness.
For whatever reason it was considered necessary, the parties agreed to move from the family residence at U Town to O Town in order to be closer to the paternal grandmother. It is likely that the mother recognised she needed assistance to care for the children and provide her with some backup help in the home. This move became pivotal in the lives of the parties in the sense that the paternal grandmother commenced an ongoing but increasing involvement with the children.
Demonstrably the move to O Town was unsuccessful. The parties separated in January 2012 with the relocation of the mother and the children back to Adelaide, but in particular to H Town, an area in which the mother was familiar. She enrolled B in a small parish school situate at V Town, presumably selected because her nephews were enrolled students.
Notwithstanding the obvious disharmony, the parties were able to reconcile their differences sufficiently to put in place a workable arrangement for the children to spend time with the father. Whilst subject to his work obligations and notwithstanding the significant distances involved, the father saw the children each alternate weekend from Friday evening to Sunday evening with handover at an agreed public point. The mother concedes that whilst the children had settled in well to living in Adelaide, they were nonetheless happy to see and spend time with their father. It is a surprising feature of this case that notwithstanding the dispute between the parties and the resultant conflict, in relation to significant parenting issues the parties are able to reach agreement without acrimony or the need for detailed court orders.
Notwithstanding the assertions of the mother that the children were well settled in their new environment, the father formed the view that the mother was not diligent in ensuring that B attended school regularly and harboured concerns as to whether the mother was functioning at a level necessary to provide appropriate care for the children.
I do not need to form a view in respect of the father’s assertions as to the mother’s ability to provide appropriate care. The impact of the mother commencing a relationship with Mr D in or about July 2012 was ultimately the catalyst for the children remaining in the father’s care.
Whatever the motivation was for the notification, it is not controversial that the mother’s daughter Ms R advised the father in late 2012 that she had concerns about her mother’s ability to properly parent the children. The essence of the allegation was that the mother had engaged in drug and alcohol abuse with Mr D with the unfortunate consequence that she was not properly caring for the children.
The father took matters into his own hands and in November 2012 he kept the children following their weekend time with him. I accept that the father’s actions were unilateral and without warning. B was enrolled in a school in the O Town area and C in day care in I Town.
Between November 2012 and October 2013 the parties agreed that the children would spend time with the mother on each alternate weekend. Whilst that arrangement was very much the decision of the father, I find that there was acquiescence to it by the mother arising out of her recognition that during this period she would not have been able to appropriately care for the children. By her own admission she refers to increasing back pain, depression and sleep problems. She says that she was consuming cannabis at the rate of one to two cones per week and acknowledged that she had a problem with strong medication to assist with pain relief.
There is no doubt that the mother struggled to cope with the separation from the children. In evidence she acknowledged with some honesty that she was also estranged from her daughters Ms R and Ms Q and their children. As is self-evident, her relationship with Mr D was dysfunctional and his presence in the lives of the children at this time demonstrated an absence of insight by the mother.
Following an argument with Mr D on 18 September 2013, the mother overdosed on her pain killing medication and cut her forearm and wrist whilst in the bath. It is difficult to assess the fervour with which she undertook the attempt at suicide, but by her own admission she describes the event in paragraph 68:-
The treating psychiatrist stated that my suicide attempt was a high lethality suicide attempt provoked by chronic neuropathic left lower limb pain on a background of pain related mood disorder and recommended a pain management review.
Her discharge from hospital on 23 September 2013 coincided with what would have been a weekend when the children would have spent time with her. The father did not make the children available, but following his later agreement that the children would spend time with the mother to celebrate B’s seventh birthday, she retained the children with the following text message purportedly setting out her justification for her actions:-
There is no need to come and pik up [C] and [B] tday as according to them they don’t want to live with u and [Mr Keith] anymore and haven’t for a long time. It’s better for them to live with their mother and b able 2 see their family members more often. They are so happy and r starting school on Tues. I also can’t trust you to let me see them on a regular basis. I have got a lawyer and legal aid so until there is an order with the court they will not be able to have contact with you and [Mr Keith]. I’m sorry 4 that but it is how it has 2 b.
The mother then enrolled the children at W School.
The period between 18 September 2013 and 18 October 2013 is important. The mother’s case is that however unilateral her actions may seem, it was necessary in order that she be able to see the children in circumstances where the father was refusing to allow that to occur.
The evidence is quite different. Whilst the father was not prepared to allow the children to come into physical contact with the mother, they were speaking to her on a regular basis. The father asserts that the mother’s behaviour was worrying and her judgment poor. As far as he was aware the confluence of circumstances which clearly impacted upon the mother in terms of her suicide attempt, had not abated. Importantly, Mr D was still a feature in the mother’s life as was her pain, depression and what he believed to be her abuse of alcohol, cannabis and prescription medication. Under cross examination the mother agreed that her circumstances at this time were consistent with the father’s concerns. Whilst he was justified in his cautious approach to the children spending time with the mother, I am satisfied that he did all he could to ensure that the children remained in contact with her to good intent.

The father initiated the proceedings on 1 November 2013 and following an order that provided for the care of the children to be shared during the 2013/2014 school holiday period, orders were made on 30 January 2014 that the children primarily live with the father and spend time with the mother on each alternate weekend and one half of each school holiday period.
It is worth repeating that notwithstanding the orders lack any detail other than the broad intention, once the Court determined with whom the children would primarily reside the parties have been able to reach satisfactory agreement on all other parenting aspects.
The children were re-enrolled in the O Town School and thereafter there has been a significant level of agreement between the parties with the resultant advantage to the children that their domestic circumstances and education have remained stable.

RELEVANT ISSUES

The father harbours a genuine concern that the mother’s mental health is poor and that this affects her ability to properly care for the children, in particular in relation to their education.
He argues that the mother is manipulative of the children, in particular B who he says is “easily influenced”. He gives an example of the mother making promises to the children that they will return to her care and in doing so they will then be able to spend time with members of the mother’s extended family, in particular their cousins.
He is also concerned that she continues some form of relationship with Mr D which whilst not directly impacting upon the children, is an indication that the mother’s priorities are in terms of her own entertainment and lifestyle and adverse to the needs of the children.
It is however the allegation of the father that the confluence of factors affecting the mother’s wellbeing adversely impact on her ability to cater for the day to day needs of the children. It is alleged that when the children are with her, the mother is unable to get up at a reasonable hour in the morning, that the children in effect fend for themselves and from time to time, the children spend significant time with friends and family. The summary of the father’s complaint is that the children, but in particular C are being “farmed out”.
The state of the children’s hygiene when they return to his care is allegedly poor and the mother appears to have poor management skills.
It is not suggested by the father that the mother does not otherwise have a strong and loving relationship with the children, but that her personal circumstances are in disarray and she would therefore not be able to adequately look after the children other than the limited arrangements that apply to school term time. Holiday arrangements are made easier for the mother by the absence of any obligation for the children to attend school. For her part, the mother is concerned that whilst the father reports the children are progressing well at their school, the school reports indicate “that the children have developed behavioural problems”. In her trial affidavit the mother refers to the 2014 school reports, focusing on the teacher’s comments in respect of C’s Semester 1 2014 report:-
When [C] applied himself and focussed on his learning, he produces satisfactory work. However [C], usually chooses not to focus on his work or listen to instructions. He is easily distracted and often ends up working on his own on the “thinking chair”.
In relation to B there is focus on her Semester 2 2014 school report:-
Unfortunately, all too frequently, [B’s] behaviour interrupt her and others ability to learn, which requires her to be sent to play penalty during lunch. [B] is distracted from her work regularly; commonly creating stories about others and making up situations in an attempt to avoid the work that has been set for her. In conflict situations she can be quite dominant and almost all conflict situations between [B] and others can only be resolved by a teacher.
The mother opines that B’s behaviour is explained by a belief she has, namely, that if she is “naughty she will be sent back to live with her Mum”.
The mother also observes that the children have difficulty separating from her, particular at the end of the time that they spend with her and are keen to see the cousins and other members of the mother’s family.
She also believes that it is not the father, but rather the paternal grandmother, that is looking after the children.
For her part, she says that her living arrangements have stabilised and she now lives in rented accommodation with her eighteen year old nephew. It is the mother’s intention that her nephew will continue to remain in the home if the children were to reside primarily with her.
The mother is currently unemployed and subject to her relatively modest youth work and counselling course obligations, she is able to provide fulltime care for the children. The mother has appropriately completed a Kids R First Program, Child Safe Environment Training and a Relationship Counselling Course with Anglicare. Of some concern is the acknowledgement by the mother that as at the date of her affidavit she remained friends with Mr D and that he, together with his children, would attend at the mother’s home when B and C were present.
There is no aspect of the involvement of Mr D with the children which would be considered either benign or beneficial. It is the mother’s evidence which heightens the Court’s concern in respect of Mr D. The mother was frank and forthright in her evidence that Mr D was not able to control his abuse of alcohol and marijuana and whilst she alleges that there was some attempt made to quarantine the more florid aspects of his behaviour in the presence of the children, I am not convinced that the mother should be accepted on this point.

EVIDENCE OF PARTIES

The Father

The father relied upon his trial affidavit filed 11 December 2014 and a response to the mother’s trial affidavit of 9 February 2015.
I was satisfied that he was genuinely attempting to assist the Court in the determination of issues relevant to the best interests of the children. Generally the father was forthright in his evidence and I do not consider that there was any significant area where he attempted to mislead the Court.
The father was challenged on his current work arrangements arising out of the hours required to promote and manage his rabbit processing business. The father has six employees who are apparently on part-time duties. The father denied that he worked 40 to 50 hours but rather says that he restricts his involvement to a regular working week namely, 38 hours.
The thrust of the cross-examination by the mother’s counsel was to highlight the relationship between the father and his mother and the extent to which, without his mother’s involvement, he would be able to look after the children.
Whilst the father asserted that the care of the children was his primary focus, he openly admitted that there were a range of activities which were attended to by the maternal grandmother. She takes the children to school, she and the father share the night time arrangements in respect of cooking, reading to the children and putting them to bed and on occasions when the father is delayed because of his occupation, it is his mother who is available to supervise the children.
During the period before the commencement of his current business, the father had historically been a truck driver and it is the case that leading up to separation the rigours of that occupation meant that the mother was the primary caregiver and similarly until the father gave up truck driving in 2014, it was his mother who had the predominant care of the children.
As has been the subject of earlier comment, I am not critical of the father for the action taken by him in either the original retention of the children following separation, or his more recent conduct following the mother’s hospitalisation.
I also find that irrespective of the conflict that exists between the parties, the father has not undertaken a course of conduct designed to disrupt the relationship between the children and their mother and there is no evidence that he dissuades the children from their relationship with the mother. Indeed, the evidence is to the contrary.
Much was made of the financial viability of the father’s current business. This was not an area that had been the subject of any detailed investigation or exploration by the mother and it was demonstrable that little or no discovery had been sought. The father gave evidence that he was not making enough money that he could be supported by the business without recourse to Centrelink benefit but that he was hopeful for the future and was of the view that the business was viable. I did not consider that the father’s evidence on this topic was very convincing, but I am satisfied that any uncertainty in respect of his business is not of significant moment. The relationship that the father maintains with his mother and her role as a caregiver to the children when in the father’s care is however important.
That issue is highlighted by the evidence that the father almost never attends the handover of the children with the mother and that this is always undertaken by the paternal grandmother. When asked why that practice had developed, the father’s answer was unconvincing. He suggested that he could see no reason why he should be involved or the advantage that might flow from his involvement.
The mother however also agrees that she has a good relationship with the paternal grandmother and that they are able to exchange important information in respect of the children at the handover point. This again highlights the clear importance of the paternal grandmother to the overall care arrangements provided by the father.

Paternal Grandmother

Curiously, the father’s case relied upon an affidavit of the paternal grandmother filed 9 February 2015. The document consisted of two substantive paragraphs which did no more than respond to what might be regarded as relatively inconsequential complaints made by the mother in her trial affidavit.
When considered with the father’s trial affidavit, it is notable that there is little or no reference to the significant involvement and assistance rendered by the paternal grandmother.
The allegation is raised by the mother at para 124 of her affidavit where she says:-
It must be the case that the children are cared for mostly by the paternal grandmother ....
When given an opportunity to respond to this allegation in his affidavit of 9 February 2015, the father takes no opportunity to refute the mother’s assertion.
It is instructive that without the cross examination of the paternal grandmother, the full suite of her activities would not have been revealed and I would not have been in a position to have a proper assessment of the dynamics in the father’s home.
For her part, the paternal grandmother was forceful in her position that she provided significant and substantial care for the children. At one point she summarised her position as being that of a mother and grandmother to the children.
It is clear but perhaps explicable against the backdrop of the father’s need to provide a safe environment for the children, that a significant level of his parenting has been abrogated to his mother. She clearly looks after the household and supervises the children during any time that the father is not able to do so because of his work arrangements or otherwise. She attends to a range of domestic duties. She is integral to the handover of the children between the parties, has become significantly involved in the children’s education and is an interface for the father with the school, health professionals and other people who assist the children.
Following various discussions with the school and in particular the school principal and teachers attended to by the paternal grandmother, an arrangement was made for B to receive some counselling and assistance for her disturbing behaviour. The arrangements were made entirely by the paternal grandmother and the evidence is that the father had nothing to do with the counsellor. The ongoing counselling were entirely within the province and direction of the paternal grandmother. I find that the father had little or no input into a wide range of decisions that are made for and on behalf of the children by his mother.
The paternal grandmother was nonetheless an entirely credible and reliable witness, although at times her evidence was tempered by her demonstrable loyalty to her son.
I am satisfied that whilst she is fiercely protective of the children, the paternal grandmother is nonetheless appropriately respectful of the mother and in circumstances where the father has not sought to better define the parenting boundaries between he and his mother, she has acted appropriately evidenced by the proper exchange of information with the mother at handover.

The Mother

I was satisfied that the mother was attempting to assist the Court in coming to a decision that would serve the best interests of the children. She was strongly cross examined in relation to her mental health, her own conduct in terms of drug use and the damaging relationship with Mr D. To her credit the mother answered those questions with honesty and I formed the view she was doing the best she could to assist.
The tenor of the mother’s evidence is that she admitted she was clearly in a state of crisis both leading up to separation, but in particular for the period thereafter. As is already the subject of comment, she was open and frank as to the damaging effect that her relationship with Mr D may well have had on the children. Whilst she maintained throughout that she was able to properly care for the children, she was clearly misguided in that approach.
The mother was challenged as to her involvement with the children’s school arrangements and their counselling. It should be remembered that an issue raised by the mother was that the children, but in particular B, were exhibiting disturbing behavioural problems at school and that it was an indication that the children were wanting to demonstrate that they were unhappy away from her care.
The mother made a point of refusing to engage in any real communication with the father. Her default position was that the children, but in particular B, would tell her whatever she needed to know as to matters that affected them. Clearly, such an approach lacks insight and maturity.
The mother agreed that she had effectively no contact with the children’s current school and if she has ever visited the school, it maybe one or two occasions at best. Whilst I accept her assertion that the distance between her residence and that of the children creates an obvious difficulty in terms of any desire to regularly interact with the children and their school, it does not explain her almost complete absence from that process. The mother has not attended a parent/teacher evening and there is no evidence to suggest that she has ever telephoned the school principal and/or any teachers in respect of the children in order to ascertain their progress.
The mother was also aware of the B’s involvement with her counsellor. Notwithstanding that I am satisfied she was aware of the ongoing frequency of the appointments, the mother never sought to be involved nor challenge why it was necessary that B see a counsellor on a regular basis over a longer period of time.
Whilst I have formed the view that there is little or no advantage in B continuing to see the counsellor and may even be harmful for the child for it to continue, the issue is that the mother has shown little or no interest in the process preferring to accept that in the absence of any adverse comment from the child or information from the paternal grandmother about B’s involvement with the counsellor, the process must of necessity be benign. Whilst I do not consider it to be such, the lack of involvement by the mother in these important and essential interactions involving the children, is highly suggestive of either a lack of motivation and/or a lack of interest. It is also corroborative of a finding that in a general sense the mother is content that the needs of the children are being met in the father’s household. Whatever the personal relationship might be between the mother and the paternal grandmother, the mother is nonetheless respectful of her role and in particular in respect of the parenting decisions that have been made by her, in some cases without reference to the father.
The mother’s current circumstances could not be considered to have settled. She resides in premises with her nephew. Her health has not stabilised and could be said to be poor. She still suffers from depression and there are issues relating to medication compliance.
Predominantly however, she says that many of the issues that adversely impact upon her life, in particular her moods and her depression are as a result of ongoing and chronic back pain.
On the mother’s case, her back pain is likely to continue into the foreseeable future and it is fair to say that it will be an ongoing battle for the mother to strike an appropriate balance as far as work, her health, the care of the children and her critical need to manage significant stressors in her life.
Specifically, I do not consider that the mother has established any credible evidence that would suggest any demonstrable poor behaviour by the children should be seen as a sign that they would wish to reside with her. Of concern is evidence that goes to demonstrate the mother’s lack of insight in respect of the children. On one occasion, when taking the children to handover, the mother alleges that C had been upset both prior to and during the travel to handover. The mother’s reaction was to initially film the child’s distress and then she allowed B to complete the video recording. The duration under which C was filmed was about 15 minutes. The mother did not seem capable of understanding the full impact of this damaging behaviour on the children. The film was not shown and accordingly it could not be said that the mother’s actions were even warranted by genuine distress of the child. It was clearly an attempt by the mother to garner evidence that might be useful in these proceedings. In a similar vein, the mother admitted that she would often get upset and whilst she tries her best not to display her emotion in front of the children, she does admit that from time to time they experience her distress and that she has told them that she loves them, but that she is doing the best she can in the circumstances, in particular to have them return to her care.
As a result of the mother’s involvement with Mr D, she admitted that she smoked marijuana regularly (she says to assist in pain relief and stress) and also consumed excess alcohol and strong pain management prescription drugs.
To the credit of the parties, the children are unaware of the mother’s attempt to take her life.

Dr L

The mother was referred to Dr L for an independent psychiatric assessment and report on 19 June 2014.
Dr L was provided with various Court documents, orders of this Court, subpoenaed material, the family report prepared by the family consultant and affidavit material.
The history as recorded would appear to accord with the evidence of the mother both in affidavit material but also when giving her evidence. His opinion of her medical state on examination was that she was reactive and not depressed with no sign of cognitive abnormalities. He notes that she responded with anger to the many losses and disruptions in her life and he refers to the mother experiencing reunification fantasies. He confirms that “at times of stress in the past she has used substances to numb herself. She has a pasty complexion consistent with high dose opioid use”.
It is noted by the doctor but also as part of the mother’s evidence that she takes a strong narcotic based pain medication namely, oxycontin.

The doctor’s opinion is that following the breakdown of the relationship with the father at her instigation, the mother was alone and became overwhelmed by having to deal with the number of stressors in her life including chronic back pain. To some extent the mother’s perception of her injury and the perceived resultant pain in many respects dictates and determines important life decisions. The mother’s use of cannabis to try and relieve pain and stress is also consistent with her ability to receive very strong prescribed pain relief medication. The doctor’s remarks in this regard are informative:-
Her dose of oxycontin is reasonably high for a condition of her type, which suggests that her ability to tolerate pain is reduced. This is often seen in people that have been abandoned through their lives. Another way in which she has sought to alleviate her aloneness is by starting a new relationship with a man named [Mr D], but this does not appear to have been a good relationship, as he encouraged in using marijuana and alcohol.
Fortunately the mother does not appear to suffer from any history of psychosis, nor was it evident on examination.
It is the opinion of Dr L that the mother suffers from chronic back pain and depression. In evidence, the doctor was of the view that there was a significant psychological component to the mother’s current experience of chronic pain. In summary, it was not the doctor’s opinion that the extent of the skeletal trauma was sufficient to explain the extent of pain that the mother allegedly experiences. The manner in which symptoms are treated by the mother are deleterious and she relies upon her pain and injury to justify her lifestyle choices.
It is likely that she will continue to suffer from pain and experience feelings of depression. Medication will be an ongoing issue for the mother and a significant risk arises from the assertion of the family consultant that the mother is “parentifying” B. The child perceives that the mother is not able to adequately function because of her pain and accordingly takes on a parenting role.
Dr L does not consider that there is evidence of this and believes that whilst life will be difficult for the mother, she will be an adequate parent for the children.
Importantly, he does not consider that in the foreseeable future there will exist the circumstances necessary to trigger a further suicide attempt.
As he states:-
There is a slight reduction in her insight into her functioning, but not of sufficient severity that I believe it will impact on her ability to be an effective parent.

Dr N

The mother first saw Dr N in early 2013. She presents then (and now) with a range of medical conditions, the most serious of which are depression and chronic low back pain. The doctor’s notes record that the mother has been treated by both medical practitioners, but also a psychologist for counselling.
Her medical presentation is therefore complex and there are a number of co-morbidity conditions.
The evidence of the doctor corroborates matters raised by the mother, but lends support to the expert evidence of Dr L.

Family Consultant

The family consultant relies upon a report of 28 April 2014. Unfortunately neither party considered that the report should be updated. It is difficult to ascertain whether when given an opportunity to make submissions on the desirability of an addendum report, the silence by both counsel was as a result of strategy as opposed to inadvertence.
Accordingly whilst helpful, the report suffers from lack of currency.
The recommendations of the family consultant are equivocal. In short, if there is insufficient concern in respect of the mother’s psychiatric and medical assessments, then the children should return to live with her. If however, there are reasonable concerns in relation to the mother’s functioning, then the children should remain with the father. The observations and the report was prepared prior to the medico legal assessment undertaken by Dr L.
To some extent the report must of necessity be subject to a determination of the evidence. Under cross examination the family consultant was not able to advance the matter beyond the equivocation in the recommendations.
It was the position of the family consultant that the children “presented as having a much stronger emotional tie to their mother. It is likely that [B] and [C] feel an increased sense of emotional security when in the mother’s care given the children’s early attachment history”. The difficulty however is that the mother was simply unable to properly parent the children during the latter period of the relationship and then, the critical period post-separation. The children clearly lack the emotional maturity to develop any insight as to their mother’s inability to care for them.
It is however not surprising that the children are likely to have a better emotional attachment to their mother than their father. At present that is to be explained by the care arrangements in the father’s home namely, to reflect the significant involvement of the paternal grandmother.
As might be expected, the interview with the paternal grandmother provided significant insight in relation to the manner in which the children are cared for on a day to day basis and the issues affecting both the father and the mother. The paternal grandmother opined that the mother used “emotional blackmail” when communicating with the children arising out of her back pain and her need for the children to live with her so that they could assist in the mother’s pain management. There is some currency to that view from the evidence of Dr L.
It was a concern to the family consultant that the mother appeared to expose the children to the parental conflict which was reflected by B’s “rote style response of wishing to live with the mother because it is important to spend time with family and friends”.
Importantly, the children consider that the person who provides the best care is the paternal grandmother.
Helpfully, the family consultant records that the children were comfortable and securely attached to their mother, father and the paternal grandmother. If anything, the children are regularly told that they are loved and both mother and the paternal grandmother present at handover without any hostility.
The paternal grandmother does accept that at handover the children are pleased to see their mother and at times have difficulty separating from her, but that state of affairs settles reasonably quickly thereafter.
There are no issues raised in respect of the children’s relationship with their father, save for her view that there is a greater level of emotional attachment between the children and their mother.
Unfortunately, the family consultant did not have the advantage of hearing the evidence of the parties, but in particular the mother and Dr L.

THE LAW

Issues and Considerations

Each party seeks an order that they have equal shared parental responsibility in respect of the children.
In order to determine appropriate orders to make noting that each of the parties seek orders that are the same but opposite to the other, I propose to adopt the following approach namely:-
(1)Give consideration to the proposals put forward by each of the parties as they are identified and presented to the Court.
(2)Have regard to the objects expressed in s 60B (1) and the underlying principles in s 60B (2) having regard to the provisions of s 60CC in order to determine what is in the children’s best interests.
(3)Have regard to the primary considerations under s 60CC (2) and (2A) namely the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child or children from physical or psychological harm.
(4)Have regard to the additional considerations under s 60CC (3) and if more weight is to be given to one or more of the matters then this must be the subject of delineation and comment.
(5)Section 61DA requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having appropriate regard to the matters as set out in s 61DA (2) which would rebut the presumption if a person or persons living with the child has engaged in:-
(a)abuse of the child or another child, (who at the time was a member of the parents’ family), (or the other person’s family); or
(b)family violence.
(6)Section 61DA (4) provides that the presumption may be rebutted by evidence that satisfies the Court it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
Section 60CC is to be utilised in order to determine the question about best interests and the issues of whether an order for substantial and significant time would be reasonably practicable is to be determined by reference to the provisions of section 65DAA (5) there will of necessity be some overlap in terms of assessing whether a proposed order is reasonably practicable and in that regard the decision of MRR v GR (2010) 240 CLR 461 at 467 is of assistance:
Section 65DAA (1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
In the current circumstances the parties concede that there should be equal shared parental responsibility but within the parameters of that consensus, each party recognises that equal time would be impractical in the current circumstances. Each of the parties intend to reside where they are currently situate and they acknowledge by the orders that they seek that the only arrangement that is workable is for the children to reside primarily in one household and spend time with the other parent on an alternate weekend and half school holiday basis.
It is that focus that must be considered pursuant to s 60CC of the Act.
Accordingly, neither of the parties seek orders that are not reasonably practicable. Each concede that if the care of the children remains with the other, the alternative orders would enable a meaningful relationship to be maintained.

Considerations pursuant to Section 60CC (2) (a)

Both parties concede the importance of the children maintaining a meaningful relationship with each of them. It is not suggested that the separate proposals of the parties would have the effect of putting at risk the beneficial relationship that currently exists. Obviously, orders made as sought by the father will see the children continuing to reside in his household and live with the mother each alternate weekend, half school holidays and at other times as the parties may agree. Whilst not in accord with the orders sought by her, the mother nonetheless maintains a loving relationship with the children. Similarly, orders in favour of the mother would see a diminution in time that the children spend with the father but are likely to impact adversely on their relationship with him.

Section 60CC (2) (b)

Whilst there is clearly a history of inter-parental conflict, where required the parties are able to properly focus their attention on the needs of the children. The mother alleges some aggressive behaviour on the part of the father, but it is an issue largely historical and not strongly pressed. For his part, the father is concerned as to the mother’s ability to parent the children should her personal and health circumstances deteriorate. In particular, the mother’s relationship with Mr D remains problematic, but largely now resolved by the concession of the mother that she will not bring the children into contact with him.
I do not consider that I need to have regard to any allegations that would be consistent with family violence or physical and emotional abuse.

Section 60CC (3) (a)

The parties dispute the extent to which I should give weight to the wishes of the children, but in particular B. According to the family consultant, both children, but in particular B, have expressed a strong desire to live with the mother. This is disputed by the father and whilst he acknowledges that at handover there is some emotion displayed by the children, this largely settles once the children are in his care.
There is no evidence of the current views and perceptions of the children. That is a legacy of the family report being nearly a year old.
The family consultant was however impressed with the demeanour of the children and I think it reasonable to give some weight to the wishes of B as expressed in 2014.
That must be tempered with the telling admission of the children that in terms of the person most likely to be able to provide reliably for their day to day needs, the children focus upon the paternal grandmother.
The question then is to be answered by a consideration of the weight to be given to the views of the children.
Ultimately, the views expressed by the children but in particular B are an important factor which must be tempered against my finding that whilst there may be a stronger emotional attachment between the children and their mother, that does not bring to account the potential for the mother’s current circumstance to be unstable and her obvious difficulty in managing her health considerations as they may clearly impact upon her capacity to properly parent the children.

Section 60CC (3) (b) (c) and (ca)

The parties are generally respectful of the relationship that the children have with each of them. It would be a bridge too far to say that each of the parties actively promote the others’ relationship with the children, but there is certainly little or no evidence of any attempt to actively disrupt children’s relationship with the other party.
A significant period of time has now elapsed during which the children have remained in the primary care of the father. To a large degree the mother has acquiesced rather than abrogated her entitlement to participate in significant decisions affecting the children.
The mother accepts that she has little or no involvement with the children’s education. She has allowed those decisions to be made by the father, but more likely the paternal grandmother. It is not the case that the father has taken active steps to make the mother’s involvement difficult, but rather she has accepted that appropriate decisions are being made.
The mother was aware that B had been attending upon a psychologist following a recommendation from the school that she needed behavioural counselling. The father left those arrangements to the paternal grandmother, with the result that the child has been attending upon a psychologist on a regular and frequent basis for a period in excess of 12 months. The mother has not involved herself in that process, nor has she sought any update or even an understanding as to the type of counselling being administered, what would constitute proper counselling goals and whether there is a need for the counselling and intervention to be ongoing.
For his part, the father has allowed his mother to effect the handover and all necessary or important communication with the mother.
I am not satisfied that the father’s decision in this regard is based upon a desire to ensure that the handover of the children occur in a civil and conflict free environment. It is as the father says, he can see no good reason why he should be involved in the process if his mother is keen to do it. For her part, the mother does not object to the father’s lack of engagement in the process and it may be that she prefers the relationship she has with the paternal grandmother to the prospect or possibility of conflict if handover is effected between the parties.
Whilst more is known about the father’s circumstances, I am satisfied that the children are comfortable in the home of each of the parties. I have not heard evidence as to the relationship the children have with the mother’s nephew who resides in her home, but I assume that the regularity of time spent would have indicated a problem if the presence from time to time of the nephew was problematic for the children.
Each of the parties are keen to assist the children with their homework. In the father’s home, both he and the paternal grandmother read to the children. I am satisfied that the paternal grandmother is more attuned to the academic development of the children than either of the parties. Instinctively by the children’s recognition that she provides the more comprehensive parenting, the children are well supported.
Whilst the children are not at risk of physical harm in the care of the mother, her potential susceptibility to the sequelae of her depressive illness and chronic pain disorder must adversely affect her capacity to properly parent the children.

Section 60CC (3) (d) and (e)

Clearly, if the children are to reside primarily in the care of the mother, there will be a dramatic change in their circumstances. Not only will they not have the benefit and advantage of the familiarity of their environment, but by necessity there will need to be a change in school. I am satisfied that whilst there are behavioural issues that impact upon the children’s attendance at school, they are nonetheless under close attention and scrutiny by the school staff, whereas that knowledge and experience would need to be re-established in a new school.
For her part, the mother proposes W School on the basis that the children have had some exposure to that school, teachers and peer group. I do not consider that the mother is alive to the significant and real potential for disruption to the children by a change in school. I do not consider that it is likely to be seamless. I am also not satisfied that the mother has her health sufficiently well managed that there would not be any immediate impact on the children or indeed that it would not be reasonable foreseeable that a deterioration of her wellbeing would not significantly affect the children.

Section 60CC (3) (f)

Whilst I consider that each of the parties has a capacity to provide for the needs of the children, it is the involvement of the paternal grandmother that attracts attention. She is fiercely allied to the children and whilst it is open to argue that she has been allowed to adopt a parenting role that should be undertaken by the father, the benefit to the children is that their needs are well met and each of the parties can have confidence that the paternal grandmother’s first priority is to the children. I consider her involvement central to their wellbeing and am strongly of the view that it is her involvement with the children that is the overarching point of difference between the proposals of each of the parties.
I accept the assessment of the family consultant that the children have a stronger emotional attachment with the mother than the father. He is not as present as the mother would be, by his own admission significant aspects of the children’s parenting are left to his mother even encompassing discussions with the school and the involvement of therapeutic intervention for the children. Again, the acquiescence of the mother can only be taken as tacit acceptance that the paternal grandmother has made decisions which are not adverse to the children’s best interests.

Section 60CC (3)(g) (h) (j) and (k)

The application of these sections are irrelevant to the matters I have to decide.

Section 60CC (3) (l) and (m)

It is difficult to assess what may happen in the future. Whilst the children may indicate a preference to be in the primary care of the mother, nonetheless they are settled and comfortable in the father’s home. There remains uncertainty over the mother’s health, her insight as demonstrated by her involvement with Mr D and the evidence of Dr L that the mother suffers from chronic pain disorder which may well manifest itself in a range of symptoms and sequelae that could impact on the mother’s parenting capacity.

Equally, the ability of the father to care for the children without the assistance of the paternal grandmother is problematic and uncertain.
Ultimately, and considering the behaviour of the children at school and concern that there are some developmental issues displayed by the children, orders should be made that provide stable and appropriate care for the children and that are least likely to lead for further proceedings.

PARENTAL RESPONSIBILITY

The parties agree that it is in the best interests of the children that they have equal shared parental responsibility. That agreement is comprehensive and there is no suggestion by either party that consideration should be given as to whether education, health or any other major issue should be left to one or other of the parties to decide. Whilst the communication between the parties could be better, overall the level of communication is sufficient to enable input and involvement by each of the parties in the major decision making process.
It is a matter for the parents to demonstrate and develop a level of involvement with the children which would enable the paternal grandmother to relinquish the current level of parenting that she now by of necessity undertakes.

CONCLUSION

I do not propose to make orders in terms of the first recommendations of the family consultant. I consider that her recommendations are entirely dependent upon my assessment of the evidence and in this case I consider that the stability of the children should be given substantial weight. That is better catered for with the children remaining in the primary care of the father, noting that the continued involvement of the paternal grandmother is integral to that determination. Without her involvement, a different decision may well recommend itself.
There is however no evidence to suggest that the current arrangements for the children will change in the foreseeable future and I consider that it is in the children’s best interests that they live primarily with the father, but spend significant and substantial time with the mother.
As discussed, the parties effectively agree on the orders that should be made once a decision as to primary care has been determined.
A separate issue arises in respect of the point of handover. In his response to the mother’s trial affidavit, the father provides evidence that the distance from I Town to H Town is 174 kilometres. The mother seeks a handover at F Town which is 128 kilometres from I Town, whereas the current handover at E Town is 110 kilometres.
The mother did not present any evidence and it seems to me that there is no good reason to change the current point of handover.
Accordingly, I make orders as appear at the commencement of these reasons.

I certify that the preceding one hundred and fifty six (156) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 12 March 2015.

Associate:

Date: 12 March 2015

[2015] FamCA 154

12 March 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Natural Justice

Procedural Fairness

Remedies