Keith & Zemlinsky
[2023] FedCFamC2F 1413
•3 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Keith & Zemlinsky [2023] FedCFamC2F 1413
File number(s): MLC 7324 of 2022 Judgment of: JUDGE A. HUMPHREYS Date of judgment: 3 November 2023 Catchwords: FAMILY LAW – PARENTING – whether orders should be made in respect of a child soon to turn 17 – orders made placing significant weight on child’s views – child to spend equal time with both parents Legislation: Evidence Act 1995 (Cth) s. 140
Family Law Act 1975 (Cth) ss. 4AB, 60B, 60CA, 60CC, 60CG, 65D, 65DAA, 65DAC, 69ZT
United Nations Convention on the Rights of the Child art. 12
Cases cited: Keith & Zemlinsky [2013] FamCA 742
Keith & Zemlinsky (No 2) [2013] FamCA 770
Division: Division 2 Family Law Number of paragraphs: 207 Date of hearing: 26 September 2023 Place: Melbourne Counsel for the Applicant: Mr Trim Solicitor for the Applicant: City L Family Lawyers Representative for the Respondent: Self-represented ORDERS
MLC 7324 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KEITH
Applicant
AND: MR ZEMLINSKY
Respondent
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
3 NOVEMBER 2023
UPON THE COURT NOTING:
A.Order 4 of the final orders made by the Family Court of Australia on 28 August 2013 (“the 2013 orders”) was discharged by order 1 of the orders made by this court by consent on 15 November 2022:
THE COURT ORDERS THAT:
1.The child B born in 2006 live with the parties during school term periods as follows:
(a)With each of the mother and the father in alternate weeks (on a “week about” basis) with changeover to take place at the conclusion of school each Friday (or 3.30 pm if B does not attend school on Friday), commencing on the first Friday after the making of these orders; and
(b)At such further or other times as agreed between the parties in writing.
2.For the purposes of order 1, unless otherwise agreed in writing:
(a)If B spends the first half of the school holidays with the father pursuant to the 2013 orders, he spend the first week of the following school term with the father from the conclusion of school on the first day of term until the first Friday of term; and
(b)If B spends the second half of the school holidays with the father pursuant to the 2013 orders, he spend the first week of the following school term with the mother, from the last day of the school holidays until the first Friday of term.
3.Notwithstanding the mother has sole parental responsibility for decisions in relation to B’s education pursuant to order 2 of the 2013 orders, each of the mother and the father do all things required to facilitate B continuing to attend at K School unless otherwise agreed in writing.
4.Save as varied by these orders, the 2013 orders remain in full force and effect.
5.The parties provide a copy of the child impact report dated 3 November 2023 (“the child impact report”) to any psychologist or counsellor attended by B.
6.Each of the parties be permitted to provide a copy of the child impact to any psychologist or counsellor they attend upon for personal or parenting support.
7.All extant applications be dismissed.
Obligations, consequences of contravention and assistance with orders
8.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE A. HUMPHREYS:
INTRODUCTION
This proceeding concerns the child B. B is 16 and will be 17 in 2023.
The applicant, Ms Keith, is B’s mother. The respondent, Mr Zemlinsky, is B’s father. I will refer to the parties as the mother and the father without intending any disrespect to them.
In 2013 (when B was 6), final parenting orders were made following a contested final hearing of four days in the Family Court of Australia (“the 2013 orders”). Those orders provided for the mother to have sole parental responsibility for B’s health and education. They provided for B to live with the mother and to spend time with the father, including each alternate weekend (two nights per fortnight), time after school mid-week and time during school holidays and for special occasions.
The case was identified by the presiding judge in 2013, Justice Cronin, as one of poor communication, no trust and dysfunctional parenting.[1] That remains an accurate characterisation.
[1] Keith & Zemlinsky [2013] FamCA 742 (“Keith & Zemlinsky”) at [8].
More recently, in the context of significant ongoing acrimony and conflict between the parties, B has expressed a wish to spend equal time with each of his parents.
A child impact report undertaken by a court child expert / family consultant in these proceedings in November 2022 reported that B expressed he wanted to spend time with both parents, ideally on a “week about” basis. The report warned of a risk to B’s relationship with his mother if a shared care arrangement is adopted but that this is also of a risk if the current arrangements are maintained contrary to B’s wishes.
Since November 2022, B has spent time with the father each alternate week from Wednesday to Monday (five nights per fortnight) pursuant to interim orders made by consent.
The mother seeks this arrangement continue and otherwise that the 2013 orders remain in place. She relies on the child impact report and advocates for stability in B’s care arrangements. In relation to any proposed change to the current arrangements, her counsel submitted, “why risk it?”
The father seeks the 2013 orders be discharged and there be no orders made in relation to B or his care arrangements given his age. He advocates that B should be free to spend time with each of his parents in accordance with his wishes. In the alternative, if the court does make orders in relation to B, he seeks an order for equal shared parental responsibility and for B to spend equal time with both parents on the basis it is consistent with B’s wishes.
THE ISSUES
Accordingly, the following issues require determination:
(a)Whether B’s care arrangements should be the subject of orders or if he should be permitted to live with and spend time with each of his parents in accordance with his wishes. This issue requires consideration of the weight to be given to B’s expressed views in the context of other relevant considerations; and
(b)If orders are to be made:
(i)The allocation of parental responsibility for B; and
(ii)What time B should spend with each of his parents. In particular, is an equal shared care arrangement in B’s best interests or is the current arrangement to be preferred?
BACKGROUND
The parties met in approximately 1985, commenced a relationship in 2006 and separated in 2009, when B was two years old.
B has lived with the mother and spent substantial and significant time with the father throughout his childhood.
In 2009, the mother commenced parenting proceedings in the Magistrates Court at City L, initially seeking a recovery order. Final parenting orders were made by consent in the Magistrates Court in 2010.
In 2011, the mother commenced parenting proceedings in the Federal Circuit Court of Australia. Those proceedings were transferred to the Family Court of Australia. An independent children’s lawyer was appointed for B. Following a final hearing of four days, the 2013 orders were made by Cronin J.
The history of the parties’ relationship and B’s circumstances and care arrangements prior to 2013 are detailed in Cronin J’s reasons for judgment dated 28 August 2013.[2]
[2] Keith & Zimlinsky at [1]–[28].
The father’s application for equal shared parental responsibility and equal shared care was unsuccessful in 2013.
A significant issue in the 2013 proceedings was the father’s preparedness to acknowledge B’s diagnosis of attention-deficit/hyperactivity disorder (ADHD) and to support B by administering the medication prescribed for him.
The 2013 orders included the orders for parental responsibility and B’s care arrangements summarised above. Other orders were made in relation to B’s name, permitting the mother to obtain a passport for B, facilitating the father’s engagement with B’s schooling and health care and required the mother to keep the father informed of matters associated with B’s health and education that relate to long-term issues.
The mother deposed that since the 2013 orders were made there have been ongoing difficulties with the father’s conduct, including in breach of the orders. She gave evidence changeover regularly occurred late, she estimated approximately 90% of the time. This evidence was not challenged. The father responded, “[t]his is irrelevant to the case”.
The mother contends the father has continually undermined her and has pressured B to spend more time with him. This is supported by text messages between the father and B in recent times. The father denied he undermines the mother but admitted he has encouraged B to defy the mother and the court orders to spend more time with him. He contends he has done so to support B’s own wishes.
The father alleges the mother has also contravened the parenting orders, including by not informing him of health or medical appointments for B. He made this allegation in broad terms and did not provided particulars. He put to the mother that she has not been keeping him informed in respect of medical and schooling issues. He referred to not being informed of B’s most recent paediatrician appointment on 15 August 2023. The mother responded that the 2013 orders only require her to keep the father advised in relation to long-term health and education issues for B but she nevertheless still regularly informs him of other appointments. In relation to B’s schooling she confirmed B remains at the same high school and the father is able to access the parent information portal to obtain that information himself. The mother’s evidence of her obligations to provide information to the father accords with the 2013 orders.
The parties each made other allegations in respect of the other’s conduct, many of which were historic and not particularised. Some I will return to where relevant to the issues requiring determination. Collectively, the parties’ complaints about the conduct of one another highlighted the ongoing communication difficulties, distrust and conflict between them.
In 2020 and 2021, during the Covid-19 pandemic and lockdowns, B began spending more time with the father, who was then working from home. This was by agreement of the parties.
In June 2022, there was an incident which led to the current proceedings. The mother gave evidence B had contracted an illness so she kept him at home to care for him and he missed spending a weekend with the father. The father then refused to return B to her care on 10 June 2022 as required by the 2013 orders, maintaining he was owed “make-up time.” She attempted to collect B unsuccessfully.
On 14 June 2022, the father applied for a family violence intervention order, naming the mother as the respondent. An interim order was made on an ex parte basis which suspended the operation of the 2013 orders. On 17 June 2022, the mother cross-applied for an intervention order naming the father as the respondent. On 24 June 2022, the interim intervention order was amended by consent to reinstate operation of the 2013 orders. The mother contends the father nevertheless continued to overhold B.
The father did not give evidence about this incident in his trial affidavit, including to explain why he retained B in his care. He told the family consultant he did so due to concerns for [the mother] when expressing B needed to be returned to her care. He described the mother’s behaviour to the family consultant as abusive and that his decision not to return B at that point in time was protective and child-focussed. However, he did not give evidence about the alleged abusive behaviour or safety concerns in his trial affidavit. When cross-examined, the father admitted overholding B and that B didn’t see the mother for approximately six weeks. He admitted sending a text message to the mother that included, “[B] is living with me, and does not want to go back to you.”
On 5 July 2022, the mother commenced these proceedings. In her Initiating Application, she sought interim orders providing for an urgent hearing, for B to be returned to her care (or for a recovery order to be issued) and for B’s time with the father to be suspended for 14 days. She sought a final order confirming the 2013 orders remain in full force and effect.
The father’s Response to Initiating Application was filed on 20 July 2022. The interim orders sought by the father included for B to live with him and spend equal time with the mother in accordance with his wishes, for the mother to attend an anger management course and undertake a psychiatric assessment and for a family report to be prepared. He sought not to particularise the final orders he sought “until the interim orders have been complied with.”
On 26 July 2022, interim orders were made by a Senior Judicial Registrar providing for B to return to the mother’s care after school that day and for the 2013 orders to remain in full force and effect. An order was made for the preparation of a child impact report.
On 5 August 2022, the father’s intervention order application was struck out. The mother said this was because he did not file further and better particulars as required and failed to attend a hearing. The father put to the mother in cross-examination that he was not informed of the hearing. She disputed that, saying he was at court with his barrister at the previous hearing, including when the parties were directed to file further and better particulars. The mother gave evidence she then withdrew her own application for an intervention order, to focus on these proceedings.
A child impact report was prepared by a court child expert / family consultant, Ms D (“the family consultant”), dated 3 November 2022. Significantly, the family consultant reported:
(a)B reported feeling worried, fatigued and frustrated by court involvement with his family. He stated he would be relieved when a decision was finally made regarding his care arrangements;
(b)It is clear B has been exposed to enduring acrimony and conflict throughout his childhood and it seems this has occurred both inadvertently and at times directly in conversations his parents have had with him;
(c)He experiences stress and worry caused by his care arrangements and his parents;
(d)He speaks to how his behaviour changes when with one parent to the other, dependent on the home environment and each parents’ individual expectations of him;
(e)He described his mother as argumentative and at times angering easily. Due to his preference of avoiding this, he has been spending increased time alone when at her home. He is open to this changing and spending increased meaningful time with her;
(f)He reported he enjoys spending time with his father, feels understood by him and they have a close and trusting relationship. They have common interests; and
(g)B spoke fondly of both parents and wants to spend time with both of them, ideally on a week about arrangement. He explained this would result in less transitions back and forth between homes for him and also hopefully assist to mitigate the conflict between his parents.
The family consultant warned that should the current trajectory of parental conflict continue, B could manage this by over aligning with one parent and rejecting the other, providing him the means of being free from exposure to conflict and increased peace and stability. If this occurs, she opined B’s relationship with the other parent will become strained and possibly challenging to re-establish in the future. She was of the view such an outcome would impact on his overall social development and sense of identity.
The child impact report identified the following key considerations for decision making in relation to B’s care arrangements:[3]
If there is no change to [B’s] care arrangements he will maintain a sense of primary residency in one household and this could provide an opportunity for [the mother] and [B] to re-establish spending more meaningful time together. However, [B] has clearly reported feeling frustrated and unsettled within this arrangement. Should no changes be made [B] will likely feel unheard and as though his wishes are not being respected. This would increase the risk of [B] ‘voting with his feet’ and becoming increasingly defiant.
If [B’s] care arrangements change to a week about arrangement [B’s] sense of primary residency and associated stability would be lost. It could also work to undermine [B’s] relationship with [the mother] and strain this relationship further. This arrangement also runs the risk of a week about arrangement commencing but possibly deteriorating to [B] spending less and less time with his mother. Conversely, the benefit of this arrangement would be that it aligns with what [B] currently wants, and with [B] feeling heard and understood he is more likely to be open to following the order and could possibly provide him with a sense of peace as well as having increased access to [the father] who [B] identified as a trusting and understanding person.
Nevertheless, there are clear challenges and vulnerabilities with both of these possible outcomes. Both of these pathways do potentially lead to the same outcome of an emerging resist-refuse dynamic in which [B] may cease spending time with [the mother] in favour of living with [the father] aligned with his current care preference.
[3] At paragraphs [33] to [35].
The mother deposed that on 6 November 2022, B informed her that he had been shown and read the child impact report while with the father that weekend. The father admitted he had shown parts of the chid impact report to B.
On 15 November 2022, orders were made by consent discharging order 4 of the final orders (providing for B’s time with the father during school terms) and providing for B to live with the father during school term periods, each alternate week from the conclusion of school on Wednesday to the commencement of school (or 9.00 am) on Monday (five nights per fortnight) and at further or other times agreed between the parties in writing. A notation to those orders recorded that on the adjourned date the father intended to seek orders “for equal shard parental responsibility, week-about, and extra-curricular activities.”
A judicial settlement conference took place on 20 April 2023. The matter did not resolve.
The mother deposed to text messages between the father and B following the November hearing and the judicial settlement conference, in which the father reported to B about the court proceedings and attributed blame to the mother for matters not resolving. The father did not dispute those messages and maintained the mother could have brought an end to these proceedings by agreeing to support B’s wishes.
On 5 July 2023, the father communicated with B by text message including that he wanted B to come and live with him. Photographs of those messages were annexed to the mother’s affidavit. They read as follows:
Father: I liked to know what mum said
[B]: I can text you what she said
She didn’t say much
FatherOk
All she said is that “your dad wants this to go on for longer in court so we’re going to trial”
Something like that
Father: Wow, what lies
[B]:Yep
Father:She has caused all of this. She could have just agreed to what you want. but she won’t.
[B]: Yeah
Father:I want you to live with me. This has to stop.
You can then see your mum when you want
[B]:I want to too but I can’t go to Queensland to live I’ve got stuff down here
Father:No we won’t be doing that. Not until you finish school and only if you want to
[B]:Wait so you’re not gonna be going?
Father: I’m not leaving you
[B]:Thank you
Father:You have to understand how much stress this has put me through
[B]:Yes I know
And I’m sorry for not helping you at times
Father:Trying to protect you, to give you a better life
[B]:I know
Father:Have you thought about what to do?
[B]:With what thing?
Father:Where to live?
Will you come here to live?
[B]:I will live with you when I finish school and everything
Father:Why?
Why not now?
[B]:Because I just wanted half half I’ll still keep talking to my mum about it
Father:[thumbs down reaction to above message]
Omg, nothing will change. You don’t even have half and half. Not to mention all the other issues.
You are going to regret this for the rest of your life.
I’m going. You need to grow up one of these days and confront your mum for who she really is. Cya
I love you [heart icon]
[B]:I love you too
Father:Oh, please delete all messages from me. I don’t trust mum
[B]:Yep
A compliance and readiness hearing was conducted on 7 September 2023 before Alstergren CJ who listed the matter promptly for final hearing before me on 26 September 2023.
Given B’s age and his wish expressed to the family consultant for these proceedings to be brought to an end, I have endeavoured to make my determination as quickly as possible.
The parties’ current circumstances
The mother is 50 years old.
She owns her home in Suburb N, a suburb of City L. This has always been B’s home with her.
The mother is self-employed undertaking work mostly from home as an allied health worker. She also undertakes some part-time employment in a retail store. Her work is flexible and enables her to work mostly from home. She has not re-partnered and does not live with any person other than B.
She deposes she does not have diagnosed mental health issues but suffers from symptoms including stress. She has attended domestic violence counselling with various agencies and is currently engaged with a counsellor.
The father is 53 years old. He deposes he is in good health, save for a medical condition. He informed the family consultant he was then seeking some additional counselling.
He lives in rented accommodation in Suburb N.
The father is a professional and works full time as a contractor. His contract was due to end the week of the hearing. He was unsure it would be extended. He said he could quite possibly be out of a job but had other options. He gave evidence he was not concerned about his ability to provide financially for B while in his care, notwithstanding his contract was soon to end and the financial difficulties he deposed to. With his current contract position, he undertakes some work from home and some in the office. When working in the office, he catches a train at 6.30am and returns home at say 5.30 pm. B is usually still sleep when the father leaves in the morning to catch the train.
B’s current circumstances
B is in year 10 at K School in City L, the school he has been attending since year 7.
When in the mother’s care she usually drives him to school and he catches the bus home. The father did not give evidence about how B gets to and from school when his care but the mother did not raise this as an issue of concern.
It was common ground B is doing well at school. In 2021, he received an academic award and he has received some further recognition awards this year, for good sportsmanship and community involvement / volunteering. He benefits from additional tutoring which he has been undertaking for at least five years. The mother did not challenge the father’s evidence that he has been helping B with his schooling since primary school.
The mother deposes that B has already chosen his subjects for year 11 and 12 and has indicated he might like to continue study after high school. The father gave evidence about career options B is considering for his future.
The mother deposes B has many friends at his school, who he sees often outside of school, including for sleepovers.
The father described B as being “intelligent, caring, confident and well-mannered” who is “loved by many”. The mother agreed B is caring and well-mannered. In relation to his intelligence, the mother said B’s cognitive assessments put him in the “middle of the range, a C grade student, not great but not terrible”.
The mother deposed that B has been diagnosed with ADHD, and other mental health conditions. The father did not dispute these diagnoses. Medical evidence was not adduced to explain how these conditions impact B.
B is prescribed medication for his ADHD (a stimulant) which he takes on school mornings and a medication to assist with his insomnia which is taken in the evenings. The issue of B taking his prescribed medication while in the father’s care remains a concern for the mother, as it was in the previous court proceedings.
The mother gave evidence B is assisted by private occupational therapy, attending a handwriting clinic and support from social workers, psychologists and counsellors. He has received literacy and numeracy support from school and counselling at school. The mother organises and attends his medical and specialist appointments, dental appointments and optometrist appointments. B most recently attended his paediatrician in August 2023. This evidence was not challenged by the father, although he contends he is excluded from these appointments.
The mother gave evidence B has experienced depression. The father acknowledged this in cross-examination but said that he does not believe B is depressed all the time and said he is happy most of the time.
Notwithstanding his diagnosed conditions, the combined picture of B from the evidence given by each of his parents which was not in dispute, painted a picture of him being a young man with many positive attributes, doing well at school and socially and beginning to make plans for his future.
As the family consultant observed, this should be an exciting time of B’s life and a period in which he should be focussed on his friendships, school and his interests. However, it was her opinion that placing a significant amount of his energy on his parents’ relationship and navigating his way between them could be hindering his ability to fully engage in other aspects of his life and could be in turn disrupting his learning as well as his friendships and overall social and emotional needs being prioritised.
THE HEARING
The hearing was conducted over one day at the Melbourne registry of the court on 26 September 2023. The mother was represented by counsel. The father was self-represented. He was provided an opportunity meet with a duty lawyer following a brief callover. Both parties were cross-examined.
DOCUMENTS RELIED UPON
The mother relied on her Amended Initiating Application filed on 31 August 2023, her consolidated trial affidavit filed 21 September 2023, the child impact report and two prior judgments of Cronin J from 2013,[4] along with her case outline and a minute of orders reflecting her Amended Initiating Application.
[4] Keith & Zemlinsky; Keith & Zemlinsky (No 2) [2013] FamCA 770.
The father relied on his Response to Initiating Application filed on 20 July 2022, a minute of final orders sought by him providing his updated position and his affidavit filed on 25 September 2023. He did not file a case outline.
EVIDENCE
Section 140 of the Evidence Act 1995 (Cth) provides as follows:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.
In assessing the evidence, I have applied the balance of probabilities as the standard of proof.
I have read all documents upon which the parties have relied. I have also had the benefit of observing the appearance and demeanour of the parties when giving their evidence.
It has not been possible to include every aspect of each of the parties’ evidence in these reasons. However, I have taken all the evidence into account.
The father
The father’s affidavit included many broad allegations and submissions. Much of his evidence was unparticularised, without reference to dates or providing the details of key events or circumstances. For example, he did not adduce any evidence about the events of June 2022 and his alleged concerns for B’s safety at that time leading him to retain B in his care and to seek an intervention order against the mother.
Many of his responses to the mother’s trial affidavit referred to her evidence as being either “noted” or “irrelevant to the case.” When asked about this in cross-examination, he provided various explanations including that he did not have whole team to prepare his affidavit and that circumstances have changed. He emphasised the relevant issue from his perspective is respecting and implementing B’s wishes.
He also repeatedly responded to evidence in the mother’s affidavit with the words, “previously responded to in sworn affidavit(s)” notwithstanding the order made by Alstergren CJ on 7 September 2023 providing the parties would be permitted to rely only on one consolidated trial affidavit and not on previously filed affidavits.
The father’s disdain for the mother and her position was apparent from his affidavit, his questioning of her and his submissions. He continuously shook his head and rolled his eyes at the mother’s responses to his questions but did not challenge her answers.
The mother
The mother’s affidavit focussed on the history of the proceedings, the father’s conduct and the recommendations made in the child impact report. She provided little evidence about her own relationship with B, including to respond to issues B had identified in their relationship when speaking with the family consultant. She did not give evidence of any steps she has taken since the child impact report was released to address the issues identified by the family consultant.
I had the impression it was difficult for the mother being cross-examined directly by the father. She avoided eye contact with him, facing away from him and towards the bench. She sighed regularly when giving her evidence conveying a sense of exhaustion.
The mother nevertheless answered the father’s questions patiently and responsively, although at times defensively. For example, when asked about leaving B at home alone, she initially appeared reluctant to answer notwithstanding his age. That the mother was hesitant to answer questions like this was unsurprising given the father’s criticism of many aspects of her parenting.
Child impact report
The limitations of the child impact report were acknowledged by the family consultant as a preface to the report as follows:
The Child Impact Report provides preliminary expert advice about the needs and experiences of children, to support decision making through Dispute Resolution processes and/or Interim Hearings. Any views expressed, or professional recommendations made, by the Court Child Expert in a Child Impact Report need to be considered within the limited nature and focus of this type of assessment.
A family report was not prepared.
The child impact report is the only independent evidence I have in relation to B’s views and experiences and the only expert evidence I have in relation to his needs and the potential impact on B of outcomes being considered by the court.
The family consultant was not required for cross-examination, so her report is unchallenged.
Notwithstanding the limitations of the child impact report and that it was prepared in November 2022, prior to B’s current care arrangements being implemented, it is of significant assistance to me. I put significant weight on the report, subject to the identified limitations.
THE LAW
Part VII of the Family Law Act 1975 (Cth) (“the Act”) contains the statutory provisions applying to the making of parenting orders.
Objects and principles
The objects and principles from which the provisions of Part VII are to be applied are set out in section 60B of the Act as follows and I have had regard to them:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Relevantly to this case, section 60B(4) of the Act includes an additional object of Part VII is to give effect to the United Nations Convention on the Rights of the Child (“UNCROC”). Article 12 of UNCROC provides that:
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Best interests
Section 65D provides the court with power to make such parenting order as it thinks proper, subject to some conditions. Section 60CA makes clear that in deciding whether to make a particular parenting order, the court must regard the best interests of a child as the paramount consideration.
Section 60CC requires that in determining what is in a child’s best interests, the court must consider particular matters which are identified as primary and additional considerations. The objects and principles of Part VII referenced above provide the context in which the considerations in section 60CC are to be examined, weighed and applied in each individual case.
Section 60CG(1) provides that in considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure the orders is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence.
In making my decision, I have considered all of the relevant sections of the Act. I am not required to specifically address each provision in my reasons and just because I have not mentioned a specific provision does not mean I have not considered it.
PRIMARY CONSIDERATIONS
The primary considerations are set out in section 60CC(2) as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying and balancing those primary considerations, section 60CC(2A) requires greater weight to be given the second consideration, namely the need to protect B from harm. However, a careful evaluation and balancing of all considerations is required.
The benefit to B of having a meaningful relationship with both parents
It is not in dispute that B has a meaningful relationship with both of his parents.
The family consultant emphasises the importance to B and his current and future wellbeing, of being able to maintain a relationship with both parents.
Accordingly, a key consideration is supporting B’s relationship with the mother by avoiding a situation that may result in the resist-refuse dynamic of the type referred to by the family consultant and B ceasing to spend time with the mother.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Of the primary considerations, this consideration is to be given greatest weight.
“Family violence” is defined in s 4AB(1) of the Act as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Section 4AB(3) provides that a child is exposed to family violence, as defined above, if the child sees or hears family violence or otherwise experiences the effects of family violence.
The mother submits in her case outline document there is a need to protect B from exposure to family violence.
She alleged the father was violent to her during their relationship, deposing:
… There were many times [the father] was violent to me, in various ways. For example, he was occasionally physically violent (including headbutting me), locked me out of our home when I was pregnant, was verbally abusive, controlling, and had an explosive temper that led him to damage some of my property.
These allegations and others made in the parties’ interviews with the family consultant pre‑date the 2013 orders. In his reasons for judgment Cronin J observed the evidence of family violence was unsatisfactory but in his view he could not make a finding in the case before him.[5]
[5] Keith & Zemlinsky at [115].
The mother deposed the father has called her names in their communications including a “liar”, “crazy”, “nutcase” and “nasty person”. The father admitted calling the mother crazy and that he may have called her a nutcase. The mother did not give evidence B had been exposed to the father calling her these names.
The father reported to the family consultant that when he overheld B in June 2022 the mother harassed B to return to her care, attending at the father’s home, “screaming” for B and banging on the door. The father did not give evidence about this incident in his affidavit. When cross‑examined, the mother denied she screamed for B. She gave evidence she was aware there was a camera at the front door and she was being filmed. She said she deliberately kept her cool and only asked that B come to the door. She alleged the father had the footage but has not provided it, and that if he did it would show she had not behaved as he alleged. The father did not challenge the mother’s evidence and did not adduce any camera footage. I am not satisfied to the required standard this incident occurred as described by the father to the family consultant.
The mother admitted when cross-examined that there was an incident in 2014 when she hit the father and he called the police, although she denied the incident occurred as described by the father at that time. Mutual intervention orders were made by agreement at that time. The father did not give evidence about this incident but given the mother’s admission, I find she engaged in family violence on this occasion. Evidence was not adduced that B was exposed to this incident.
Aside from the mother’s admission of hitting the father in 2014, I do not make any findings of family violence.
Neither party alleged B faces an unacceptable risk of harm in the care of the other parent. Both parents propose B spend time with the other parent. B described to the family consultant being physically safe in both households.
ADDITIONAL CONSIDERATIONS
I now turn to the additional considerations set out in section 60CC(3) as relevant to determine what is in B’s best interests.
Any views expressed by the children and any factors (such as their maturity or level of understanding) that the Court thinks are relevant to the weight it should give those views
B expressed an unambiguous wish to the family consultant to spend equal time with his parents, on a week about basis.
In the text messages exchanged between B and the father on 6 November 2022, B informed his father at that time, he wanted “half half”, in response to his father asking for him to come and live with him.
The father deposed that B has expressed his wish to live with both of his parents equally to a number of third parties including his counsellor at school, his teachers, family and friends. Via her counsel, the mother objected to this hearsay evidence. I did not allow the objection given section 69ZT of the Act provides the provision of the Evidence Act do not apply to child‑related proceedings unless the court orders otherwise. However, I do not put weight on this evidence where the father did not depose as to the names of the third parties or when, how and in what circumstances B informed them of his views and how this information was in turn shared with the father.
The mother admitted in her affidavit that B has said “half-half is fair.”
B informed the family consultant he enjoys spending time with his father. He would like the opportunity to spend more meaningful time with the mother during their time together. He hopes for an outcome that will assist to mitigate the conflict between his parents which causes him stress and worry. I consider these to be sound reasons for B’s wish to spend equal time with his parents.
The mother deposed that she understands B has the maturity of about an 11-year-old. She said he is “definitely immature for his age”. She did not adduce any evidence in support of this contention from his GP, paediatrician, the other allied health professionals he attends upon or from his school.
The family consultant did not identify B’s maturity as an issue of concern. She recorded that he was initially more reserved but appeared to become increasingly comfortable and spoke with greater conviction throughout his interview.
That B’s views as expressed to the family consultant were well articulated, clear and logical also supports the maturity of his views and his level of understanding.
The mother contends the current arrangement implemented by the consent orders made in November 2023 meets B’s wish to spend more time with the father and for less changeovers. He now spends a single block of five consecutive nights with the father each fortnight during school term periods, rather than two consecutive nights and two separate afternoons. I do not have the benefit of a family report or independent children’s lawyer to provide an update in relation to B’s views after the implementation of the interim orders. As no evidence was adduced as to a change in B’s views since the child impact report was undertaken, I assume they remain the same.
When considering the weight to be put on B’s views, I take into account the pressure I find the father has exerted on B as evident from their text messages. I also take into account the family consultant’s opinion that B has been exposed to acrimony and conflict by his parents, both inadvertently and through conversations with them. However, given the reasons B has articulated for his views, I do not discount his views because of those pressures.
I put very significant weight on B’s views given his age (he is soon to be 17 and almost an adult) and where his views were expressed unambiguously and confidently to the family consultant, with sound reasons. His views are not determinative but I consider them to be of significant importance.
I also put weight on the opinion of the family consultant that B feeling heard and understood makes it more likely he will be open to following the order made by the court and could possibly provide him with a sense of peace.
The nature of the children’s relationships with each of their parents and other significant persons in their lives
I rely on B’s description of his relationship with his parents as articulated by the family consultant and described in the background of these reasons.
I also rely on the opinion of the family consultant that there is a real risk of B’s relationship with the mother being undermined and of a resist-refuse dynamic developing.
In relation to other significant people in B’s life:
(a)The mother’s parents have both passed away, but she deposed her brother lives close to her and they share a good relationship. When cross-examined, she gave evidence he is a person B can rely upon, including for example while she was attending court; and
(b)The father gave evidence he facilitates B’s relationship with his paternal relatives, including his paternal grandparents and that B has as close relationship with his paternal grandfather. He gave evidence about road trips and holidays with B, including to Queensland and New South Wales, to spend time with relatives.
I expect both parties will facilitate B maintaining those relationships when he is in their care. He is now of an age he can also maintain those relationships independently from his parents.
The father has a daughter from another relationship, O, born in 2014.
The mother deposed that she was contacted by the Department of Human Services (DHS) in 2014 and informed they were investigating a report that the father was having an inappropriate relationship with his 15-year-old step-daughter (the child of O’s mother). The mother was informed there was a SOCIT investigation and DHS’ concerns were substantiated and an intervention order “potentially” made. The father admitted allegations had been made but deposed they were false and denied any court proceedings or ongoing involvement by Child Protection.
The father does not currently have a relationship with O and has not for many years. When cross-examined, he said he has no means of contacting her.
The mother deposed B recently made a post on social media in relation to O, “happy 10th birthday to my little sister I hope one day we will be able to talk to each other”. She said B has told her he wants to meet his sister.
The mother gave evidence she sometimes sees O and her mother at their local shops. She did not say if she had attempted to speak to O’s mother about introducing B and O.
Neither party seeks orders or made submissions that address B’s apparent wish to see his sister. This is something that, in my view, ought to be addressed. Given the Child Protection concerns and the father’s evidence he has no means of contacting O, the mother may be best placed of the parties to attempt to facilitate contact between B and O, if she has means of contacting O’s mother.
The extent to which the children’s parents have taken or failed to take the opportunity to participate in long-term decision making in relation to the children, to spend time and to communicate with the children
Both parties have sought to participate in long-term decision making and to spend time and communicate with B to the maximum extent permitted by the 2013 orders. The father seeks to have a greater opportunity to do so.
The extent to which each of the children’s parents have fulfilled or failed to fulfil their obligations to maintain the children
The mother deposes she is currently assessed to pay the father child support for B. She gave evidence she also pays for B’s school, books, uniform, excursions, camps, sports lessons, personal appointments and medications. She contends the father has consistently failed to meet his obligation to maintain B. She deposed to two changes of assessment by Child Support, where payments were adjusted in her favour after reviewing his income and deductions.
The father deposed that he has paid child support and has also paid for school uniforms, sports lessons, schooling, clothing, holidays, mobile phones and B’s life with him. He complains the mother understates her income and he has been forced to pay over-estimated amounts of child support, even when he had no income.
Neither party was cross-examined in relation to child support matters.
I do not make any findings in relation to the parties’ financial support of B, save to observe that this has been another point of conflict between them. Child support will continue to be dealt with via the child support scheme administered by Child Support.
The likely effect of a change in the children’s circumstances, including the likely effect of a separation from a parent or other significant persons in their lives
The concerns expressed by the family consultant that a change in B’s care arrangements may adversely impact his relationship with the mother weigh heavily. However, that risk is also identified with maintaining the current arrangements.
In relation to the likely effect of a breakdown in B’s relationship with the mother if that was to occur, the family consultant gave her expert opinion:
This is in conflict with [B’s] best interests and would impact on his overall social development and sense of identity, more specifically providing him with a poor ‘blueprint’ in relation to how to manage relationships and how he can expect others to treat him moving into his adult life.
I put significant weight on this risk identified by the family consultant, given the serious consequences for B if a breakdown in his relationship with the mother was to occur.
The practical difficulty and expense associated with the children spending time and communicating with a parent, and whether that difficulty substantially affects the children’s right to maintaining personal relations and direct contact with both parents on a regular basis
The parties live proximate to one another and to B’s school. In that sense there is no practical difficulty or expense associated with him spending time and communicating with each of his parents.
The capacity of the children’s parents to provide for their needs, including their emotional and intellectual needs / Attitude to the children, and to the responsibility of parenthood demonstrated by each of the child’s parents
The considerations in sub-section 60CC(3)(f)(i) and (3)(i) as they apply to this case overlap and I therefore consider them together.
Parents’ mental health
The parties each raised concerns regarding the other’s mental health. The father initially sought the mother undertake a psychiatric assessment when filing his response to her Initiating Application.
The family consultant reported both parties denied suffering with any enduring mental health issues. Expert psychiatric or psychological assessments were not undertaken or recommended by the family consultant.
Neither party alleged the mental health of the other placed B at an unacceptable risk of harm in the care of the other.
The mother reported to the family consultant she attends counselling and the mother confirmed her ongoing attendance upon a counsellor in her affidavit. The father informed the family consultant he is seeking some additional counselling.
Physical needs and safety
The family consultant reported B described both households in terms of meeting his needs and being physically safe.
Intellectual needs
I am satisfied B’s intellectual needs are being met by both parents.
Medical needs
The mother maintains her concern, as at the final hearing in 2013, that the father has demonstrated a lack of capacity to meet B’s health needs, including by not supporting B to consistently take prescribed medication for his ADHD when in his care.
The mother gave evidence B is not yet responsible enough to take his own prescribed medication. She gave examples of him leaving his medication on the kitchen bench before spending time with the father and taking his morning medication (a stimulant) in the evening instead of his evening medication to assist him sleep. When cross-examined, she did not agree B takes his own medication when in the father’s care. She gave evidence that often the medication she sends with B is still in the tablet container she provides when he returns to her care.
When cross-examined in respect of his evidence that he has never refused B’s diagnosis of ADHD, the father clarified that he meant after the 2013 hearing. He maintained he supports providing medication to B. He says B takes his medication when in his care, save for during school holidays. However, he says B is of an age to make his own mind up and he supports his decision whichever way he goes. He deposed that he has expressed to B that if the medication helps him, then “he should consider continuing with it.” He also deposed “[t]here is more to just popping more and more drugs into a child, alternative treatments, techniques etc.” From the father’s own evidence, I am not satisfied he is fully supportive of B’s recommended treatment and that he will encourage B to take his medication as prescribed.
Emotional needs
I have reservations about the capacity of both parents to provide for B’s emotional needs.
The family consultant reported that although the parties were able to identify a level of hostility, neither were able to identify any behaviours they had contributed towards this, placing the primary responsibility on the other parent and their sole inability to cooperate. It seemed to her both parties had contributed to this, have both undermined each other at different times and have both exposed B to denigration of the other parent. This accords with my own assessment.
I am particularly concerned about the father’s capacity to support B’s relationship with the mother.
In the opening paragraphs of his affidavit, the father said the mother “was not the sort of person I wanted in my life.” He described her nature in his affidavit as “controlling, vindictive and non-empathetic.” He believes she has all the traits of a narcissist. He deposed that she “loves to play the victim card, the poor single mum card”. He said “she has done everything to destroy my life and more importantly the life and relationship with my son.” When cross-examined, he admitted he had referred to her as “crazy” and maybe also a “nutcase”. I have referred to his demeanour and reactions when cross-examining the mother.
The father deposes that he supports B’s relationship with the mother, but even then, is critical of the mother. For example:
I will always encourage [B] to have a meaningful relationship with his mum and l have been encouraging [B]
to develop a better relationship with his mum. Which seems to be working according to an [B]. However, [the mother] needs to make an effort herself.
He did not give evidence of what he has done to encourage their relationship, save for encouraging him to call and message her.
When cross examined about an exchange of text messages between him and B, the father admitted he had encouraged B to defy the orders and to come to his home on a day other than the regular Wednesday changeover. He said he did so, supporting B’s wishes for an equal shared care arrangement. Those messages read as follows:
Father:are you coming here next week?
[B]:Yeah
Father:[Love heart reaction to the above message]
When?
[B]:After school Wednesday
Father:Really! [face with tear icon]
[B]: I can’t talk right now
Father:I you coming here?
[B]:No I’m already at home
Father:Fark sake
[B]:Do you still wanna call?
Father:I can’t be bothered
You make very little effort. Why should I.
[angry face icon]
If you don’t want to come here anymore then don’t.
I just need you to tell me.
Well?
The father’s text messages with B demonstrate he has placed B under immense pressure. It was put to the father that he tries to manipulate B, which he denied. The father admitted that he may have on occasion denigrated the mother and he agreed that he tries to get B to defy her at times, answering “yes, certainly”. He nevertheless denied he has been undermining of the mother. I consider these messages show a degree of emotional manipulation by the father, conveying a message to B that his support is conditional upon B defying his mother and the court orders. This type of communication and pressure is likely to be undermining of B’s relationship with the mother.
The father acknowledged discussing these proceedings with B and showing him parts of the child impact report. When asked about exposing B to the court proceedings, he answered that B wanted to know and has a right to know. He maintained there was nothing wrong with this and said B was waiting to hear from him about the court hearing that and that B had sent messages during the course of the hearing, “praying”. The father defended his communications with B, maintaining he is the only parent who listens to B’s views and advocates for him. The father’s actions clearly draw B into the dispute between his parents and are likely to have a negative impact on B and his relationship with the mother.
When asked in cross-examination if the father agreed the conflict between the parties has weighed heavily on B, he answered that B has a closer relationship with him, has aired his concerns to him and hasn’t been heard. When asked if he agreed that B appears to have been embroiled in his parents’ acrimony and has absorbed a level of responsibility in an attempt to keep peace, the father replied “not that it’s coming from me.” He attributed the position B is in to the mother’s conduct in trying to “alienate” B away from him.
These answers, in conjunction with the other evidence of the father and his submissions defending his conduct, highlighted to me that the father continues not to have any insight into the impact of his own conduct and the conflict between the parties on B.
In relation to the mother’s capacity to support B’s relationship with the father, the father alleges the mother has tried to alienate B from him and that she has tried at every turn to drive a wedge between them and to make him irrelevant in B’s life. This is not borne out by B’s relationship with the father. Pursuant to the 2013 orders, B was spending only two nights each fortnight with the father during school terms. He began spending more time with the father during the Covid-19 pandemic and then five nights per fortnight pursuant to the orders made in November 2022. I find it highly unlikely B would have maintained such a close relationship with his father between 2013 and 2022 had the mother sought to undermine their relationship in the way the father alleges.
The mother focussed on her concerns about the father’s conduct and did not appear to demonstrate any insight into how she might be contributing to the current situation. For example, she did not address at all in her evidence B’s description to the family consultant of his interactions with her and of what steps (if any) she had taken to improve their interactions and time together.
The father was critical of the mother for intruding on B’s privacy by reading his communications. I can understand why the mother has monitored B’s communications with the father in light of the messages put before the court. However, while it has been of assistance to see those text messages, the mother’s intrusion of B’s privacy might be problematic for her own relationship with him. That the mother was not willing to acknowledge when cross‑examined that her monitoring of B’s messages could be regarded by him as an invasion of his privacy does support some lack of insight on her part to how she might be contributing to the current situation and the conflict B is seeking to avoid between his parents.
When cross-examined about B’s wishes, the mother acknowledged B informed the family consultant he wanted to live with both parents “50/50” but said that he had given no reason, except to reduce changeovers. This indicates to me the mother has not heard or paid heed to the other reasons provided by B to the family consultant, including that he enjoys spending time with the father, feels understood by him, they have a close and trusting relationship, they have common interests and he wants the conflict between his parents to stop.
Capacity to communicate and co-parent
The family consultant expressed concern about the parties’ capacity to communicate in relation to B and to co-parent. She warns that if the parents cannot understand B’s care experience as a whole, including that he is presenting in different ways in each household, there is potential for one home environment to undermine the other and this could lead to B rejecting the less preferable household.
The mother gave evidence she is “exhausted” with trying to keep the father happy and with the orders being contravened (referring particularly to him being regularly late for changeover). She said twice during cross-examination that she has “reached her limit.” She considers the father’s behaviour abusive and that it will never stop. She has had enough. Her demeanour when cross-examined by the father was consistent with this evidence.
The mother gave evidence she now feels unable to communicate with him at all and agreed in cross-examination that she has “blocked” communication from the father.
Whilst the mother’s expressed feelings are understandable, I find it is likely her feelings are having an impact on B. Her inability to communicate with the father most certainly is. I encourage her to seek professional support to ensure her parenting capacity and relationship with B is not adversely impacted by these feelings.
The family consultant identified a significant lack of understanding by B’s parents as to how he is feeling and coping and that this could be influencing B to possibly be feeling misunderstood and in turn isolated within this family unit and without adequate support.
I urge both parents to seek individual assistance from a psychologist with expertise working with teenage children and families, in the hope of enhancing their capacities to provide for B’s emotional needs. I will make an order permitting the parents to provide a copy of the child impact report to any psychologist or counsellor they attend upon for personal or parenting support and hope they will do so.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and their parents, and any other characteristics of the children the Court thinks relevant
I have already considered B’s maturity in the context of weight to be given to his views. Here I consider his maturity in a more general context.
The mother submits B is immature for his age and that his mild intellectual disability means he does not have the same “executive function” as other children of his age.
The mother was cross-examined by the father about B’s capabilities and independence in her household. She gave evidence he can cook basic meals and assist her to prepare dinner. She has shown him how to use the washing machine but she doesn’t really expect him to do it. He can catch the bus into town with his friends but occasionally he will ask her to come and collect him if he misses the bus. She gave an example of him not managing well, an occasion he became upset after being injured at an activity and she had to go and collect him. When asked if she thinks he is capable of passing his learner driver test and driving, she said she had bought him the learner driver handbook and some L plates and started teaching him while she is driving, but he had shown no interest in reading the learner driver instruction book or taking the test.
When the father put it to the mother that B does his own washing at his home, cooks complete meals and is preparing for his learner driver test, she answered that she was not aware of those things. Given the parties do not communicate and the family consultant reported B does not share information between the parties’ households, that is not surprising. When asked by the father if it was a good thing for B to learn to use the washing machine and do his own washing, the mother acknowledged it was. She said lightly that she wished B would cook more at her house.
It sounds likely that B displays a greater level of maturity and independence when in the father’s care. This is not a negative reflection on either parent. It demonstrates his parents each have different things to offer him. This line of cross-examination however did highlight the lack of communication between the parties (around B preparing for his learner driver test as one example) and the assessment of the family consultant that B modifies his behaviour and presents differently in each parents’ home.
Neither party gave evidence of culture or traditions shared with B.
Any family violence involving the children or a member of their family, and if a family violence order applies or has applied, any relevant inferences that can be drawn from the order
I have already considered the parties’ allegations of family violence. I have mentioned the most recent intervention order proceedings initiated in 2022. There are no current intervention orders in place affecting the parties or B.
Whether it would be preferable to make the order that would be least likely to lead to further proceedings
B expressed clearly to the family consultant he is worried and fatigued by court involvement with his family and will be relieved when a decision is made about his care arrangements. The family consultant recommended B would likely greatly benefit from some finality and closure as quickly as possible.
Making no orders as proposed by the father and leaving B to spend time with his parents in accordance with his wishes runs the risk of further court proceedings if the parties do not agree on B’s views. I also have very serious concerns about the pressure B would be put under by his parents in those circumstances, to express wishes according with their own views.
I consider making orders imposing a structured arrangement for B in accordance with his views expressed to the family consultant is less likely to lead to further litigation and bring the finality B has asked for. Whilst further disputes are possible, including if there is a change in B’s views, I consider further litigation is less likely with this course.
PARENTAL RESPONSIBILITY
Section 61DA requires the court when making a parenting order in relation to a child, to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
That presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. The presumption may also be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAC sets out the effect of a parenting order that provides for shared parental responsibility. In particular s 65DAC(3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child and make a genuine effort to come to a joint decision about that issue.
If the presumption of equal shared parental responsibility applies and is not rebutted or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, section 65DAA(1) requires the court to then consider certain matters, including whether it is in the best interests of the child and reasonably practicable for the child to spend equal time with each parent or, if not, then substantial and significant time with each parent.
The mother admitted to hitting the father in 2014, which constitutes family violence. Accordingly, the presumption of equal shared parental responsibly does not apply. Even if the presumption did apply I would find it rebutted as Cronin J did in 2013.
This matter was identified in 2013 as one of high conflict, distrust and poor communication between the parties. This remains the case. That the matter is again before the court for final hearing highlights the entrenched nature of the conflict.
It was clear from both parties’ evidence and the child impact report the parties do not communicate directly and B shares little information between his parents given his awareness of the conflict between them and their attitudes towards one another. The mother acknowledged when cross-examined she had blocked communication from the father. She said she did so to protect her mental health after being bombarded with messages from the father, including messages criticising her parenting. Given the father’s attitude towards the mother and his criticism of her in these proceedings, I accept her evidence in that regard.
I find there is no prospect of the parties communicating with another to the level required for consultation and joint decision making. Requiring them to do so would likely expose B to more conflict.
The parties agree on B continuing to attend his current school. To the extent other aspects of B’s schooling constitute major long-term issues, potentially decisions around learning support, attendance at school camps and the like, I consider it is in B’s best interests for the mother to continue to have sole parental responsibility for B’s education. This will be subject to an order requiring the parties to facilitate B’s ongoing attendance at his current school.
The mother deposes in detail to B’s medical needs and the medical and other supports she has arranged for him. I have expressed my reservations about the father’s attitude towards B’s treatment and medication and his capacity to support B’s medical needs. I therefore consider it is in B’s best interests for the mother to continue to have sole parental responsibility for his medical care in those circumstances, consistently with the orders made by Cronin J in 2013.[6]
[6] Keith & Zemlinsky O 2.
The mother does not agree to the father attending medical appointments with her and B given their acrimonious relationship and what she describes as oppositional views about B’s medical needs. She does not oppose him attending separate appointments but deposed the father objects to paying for separate appointments – for example, with B’s paediatrician. The father responded that he thought it was important for them to attend these appointments together. He deposed “it is [the mother] that is acrimonious”, that he does not have oppositional views and wants to be informed and part of the help and solution for B. Whilst those aspirations are positive, I am concerned the father continues to focus on blaming the mother for their acrimonious relationship and does not consider the impact on B of the two of them attending appointments together, particularly with the benefit of the child impact report. Having observed the father’s assertive manner during the final hearing, including towards the mother when cross-examining her and her demeanour in response, I accept the father would likely dominate any joint appointments and the mother would find those interactions difficult. B’s treating practitioners would have to navigate this dynamic and likely conflicting views and input from the parties. I do not consider this to be in B’s best interests.
Notwithstanding the conflict between them and their inability to communicate, I consider it is in B’s best interests for his parents to continue to have equal shared parental responsibility for matters other than medical and educational issues and the renewal of his passport.
In making that decision I take into account it is unlikely other major long-term issues will require decisions before B turns 18. However, if they do arise, I do not consider it is in B’s best interests for one parent to unilaterally make decisions in relation to those matters including but not limited to, decisions about as B’s name (which was previously determined by the 2013 orders), his religious and cultural upbringing (which I have no evidence about) and changes to his living arrangements that would make it significantly more difficult for him to spend time with another parent.
B’S CARE ARRANGEMENTS
Section 65D provides that, subject to the presumption of equal shared parental responsibility and requirement to have regard to parenting plans, the court may make such parenting orders as it thinks proper.
Given I have determined it is not in the B’s best interests for an order to be made for equal shared parental responsibility, I am not required by section 65DAA to consider if it would be in his best interests and reasonably practicable for him to spend equal time or substantial and significant time with each parent.
Nevertheless, I considered an equal shared care arrangement for B given he conveyed to the family consultant he would like to live with both parents on a week about basis and it is also the father’s secondary position.
This is the arrangement I consider to be in B’s best interests, giving most weight to his views, the reasons for his views and the opinion of the family report writer that he is most likely to follow an arrangement that accords with his views.
I do not find it to be in B’s interests for there to be no orders, notwithstanding his age. The parties do not communicate with one another. B would therefore have to navigate with each of his parents, arrangements to see each of them. He would be doing so knowing how each of them feel towards one another and well aware of the conflict between them.
I am concerned that if no parenting orders are made, the parties will continue to place B under pressure including by advocating for further changes to his care arrangements, contending those changes reflect his wishes. I consider it in B’s best interests to be relieved from that pressure.
B himself expressed a clear view for a structured arrangement to be put in place. He made it clear that he hopes this will assist to mitigate the conflict between his parents which is causing him stress and worry.
I put significant weight on the need to safeguard B from exposure to further conflict between the parties and pressure from them to please them. I consider the making of orders in relation to B’s care arrangements will assist to achieve that aim, reducing the need for interaction between the parties about his care arrangements. I will also provide for changeover to take place to and from school where practicable, to minimise personal interaction between the parties. This will also assist to minimise the risk of B being exposed to family violence between them.
I find a shared care arrangement to be reasonably practicable where the parties both live in the City L area and B attends school in City L.
I have some reservations about whether the father will actively encourage and remind B to take his medication whilst in his care. If he does not, the mother will have to do the best she can, supported by B’s treating practitioners, to encourage him to take on that responsibility himself as the father advocates he should.
I also have concerns about the father’s capacity to encourage B’s relationship with the mother. However, I would have those concerns even if B continues spending five nights with the father as proposed by the mother.
OTHER ORDERS
B’s school
The mother is concerned that the father intends to relocate with B to live in Queensland and could do so if there are no parenting orders made in relation to B. This concern was supported by the text messages between the father and B recorded at [38].
The father deposed that he completely supports B to finish school at his current school and advised that if the court does make orders in relation to B, he agrees to an order being made that would facilitate his ongoing attendance at his current school. I will make that order given both parties gave their consent to such an order being made.
B living in City L
The father also volunteered his consent to an order restraining him from moving to live in Queensland with B. I will not make any order restraining the parties’ living arrangements. B will be required to continue living in his current area to facilitate him living with both parents and attending his school. A change that impacts those arrangements is a major long-term issue that requires consultation and a joint decision of the parties or an order of the court.
Child impact report to be provided to counsellors
I put to both parties the possibility of the child impact report being provided to any counsellor attended by them or B. They each welcomed that.
I will make an order to that effect, as I consider it will likely assist B for his counsellor(s) to have that report and that it may assist the parents to support B if they provide a copy of the report to their own counsellors.
I will also make an order requiring these orders to be provided to counsellors assisting B.
CONCLUSION
For all of the above reasons, I am satisfied the parenting orders set out at the commencement of these reasons are in the best interest of B and make orders in those terms.
COSTS
Both parties sought orders for costs with their substantive applications. Neither party made submissions in support of that aspect of their application.
The orders I make will dismiss all extant applications. If upon the making of these orders and with the opportunity to take legal advice, either party intends to pursue an application for costs, they may file an Application in a Proceeding supported by affidavit, in accordance with the court rules.
I certify that the preceding two hundred and seven (207) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A. Humphreys. Associate:
Dated: 3 November 2023
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