LADLEY & FARWELL
[2017] FCCA 270
•28 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LADLEY & FARWELL | [2017] FCCA 270 |
| Catchwords: FAMILY LAW – Parenting – dispute as to where five year old child is to live – where child has been in an equal shared care arrangement for over 2 years – where child now attending school and needs, due to distance between the parties, a primary place of residence – where mother raises issues as to family violence – where father raises issues as to the mother’s mental health – Held it is in the child’s best interests to live with the father and spend supervised time with the mother pending the preparation of a psychiatric assessment report, after which time the spend time with arrangement is to be revisited. |
| Legislation: Family Law Act 1975 ss.60CA, 60CC, 61DA, 62DA, 65DAA, Pt VII |
| Cases cited: Johnson & Johnson (2000) 201 CLR 488 MRR & GR (2010) 263 ALR 368 Godfrey & Sanders [2007] FamCA 102 |
| Applicant: | MR LADLEY |
| Respondent: | MS FARWELL |
| File Number: | SYC 595 of 2014 |
| Judgment of: | Judge L. Turner |
| Hearing dates: | 21 November 2016 and 22 November 2016 |
| Date of Last Submission: | 24 December 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 28 February 2017 |
REPRESENTATION
| The Applicant appeared in person |
| The Respondent appeared in person |
| Solicitors for the Independent Children’s Lawyer: | Ms Shea of Hamish Cumming Family Lawyers |
IT IS ORDERED BY WAY OF FINAL PARENTING ORDERS
That all previous parenting orders and parenting plans are hereby discharged.
That the child, X born (omitted) 2012, live with the father.
That in order to give effect to Order (2), the father collect the child from school at the conclusion of school on 28 February 2017 with these orders being sufficient authority for the school to release the child to the father.
That in the event that the child is not at school then the father is to collect the child from the (omitted) railway station at 3.00pm on 28 February 2017.
That should the mother take any steps which interfere in the operation of Order (3) or (4) which results in the father being unable to collect the child on 28 February 2017 then upon written notification from the Independent Children’s Lawyer of the mother’s noncompliance, a recovery order for the child shall issue from chambers.
That the father has sole parental responsibility for the child.
That the father is hereby restrained from:-
(a)Relocating the child from a distance greater than the distance between (omitted) to (omitted) without the prior written permission of the mother first had and obtained or a court order allowing the relocation.
(b)Drinking alcohol in excess of the legal limit when the child is in his care.
(c)Using illicit drugs or allowing the child to be exposed to the use of illicit drugs when the child is in his care.
That the child attend the (omitted) Public School unless otherwise agreed to between the parties.
IT IS ORDERED UNTIL FURTHER ORDER
That the mother spend supervised time with the child as follows:-
(a)Every first weekend of each four (4) week period for two (2) hours at a contact centre as agreed to between the parties at times as can be accommodated by that centre with the costs of supervised time to be shared equally between the parties.
(b)Every third weekend of each four (4) week period from 5.30pm Saturday to 5.30pm Sunday at the maternal aunt Ms E’s home with such time to be supervised by the maternal aunt Ms E and where possible for such time to coincide with the mother’s time with the child A born (omitted) 2005.
(c)At all other times as can be agreed upon between the parties provided such time is supervised.
That for the purposes of Order (9) the father, at his expense, is to undertake the travel required to enable the mother to spend supervised time with the child.
That all attempts be made by the Independent Children’s Lawyer to obtain funding from the Legal Aid Office NSW for a psychiatric assessment report of the mother.
That in the event the Independent Children’s Lawyer is unable to obtain funding in accordance with Order (11), then the parties are to share equally in the costs of the psychiatric assessment report of the mother.
That the psychiatric assessment be performed by a psychiatrist selected by the Independent Children’s Lawyer.
That the Independent Children’s Lawyer provide to the psychiatrist prior to the first interview copies of the following:-
(a)The two family reports prepared by Dr L in 2015 and 2016.
(b)The court orders.
(c)Reasons for judgment.
That the Independent Children’s Lawyer have liberty to relist the matter on short notice.
That the matter be listed for mention at 9.30am (Queensland time) on 7 August 2017 in Brisbane with the parties and the Independent Children’s Lawyer given leave to appear by telephone on that day.
IT IS NOTED that publication of this judgment under the pseudonym Ladley & Farwell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 595 of 2014
| MR LADLEY |
Applicant
And
| MS FARWELL |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties are the parents of X aged 5.
For more than two years now, the child has been in an equal shared care arrangement despite the parties living a long distance apart.
X is now of school age and requires a primary place of residence as the parties have chosen not to physically move closer to each other.
The parties are now in dispute as to the parenting arrangements for the child including where X is to live.
Proposals
The father is seeking orders whereby the child live with the father, the father have sole parental responsibility for the child and the mother spend alternate weekend time with the child.
The father’s written submissions indicate that these orders be temporary and be reviewed after the court determines the parenting issues regarding the mother’s other child A.
The mother is seeking orders whereby the child live with the mother and the mother have sole parental responsibility for the child.
It is unclear from the written submissions as to the time the mother is proposing for the father to spend with the child although during the final hearing the mother proposed alternate or three weekly weekend time and half holiday time for the father with the child.
The Independent Children’s Lawyer (ICL) in essence supports the father’s proposal of the child to live with the father, the father to have sole parental responsibility for the child but that the decision making involve consultation with the mother and for the mother to spend time with the child on alternate weekends.
In addition the ICL suggests that there by holiday time and special event time with the mother.
Issues
As nearly every aspect of parenting of X is in dispute, then the issues requiring determination are wide and far reaching.
Evidence
In considering this matter regard has been had to:-
a)The material as marked on the court file;
b)The two family reports prepared by Dr L released in 2015 and 2016 and her oral evidence;
c)Notices of Risk;
d)The oral evidence of the parties;
e)The exhibits;
f)The written submissions;
g)Part VII Family Law Act 1975; and
h)Relevant authorities.
Both parties in this matter are self represented.
In accordance with Johnson & Johnson (2000) 201 CLR 488 and Re F Litigants In Person Guidelines [2001] FamCA 348, the court process was thoroughly explained to each of the parties and every attempt was made to ensure that fair process was afforded to each of the parties during the course of the final hearing.
The court had the benefit of an ICL and experienced counsel.
Each party was cross-examined by the other party and the ICL.
I find the parties to be credible witnesses.
Neither party called witnesses.
The family report writer was cross-examined by each party and the ICL.
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.
Procedural issues
During the final hearing several procedural issues were dealt with and the following rulings were made:-
a)The matter was originally listed for four days. After discussion, the parties and the ICL agreed that the matter could be heard in two days.
b)The mother had failed to comply with trial directions and at the commencement of the hearing had not filed her affidavit of evidence in chief. Leave was given at the hearing for the mother to file and rely on her affidavit, a copy of which had been provided to the other party and the ICL.
c)The mother was insistent that she was the applicant when the evidence supported that the father was the applicant in the proceedings, having filed his initiating application on 5 February 2014. It was explained to the mother that the matter would be determined based on what was in the child’s best interests and not on who was the first to file their application.
d)As part of her case the mother wished to rely upon an affidavit filed in 2014 by Ms G (Ms G), the former partner of the father and to various documents attached to the mother’s affidavit from Ms G and Ms M (Ms M), another former partner of the father to establish family violence. Neither Ms G nor Ms M had filed current affidavits nor were they available for cross-examination at the hearing. A ruling was made that the affidavit of Ms G and the attachments of Ms G and Ms M could not be relied upon by the mother and would not be considered by the court in determining the parenting arrangements for the child. This ruling, however, did not impact on other independent evidence such as police reports.
e)The mother spoke of having numerous video recordings on USB’s which would assist the court, some of which were historical and related to events in 2000. The USB’s had not been provided to the father or the ICL. A ruling was made that as the child had been in an almost equal shared care arrangement by consent since 2014 then the mother was restricted to recordings made since that date. Only one video recording emerged; a conversation between X and the mother on a bus regarding her time with the father recorded by the mother in March 2016 on her iPhone. The mother was allowed to tender this recording on USB.
f)The mother wished to rely on her own transcription of taped conversations regarding family violence. This evidence was not allowed.
g)The mother indicated at the commencement of the hearing that she had not had the opportunity to read the subpoenaed material. The matter was subsequently stood down to allow subpoenas to be read and tagged and an agreed bundle of subpoenaed documents were subsequently tendered by the ICL.
h)An application was made by the ICL for the contents of the file regarding the parenting dispute as to the mother’s other child, A, to be made available to the parties and the ICL. A ruling was made that the parties have access to the published judgment of Fraser & Farwell [2012] FMCAfam 1088 and to the interim orders made by Judge Boyle on 6 June 2016 which provided for the mother to spend supervised time with A.
i)The mother’s cross-examination of the family report writer was terminated after an hour due to the following reasons:-
i)The mother was informed that there was limited time for questioning of the family report writer.
ii)It was explained to the mother, on more than one occasion, the process for asking questions in cross-examination, but despite these explanations the mother continued to make long statements with no ascertainable questions following the statements.
iii)When questions were eventually asked, many of the questions were irrelevant or so long winded and rambling that it was difficult for the family report writer to answer.
iv)When questions were eventually asked, the mother would not allow the family report writer an opportunity to answer the questions adequately with the mother cutting the family report writer off or making comments during the answers.
v)The mother was warned on several occasions, once in the absence of the family report writer, to ask relevant questions in a timely manner otherwise cross-examination would cease.
vi)The mother was rude, to the point of being abusive, to the family report writer which resulted in the family report writer becoming visibly upset and frustrated by the process.
vii)As there were no real questions being asked of the family report writer and as the family report writer was struggling to be given an opportunity to answer the questions cross-examination was subsequently ceased.
Evidence by family report writer
The father and ICL rely heavily on the written and oral evidence of the family report writer in support of their respective positions.
The mother, however, disputes the inclusion of and the weight to be given to the family report writer’s evidence, having complained about the family report writer extensively to the court and the ICL leading up to the final hearing.
The complaint can be best summarised in the mother’s own words “Family Reporter Dr L has been complained about to the Federal Dispute Resolution Team and…she is seeking to have her removed from the case, untrained as she is not in DV training as per se, unsympathetic to the plight of women who have endured successive male perpetrators, in complete disbelief or wanton ignorance of the NSW Police Report she was made to read before producing her report and as she was clearly originally (and how, surely even more) biased against the mother; failing 100%, as she did, to include a single thing that the mother said in interview about Mr Ladley’s abuse in front of and around the children……”.
No action has been taken by the Child Dispute Section of the court in response to this complaint.
I find that there is nothing in the mother’s evidence to substantiate these claims.
I base this finding on the following:-
a)The family report writer is a suitably qualified long standing family consultant.
b)The family report writer has participated in family violence training and is aware of the importance that the issue of family violence has in determining the best interests of a child.
c)The family report writer noted the information as to family violence provided by the mother during the family report interviews and took this information into account when writing the family reports and making recommendations.
d)The family report writer appropriately took into account all written material as was available to her as at the time of preparation of the family reports.
e)The family report writer did not show bias against either party and expressed opinions based on her expertise as a family consultant.
I, therefore, find it appropriate that the family report and the oral evidence of the family report writer be before the court and as such weight will be given to such evidence as the court determines.
Relevant history
The relevant history in this matter is as follows:-
a)The father is aged 56 and is currently unemployed.
b)The father has two children from previous relationships (B aged 27 and C aged 17).
c)The mother is aged 46 and is currently unemployed.
d)The mother has two children from previous relationships (D aged nearly 8, whose father is deceased, and A aged 11 who is living with her father Mr T and is subject to parenting proceedings which are to be heard in February 2017).
e)In 1996 the parties first met.
f)Between 1996 and 2013 the parties were involved in on again off again relationships and at times lived together.
g)In 2012 X was born.
h)In 2012 the mother commenced a (omitted) business.
i)During her infancy the father spent day time periods with X.
j)In 2013 the father commenced overnight time with the child.
k)On 7 February 2013 a 12 month Apprehended Violence Order (AVO) was taken out by the police for the mother against the father which the father agreed to without admission.
l)On 7 January 2014 the mother left the child in the father’s care.
m)On 27 January 2014 the mother retrieved the child.
n)On 2 February 2014 the mother left the child in the father’s care.
o)On 11 February 2014 the mother retrieved the child.
p)In February 2014 the father commenced parenting proceedings.
q)In April 2014 interim court orders were made whereby the father spend two nights a week with the child.
r)In mid-2014 the parties reached their own agreement whereby the child spend 13 nights out of 28 nights with the father.
s)In October 2014 interim consent orders were made for the father to spend time with the child on special days.
t)In January 2015 the first family report was released which recommended that:-
i)The parties have equal shared parental responsibility for the child.
ii)The equal shared care arrangements continue for the child.
iii)That a single expert report be obtained as to the mental health pathology of the parties and the impact of that pathology on their ability to care for the child.
iv)That the mother seek therapeutic intervention for the unresolved issues that she has with the father and for anger management.
v)That if the court considers it as a concern then the father not consume alcohol or take illicit drugs for at least 12 hours before the child is in his care.
vi)That if the court considers it as a concern that the father have anger management counselling.
u)In March/April 2015 after the mother closed down the (omitted) business the mother relocated from the (omitted) area to (omitted) without the father’s permission.
v)In May 2015 the ICL filed their Notice of Address for Service.
w)In October 2015 interim consent orders were made whereby the father spend time with the child for 14 nights every 4 weeks consisting of 3 nights in each of the first three weeks and 5 nights in the fourth week.
x)In June 2016 the second and last family report was released which recommended that:-
i)The parties have equal shared parental responsibility for the child.
ii)The child live with the father.
iii)The child spend time with the mother on alternate weekends and half of the school holidays.
iv)That the mother obtain therapeutic intervention for her poor emotional regulation.
v)The orders be made, if the court think it necessary, as to the father’s use of alcohol or illicit drugs when the child is in his care.
y)In June 2016 trial directions issued with the matter set down for hearing on 21 November 2016 with affidavits of evidence to be filed 35 days prior to the hearing.
z)On 21 November 2016 the matter proceeded to a final hearing.
aa)There was an element of confusion as to whether parties had reached a final agreement prior to the final hearing, but it was established there were no consent orders in existence as at the date of the final hearing.
bb)On 22 November 2016, the second day of hearing, the mother’s affidavit of evidence in chief was filed by leave.
As at the date of the final hearing:-
a)The child lived with the mother from Wednesday to Saturday (4 nights) at (omitted) New South Wales.
b)The child lived with the father from Sunday to Wednesday (3 nights) at (omitted) New South Wales.
c)Every fourth week the child lived with the father for an extended period from Friday to Wednesday (5 nights) at (omitted) New South Wales.
d)In each four week period the child lived with the mother for 14 nights.
e)In each four week period the child lived with the father for 14 nights.
f)The distance by car between the two residences is over 90 kilometres which is a 1¾ hour drive.
g)The mother, who has a reliable car and a licence, refuses to drive to and from changeover and uses public transport which can be a five hour return trip for the mother.
h)The father is unemployed having received a redundancy package from his employer.
i)The child is due to commence school in 2017.
j)The mother has the child enrolled in (omitted) State School.
k)There are no current AVO’s in place between the parties.
Before discussing the law and its application to the facts and the evidence it is useful to make comment about the child and the parties.
X
In the 2015 family report interviews X was described by:-
a)The father as “a bright, articulate, self-willed child who has a good memory” ([18] 2015 family report).
b)The mother as “an adorable child with an innate sense of humour and extremely bright” ([28] 2015 family report).
c)The family report writer as “an outgoing and happy child” ([31] 2015 family report) and “a happy and joyful child” who “seems to have reached the milestones that would be expected of a child of her age” ([47] 2015 family report).
In the 2016 family report interviews the family report writer notes that X “presented as an outgoing bright, happy child” and that “observation of her play with her parents would suggest that she has reached the language and physical milestones that would be expected for a child of her age” ([30] 2016 family report).
X was too young to formally interview but told the family report writer that she loves her parents and siblings and when asked what makes her happy, replied “when I am as big as Daddy” and said that “she feels sad when her mother yells at her brother” ([31] 2016 family report).
Mother
The first experience I had with this matter was at the final hearing as an interstate judge assisting Sydney with outstanding trials.
I, therefore, came to this matter free of any prior dealings with the parties having no knowledge of this matter other than from my reading of the court file and having no preconceptions of either the parties or the issues.
I was, therefore, initially confronted with the mother’s forthright manner, her delivery of speech and dramatic presentation.
From my observations over the two days of hearing the mother is a bright, intelligent woman of extreme complexity.
That, in itself, is of no real concern as self represented litigants as do solicitors and counsel, come in all different shapes and sizes and present their cases in varying different ways.
But the more the mother spoke, the more the alarm bells rang and over time I became concerned that the mother has issues which have not been addressed.
More importantly, I became concerned that these issues have affected the mother’s parenting of X and may result in an ongoing negative impact on the child, if not addressed.
The two issues that raised concern for me are:-
a)The mother’s mental health.
b)The mother’s physical health.
Mental health
I find that the evidence supports that the mother has unresolved and untreated mental health issues.
Whether it is anxiety, depression or stress or more serious issues such as personality disorders or bipolar is unknown as there is little by way of medical information before the court as to the mother’s history or current state of her mental health.
The extent of the mother’s mental health history is as follows:-
a)In 2012 the mother was prescribed an anti-depressant after the birth of X.
b)In 2012 the mother attended some sessions of counselling with Ms J.
c)In 2014 the mother attended one appointment with Dr D (Consultant Psychiatrist) and in a short letter written to Dr B (GP) dated 5 November 2014 Dr D writes:-
i)“I did not get a full developmental history”
ii)“She was given Lexapro 18 months ago, which she took for a few weeks, but she felt like a zombie on it so ceased it. She uses Xanax occasionally”
iii)“I suggested she think about a second appointment. She said she did not have time during her working week to attend any groups at the (omitted) Clinic”
iv)“I have not heard from her since. I am happy to see her again”
v)“I did not believe she had a major mood disorder”.
d)The mother maintains that this letter is conclusive proof that the mother does not currently suffer from any mental health issues and is highly critical of the family report writer’s comment that this was an opinion of the psychiatrist “at the time” stating that “showing her true stripes however, nonetheless Dr L tries to make it sound like a temporary state of affairs by inserting the words in her report ‘at the time’ ……as if to remind everyone that it was some temporary apparition; the conceit of it” ([73] mother’s November 2016 affidavit).
e)The mother did not return to see Dr D and the mother has not seen any other psychologists or psychiatrists since that date.
f)In June 2015 the mother was reported missing to police after telling the family that she was going for a walk and then failed to return.
g)In mid-2015 the mother contemplated suicide.
h)In July 2015 the mother was reported to Family and Community Services (FACS) due to a long email containing adult issues which was sent by the mother to A.
i)In August 2015 the mother was reported to FACS because “the mother…was planning on killing herself and leaving the world…about enacting revenge on the fathers of the children and…would get people to ‘kneecap’ X’s father…would get the fathers killed”. It was noted by FACS that the mother “appears to be suffering from mental health condition” and “there are concerns the mother is planning her own suicide…discussed this openly in front of the children and recently left suicide notes for A outlining what she should do”.
j)In August 2015 FACS concluded “while not meeting the threshold for…danger there are concerns regarding Ms Farwell’s current emotional and psychological health. She talked freely about considering suicide and believes that this is her choice and cannot see that this desire may be connected to her mental health. She will not see a psychiatrist or psychologist and believes that suicide is a valid option given the horrible state of the world. She appears unable to understand the impact on her children should she do this especially given that D lost his father last year to suicide…talks about ensuring plans are in place for her children before she would end her life and she states that she would never do anything in front of the children. Despite these extreme views Ms Farwell appears to be functioning adequately on a day to day level to meet her children’s physical and emotional needs” and the mother is “in need of referral to support services”.
k)In September 2015 FACS attended upon the mother as there were concerns raised about “her anxiety and…her emotional state re; her flippant comments around ending her life and how she has the right to do so, and no one else’s business but hers”.
l)The mother informed FACS workers that there were only two options available for her at the time; leave the country with D or arrange for D to be cared for by someone else and end her life.
m)The mother during cross-examination explained that she has the right to suicide and is a member of the Voluntary Euthanasia Party.
n)FACS offered to refer the mother to services to assist her with her stressors but the mother informed FACS “that she did not believe it would make much difference” and did not follow through.
o)In 2016 the mother was again placed on anti-anxiety medication.
p)The mother occasionally takes Xanax which has been prescribed around 4 or 5 times in the last 3 to 4 years.
The mother is in complete denial as to her suffering any mental health issues and is quick to explain any erratic behaviour as being due to external forces.
But the signs that something is not quite right with the mother’s mental health is indicated by several factors as outlined below:-
a)Presentation, demeanour and conduct in court:-
i)The mother throughout the proceedings presented as somewhat dishevelled and disorganised and fluctuated from being over animated and dramatic, to being stoic and accusatory, to being jovial and joking, to being teary and defeated, to being softly spoken to raised voices; with such transitions occurring on a frequent and unpredictable basis.
ii)Accompanying the presentation were extreme arm and hand movements and face pulling.
iii)The mother, whether consciously or subconsciously, refused to take direction.
iv)The mother sat when she was supposed to stand, stood when she should have been sitting, interrupted repeatedly despite warning, talked over others, made glib comments, would not answer questions, rambled, went off on tangents and at times had her hands on her hips and waived her finger at the bench.
v)When asked in cross-examination “do you think, in the course of the last two days, you have had difficulty containing your emotions in this environment” the mother answered “no. I think I’m frustrated and verbally expressing it. I don’t think there has been any difficulty with that. I’m clearly frustrated”.
vi)From the bench there was the following lengthy exchange which illustrates the difficulty the mother repeatedly demonstrated in answering questions:-
HER HONOUR “Can I ask you, Ms Farwell, your behaviour in the courtroom over the last two days, is that atypical of how you present?”
MOTHER “How do you mean?”
HER HONOUR “- ‑ ‑ ‑ to everyone?”
MOTHER “How do you mean?”
HER HONOUR “Well, I’m just asking you, is the way that you have conducted yourself in the last two days: is that very typical of how you present to the outside world?.... You spoke about being frustrated? But apart from being frustrated, would I be right in thinking that how you act is how you are with everyone else?”
MOTHER “Well, I don’t know. I’ve been a performer in schools and won accolades. I’ve run (omitted) successfully. I’m not ‑ ‑ ”
HER HONOUR “No. But I’m just asking whether this represents how you present to everyone else?”
MOTHER “How do you – when you say “this”, do you mean when I ask intelligent questions?”
HER HONOUR “I mean overall. I’m not saying anything specifically. I just want to know whether my observations of you in the last two days would be an accurate observation of what you would be like in any other surrounds?”
MOTHER “I think the context changes things entirely. I think at home I’m laughing and chatting and singing music. When I’m going for a job interview, I’m talking politics and straight things if I’m trying to get a job that’s politically involved. If I’m presenting information about climate change I will be saying ‘Well, when we burn carbon, it all goes up into the air’ and I will be animated. I’m a (omitted) by training. I’ve got a degree. I’m able to switch modes.”
HER HONOUR “So how would you describe the role that you’ve played, then, in the last couple of days…. I mean, you’ve spoken about what you’re like at home…. what you’re like at work?”
MOTHER “I’m an inexperienced – obviously, I’m not a legal representative, so I’m not trained in ‑ ‑ ‑ the way to correctly conduct a cross-examination, which I failed spectacularly to do with Dr L, so obviously I’m not doing real well then.”
HER HONOUR “No. But I’m talking about your overall presentation. You put yourself in boxes in respect to how you are at home, how you are at a workplace, how you are at an interview, how you are if you’re promoting something. How would you describe your behaviours over the last two days?”
MOTHER “Which ones? When I was asking questions of Mr Ladley or ‑ ‑ ‑”
HER HONOUR “All of them. Generally.”
MOTHER “Overall?‑‑‑I’m extremely frustrated with this court system. I’m extremely frustrated, and I’m attempting to remain – I’m attempting to remain articulate about the exact reason for my frustrations. I’m finding it very frustrated to be disbelieved because I can’t prove what has gone on behind closed doors. It has become a matter of “he said she said” when there’s actual evidence and police record that seems to be being disbelieved. I’m guilty of seeing this courtroom as emblematic of the power structures in society with respect to gender and the failure of women to be represented properly in proper ways in Parliament. I don’t think that there’s any dispute that we’re 51 percent of the population, and we’re, like, 12 percent of the federal Parliament. . I see the violence that just happened in my family six weeks ago, where the man whose arms I was in in my Christening photo murdered his wife of 45 years, and their neighbours said that they were the nicest everyday couple you could imagine, that they walked the neighbourhood hand in hand. And that man was my brother’s stepbrother. I was assaulted on a main street, and he got away with it. He walked from (omitted) Court because no witnesses wanted to come forward, and yet there were people in the restaurant next to where I was assaulted, and I walked up to them and said, “Did you see that?” And they declined because, as one old woman, Italian, said to me, “We no want any of your problem.” I’m in this courtroom, and I can’t get Ms G to come here because she doesn’t want to attest to what Mr Ladley did to her. Ms M doesn’t want to attest. All over the world, women are cowered into not speaking out. They are cowered by domestic violence into not – in fact, as Ms G said in her affidavit, “I did not press charges for fear of consequences.” And you women are in this courtroom, and I can’t get anywhere in trying to communicate to you what I have been subjected to. It is understandable.”
b)Political statements:-
i)The mother used the court process as a forum to repeatedly express her political views and to make political statements.
ii)In both her affidavit material and in court the mother vented (and at times repeated almost word by word these vents) on such topics as the Victorian Commission into Institutional Responses to Domestic Violence, World Health Organisation Report, the Law Reform Commissioner, the costs of living in Sydney, suicidal ideations, articles in “the Monthly”, the murder rate of woman in Australia and the international rape of women.
c)Grandiose statements:-
i)Repeatedly throughout the evidence the mother indulged in grand self-serving comments such as:-
· “Ms Farwell described herself as ‘an (omitted), disciplinarian and clown’ and a parent who can ‘speak philosophy’ to her children. She added that she does what she can to bring up her children as ‘intelligent, warm, respectful human beings’ and that her children see her ‘as the font of self-generated strength and willpower’” ([25] 2016 family report).
· “She said that, in the Court’s eyes, she presents as defiant but that everyone else she meets marvels at her and tells her that they do not know how she manages” ([27] 2016 family report).
· In a question posed in cross-examination to the family report writer the mother prefaced it by saying “how likely do you think it is, on the balance of probabilities, that a woman who has got not one but two children enrolled in school – and if you see the report in the latest affidavit of my son from last year, D, from (omitted) in 2015 – right at the very crux of the moment that I was reported to FACS as being suicidal, my son has reported as a breath of fresh air, who’s winning the spelling bee, is beautiful at maths and makes intelligent and wonderful contributions to class. So let’s say that I was having an absolutely crap time in my life, the evidence that my children are thriving – all of whom I’ve been the majority carer of all of their lives is that my children are doing just hunky dory and in fact they’re widely reported as beautiful, intelligent, loving, kind, wonderful kids by me, by FACS case workers, by you. So if the proof was in the pudding you would say, ‘Wow, there’s this woman in this set of circumstances here that is just appalling, and maybe she deserved to call herself a,’ quote, quote, ‘fucking heroine’”
· In a question posed to the family report writer in cross-examination the mother said “That I am a (omitted) who has just produced a (omitted)….and I am actually a highly-functional, quite reliable, nicely-regulated person except when I come into contact with people who are pretending that they aren’t violent and atrocious to me”
ii)The family report writer noted after the 2015 family report interviews that “Ms Farwell perceives herself to be a ‘fucking heroine’ for all she does for her children given ‘the two revolting fathers’ she needs to work with….Ms Farwell described her children as ‘beautiful, intelligent, bright, spontaneous, loving and considerate’. She said that they are a credit to nature even though most people who know her attribute the credit to her” ([27] and [28] 2015 family report) and concluded that the mother “perceives herself to be parent extraordinaire…with flawless recommendations”([44] 2015 family report).
d)Questionable complaints:-
i)The mother is not shy in taking on persons or authority if she feels affronted or does not agree with them and is prepared to be quite personal and vicious in her attack.
ii)Some examples of this are as follows:-
· In 2014 the mother complained to D’s school questioning why his report card was not as good as the mother had anticipated it would be, laying the blame on the school, but concluding, after two and a bit pages of complaints, with “please do not take offence. I know you have worked hard”.
· In 2015 the mother complained to X’s child care centre about the child not being put into a more mature room when another child (omitted) was put into that room after having bitten and kicked X and how the centre chose “to deal with it” by “escalating the perpetrator”.
· In 2016 the mother complained about the family report writer not taking into account the family violence issue which resulted in numerous lengthy emails to the ICL, the Chief Federal Circuit Court Judge, and other persons within the court.
· The mother justified her actions by stating that the “family report is fundamentally, egregiously flawed and contains gross omissions of fact”.
· The family report writer in cross-examination spoke of the “alarming” nature of the emails, the “intensity” of communication, and how “assaulting” it was and described the email bombardment as the worst example in the 37 years that the family report writer has seen “doing this job”.
· The email bombardment was so intense that the mother was “advised by the Manager of Child Dispute Services that any further communication would not be accepted or read by the report writer” ([22] 2016 family report).
· The mother could not understand the family report writer’s reaction to the emails stating that she was “astonished”.
· The mother is in an ongoing dispute with the Superannuation Complaints Tribunal as to a payment for D due to his father’s death.
· The mother has made complaints about the ICL.
· The mother has made various complaints about FACS. In a letter written by FACS in September 2016 the mother was informed that an “internal review report had been completed” and that “the internal review did not find any breaches of the PPIP Act”.
iii)The family report writer opines as to why conflicts have been a common feature in the mother’s life stating that “there seems to be a pattern throughout Ms Farwell’s adult life whereby she projects her own shortcomings onto others. Anyone who disagrees with her becomes the target for her to attack and launches her into a flight to discredit their findings. This behaviour which is directed to the fathers of the children as well as professional staff tends to be extreme and suggestive of some compromises in personality functioning” ([43] 2016 family report).
iv)The family report writer expressed concern in cross-examination about the mother’s ability and “appropriateness to…resolve issues” and that “I can only put myself in the position of….X….and how it must be for her, for example, to walk into a school system….if this is the intensity of the communication that …her mother might have to try to resolve …an issue”.
e)Disputes with ex partners of father:-
i)In addition to her complaints against others, the mother has managed to have run in’s with former partners of the father, as illustrated by the following:-
·Ms M, in a text to the father dated 15 January 2014, wrote in respect to the mother “!!!! She is harassing me!! She rang me!! She emailed me!! I blocked her. I don’t want to know about this garbage!! I don’t care what you do in your life. Believe me!! Same story just a different year!! Goodbye!!”.
·Ms M in an email to the father dated 3 March 2014 wrote in respect to the mother “I told her to stop harassing me!! I want nothing to do with her. She threatened to send me emails affidavits Etc. and I asked her leave me alone on get on with her life!! I have blocked her. I want nothing to do with this garbage. She is more than insane!!”.
·In or around 2015 Ms S (Ms S) took an AVO against the mother on the grounds of harassment due to the mother’s frequent contacting and wanting to share information about the father with Ms S.
f)Attitude towards the fathers of her children:-
i)The mother is highly critical of the three fathers of her three children and has no qualms in sharing this information with whoever the mother chooses to impart it to and does not take care in ensuring that it is not said in front of the children.
ii)Some examples are as follows:-
·“The male partners in my life have been deceitful, abusive, thankless, vexatious pricks (No, they’re not ISIS, no they’re not the males murdering their women partners twice a week in Australia – yet – or ensuring that only 2 of them are federal cabinet ministers), but they have been atrocious to me in front of my kids and I have EVERY democratic right to say so, and EVERY right to praise myself in lieu of anyone else doing so and EVERY ability to raise a male child with praise and love and to ensure that the male child does not turn out like (omitted), Ladley or Mr T”
·In 2014 the mother sent various messages to friends, family, employers, partners and ex-partners of the father accusing the father of being abusive and an unfit parent.
·It is noted by the family report writer that the mother “did not dispute her behaviour and justified herself by claiming that she felt compelled to inform Ms S and her mother of Mr Ladley’s transgressions as any parent would want to know if their daughter was involved with such a violent man as Mr Ladley” ([7] 2015 family report).
·The mother in the 2015 family report interviews described the father as being “very nice when he is nice” but also being “a revolting and appalling man” ([24] 2015 family report).
·During the 2016 family report interviews the mother informed the family report writer that “she does not want to be seen as a woman who ‘goes down the blaming road’ and that she is against the culture of misogyny. She said she does not ‘hate’ men but finds that both Mr T and Mr Ladley have behaved ‘atrociously’ to other adults. She questioned their integrity as people and in their dealings with others and claimed that some of their behaviour has even had criminal intent” ([23] 2016 family report).
·In September 2016 the mother informed FACS that she “feels that she has had very negative relationships with all of her children’s father’s and has been treated badly by all 3 men”.
·During cross examination the mother referred to Mr T as a “not particularly well regarded character”.
·In cross-examination when asked by the father as to whether the mother had been abusive to Mr T, the mother replied “Not abused him verbally…not personally, no. I just spoke to him in writing emails. You misleading idiot. You fuckwit……You’re fucked. You’re deceitful. You’re dishonest”.
·In cross-examination the mother informed the father that Mr T “was not abusive verbally to me. He just lied and manoeuvred and manipulated me which changed my life and wrecked it. You were physically, emotionally and mentally abusive on a routine basis. I didn’t live with him. He was a sperm donor. You and I have known each other 16 years and you did it to Ms G and Ms M. So you’re a different kettle of fish albeit my reaction may be to put in words what’s wrong with you…..you’re lucky I’m not a male. I might have knocked your block off”.
iii)When asked whether the mother thought it was appropriate to share information about the father with others, the mother responded “I reckon that in a democracy I can discuss what I want, when I want with who I want and that it’s a public forum and I do anything defamatory somebody would take me for defamation and my out would be whether it was true”.
iv)The family report writer concluded that “anyone who disagrees with her becomes the target for her to attack and launches her into a flight to discredit their findings. This behaviour which is directed to the fathers of the children as well as professional staff tends to be extreme and suggestive of some compromises in personality functioning” ([43] 2016 family report).
v)Further, the family report writer in cross-examination expressed the view that the mother sees herself as the “superior parent” and that the father “is significantly inferior to her as a parenting option”.
vi)Certainly the mother is dismissive of the father as illustrated by the following:-
·In an email sent by the mother to the father on 14 April 2014 the mother wrote “Mr Ladley, Are you truly that THICK in the head?”
·In a text exchange between the parties the mother wrote in respect to D and A “My children are smarter than yours. Sad but true”.
·In a text exchange between the parties the mother wrote “Your past shows who you are behind closed doors. X deserves more than you as a father. She deserves to see women respected properly. I will make sure that happens. Do have a lovely evening”.
·In a text exchange between the parties the mother wrote “this time you chose the wrong woman to fuck with….I have balls of fucking steel and I’m going to break them over your head if you do not start to treat me with a modicum of respect. You left that child in my womb after I had the foresight and generosity to offer you 50% payment on a vasectomy in 2003. You will start to treat me properly or I will break you. And I mean it Mr Ladley. Watch me. I seriously mean it”.
·In a text exchange between the parties the mother wrote “Now stop fucking with me; I’m her mother and its going how I say….Now pull your fucking head in and try and act like a decent male: even though clearly you are not”.
·In an email sent by the mother to the father on 14 September 2016 the mother wrote “Mr Ladley, I didn’t read your emails today; I dragged them to trash. Literally straight in. Accordingly I am collecting X as per Orders”.
g)Lack of insight by the mother as to her treatment of others:-
i)The mother demonstrated no insight as to the inappropriateness of her behaviours.
ii)When put to the mother in cross-examination “that when people disagreed with you, or you feel that you or any of your children have been wronged you particularly feel the need to defend your position or the children’s position” the mother replied “No. I have been called a very good sport by people I have collaborated with. I’ve been called a fair and judicious and perspicacious person. I’ve got third party referees that attest that I am a lovely, caring, wonderful well-rounded mother. And so if there is a fishing expedition to try to portray me as intractable and constantly in need of an argument, it’s bullshit, with respect. I take everything on its merits. If something has been done that’s unjust, i.e., to the Aboriginal people of Australia, I will go and raise $80,000 for the (omitted) Foundation and try and help that out. I am a realist. I’m a pragmatist and I’m an honest person. And I say and do call it as Dr L said, “She presents as a direct and outspoken person.” Well, she got that right. It’s not against the law and we just – last time I looked it’s valorised in males. And I think we just elected Trump, or the first free world elected a venal pussy-grabbing person to the presidency. So if I’m trying to be portrayed as somebody who speaks about injustices socially or realities of gender violence and gender power imbalance and gender abuse, and if you’re trying to portray me as a problem for speaking about that, I reject thoroughly what you’re saying. And I reject that my sustained criticisms of Dr L failure to report my domestic violence abuse is a problem either. It should be reported to this court. This court should know about it”.
iii)Even after having heard the evidence and the raised concerns as to the mother’s behaviours in addressing conflict, the mother in her written submissions continued in her assault on the family report writer referring to that profession as “the same myopic, narrow-minded band of women cheerer leaders and apologists for male abusers and harsh judges of female sole parents under stress working 50 hours per week and subjected to DV when they sit in their safe house boxes, child less with no insight past an hours casual observation and a total swallowing of what the male parents says?....These reporters seem to think there is no hazard in abusing women when shutting down the women for commenting on this abuse or reporting these female parents as being somewhat ‘dysregulated’ in having a justifiably angry response to it; it is just an amoral guff of the most base, lowest order and sexism”.
h)Stressors:-
i)Throughout the proceedings the mother referred to the many stressors that have occurred in her life in recent years including (but not limited to):-
·D’s bullying and related constipation issues.
·The unexpected suicide and death of D’s father.
·The dispute regarding a superannuation payment to D from his father’s superannuation policy.
·The retention of A in the care of Mr T with the mother spending supervised visits with A since June 2016.
·The current court proceedings.
·Disputes with ATO and Centrelink.
·Financial hardship.
·The illness and death of her mother.
·Health issues.
·Family violence by the men in her life.
·The murder of his wife by her godfather.
ii)The mother, however, denies that these stressors have caused her any emotional or mental health issues stating that “the father implies that the mother’s mental health is an issue. This is patently not the case as ‘reactive depression’ – depression due to circumstances, not a chemical imbalance – is not a mental illness and is in fact a temporary feeling caused by exterior forces; not an internal deficit….and it is indeed hardly surprising, given the confluence of appalling circumstances the mother was in, that she felt this way; to this end the mother – responsibly – paid $400 to get herself professionally assessed…in 2014 by Psychiatrist Dr D….found that the mother was NOT suffering a mental illness, concluding she had ‘no significant mood disorder’ ….and was in fact in need of a break” ([73] mother’s November 2016 affidavit).
iii)The mother denies that these issues have impacted on her parenting stating “the last 7 years have frankly been horrible and I object to the inference made by Dr L that there is anything wrong with me referring to myself as a ‘fucking heroine’ which I have endured, alone, unaided, isolated, in pain of body…. I doubt anyone involved in this court case could withstand what I have endured, unaided by alcohol or pot use….or any other substance….and so yes, I officially reiterate: I AM INDEED a ‘fucking heroine’ for having done so well….I have received more support and praise and gifts and actual assistance from newfound and old family friends than through any male whose children I give birth to, then raised” ([134] mother’s April 2016 affidavit).
iv)The family report writer disagrees with the mother stating that “as for Ms Farwell, there are phases when she functions at a satisfactory level, and seems to be providing an adequate level of practical care for the children. Her ability to manage seems to be compromised, however, when she is subjected to stressors……unfortunately Ms Farwell has negligible insight into the impact of her behaviour on others, including her children, and she seems to have been quite resistant to any suggestions that have been made over the years offering her help and support” ([43] 2016 family report).
i)Embroiling children in adult issues:-
i)There are several incidents where the mother has unnecessarily involved the children in the adult issues or exposed the children to adult issues, as illustrated by the following:-
· In January 2014 the mother attended uninvited at Ms S’s house and in the presence of A berated the father and spoke of matters of an explicit sexual nature.
· During the 2015 family report interviews the mother spoke about adult issues in front of X and when the family report writer suggested that the mother not do that the mother responded with the comment that “X was too young to follow what was happening” ([32] 2015 family report).
· On 8 June 2015, during a period where the mother was contemplating suicide, the mother wrote a lengthy email to A (who was aged 10 at the time) which contained the following comments:-
“Mummy has never been deeply cared for or loved with any deep or real loving feeling by anybody and this has taken a real and deep toll on me”
“Arsehole men all over the planet find kind and caring women to love them well”
“D’s dad assaulted me when I walked away from him once when started to yell at me on the street when D was a baby, He was drunk and violent and I found out later that he had a history of doing this to others…….I went to police and court but nobody would testify that they witnesses this happening so Mr M didn’t go to gaol and walked free”
“Every week in Australia two women are murdered by their husband or boyfriend or ex-partner”
“Men have oppressed, in organised power control situations like government and church’s and been violent to women all over the planet since humans evolved from the apes”
“Your dad has been a good dad to you but he has been emotionally and psychologically very horrible to a great many women too. Not physically but mentally”
“Similarly, Mr Ladley, as you know, was very verbally and emotionally and mentally horrible to me”
“But one thing you know as a fact beyond all this is that men on this planet are brutalising and terrorising women all over the world in all sorts of ways as they have for a long time now. The overwhelmingly dominate worldwide power structures like government and corporations because they do not believe fundamentally that woman are as good or as rightfully entitled to power as they are”
“In Australia, 2 women each week this year have been murdered by a man who had either been their husband or boyfriend”
“All over the world men beat or burn women to death”
“As you know, the news at night has men all over the globe on the streets and in parliament and in the pulpit of churches ruling women; not more than a few women in sight”
“Women all over the world stay with men who are not loving or supportive of them – most of them are even outright violent and abusive”
“Thankfully your mum was, if nothing else, brave and strong enough to flee every man who she was ever around who did that”
“I have unleashed tirades of hell and verbal damnation on those who’ve abused me in the past 5 years because, after your father, who used me poorly, as he did other women, sadly, my limit was finished”
“Too many kids and too many wounds. Women with children don’t get out much to meet the few nice fellows there are on the planet and their lives are literally filled up when”
“At any rate darling girl, mummy is tired now of this situation and needs a break from dealing with the miserable males who put me in it”
· During cross-examination the mother was asked whether it was helpful for A to receive such an email to which the mother replied “I think it contextualised her understanding of what was going on ….I have actually looked at the research, and I can’t find any, that supports the theory that speaking truthfully to a child of 11, who is gifted and bright class, and who herself was already taking selfies and talking about boys and watches the news at night, and noticed that 98 per cent of everyone in the UN and in the government are male, and hears stories about women murdered….”
· When asked in hindsight whether it was inappropriate the mother replied that the only things that she wished she hadn’t spoken about was reference to her dead paternal grandfather and her maternal grandfather’s treatment of women.
· The mother justified her actions in sending the email to A stating “so in that abject moment of despair, with the confluence of extremely unusual and extreme factors going on, I wrote a text to my daughter in a moment of despair and I do regret many of the things that are in it. But I am yet to see a single shred of evidence that it is a long term injurious occurrence. My child is still happy and thriving….and I think the expression is a momentary lapse of reason…..my kids are intelligent and it’s because I dignify with proper explanations in a very robust way”.
· The family report writer assessed this communication as “totally inappropriate and not child focussed” ([44] 2016 family report).
· The family report writer concluded that D and X probably have been “exposed to similar displays of outpouring and venting that is threatening, destabilising and undermining of significant others in their lives” ([44] 2016 family report).
· In March 2016 the mother used her IPhone to visually record a conversation between the mother and X, where the mother asked various questions of the child about her time with the father and the child wanting to live with the mother during which X became visibly upset.
· In the 2016 interviews the mother questioned the child in front of the family report writer as to whether she had been coached by the father.
ii)This denigration by the mother in front of the children has been a long ongoing issue for the father.
iii)In March 2014 the following email exchange occurred between the parties:-
FATHER TO MOTHER “It is not in good form to bad mouth the other parent in front of the children. It upsets and puts pressure on the children. It was totally inappropriate for you to say to the children that I am home and that I just didn’t want to see them….I have no idea what other things you say about me to the children. Ms Farwell, this is damaging to the children. Please confirm this with anyone you like or a child psychologists and please try to refrain yourself from this sort of behaviour in front of the children. And Ms Farwell, just because I may have said some inappropriate things in front of the children in the past, which I admit, doesn’t make it ok for you to do it. Especially on such a regular and unwarranted basis”
MOTHER TO FATHER “What, as damaging as you calling the mother ‘a fucking slut’ and ‘fucking fruitcake’ in front of them, Mr Ladley? Spare me anymore of your horseshit now; there’s too much documentation regarding who you are to partners for people to have to but it anymore; and I stopped listening to your lame lies years ago”
FATHER TO MOTHER “You are not under duress when you behave like this. You have not been having an argument with nowhere else to go. You come out with this off your own bat, as part of your project to slander the person you are in conflict with…..You don’t seem to get it. You aren’t hurting him or I, you are hurting the children. Please desist, that’s all I’m asking”
iv)In September 2016 the father emailed the mother stating “it is inappropriate for you to engage X in discussion of ‘When is Ms K and Dada going to fight?’ It makes her feel sad (Her words) Please choose other ways to probe her on her life with me and desist from running your own agenda over the top of the child’s wellbeing” to which the mother responded “every week to invent something to write about this is an elaborate rouse or defender of the indefensible; your consistent behaviour over 20 years with female adult partners. This goes to 60CC. When you start to fight with Ms K, as you routinely did with Ms G and Ms M before me, she should and will tell me. Until then, cease further instructions or emails on any topic except collection”.
j)Anger towards children:-
i)The father informed the family report writer during the 2015 interviews that “she frightens the children by ‘getting into a rage’ with them, making inappropriate disclosures in their presence and not having any ‘self censoring mechanism’….she models poor behaviour to the children and shouts at them when she is enraged….Mr T has reported to him that A has told him that her mother strike X” ([19] 2015 family report).
ii)In the 2016 family report interviews the father reiterated his concerns “she can be physically and emotionally punitive” ([18] 2016 family report).
iii)X, during both family report interviews, spoke about the mother’s anger and in particular the mother yelling and hitting D.
iv)The mother explained to the family report writer that “A can be defiant and…how their relationship can sometimes be compared to ‘two bulls butting heads’ with neither of them wanting to concede ground….she stated that X occasionally throws tantrums and, when necessary, she disciplines the children by using ‘an escalating scale’…she initially tries to stop the children misbehaving by reasoning and using nonverbal cues….if this doesn’t work, she gets strict fairly quickly and denies privileges. She agreed that she occasionally raises her voice with the children but she did not see that as a problem…said she hit X once and she believes Mr Ladley has done the same” ([28] 2015 family report).
v)During an interview with FACS in August 2015 the mother “admitted that she does discipline the children physically…that this rarely occurs…that she only uses physical discipline if the children do something dangerous….she found that a smack has a shock factor…and intends to continue to do this when she believes it is warranted”.
k)Emotional dysregulation:-
i)The family report writer holds the view that the mother suffers from emotional dysregulation.
ii)During cross-examination the family report writer described emotional dysregulation as “the incapacity to…contain emotions….I see emotional regulations …as a kind of a band…we have ranges …of upset anger but emotional dysregulation…is when it spikes beyond….those barriers….of what would be considered, I guess, socially acceptable”.
iii)After the 2015 interviews the family report writer makes the following comments and observations about the mother:-
· “Ms Farwell…..presented as direct and outspoken. Her accounts tended to be tangential and she found it difficult to remain focused on the questions that were posed to her” ([22] 2015 family report).
· “The behaviour of the parties, especially that of Ms Farwell, has, at times been appallingly immature” ([40] 2015 family report).
· “The assessment identified numerous concerns about some of Ms Farwell’s behaviour including her grandiose accounts of her own abilities, her uncensored disclosures including those made in front of the children, her imposition into the lives of others to expose Mr Ladley’s shortcomings resulting in an AVO being taken out against her by Mr Ladley’s former partner, her derogatory references to the fathers of her children who in the cases of both A and X are assuming a very significant role in their children’s lives and her emotional dysregulation which repeatedly seems to occur in front of her children” ([42] 2015 family report).
iv)After the 2016 interviews, the family report writer made similar observations:-
· “Ms Farwell….presented as co-operative but her narrative was largely quite unfocused and circuitous” ([22] 2016 family report).
· “The concerns in respect of Ms Farwell’s emotional regulation, her very hostile criticisms of the fathers of her children including threats to their safety and her uncensored involvement of the children in the dispute are ongoing” ([43] 2016 family report).
v)As at the final hearing the family report writer’s concerns continue as to the mother’s emotional state as illustrated by the following answers during cross-examination:-
· “In observations there was…as well with the children there was….some quite extremities in the interactions”
· “There are elements to that behaviour that suggest some quite severe dysfunction in personality functioning”
· “In the observations there was….as well as with the children there was….some quite extremities in the interactions that…in my assessment lacked containment”
vi)The following exchange occurred between the bench and the family report writer:-
HER HONOUR “Can I just ask you this? You’ve just heard the way that Ms Farwell reacted to me when I asked her to stop. Is that an example of the emotional deregulation that you’ve been speaking about previously: not being able to read the situation and becoming quite emotive when not listening to a request that’s made to stop, in that example?”
FAMILY REPORT WRITER “Well, absolutely. And this – and this is – this is, dare I say it, a context where you would expect people to be really on notice of how their behaviour is being read and – and it concerns me that in – in this context, there is such – such a poor capacity to - to listen to what is a helpful direction about how to illicit the best for – for this matter and for X’s welfare”
vii)During cross-examination the mother admitted to suffering emotional dysregulation but only in the “context of what I’ve been exposed to. It would naturally, logically, cause a consequence”.
viii)But the mother was adamant in her view that her emotional dysregulation had not affected X although it may have affected A (a child who is no longer in her care and with whom the mother has supervised visits every three weeks):-
HER HONOUR “Do you accept that your emotional dysfunction has a negative impact on your parenting ability?”
MOTHER “What I see is that my children are still being beautifully cared for and loved….irrespective of that….I don’t see that they have suffered negatively except for the case of A and me saying those things to her, and she has seen a lot of burden. She has seen a lot of burden”
HER HONOUR “But don’t you see that any of your emotional dysfunction has impacted on X?”
MOTHER “I’m yet to see….I don’t see that there is any evidence for that. I’m sorry I don’t….X’s needs are still very much met….Quite consistently and warmly and beautifully and lovingly and caringly, as reflected in all of my children’s progress and characters…..I’m trying to contain my upset to myself after hours, and I’m still singing with them, reading to them, teaching them games getting them off to school with beautifully healthy lunches, taking them on skiing holidays, taking them on swimming lessons….I’m acting to them normal. I’m giving them normal mum who has supported….”
HER HONOUR “You’re acting?”
MOTHER “Indeed, because behind the scenes, I’ve clearly broken down quite a bit….so when I am with them, I put on a happy face, and I get up and I choose to be a good parent, and I get up and I choose to be educational and fun”
ix)The mother admitted in cross-examination to experiencing anxiety where her heart starts to race, the mother feels nervous and she has panic attacks.
x)The family report writer is concerned that the mother’s emotional dysregulation is escalating, especially in light of the email traffic generated by the mother in her complaints against the family report writer leading up to the final hearing.
l)The mental health issues are a recent phenomena:-
i)The mother would lead you to believe that up until recent events related to her stressors that her mental health and coping mechanisms were intact and did not impact on any of the children.
ii)But this is not borne out in the evidence.
iii)As noted by the family report writer after looking at the material from FACS “there is reference to notifications which suggest level of instability in Ms Farwell’s coping capacity dating back to 2005…..health professionals and departmental staff who have had reason to interact with Ms Farwell on a clinical basis have, over the year, reported behaviour which is consistent with the way she acted leading up to the preparation of this report” ([43] 2016 family report).
iv)In the 2012 judgment of FM Hartnett (as Her Honour was then known) of Fraser & Farwell which concerned the parenting arrangements for A between the mother and Mr T, I find that there is a familiar ring between the two matters (now some 5 years apart) as to the mother’s behaviours, her attitudes, her uncontrolled emotional responses and her justifications for her actions.
v)To give credence to this finding, I refer to the following paragraphs in the judgement:-
[5] “The contents of her affidavit had no relevance to those issues to be considered when determining A’s best interests”
[5] “The mother, in seeking to put that affidavit material before the Court, was really attempting to cause vexation and embarrassment to the father”
[14] “The mother’s ongoing palpable fury with the father which was on display in the courtroom over the course of the proceedings has its core she claims, his alleged deceit of her”
[16] “….the paternal grandmother….Ms B tried….to keep the relationship between the mother, A and her ‘nice, steady and calm’. Ms T impressed as a credible witness….she acted always to assist the mother….her evidence was that she considered the mother a ‘warm and generous person’ now, despite the mother’s abuse of her which has included calling her a ‘stupid old alcoholic stooge’ and misrepresenting her evidence to the mother’s father and others”
[16] “The father, on his evidence, was correct to conclude that the mother’s level of vitriol and irrationality directed at both himself and his parents (his father is now deceased) renders any communication between the mother and father impossible”
[16] “Ms T has never said to the mother…that in her view she is “acutely mentally ill” yet the mother persisted claiming she had and continues to so persist”
[16] “Ms T…..subsequently spoke with the mother in October 2009 about the mother’s difficulty in her relationship with A (as reported to her by the mother) and referred to that discussion in her affidavit sworn 15 July 2011…..at paragraph 5 ‘On 19 October 2009 Ms Farwell said to me ‘I have sought professional help for my relationship with A. The counsellor said that I have manic energy and need acute treatment….I admitted to the counsellor that I smacked A and the counsellor cautioned me about doing so’”
[16] “The mother’s difficulties at the time and throughout the first half of 2010 were also highlighted in other subpoenaed evidence before the Court…..the mother was reported as saying to a Department of Community Services worker that she was ‘a bad mother and emotionally corrosive to A’. The mother admits that she was struggling at the time but puts in in the context of an isolated stressful time in her life where her responses are in the normal range given that stress”
[18] “On 21 December 2010, A and her father phoned the mother from the father’s property in (omitted) and informed her that A had a half-sister, E….was approximately 14 months of age……The mother was enraged by the call and her level of ongoing abuse of the father, in particular via email and ultimately to the world at large, was heightened. She altered the father’s Wikipedia page, ignoring his privacy and in doing so engaging in reprehensible conduct. She wrote inflammatory and exceedingly inappropriate emails to his solicitor and her client. She continued her denigration of the father to as wide an audience as possible”
[19] “In the mother’s attempt to remove A from her school in (omitted), she involved not only the father and the child, but Ms H the principal of the school and staff members. She advised by email of the circumstances surrounding A’s conception, her view of the enforceability of the parenting plans as against earlier consent orders, and the quantum of maintenance to be paid by the father……..In providing the information she did, the mother asserted she was promoting A’s best interests”
[19] “The provision of such information was in fact to portray the father in a bad light. As she said in evidence in an insightless response to why it was she provided information to the school as to A’s conception ‘I thought it would have been apparent from the disclosure of that fact that there wasn’t really that much intention by your client to have such a long-term controlling and influential effect on her life. Correct’”
[19] “Otherwise the email correspondence of the mother exhibited her tangential approach and the inappropriateness of her responses. To a member of staff notifying her that she had been placed on the school’s email list and enclosing the ‘last newsletter etc, for you to look at’ before signing off ‘Have a lovely day’, the mother responded ‘Thanks for your wishes: I always have a lovely day in Sydney, being that it’s not Somalia. Or Afghanistan. Or virtually anywhere else in the increasingly miserable world. You have a great day too’”
[22] “Ms C’s (family) report dated 31 July 2012 was introduced into evidence”
[24] “Ms C noted as to the mother’s presentation at interview the following ‘During the interviews, Ms Farwell seemed to have considerable difficulty focusing on A and what would be in her best interests. She spoke at length about Mr T’s shortcomings, especially in relation to what she considers to be his lack of honesty and his failure to stand by agreements, which she said they had made. She described Mr T in a very negative way, calling him, ‘a manipulative liar’ and a ‘control freak’. Most of Ms Farwell’s responses to questions asked of her contained negative comments about Mr T’s (at paragraph 32). ‘At times it was difficult to follow what Ms Farwell was saying as she spoke very quickly, often in a very angry tone and she seemed to have difficulty focusing on a subject, as she digressed frequently. She did, however, at times seem aware of this and she apologised once for doing it. For significant periods of time, Ms Farwell spoke without looking at the family consultant, rather directing her eyes at the wall or the ceiling.’ (at paragraph 34)”
[25] “Ms C concluded that A’s needs, especially her emotional needs, were not being met in her mother’s household. She said of A ‘A is a very young child and she seems to have taken on a parenting role, in relation not only to her little brother and sister, but also to her mother. This is not in A’s interests as children who experience parentification often suffer long-term problems especially in relation to forming healthy adult relationships”
[26] “Ms C observed that the mother did not feel the need to monitor her own behaviour so that A was not exposed – as she clearly was – to the mother’s strong feelings of anger and distress, much of which was directed toward A’s father. She noted further, A’s sadness when speaking of her mother getting “stressed out” and her feeling of being not able to do that which she thought she should, namely make her mother feel better. She described A as feeling ‘rather burdened’ by the situation at her mother’s home and said A found her father’s home ‘a much more secure and emotionally safe environment.’”
[28] “Ms C referred to the mother’s ‘extreme anger’ at the father and her presentation as someone who is very burdened by her current circumstances and who easily becomes very distressed and angry. She viewed the mother’s comments during the interviews as indicating that the mother was more focused on her disagreements with the father than on A’s current needs. She noted that the mother often reacted to difficult situations with extreme anger, at least verbally”
[29] “…the mother often went off at tangents, had difficulty answering a question directly and at times used the proceedings for the satisfaction of her own needs being the conducting of a tirade against the father for the most part, with one notable concession, rather than an advancement of A’s needs”
[29] “Throughout most of the proceedings, however, the mother did not exhibit a capacity to contain appropriately her negative emotions. The mother’s inability to do so impacts markedly on A, as described poignantly in the following of Ms C’s evidence when talking of A and her mother’s interaction ‘A parent who a child perceives as getting angry and often angry for days and feels that there’s nothing that they can do about it, but feels that they should be able to do something about it and appear very sad and unhappy and tearful when talking about that, I think is significant’”
[38] “The mother admitted in the proceedings that she has a great amount of antipathy toward the father. She has varying derogatory expressions in respect of him including that he is a ‘slimy liar,’ a ‘self-serving fuckwit’ and ‘a little misogynistic fuckwit’. She does not hide this contempt from A. She believes that her daughter will grow to know her father for what he is, ‘a liar,’ and her evidence was that she would assist in this recognition. She has discussed the proceedings with A”
m)Effect on children of mother’s mental health issues:-
i)The father comments that X is “possibly afraid of her mother’s reactions and on occasion tells him she does not want to return to Ms Farwell’s care” ([19] 2016 family report).
ii)The possible impact of the mother’s mental health issues, and in particular the mother’s lack of emotional regulation on the children, and in particular X, have been canvassed extensively by the family report writer:-
· “Well, what it means is that the children have no containment…..the children have no idea what’s safe….children mirror their parent’s behaviour……its poor modelling…. You know for a child to feel safe they need to know their parents are in charge. They need to know that their parents are providing the kind of box of containment that’s not splitting off and going to extremes…..there are other factors to do with the physical environment as well….but to me the emotional environment is…paramount and…..if children get the sense that parents are in charge and control of themselves that makes for children who are emotionally in control”
· When asked in cross-examination whether it is frightening for children to be with a parent not in control and emotionally volatile the family report writer replied “absolutely….scary to the max because then children need to kind of look for their own sources of containment, and then we get children who are parentified who…..try to bring their parents back into….the box and very damaging to psychosocial development”.
· “It is very likely that when the demands of parenting or resolving issues in her life weigh heavily on Ms Farwell and she is not feeling centred herself she responds to the children in a chaotic way that evokes fear in them” ([44] 2016 family report).
· “Of her own admission, Ms Farwell acknowledged that she needs to yell at D to solicit his attention. The vicarious trauma A and X would experience from observing their brother being disciplined in this way cannot be dismissed” ([44] 2016 family report).
· “An insight into the parent/child interactions that are likely to be experienced in Ms Farwell’s household was gleaned on the day of the assessment. While X identified her mother as a significant other, their interaction was punctuated with quite extremes of emotion which were not contained by Ms Farwell” ([45] 2016 family report.)
· “It is very possibly the case that Ms Farwell’s parenting capacity mirrors her ability at any one time to manage her own emotions. Hence, while she loves the children, her poor capacity to emotionally regulate and lack of insight into this raises concerns about her as a parent” ([45] 2016 family report).
· “Should she (X) live primarily with her mother, there is a risk that she will continue to be exposed to her mother’s poor impulse control and self-preoccupation which could lead to difficulties with her own mental health” ([49] 2016 family report).
· “If X was to live with her father, she would spend less time with her mother. Ms Farwell’s emotional neediness which was observed in her interaction with X could leave X feeling she has let her mother down and responsible for her mother’s emotional welfare” ([49] 2016 family report).
n)Lack of insight:-
i)The mother does not accept the views of the family report writer that her behaviours impact negatively on the children stating in cross-examination that “I think she is wrong……she has a 20 minute window on my life. She knows nothing of how I parent my children, actually”.
ii)The mother, when asked in cross-examination whether “your emotional upset has impacted on your ability to parent and therefore has impacted on X” to which the mother replied “No, because X’s needs are still very much being met…..quite sophisticatedly and warmly and beautifully and lovingly and caringly, as reflected in all my children’s progress and characters….”
iii)The mother maintains that she has insight into her behaviours stating in cross-examination “I have a lot of insight into my character and I have a lot of insight into my shortcomings, verbosity being one of them, and I have a lot of insight into many things, actually, if I don’t mind saying so myself. I stay abreast of a lot of things, and one of them is the way that men are treated by women, universally, on this planet, as in evidence”.
iv)The family report writer noted that the mother’s “extent of…denial and lack of insight into the damaging impact of her poor capacity to control her emotions or express them in an appropriate way are significant” ([42] 2015 family report).
o)Refusal to obtain therapeutic intervention:-
i)In 2015 the family report writer recommended that the mother might “benefit from some therapeutic intervention to help her appreciate how her unresolved issues with Mr Ladley and her reactions in those situations impact adversely on their parenting relationship” ([40] 2015 family report).
ii)In 2016 the family report writer again “recommended that Ms Farwell seeks therapeutic intervention for her poor emotional regulation” ([55] 2016 family report).
iii)During cross-examination the family report writer reiterated the need for therapeutic intervention for the mother stating that “long-term therapy…will help her explore the – impact – well, first of all it maybe help her arrive at some understanding of what is happening for her intrapsychically that is giving rise to the reactions that…..I observed, and that I think many other people have observed” and provide “some insight….to explore some alternate ways to manage emotions”.
iv)As to the type of therapy, the family report writer recommended that because “there are elements to that behaviour that suggest some quite serious dysfunction in personality functioning” then the mother will require “long-term rather than short-term therapy” in the form of “cognitive behaviour therapy” that may run for ten or more sessions.
v)The family report writer acknowledges, however, that the mother must arrive at the point where she accepts that she needs help and that that would require a “significant shift from where I currently see Ms Farwell in her projection of blame…onto others…for what is happening in her life rather than taking some responsibility for the part that she might play in the dynamics that play out in her life”.
vi)The mother does not agree with the family report writer that she requires therapeutic intervention.
vii)The mother has not pursued any therapeutic help and does not intend to, informing the court that she does her own forms of therapy such as (omitted) and meditating with friends.
viii)Apart from the occasional Xanax the mother does not want to take medication and maintains that she is effectively handling her situation in her own way explaining in cross-examination that “I don’t drink very much…..I don’t smoke pot, I don’t take anti-depressants presently…I don’t take any illicit substances and I am not on any routine medication for anti-anxiety treatment even though I have been in the past because I’m trying to do it and people seem to think this is terribly unfashionable because we like to pathologize our despair. But I’m trying to do it unaided by pharmaceutical’s because if your kid can fall off a boat in Syria and drown in front of your eyes and someone can lop your arm off over in North Africa and you can have your head stuck in a bag at 50 degrees through the middle east, I reckon I might be able to cop it sober. So I’m actually trying to get through the vast array of hideous circumstances that have actually befallen me circumstantially…by consultation with talking to friends, (hobbies omitted) and writing about it…”.
Conclusion on mental health
This matter has been very difficult.
It was difficult to hear, difficult to read and certainly difficult to write, hence the delay in its delivery, as I had hoped to be in a position to make orders for X and deliver reasons prior to the commencement of the school year.
The reason for the difficultness is twofold.
Firstly, as the new judge to the matter, without having any prior dealings with the parties, I formed a view by the conclusion of the two day hearing, based on evidence and repeatedly reiterated by evidence that the mother, due to her unaddressed mental health issues, poses a risk to X.
That in itself would be of no surprise to the father, the ICL and the family report writer, all of whom had formed a clear view that it is in the child’s best interests for X to live primarily with the father.
Secondly, and this is the more pertinent point, I formed the view that the risk is such that one has to consider very carefully whether it is in X’s best interest, at this point, to spend unsupervised time with the mother, or whether pending a psychiatric assessment of the mother and therapeutic intervention, the time between the mother and X should be supervised.
This issue was not addressed by anyone during the court hearing with the father, the ICL and the family report writer all in agreement to a regime of time between the mother and the child of alternate weekends and half school holidays.
This position was, at the conclusion of the final hearing, held despite the evidence that:-
a)The mother has an extensive history of conflict with others, and in particular the fathers of the children.
b)The mother, without thought or regard for the consequences, is aggressive, rude, self-righteous, manic, prophetic and unrelenting in her verbal and written abuse of others and has no qualms in displaying this in front of the children or sharing her views with the outside world, despite the potential damage it may cause.
c)The mother has, on many occasions, embroiled and exposed the children to adult conflict to the extent that there has been parentification of one child (A) and possible parentification of X as time passes.
d)The embroiling of children in adult issues is one of the reasons why, since mid-2016, the mother has been spending supervised time every third weekend with A.
e)The mother has made admissions as to inappropriate discipline administered by her towards the children with an element of lack of control, especially with A and D, both of whom the mother has had difficulties managing in the past.
f)The mother has been involved in protracted court proceedings for both A and X and it appears that D is not the subject of any proceedings as his father is deceased.
g)There is a history of FACS involvement which raises concerns as to the mother’s mental health wellbeing.
h)The mother admits that there are many stressors in her life and that at present she is “acting” in the role as a good parent whilst her life is unravelling.
i)There has never been a psychiatric assessment of the mother and the mother has not availed herself of any effective therapeutic interventions.
j)The mother believes in suicide, discusses it openly with the children and has contemplated suicide in the past.
k)The mother has no insight into how her behaviours and actions impact on the children and in her eyes as she is “acting” out being a good parent and the children are having their basic needs, such as housing food and education met, then X cannot be affected by her conduct.
l)The mother blames external factors for her condition, refusing to accept that there may be something internal which is causing her reactions.
I had hoped that given the direction for written submissions due to the parties being self-represented litigants that perhaps with time and thought, these concerns may have been addressed in the ICL’s submissions and be reflected in the proposed orders; but that did not occur.
The father has at some level given the issue some thought with a request that arrangements may need to be reviewed once the court proceedings with A are concluded.
Given that the court’s position may be one that does not accord with any of the proposed orders, I have gone to great lengths to capture as much of the evidence as possible to support the findings I make in this matter as to the future parenting arrangements for X.
Further, the mother has been very vocal in wanting to appeal the decision if I do not order for the child in her care and for the parties as well as any appellant court I want to ensure that my reasoning is comprehensive and clear.
In conclusion, I find that the mental health of the mother is such that it poses an emotional risk to X.
I make this finding based on the following:-
a)The mother has mental health issues which need to be assessed and treated as required.
b)The mother is uncontained, emotive and erratic around X and as a consequence exposes the child to conflict, adult issues, denigration of others (including the father) and questionable behaviour of the mother.
c)X has expressed concerns as to the way the mother treats D and disciplines him.
d)The mother has exposed X to her beliefs as to suicide.
e)X is at an age where, if not addressed, the mother’s behaviours may impact on the child’s emotional development.
In determining this matter, when considering all of the issues, this finding may support an order for parenting arrangements whereby:-
a)The child live with the father.
b)The mother spend time with the child which may need, on an interim basis, to be supervised pending the mother obtaining clarification as to her mental health.
Physical health
The mother complains of numerous health issues including:-
a)Adenomyosisi.
b)Chronic endometriosis.
c)Submucosal fibroid.
d)Irritable bowel syndrome.
e)Lower back pain.
f)Scoliosis of the spine.
The only independent evidence provided as to the mother’s health issues is a letter from Dr G dated 16 August 2016 which states that the “there is a submucosal fibroid within the uterus measuring up to 26mm. There is no obvious endometrial thickening or focal endometrial lesion. There is a small haemorrhagic cyst or follicle noted in the right ovary. There is no suspicious adnexal mass”.
The mother spoke of how these physical ailments impact on her day to day existence such as:-
a)Bleeding every day, haemorrhaging hard with clotting and pain in the first seven days and then continuing to bleed for the whole 21 day cycle ([55(f)] mother’s November 2016 affidavit).
b)Suffering debilitating pain ([55(g)] mother’s November 2016 affidavit).
c)Being hospitalised for anaemia, clotting and haemorrhaging.
d)Being housebound due to the haemorrhaging.
e)Being restricted in travelling long distances due to the haemorrhaging.
The mother is on a waiting list for surgical procedures to address the fibroid problem.
The mother admitted in court that bleeding 21 days out of 28 days is “starting to” impact on her ability to look after X and that the travelling to facilitate time makes her “extremely depleted”.
Conclusion as to physical health
I find, based on the information provided, and the mother’s own admission, that the mother’s physical health may impact on her ability to be the primary carer of X and that this finding supports an order whereby the child live with the father.
Overall conclusion as to mother
I find that the mother’s mental and physical health is such that consideration must be given to X living with the father and care must be taken to ensure that the spend time with arrangements are such that the child is not at risk and the mother is able to accommodate such arrangements.
Father
Family violence
The issue of family violence perpetrated by the father against his three former partners, including the mother, and the risk that this may occur in future relationships and therefore result in the child being exposed to this violence was the main argument put forward by the mother as to why an order could not be considered for X to live with the father.
In order to understand how strongly the mother felt about this issue and her reasoning behind this belief, it is best to look to the mother’s own words:-
a)In 2014 the mother wrote “I hereby ask the Court, as the ultimate authority, to compel” the father “to understand the immediate physical danger to the children’s life which he is posing and the longer-term danger to the children’s emotional and psychological wellbeing that he is posing by so serially abusing women in his life in front of them” ([15] mother’s February 2014 affidavit).
b)During the 2015 interviews the mother informed the family report writer that the mother “perceives” that the father has a “propensity for domestic violence towards women with whom he has been in a relationship” and that because of the mother’s “fears that X might be exposed to violence when in her father’s care, she would like no other women to be around when X spends time with her father” ([12] 2015 family report).
c)The mother informed the family report writer in 2016 that “she has ongoing concerns that Mr Ladley has the propensity to be violent and she fears it will be a matter of time before Mr Ladley is perpetuating violence on his current partner, Ms K, as he has allegedly done with his other partners” ([11] 2016 family report) and “she asserted that people are fooled by Mr Ladley’s charming demeanour when, behind closed doors, he is so aggressive and abusive” ([24] 2016 family report).
d)In her trial affidavit the mother explained “I WANT X PROTECTED FROM WITNESSING ANY FURTHER ABUSE BY MR LADLEY, DRUNK OR OTHERWISE, OF FEMALE PARTNERS AND I WANT IT TO PROTECT ME, AS HER MOTHER, FROM HAVING TO UNDERTAKE THE LIKELY 2-YEAR-LONG WAIT PERIOD BETWEEN LODGING AN INITIATING APPLICATION AND FINAL TRIAL WHEN HE INEVITABLY STARTS UP AGAIN; WITH EITHER CURRENT GIRLFRIEND, MS K OR THE NEXT ONE” ([94] mother’s November 2016 affidavit).
In support of her argument the mother wished to rely on previous affidavits, emails, voice recordings and other documents pertaining to Ms G and Ms M (the father’s former partners) but this was disallowed as neither Ms G nor Ms M had provided updated affidavits nor were they available in court to be cross-examined.
It was clear from the evidence that Ms G and Ms M did not want to become involved in the matter and the mother did not issue subpoenas for their attendance in court.
Independent evidence such as police records were tendered.
In addition, the mother spoke often and repeatedly about various bodies, committees and statistics in support of her argument as to family violence being the reason why the child could never live primarily with the father.
The father asserts “that there is no basis to the allegations Ms Farwell has made about him and his history of violence” ([15] 2016 family report).
In order to consider this issue in the context of the future parenting arrangements for X, consideration must be given to the relevant history of family violence in this matter.
But to do so effectively, it is necessary to consider the history over two periods of time, namely the history prior to the equal shared care arrangements being put in place for the child in 2014 and the history since the equal shared care arrangements were made for the child in 2014:-
a)Prior to 2014
i)As to Ms G:-
· On Christmas Day 2000 there was a physical altercation between the father and Ms G which involved scratching by Ms G and slapping of the face and a kick to the bottom by the father. The father was charged with common assault but the charge was subsequently dismissed.
· The father explains that “I argued with my ex-wife in front of our children….Throughout that breakup process I learnt that it is not good for the children to argue in front of them nor to speak disparingly (even if factual) about the other parent. I would not agree that I was abusive or domestically violent to my ex-wife. We argued as equals” ([66] father’s October 2016 affidavit).
· The father states that he attended an anger management course after the breakup ([67] father’s October 2016 affidavit).
ii)As to Ms M:-
· In February 2007, after the father and Ms M had been out, there was an altercation whereby the father physically removed Ms M from his bed by dragging her by her ankles and subsequently causing her to hit her head and suffer concussion.
· The father states that “Ms M and I never argued in front of the children” ([68] father’s October 2016 affidavit).
· The father, in cross-examination admitted the role that he has played in these incidents with his former partners and blames it in part to his being a “critical person” and it was something “which I’ve been working on…..I’m reflecting on it and trying to improve”.
iii)As to the mother:-
· The mother described the father’s abuse towards her as “chronic” “multifaceted” and “often in a…cruel, unusual, bullying, mean and sudden way” and found the father to be “very threatening” ([3] mother’s February 2014 affidavit) and was “persistently emotionally violent towards her” ([4] 2015 family report).
· The mother makes the following allegations of family violence (which are not admitted to by the father):-
o In 2010 the father urinated on the mattress whilst drunk.
o In 2011 the father cut “the power to our…(omitted) Home when we lived together as he did not get to watch a TV show he wanted” ([55(j)] mother’s November 2016 affidavit).
o In 2011 the father smashed the mother’s blender on the floor.
o In 2011 the father called the mother, in front of the children, “a fucking fruitcake, who is a stupid bitch” ([71] mother’s November 2016 affidavit).
o In 2011 the father slammed “the door on my pregnant face….on an argument after I discovered he was having sex unprotected with another woman whilst I was pregnant” ([55(j)] mother’s November 2016 affidavit).
o In 2012 the father called the mother a “bitch” when she asked him to strap X into the pram before taking her for a walk ([102] mother’s April 2016 affidavit).
· The father admits to arguing with the mother explaining that “the mother’s constant adversarial nature, belligerence, and provocation have worn me down on occasion. It is also extremely frustrating trying to deal with her…there have been a couple of occasions that I have been lead into arguments and responded angrily in front of the children. I had to regularly remind the mother that discussion on ‘hot’ topics should wait until the children are not present” ([69] father’s October 2016 affidavit).
· In November 2012, after the father had been invited by the mother to care for X due to D being ill, the parties had a loud verbal altercation where the mother would not return the father’s laptop and the father used a pot plant to break a glass pane at her property in order to access the laptop. The mother called the police. The father was subsequently charged with damaging property and paid to get the window fixed which resulted in charges being dropped. The children were present.
· As a consequence of the incident the police on behalf of the mother took out an AVO against the father in early 2013 for 12 months which the father consented to on a no admission basis.
· As noted by the family report writer, however, that despite the AVO the parties from 2013 “still maintained regular contact with each other and frequented each other’s homes” ([40] 2015 family report).
· There are no incidents of the father being verbally, physically or emotionally abusive towards X or her siblings prior to 2014.
b)Since 2014
i)As to the mother:-
· The mother in cross-examination admitted she has never witnessed the father being verbally abusive of X and that the last incident of any verbal abuse by the father towards the mother in the presence of the child was in 2015, although the mother could not recall the details.
· Apart from the occasional argument, there is no evidence of any family violence incidents between the parties since the equal shared care arrangement for X has been in place.
· There are no incidents of the father ever being verbally, physically or emotionally abusing towards X or her siblings since shared care arrangements have been put in place.
· There are no incidents of family violence or any other violence between the father and any adult or child since shared care arrangements have been put in place.
ii)As to Ms K:-
· The father and Ms K commenced a relationship in 2015 and as at the date of the final hearing were not living together.
· Ms K has two teenage daughters living with her and is employed as a (occupation omitted).
· The father and Ms K have been spending alternate weekends and one night a week with each other.
· The mother is critical of the father’s partner as the mother had been told that Ms K was a “tragic alcoholic” although the mother’s impression on meeting her was that she was “nice enough” ([81] mother’s April 2016 affidavit).
· Ms K in the 2016 family report interviews spoke of no violence between her and the father stating that “she does not find Mr Ladley at all violent and rather described him as a ‘placid and calm person’” ([28] 2016 family report).
· The mother took it upon herself to share information with Ms K about the father’s alleged propensity to violence “given his 30 year history of it” which on 20 June 2016 was met with the following email response by Ms K “It is not appropriate for you to contact me at my workplace, neither is it appropriate for you to be sharing information about your past or current relationship with Mr Ladley. I understand that you have arrangements to be made between you because of X but this is not my business. I will not be opening any correspondence I receive from you. Please do not contact me again”.
· The mother, during cross-examination, asked the father “Okay. Do you think – if you were a gambling man based on your form, would you think Ms K has got a good chance of not coming a cropper in the same way that Ms G and Ms M and Ms Farwell did?” to which the father replied “Yes, I do…. I don’t think there’s any reason, given our dynamic and the way things have moved on…and the way I’ve grown and developed in my own life, I don’t think there’s any likelihood whatsoever that – for those sorts of things to occur”.
· In answer to a similar question asked later in cross-examination the father replied “due to the extreme adversarial nature of yourself Ms Farwell, I have responded to you and argued …when I know I shouldn’t but I can only take so much…..I don’t think there will be any likelihood of any arguing in front of X with my relationship with Ms K”.
When the family report writer was asked in cross-examination as to whether there was anything in the material which supported the mother’s view that the past history of family violence perpetrated by the father was a predictor of future family violence the family report writer replied “I think ultimately that’s for the …court…to determine. I have read the subpoenaed documents, and there….were a number …of isolated incidents that seemed to have involved – I’m speaking about previous partners….both parties…and it seemed that they’re alcohol involved….but in neither occasion did it proceed to an AVO….certainly I don’t want to minimise the family violence…..but….in the subpoenaed material the incidents were isolated, alcohol fuelled, it seemed. And of course I also appreciate that…often family violence goes unreported, so…there are many forms of family violence, not only physical violence, but also emotional violence. In the case of Mr Ladley and Ms Farwell observing the dynamics of their relationship I think that I can see that both parties contribute to any violence that happened. I found Mr Ladley, in my experience of him, you know Ms Farwell makes the case that….what the world sees is different to the man she has seen. I’ve found him in his interactions with me quite calm and considered. I’ve also read some of the communication…..and sometimes I think both parties go off the rails but certainly I would say that the tone of their communication is quite fuelled by some of the comments Ms Farwell makes…..I don’t see this matter as having the hallmarks of serious domestic violence”.
The family report writer further commented in respect to the father that “I’ve found in his interactions with me quite calm and quite considered”.
In answer to the question as to whether the child showed any fear of the father the family report writer replied “absolutely not, no….I didn’t see anything that gave me reason for concern” and if there had been family violence that there is often “a kind of hypervigilance on the part of children even as young as X” but “I didn’t see any of that”.
Conclusion on family violence
I agree that the father does have a history of family violence with all three previous partners albeit a limited and sporadic history where it appears that the women have also contributed to a lesser extent to the incidents.
But there must be more than just a history of family violence for family violence to be a consideration in determining the future parenting arrangements for a child.
Section 60CC(2)(b) Family Law Act 1975 speaks of the need to protect the child from physical or psychological harm from being subjected to or exposed to family violence.
The evidence does not support that X has been subjected to or exposed to family violence or is likely to be in the future.
Firstly, I find that the mother has not established that the father has such a propensity for violence that it is likely to play out with future partners.
The father’s history is not extensive, except for an AVO which did not prevent the mother from being around the father.
Further, the mother has had issues with AVO’s herself, with Ms S’s resorting to one when the mother was harassing her.
The father has had partners since 2013 and there are no complaints from any of his partners as to family violence.
The father’s current partner is a domestic violence worker and raises no concerns as to being in a relationship with the father or the father being involved with her two teenage children.
Secondly, you have to question the mother’s role in the family violence history with the father.
Her written and verbal denigration of the father is vicious and cutting and is not reflective of a woman who is afraid of the father or concerned about provoking the father.
Thirdly, there is no evidence that X, since the pot plant throwing incident, has been a witness or a victim to any family violence allegedly perpetrated by the father.
Lastly, I give weight to the family report writer’s opinion that this matter does not have the hallmarks of a family violence matter and that the child has shown no fear or concern as to being with the father.
I, therefore, find that family violence by the father is not an issue that the court needs to consider when determining the future parenting arrangements for X.
Alcohol/drugs
The mother is concerned that the father’s abuse of alcohol and marijuana will impact on his ability to care for X if the child was to live primarily with him.
The mother in 2014 described the father as “an alcoholic, consuming 2/3rds of a bottle of wine per night, and a user of marijuana more than weekly too” ([22] mother’s February 2014 affidavit).
In the 2015 family report interviews the mother informed the family report writer that “she would like” the father “to be restrained from drinking alcohol or using illicit substances for twelve hours before X comes into his care” ([12] 2015 family report) because of the father “drinking alcohol to excess especially after work on Friday evenings and of smoking marijuana regularly” as the father “does not need to be drunk to be revolting but it gets worse when he drinks” ([29] 2015 family report).
The father denies “that he has any more than a couple of glasses of wine per day and there are some days when he consumes no alcohol at all….he uses marijuana occasionally in social contexts but never in front of the children” ([20] 2015 family report).
In the 2016 interviews the mother maintained her concerns informing the family report writer that the father’s “capacity to be a satisfactory parent ceases after 9 pm due to the alcohol consumption and drug use and he resorts to putting X ‘in front of screens’” ([24] 2016 family report).
The father asserts that “he does not abuse alcohol and only drinks moderate amounts of alcohol sporadically….he is extremely conscious of his alcohol use when X is in his care. He acknowledged that he smoked marijuana regularly when he was in a relationship with Ms Farwell but now only has a marijuana joint socially from time to time, again, never in X’s presence” ([15] 2016 family report).
The father clarified in cross-examination that “I won’t have any more than a couple of drinks when she is with me”.
The mother admitted in cross-examination that she cannot recall the last time she has seen the father intoxicated and has not recently seen the father using drugs.
There is no evidence before the court that the father has been affected by drugs or alcohol whilst X has been in his care.
The family report writer in cross-examination stated that there was nothing in the father’s presentation or evidence that supported that his drug or alcohol use impacts on his parenting of X.
Conclusion on alcohol and drug use
I find that the father’s use of alcohol and drugs is not an issue that requires consideration in determining that future parenting arrangements for X.
I make this finding based on the following:-
a)The father freely admits that he consumes alcohol and occasionally partakes in marijuana use.
b)The father takes steps not to drink alcohol to excess when the child is in his care and does not use drugs when the child is with him.
c)There is no evidence that the father’s alcohol or drug use has impacted on his ability to parent or care for X or that X has been adversely affected by these habits.
d)The mother has not witnessed the father being drunk or drugged in the presence of the child.
As drug use is illegal, as it is imperative that parents do not drink to the extent that they are rendered unable to drive in the case of emergency and to put the mother’s fears to rest, orders have been made restraining the father from drinking to excess or using drugs when X is in his care.
Mental health
The mother questions the father’s unwellness and anger and informed the family report writer that the father has “symptoms of Narcissistic Personality Disorder which she believes needs forensic assessment” ([24] 2016 family report) and that “he fits the classic NPD or personality disorder profile” ([103] mother’s April 2016 affidavit).
In cross-examination the family report writer stated that that the father “presented to me, at least, to be much more intact psychologically” and that if there were any mental health concerns identified then this “would be more related to substances”.
The family report writer further commented that the father was “the more emotionally contained” parent.
Conclusion as to mental health
In the absence of any evidence in support of the mother’s claim that the father has mental health issues, I find that this is an issue which does not require consideration in determining the future parenting arrangements for the child.
Neglect
The mother identifies three incidents of neglect of the child by the father:-
a)When the child was two weeks old failing on one occasion to strap her into the pram.
b)When the child was a toddler the existence of a large antique dresser with glass doors that could have (but subsequently did not) caused injury to the child if she fell onto it when crawling.
c)In 2015 when the child care centre had cause to write to the father as the child presented with soiled pants, with days old paint on her head and the father had not bathed her. The father admits that he does not always bath the child daily but that the child is always washed and is dressed in clean clothes.
Since 2015 there have been no other concerns identified as to the father being neglectful of the child.
Conclusion on neglect
I give no weight to the issues raised as to pram and the dresser.
As to the child care incident, this is of a concern but there are no other incidents since and the father spoke openly and honestly about his cleanliness routine for the child.
Whilst it may not be of a standard acceptable to all persons, it certainly did not amount to neglect.
Further, X is now older and at an age where she is able to wash and dress herself with minimal assistance from the father.
I, therefore, find that the evidence does not support that the father has been neglectful of the child and therefore this is not an issue that needs consideration in determining the future parenting arrangements for the child.
Housing
The mother is highly critical of the inadequacy and suitability of the father’s housing for X.
As at the date of the final hearing the father was living in shared accommodation in a two bedroom unit at (omitted) where the child shared his room to sleep with her bed set up as a loft bed.
The mother expressed concerns as to:-
a)The safety of the bedding.
b)How cramped the living conditions were.
c)The father’s snoring that keeps the child awake.
d)The cleanliness of the bedding with there being a previous incident where a cat had urinated on the child’s bed.
e)The type of persons who occupy the premises and their suitability to be around children.
In contrast, the mother describes her home where the “child has her own bedroom…with personal effects of toys, books, a wardrobe. A tallboy….and where she eats fruit and highly nutritious food and food groups” ([14] mother’s November 2016 affidavit).
The father acknowledged to the family report writer that “his current living arrangements will be unsuitable for X if his Application is unsuccessful” ([10] 2016 family report).
The father then explained that he intends to move closer to Ms K in the (omitted) area and in the long term purchasing property on the (omitted) with Ms K.
In his written submissions it appears that the father has now relocated.
Conclusion on housing
Certainly the father’s living conditions with the child were not ideal as at the date of the hearing, which is acknowledged by the father, but sometimes circumstances are such that one can only do the best with what they have.
X has made no complaints about the living arrangements to the family report writer and no weight can be giving to the video recording made by the mother as it was obvious that the mother was questioning the child inappropriately about adult issues.
In any event the father has now taken steps to improve his living arrangements.
I, therefore, find that this is not an issue which impacts on the future parenting arrangements for the child.
Schooling
As at the date of the final hearing the father had not made any arrangements for the child’s schooling.
The mother was critical of the father’s failure to consider schooling and the father’s excuse was because he was seeking alternate housing he was not certain where that housing would be.
The mother, on the other hand, had enrolled X to attend (omitted) Public School; the school that D attends.
In the written submissions the father advised that the child is now enrolled in (omitted) Public School.
(omitted), which is in the (omitted) area, is over 105 kilometres from (omitted) and is nearly two hours travel by car.
Conclusion on schooling
As the father has now enrolled the child in a school in the area where he lives, then I find that schooling is not an issue as X will be able to attend a school in the location of her primary residence.
Ms K
The mother does not want Ms K to care for X and is concerned that when the father (occupation omitted) then the care of the child becomes Ms K’s responsibility.
The family report observed that when Ms K entered the play room during interviews “X said ‘Can you play with us Ms K?’ Ms K helped X dress the dolls to which Mr Ladley commented ‘that’s teamwork’. X repeated her father’s comments” and noted that “quite a playful and joyful interaction ensued” ([34] 2016 family report).
Conclusion on Ms K
Ms K is the mother of two teenage children, has a career, is in a committed relationship with the father, of whom she speaks highly, has held her ground with the mother over her inappropriate sharing of information with her and is observed to have a good relationship with X.
X has not raised any concerns with the family report writer as to Ms K.
I, therefore, find that this is not an issue which needs consideration in determining the future parenting arrangements for the child.
Inconsistencies with the mother’s belief and her actions
What is perplexing in this matter is that despite the ongoing concerns the mother has as to the suitability of the father being the primary carer of the child, the mother has no criticisms of the equal shared care arrangement that has been in place for some two years, has relied on the father to assist with the other children and speaks highly of his relationship with X.
The family report notes that “for the past two years, X has been with Mr Ladley on an equal time basis and there are seemingly occasions when he has also assumed the responsibility for looking after D. The subpoenaed material does not identify any concerns about the care X receives in the father’s household. Ms Farwell’s concerns about the care Mr Ladley provides seems to be contradictory. Whilst she makes quite outrageous claims about his violence, drug and alcohol use and has also listed a gamut of complaints in respect to practical issues such as cleanliness and space, Ms Farwell has allowed all of her children to be left in his care for significant periods” ([42] 2016 family report).
In cross-examination the family report writer reiterated that “there are some concerns that I had about the – intensity of …concern that the mother presented about the father when they seemed inconsistent with the arrangements that had been in place….since X was quite a little child”.
This is illustrated throughout the evidence such as:-
a)In 2014 the mother voluntarily left X in the care of the father for long extended periods of time.
b)In 2014 the mother wrote “Mr Ladley has been a very loving parent thus far and ostensibly to the child herself” and “has parented my child from another man ‘D’” ([10] and [11] mother’s February 2014 affidavit).
c)In the 2015 interviews the mother told the family report writer that:-
i)“She is not adverse to the current arrangements for X continuing” ([12] 2015 family report).
ii)“She would ask Mr Ladley or a baby sitter to take care of the children when she dates her new partner” ([25] 2015 family report).
iii)“She and Mr Ladley are still ‘very much in each other’s lives’ and continue to be in a sexual relationship. She added that they ‘know each other intimately’ which is borne out in the history….that she is ‘using him back for all he used me….’” ([25] 2015 family report).
iv)“Ms Farwell acknowledged that Mr Ladley adores X and X adores him. She referred to him usually being a ‘loving and good parent’” ([29] 2015 family report).
v)The mother was “concerned about D for whom” the father “has been a substitute father figure and in whose care she has occasionally entrusted D” and “was critical of” the father “for not spending as much time with D or inviting him to come and stay with him as often throughout 2014” ([29] 2015 family report).
vi)In 2016, just prior to the family report interviews, the mother asked the father to care for X whilst the mother went to (omitted) to (omitted).
d)In the 2016 family report interviews the mother described the father as a “wonderful” father ([24] 2016 family report).
The family report writer opines that “notwithstanding the criticisms Ms Farwell has made of Mr Ladley, he has been a consistent presence in X’s life and has been there to support Ms Farwell in periods when she has needed respite or time to attend to her needs” ([46] 2016 family report).
In answer to the question about the inconsistency of the mother alleging family violence then allowing time with not only X but also the other two children the family report writer responded “it may be that Ms Farwell is very, very compliant and…can step away from the family violence fears that she has. It may be too that she needs the support to manage X…to take X because she needed a break….there may be a number of explanations. But it’s puzzling to me”.
The mother is aware of the contradiction stating in cross-examination that “Funnily enough – in fact, if there was an award for patience and generosity and kindness maybe I would get one because I have acknowledged that, irrespective of how much of a nasty human being you were to me and the women in your life before me, you are a good parent to X”.
What this illustrates is that all of the unfounded issues that the mother raised against the father have nothing to do with his ability to parent X and have everything to do with the mother’s one on one conflict with the father including her anger and disappointment not only towards the father but of the fathers of her other two children.
Overall conclusion as to father
I find that the father is a capable and willing parent who poses no risk to the child.
This finding supports an order whereby the child live primarily with the father.
The law
I will now turn to the law.
The principles governing the determination of competing parenting applications are set out in Part VII Family Law Act 1975.
In essence, when making a parenting order, the court must consider what is in the best interests of the child pursuant to section 60CA, but, as succinctly put by Murphy J in Hardie & Capris [2010] FamCA 1046 at [48]:-
“‘Best interests’ is not the application of a theoretical construct, but rather the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular child of this parenting relationship.”
As discussed by the Full Court in Moose & Moose [2008] FamCAFC 108 at [66], the role of the judicial officer in making orders which are in the best interests of the child is to determine the best interest having regard to:-
“The matters set out in section 60CC(2) and (3) guided in consideration of the provisions by the object set out in section 60B(1) and the principles underpinning it contained in section 60B(2).”
As for the primary considerations, in the leading authority of Mazorski & Albright (2008) 37 Fam LR, Brown J refers to such considerations as the “twin pillars” where:-
a)The first pillar is the importance for a child to have a meaningful relationship with both parents; and
b)The second pillar is the need to protect children from physical and emotional harm.
In deciding what is in the best interests of the individual child, section 61DA and section 65DAA come into play, and, if the child is subject to an equal shared parental responsibility order, then the amount of time to be spent by the non-resident parent, if reasonably practical, must also be considered.
The distinct pathway which applies to parenting matters where an equal shared parental responsibility order has been made is the subject of much discussion by the High Court in MRR & GR (2010) 263 ALR 368.
Application of the law
Primary considerations
Benefit to the child of having a meaningful relationship with both of the child’s parents
What is meant by the term “meaningful” was discussed at length by Brown J in Mazorski with the Full Court in Moose stating at [68] that “Her Honour’s discussions is helpful and her conclusions about s60CC(2)(a) are cogent.”
At [26] Brown J concluded:-
“What these definitions convey is that ‘meaningful’ when used in the context of ‘meaningful relationship’ is synonymous with ‘significant’ which, in turn, is generally used as a synonym for ‘important’ or of ‘consequence’ ….a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one.”
Kay J in Godfrey & Sanders [2007] FamCA 102 spoke of the legislation promoting a “meaningful relationship, not an optimal relationship.”
The Full Court in McCall & Clark (2009) FLC 93-405 at [117] adopted the approach discussed by Bennett J in G & C [2006] FamCA 994 and said the enquiry as to whether a relationship is meaningful is “a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child”.
Conclusion as to meaningful relationship
I find that the child has a meaningful relationship with the parties and that it is in the child’s best interest for these relationships to be maintained and nurtured.
This consideration is therefore relevant in determining the future parenting arrangements for the children.
Need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
As to the father
Findings have been made that the child is not at risk of any harm when with the father.
As to the mother
Findings have been made that the child may be at risk of psychological and emotional harm when with the mother.
Conclusion on need to protect child
I, therefore, find this consideration supports an order whereby the child live with the father and spend time with the mother in such a way to minimise the risk of harm to the child.
Additional considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
X, now aged 5, was too young to be formally interviewed by the family report writer.
Conclusion on child’s views
This is, therefore, not a consideration which will be factored into determining the future parenting arrangements for the child.
Nature of the relationship of the child with each of the child’s parents and other persons
Father
The father considers “X’s attachment to him is strong and secure” ([19] 2016 family report).
Ms K notes “a deep level of affection between X and her father and that X often requests to stay with him longer” ([29] 2016 family report).
The family report writer after the 2015 interview made the following comments:-
a)When X “first saw her father, she ran to him and he took her into his arms” ([33] 2015 family report).
b)“In the interaction with her father, Mr Ladley sat on the floor with X. She ….made free flowing conversation with her father. Mr Ladley shadowed her as she played. He gave her affirming feedback and made appropriate suggestions which enhanced the exploration in her play….when X became frustrated, Mr Ladley encouraged her to ask for help and use her words” ([34] 2015 family report).
The family report writer after the 2016 interviews made the following comments:-
a)During play the father “was observed to be encouraging and affirming in his interaction with X” ([32] 2016 family report).
b)At the end of play “X asked if she could stay with him ‘for three weeks’” and said “I want to come with you and stay with you for a long time” ([35] 2016 family report).
c)“The assessment bears out that X has a close relationship with her father”.
The mother does not dispute that the father and X have a good relationship.
I find that the father has a strong and healthy relationship with the child.
Mother
The father states that “X loves her mother” ([19] 2016 family report).
The family report writer in the 2015 interviews made the following comments:-
a)The mother’s “interventions with the younger children were appropriate albeit that, for the first part of the interaction, she tended to be an observer to their play and assumed more of an instructive and facilitating role. Ms Farwell iterated on several occasions during the observation how demanding it was to care for three children” ([37] 2015 family report).
b)“Ms Farwell…eventually moved into quite a physical game where she was lifting X into the air mimicking an aeroplane….X delighted in the game and laughed heartily. A commented to her mother that her underwear was showing to which Ms Farwell responded that it was not a concern as only family present” ([38] 2015 family report).
The family report writer in the 2016 interviews made the following comments:-
a)After play when the father left the room “there was a noticeable change in X’s behaviour…and her behaviour became comparatively quite silly” ([35] 2016 family report).
b)“When Ms Farwell entered the room, she noticed X’s behaviour and attempted to deal with it by encouraging X to ‘use your words’ and play. She tried to distract X by using humour. She also told X to ‘stay on task’…..X became more focused” ([36] 2016 family report).
c)“In the course of the observation, X called her mother ‘yukky poo poo’ and then started to laugh. Ms Farwell in response, pretended to cry and said to X ‘you’re supposed to cuddle me now’. X cuddled her mother who said to her ‘You don’t mean that’ about the comment she made. X replied ‘yes I do’…. ‘because you always yell at D’. Ms Farwell replied by saying ‘Have you been coached to say that’. She then commented to the side that she does get cranky with D because he does not listen to her when she tells him to get off the IPAD. She added ‘you sometimes have to yell to get their attention’” ([38] 2016 family report).
d)“X and her mother continued playing and their interaction became quite uncontained to the point where X was screaming. Ms Farwell tickled X who screamed more. Ms Farwell did little to regulate herself or X in the play…..X and her mother were then observed singing together….the intensity of the previously observed interaction seemed to subside thereafter and X left with her mother. As they prepared to leave, X was heard telling her mother she wanted to ‘stay with Daddy for a long time’ ….she reiterated that she wanted to stay with her father. Ms Farwell promised X that she would buy her a chocolate ice cream and they left together” ([39] 2016 family report).
I find that the mother has a good relationship with the child but that her lack of containment and emotional regulation may be impacting on the child focus and as a consequence the relationship between the mother and the child may not be as healthy as it should be.
Siblings
X currently lives, when in the mother’s household, with her older brother D.
Whilst there can be no doubt that as siblings the children have a relationship, the extent of that relationship is unknown and in part this is due to the older children not being available for the family report interviews.
X does not live with A and it is unknown as to the frequency of their relationship, although the father has arranged for A to see X when the child is in his care.
Conclusion on nature of the relationship with the parents
I find that this consideration is very important as it supports an order for the child to live with the father and it supports an order for the mother to be able to spend time with the child, although safeguards need to be put into place to ensure that the interaction is healthy.
Further, any order must take into account the sibling relationships.
Consideration is, therefore, given to this consideration in determining the future parenting arrangements for the child.
Extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions, to spend time with and to communicate with the children
As the parties have not raised any viable issues under this heading, then this is a consideration which needs no further investigation and will not be factored in when determining the future parenting arrangements for the children.
Extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children
The mother criticises the father for being “very miserly” and spoke of his “unwillingness to contribute financially” to the child’s upkeep ([29] 2015 family report).
However, the mother did not produce evidence to support that the father is in arrears in any child support commitments or that the father does not meet the child’s day to day material needs when the child is living with the father.
Conclusion on parent’s obligation to maintain
I find that this is not a consideration which needs to be factored in when determining the future parenting arrangements for the child.
Likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child, or other person
Given X’s age and the arrangements for over two years where the child has lived in an equal shared care arrangement, an order for the child to live primarily with either parent will have an impact on the child.
The family report writer opines that in addition to the child being at risk of exposure to the mother’s behaviours should the child live primarily with the mother, the child will miss the father as there will be a significant reduction in time ([49] 2016 family report).
If an order was made for the child to live primarily with the father then X would spend less time with the mother and how the mother’s “neediness” could leave X “feeling she has let her mother down and responsible for her mother’s emotional welfare” ([49] 2016 family report).
In addition, living with the father will affect the child’s sibling relationship, especially with D and “might result in D feeling alone and very vulnerable in his mother’s care” ([49] 2016 family report).
Although X is too young to express a view that can be given any weight, the repeated comments by the child at both family report interviews of wanting to spend more time with the father, I find is an indication that the child may be able to better cope with a transition to an arrangement whereby the child is living primarily with the father.
Conclusion as to likely effect of changed circumstances
I find that this is a consideration which needs to be factored in when determining the future parenting arrangements for the child and supports an order for the child to live with the father.
Practical difficulty and expense of the child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The parties were, at the time of the final hearing, living some considerable distance apart, and now that the father has moved to the (omitted) district this distance has increased.
Although driving may make the travelling time less, the mother refuses to do so, explaining that due to “frequent heavy traffic contingencies” and finding the (omitted) journey “stressful”, the mother takes public transport of a bus and train with the children in order to facilitate time with the father ([9] mother’s November 2016 affidavit).
The mother in cross-examination indicated that it would be a four hour return journey by public transport for her to collect or return the child once the father moves to the (omitted) area.
The mother pondered whether three weekly as opposed to alternate weekend might be a more viable option.
Conclusion as to practical difficulty
The practical difficulties associated with spend time with arrangements is a consideration which needs to be factored in when determining the future parenting arrangements for the child and, in particular, the ability of the mother to spend time with X on a regular basis.
Capacity of each of the child’s parents and any other person to provide for the needs of the child
To date, the parties working together in an equal shared care arrangement for X have been successful in meeting the child’s needs.
The family report writer comments:-
a)“Together the parties are meeting her physical, emotional, medical and educational needs even though each makes assertions that the other has, at times, been remiss in attending to X in a responsible way. They are seemingly highly reliant on each other and most likely need each other’s support to fully care for X” ([47] 2015 family report).
b)“The parties are to be applauded for meeting X physical, emotional, medical and educational needs and for drawing on each other’s support to fully care for their child” ([40] 2016 family report).
But, in respect to the mother meeting the needs of her other two children; there have been two areas of concern.
Firstly, in 2015 FACS investigated two incidents in close proximity to each other where A and D were allowed to play unsupervised near a mangrove for over 2 hours and where A was left to care for D and X at 10.30pm when the mother went down the street to visit friends.
The FACS records note that the children’s need for safety had not been met.
Secondly, in 2016 the child D’s schooling has suffered as D has missed a substantial amount of schooling with whole day absences of 30 days and partial day absences of 10 days.
The majority of the absences were noted as “unjustified”, with others relating to the mother not being well and others surrounding the death of the maternal grandmother.
Very few of the absences related to D being ill.
The family report writer explains how X’s needs will change now that she is preparing to attend school stating that “X presents as a bright and resilient child who is meeting many of the milestones expected for a child of her age. She is at a stage of her development where she needs to be given freedom to play, to ask questions, to use imagination and choose activities that are challenging and of interest and not related to the parental dispute. It is in the context of play that children of X’s age develop social relationships with their peers and acquire social skills such as sharing and collaborating which are essential for her as she prepares to start school next year” ([48] 2016 family report).
The family report writer holds the view that the father is more able to meet the child’s ongoing needs, stating that X’s “interaction with Mr Ladley and Ms K was much more focused, child led and regulated than what was observed when she was with her mother. Based on the material that has been available for the preparation of this report, Mr Ladley presents as the more contained and emotionally regulated parenting option for X” ([47] 2016 family report).
The family report writer reiterated in cross-examination that the father was better able to meet the child’s long term needs than is the mother.
Conclusion as to capacity
I find that this is a consideration which supports an order for the child to live primarily with the father as the father is better equip than the mother to provide for X’s needs at a time where it is imperative that the child has the ability to develop mentally.
This is, therefore, a consideration which weighs heavily in determining the future parenting arrangements for the child.
Maturity, sex, lifestyle and background of the child and parents and any characteristic of the child that the court thinks are relevant
As the parties have not raised any issues under this heading, then this is a consideration which needs no further investigation and will not be factored in when determining the future parenting arrangements for the child.
Child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed order will have on that right
As the parties have not raised any issues under this heading, then this is a consideration which needs no further investigation and will not be factored in when determining the future parenting arrangements for the child.
Attitude to the child and to the responsibilities of parenthood
During cross-examination each party was asked to speak about the positive and negative aspects of the other party and their parenting of X.
The father listed the following positive aspects for the mother:-
a)The mother loves the children.
b)The mother encourages the children to use thought process.
c)The mother educates the children and teaches them cultural pursuits.
The father listed the following negative aspects for the mother:-
a)The mother’s emotional dysregulation.
b)The mother’s age inappropriate discussions with the children including the sharing of her dislike for men.
c)The mother’s yelling and physical disciplining of the children and in particular D.
d)The mother’s denigration of others in the presence of the children.
The mother listed the following positive aspects for the father:-
a)The child loves the father and the father loves the child.
b)The father is affectionate towards the child and cuddles and snuggles the child.
c)The father cooks good, healthy, beautiful food for the child.
d)The father has taught the child about music and guitar.
e)The father is a fun person to be around when he is in a good mood.
f)The father is very playful with the child.
The mother listed the following negative aspects for the father:-
a)The father has verbally abused females in front of children.
Conclusion on attitude and responsibilities
I find that both parties have taken on the responsibilities of parenthood.
This is, therefore, not a consideration that will factor in determining the future parenting arrangements for the child.
Family violence involving the child or a member of the children’s family
Findings have already been made in respect to family violence.
This consideration will, therefore, not be factored in when determining the future parenting arrangements for the child.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
Early in the final hearing the father flagged his concern that the mother would not abide by court orders, given the history of the matter.
The family report writer is concerned that “litigation, seems thus far, to have kept the parties connected to each other, albeit pathologically” ([50] 2016 family report).
Another concern expressed by the family report writer is that “the history of this matter is such that the parties are likely to make their own arrangements for X as they proceed into the future despite what orders are made” ([51] 2016 family report).
Conclusion as to order and further proceedings
Whilst it would be ideal to have final orders in place it may not be possible.
I find that I am only able to make an interim order in this matter in respect to the time and manner the mother is to spend with the child due to the concerns as to the state of the mother’s mental health and the need for evidence in that regard.
Any other fact or circumstance
Lack of communication and conflict between the parties
At times the parties are able to co-operate to put arrangements in place for X but at other times their strained relationship and lack of communication is problematic.
As noted by the family report writer the parties “have become caught in a very complex, dysfunctional and chaotic pattern of relating to each other and their dispute appears to be grounded very much in the adult issues. Ms Farwell blames Mr Ladley’s poor anger management and his inability to commit himself to the relationship for their woes. Mr Ladley, on the other hand, attributes their difficulties onto Ms Farwell’s untreated mental health issues and poor emotional regulation. The behaviour of the parties, especially that of Ms Farwell has, at times, been appallingly immature. It suggests they are still unseparated and that there have been and maybe continues to be fuzzy boundaries to their separation. ….they seem to oscillate between being at times hostile and acrimonious with poor filters to their communication while at other times, being civil and cordial and even intimate with each other……The swings in their relationship dynamics seem to happen quite suddenly although they do have some predictable triggers…”([40] 2015 family report).
The father explained that “he feels at the mercy of Ms Farwell’s whim and that, at times, he finds her difficult to deal with….for the most part, they have been able to implement the existing Orders, although handovers become problematic” ([14] 2016 family report).
The father states that “he walks away rather than become drawn into arguing with Ms Farwell in the children’s presence”, how the mother tends to “twist things round” and “how this makes communication with her difficult at times” ([21] 2015 family report).
The family report writer observed that the father “presented as the party who had the more insight and capacity to appreciate the impact of the dysfunctional adult relationship on all ….children even if he is not always able to implement his intention to behave in a child focussed way or perhaps draw clear boundaries with Ms Farwell” ([43] 2015 family report).
The family report writer opines that “the parties need to be mindful that children who witness family conflict are prone to suffer adverse consequences in their emotional and cognitive development. Depression, anxiety and temperament problems are often observed in such children. They also sometimes manifest disorganisation of planning and organising functions, hypervigilance, poor inhibition of inappropriate responses and attention to distractions resulting in symptoms not unlike ADHD. Continued exposure to acrimonious interactions between the adults may become a significant stressor to X and may impact adversely on her psychological adjustment. Furthermore it models to X a very poor example of how to manage conflict” ([50] 2015 family report).
Conclusion as to conflict and lack of communication
The evidence supports that communication is difficult and that this can result in tension at changeovers.
Further, the evidence supports that whilst the father tries to stay calm and contained the mother is the complete opposite and appears to go to great lengths to push the father’s buttons in order to get a reaction.
This consideration is, therefore, important when it comes to considering the issue of sole parental responsibility.
Application of the primary and additional considerations to the issues
With whom should the child live
Amongst the cacophony of comments, the mother made one very pertinent point in cross-examination (when discussing where X should live) exclaiming “which should we go with: the fruit cake or the domestic violence abuser?”
Certainly not wording of my choosing, but the insightfulness of the dilemma facing the court was well captured by the mother; should X live with the mother where there is a risk of psychological harm or should X live with a father where the mother is convinced that family violence may play out again in the future?
But the evidence is very clear as to the outcome.
The father does not pose a threat to the child and has the ability and capacity to care for the child and meet her day to day needs.
On the other hand, due to her unaddressed mental health issues which have resulted in her uncontained emotions and subsequent reactions, the mother does pose a potential risk to the child.
Further, the evidence indicates that the mother struggles to meet the needs of D with difficulties in disciplining him and failing to get him to school and therefore may face similar struggles with X, now that she has reached school age.
As to the mother’s third child, A, the courts have resorted to a supervised time order only on an interim basis due to the mother embroiling the child in adult issues, many of which were inappropriate for a child given her age.
By law, the court is required to make orders that reflect what is in the best interest of the child.
I find that there is only one option here that reflects that requirement and that is an order for the child to live primarily with the father.
Time with the mother
I find that it is in the child’s best interest to spend time with the mother.
I further find that on an interim basis that such time must be supervised.
I make that finding based on the following:-
a)It has been identified that the child is at risk of psychological harm from the mother due to her behaviour and reactions.
b)A psychiatric report is required so as to confirm whether the mother has mental health issues and if so what treatment the mother may require.
c)It is only after the release of the psychiatric assessment report that consideration can be given to how the mother’s time with the child can progress.
d)I take heed of the family report writer’s opinion that given the mother’s “behaviour leading up to preparation of this report” this “calls into question how she would deal with the abandonment she would feel should the Court make Orders for X to live primarily with Mr Ladley” and one has to consider “what impact this would have on X” ([45] 2016 family report).
e)I hold a concern that as a consequence of the court ruling for the child to live with the father that the mother’s behaviours may escalate resulting in further denigration of the father, erratic reactions and inappropriate conversations with X.
f)The mother has threatened suicide before, maintains the view that she has the right to suicide and has discussed this with the children in the past. Given that the child will be living with the father, then it is in the best interests of the child that time between the mother and the child on an interim basis be supervised so as not to expose the child to the risk of another episode where the mother may become suicidal or share her suicidal ideation with the child.
As to the manner of supervision, the orders provide for time at a contact centre and at the maternal aunt’s house, where time is currently occurring between the mother and A.
Orders have been made that other spend time with periods can be agreed upon between the parties, but supervision must occur.
As to the frequency of time provision has been made for fortnightly time with such time to alternate between the contact centre and the maternal aunt’s house.
This takes into account the distance between the parties.
Given the mother’s physical health issues and her need to use public transport, I have ordered that the father undertake the travelling.
Parental responsibility
Initially the parties agreed to an order for equal shared parental responsibility for all major long term decisions except schooling and location.
However, by the hearing it became apparent that equal shared parental responsibility was no longer agreed with each party in their written submissions seeking sole parental responsibility.
Section 61DA(1) Family Law Act 1975 states that the presumption of equal shared parental responsibility applies unless as provided for in section 62DA(4) it is rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
I find that in this matter the presumption is rebutted as it would not be in the best interest of the child for both parties to be making the long term decisions for the child.
I base this finding on the following:-
a)The findings as to psychological risk to the child by the mother.
b)The concerns as to the mother’s mental history.
c)The inability of the parties to communicate effectively.
d)The history of the matter where the mother has unilaterally made decisions for the child such as relocating the child from the Sydney area to (omitted) without consultation or prior approval of the father.
I further find that as the child is to be in the primary care of the father and living with the father with supervised time between the mother and the child that it is in the child’s best interest for the father to have sole parental responsibility for the child.
However, the father’s ability to relocate with the child has been restricted as it is important for X that time occur with the mother.
Overseas travel
The father is seeking an order for overseas travel with the child.
This is an issue which, given the nature of the matter and the orders made, is one that cannot be considered until final orders are made as to the mother’s spend time with arrangements with X.
Final and interim orders
In cross-examination the family report writer commented about the need to finish court proceedings stating that “X …third parent has been the family court ever since she can remember and that……..a continuation of more litigation….can‘t be good for children”.
I agree.
It is for this reason that all the orders made except the spend time with orders have been made on a final basis.
This will enable the mother to be psychiatrically assessed, for the mother to obtain treatment if required and for the issue of spend time with arrangements to be revisited.
I certify that the preceding two hundred and sixty-eight (268) paragraphs are a true copy of the reasons for judgment of Judge L. Turner
Date: 28 February 2017
Key Legal Topics
Areas of Law
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Civil Procedure
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Standing
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Procedural Fairness
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Natural Justice
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