LANCEFIELD & LANCEFIELD
[2020] FCCA 1674
•29 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LANCEFIELD & LANCEFIELD | [2020] FCCA 1674 |
| Catchwords: FAMILY LAW – Parenting – final – at separation mother voluntarily admitted to mental health facility – long term major depressive disorder – mother returns to live with her parents and takes a job in another region of NSW – mother’s mental health significantly improves – parents geographically distant across NSW – interim orders for equal shared parental responsibility and time with mother – father reads and stores mother’s electronic communications and internet searches – father unilaterally and without notice relocates, enrols children in new school and advises new school mother is to have restricted contact with school during litigation and despite interim orders – father has engaged in coercive or controlling behaviour, unilateral exercise of parental responsibility and has controlled and minimised and failed to promote relationship between children and mother – consideration of mother’s low to moderate risk of relapse of a major depressive disorder – consideration of likelihood of a more nurturing environment in mother’s household – consideration of children’s views when one child wants to stay and the other child wants to move – considerations of the benefits of stability of existing residence and risks inherent in a move – finding greatest weight to be given to risks associated with father’s conduct – children’s best interests served by relocation to live primarily with mother – practical difficulties of geographic distance – some school term weekends and half school holidays with father – ancillary orders. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC, 60CC(3), 65AA, 117, 117(2A), 117(4), 117(5) Evidence Act1995 (Cth), ss.140(1), 140(2), 140(2)(c) |
| Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336. Carlson & Fluvium [2012] FamCA 32 Adamson and Adamson (2014) FLC 93-622 In The Marriage of Harrison and Woolard (1995) FLC 92-598 In the Marriage of Brear and Corcoles-Alfaro [1997] FLC 92-768 R v R (2000) 155 FLR 29 In The of Marriage of Jurss (1976) 9 ALR 455 |
| Applicant: | MS LANCEFIELD |
| Respondent: | MR LANCEFIELD |
| File Number: | WOC 562 of 2018 |
| Judgment of: | Judge B Smith |
| Hearing dates: | 5 September 2019, 6 September 2019, 19 February 2020, 20 February 2020 21 February 2020, 1 June 2020 |
| Date of Last Submission: | 1 June 2020 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dart |
| Solicitors for the Applicant: | Rossi Simicic Lawyers |
| Counsel for the Respondent: | Mr Sansom S.C. |
| Solicitors for the Respondent: | Powe & White Family Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr White |
| Solicitors for the Independent Children's Lawyer: | Acorn Lawyers |
ORDERS
Parental Responsibility
The parties have equal shared parental responsibility for the children X born in 2009 and Y born in 2011 (hereinafter “the children”).
Live and spend time arrangements until 23 December 2020
That from the date of these Orders until 23 December 2020, the children live with the Father.
From the date of these Orders until 23 December 2020, the children spend time with the Mother during school terms as follows:
(a)For three weekends as nominated by the Mother from after school at 3.30pm or 5.00pm Friday (if such time is to be spent in the Region B) until 4.30pm Sunday, with such time to take place in Town C or in the Region B, and she is to provide to the Father one (1) weeks’ notice of the weekend and details of her accommodation with the children if she intends to spend the time with the children in Town C. In the event she intends to spend time in the Region B, and is unable to travel to Town C to collect the children, the parents are to effect changeover at Town D at the commencement and conclusion of time;
(b)In addition to the Mother’s time in accordance with Order 3(a), the Mother be at liberty to spend time for two (2) nights with the children during the school week, when she has two (2) rostered days off, from after school until the commencement of school the following morning, provided the Mother travels to Town C for such time and provides the Father with seven (7) days’ notice including details of her accommodation in Town C.
During school holiday periods for the remainder of 2020 the children spend time with the Mother as follows:
(a)One half of each shorter school holiday period at the conclusion of Terms 2 and 3 as agreed, and failing agreement for the second half in 2020.
December 2020 Christmas School holidays
Notwithstanding the other Orders, during the December 2020 Christmas school holidays, the children spend time with the parents as follows:
(a)From the last day of school Term until 4.00pm on 23 December 2020, the children live with the Father;
(b)From 4.00pm on 23 December 2020 the children live with the Mother;
(c)From 4.00pm on 30 December 2020 until 4.00pm on 13 January 2020 the children spend time with the Father;
(d)From 4.00pm on 13 January 2020 and thereafter the children live with the Mother.
Live and spend time arrangements from 23 December 2020
That from 4.00pm on 23 December 2020 the children live with the Mother.
From 23 December 2020 the children spend time with the Father as follows:
(a)Three weekends during school terms from after school or 3.00pm Friday until 4.30pm Sunday as agreed between the parties and failing agreement for the second, fifth and eighth weekend of the school term. The Father is to provide one (1) weeks’ notice to the Mother of the weekend and details of his accommodation with the children;
(b)During school holiday periods, for half of all school holiday periods as agreed and failing agreement, for the first half in all even numbered years and the second half in all odd numbered years; and
(c)Other times as agreed between the parties in writing.
That in addition to the children’s time with the Father pursuant to Order 7(a) herein, the Father be at liberty to spend time with the children on an additional one (1) weekend per school term provided that the Father has given the mother no less than twenty-eight (28) days’ notice in writing of his intention to do so and the Father shall collect and deliver the children to and from the children’s school, or if agreed from the mother’s residence, from the commencement and conclusion of such time.
(a)That the Father be restrained from nominating the weekend of the mother’s birthday or the children’s birthday’s in exercising additional time with the children unless otherwise agreed between the parents in writing.
That if the following time falls during a period the children are otherwise with the Father, and if the Mother provides no less than fourteen (14) days’ notice in writing of her intention to do so and she travels to the Town C area or such other area as is agreed in writing to do so, then, the Father's time be suspended, and the children spend time with the Mother as follows:
(a)On Mother’s day from 10.00am until 4.30pm;
(b)On the children’s birthday for four (4) hours if such time falls on a day the children are with the Father;
(c)For four (4) hours on the Mother’s birthday if such time falls on a day the children are with the Father;
(d)From 3.00pm Good Friday until 9.00am Easter Sunday in odd numbered years;
(e)From 9.00am Easter Sunday until 3.00pm Easter Monday in even numbered years;
(f)From 4.00pm Christmas Eve until 4.00pm Christmas Day in even numbered years; and
(g)From 4.00pm Christmas Day until 4.00pm Boxing Day in odd numbered years.
That if the following time falls during a period the children are otherwise with the Mother, and if the Father provides no less than fourteen (14) days’ notice in writing of his intention to do so and he travels to the Region B area or such other area as is agreed in writing to do so, then, that the Mother’s be suspended and the children spend time with the Father as follows:
(a)On Father’s Day from 10.00am until 4.30pm;
(b)On the children’s birthday for four (4) hours if such time falls on a day the children are with the Mother;
(c)For four (4) hours on the Father’s birthday if such time falls on a day the children are with the Mother;
(d)From 3.00pm Good Friday until 9.00am Easter Sunday in even numbered years;
(e)From 9.00am Easter Sunday until 3.00pm Easter Monday in odd numbered years;
(f)From 4.00pm Christmas Eve until 4.00pm Christmas Day in odd numbered years; and
(g)From 4.00pm Christmas Day until 4.00pm Boxing Day in even numbered years.
Changeovers
That for the purposes of changeovers, unless specified otherwise in a particular Order, the parties shall meet at Town D at the commencement and conclusion of time.
Communication
That the Father be at liberty to have telephone communication with the children each evening they are not in his care between 5.00pm and 7.00pm, with the Father to phone the children and the Mother shall:
(a)Facilitate such communication between the children and the Father;
(b)Ensure the children are given privacy during their telephone communication; and
(c)Ensure the children have access to a working telephone and the Father is provided with an appropriate contact number.
That the Mother be at liberty to have telephone communication with the children each evening they are not in her care between 5.00pm and 7.00pm, with the Mother to phone the children and the Father shall:
(a)Facilitate such communication between the children and the Father;
(b)Ensure the children are given privacy during their telephone communication; and
(c)Ensure the children have access to a working telephone and the Mother is provided with an appropriate contact number.
School
A copy of these Orders may be provided to any school either child attends.
That the parties sign all documents to allow the school to provide copies of all school reports, newsletters and other information to both parties.
That each of the parties are permitted to liaise directly with the children’s school(s), sporting bodies and/or extra-curricular organisations to obtain any necessary information about the children’s progress, copies of school reports and that both parties are to authorise the school(s), sporting bodies and/or other organisations to facilitate this.
That each party be entitled to attend all events involving the children including, but not limited to:-
(a)Sporting fixtures;
(b)Extracurricular activities that allow for parental attendance or participation;
(c)School functions and events that allow for parental attendance or participation, and the party who has the children in their care on the day of such activity will be responsible for the day to day care of the children at such event including the children’s transportation to and from the event unless otherwise agreed upon between the parties.
Keeping informed
That each party shall ensure the other party is kept informed as soon as is reasonably practicable of:-
(a)any medical problems or illness suffered by the child/ren, whilst in their care;
(b)any medication that has been prescribed for the child/ren;
(c)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child/ren;
(d)any social, school or religious functions which the child/ren is to attend;
(e)their residential address;
(f)their telephone contact number; and
(g)any other matter relevant to the welfare of the child/ren.
Restraints
That each party shall refrain from making critical or derogatory remarks about the other party or members of their family in the presence or within the hearing of any of the children and that each party shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other party or members of their family in the presence or within the hearing of the children.
That the parties be restrained from discussing the proceedings or any other adult issues with the children or in the presence or hearing of the children including with whom the children may live.
Medical and psychological care
That the parties do all things necessary to ensure the children continue attending upon their counsellors, and engage a new counsellor and a new general practitioner for the children near the Mother’s residence so that they may commence consulting with them as soon as possible after their relocation.
That leave be granted for the release a copy of the Family Report prepared by Mr E and his supplementary Report dated 19 May 2020 to the counsellor for the children to assist them in their relocation and change of residence.
The children shall continue to attend upon a counsellor for as long as is recommended by the counsellor or treating practitioner.
That the Mother continue to attend upon her counsellor, psychologist or such other persons as recommended by her general practitioner from time to time.
Both parties do all things necessary to ensure the children are enrolled in a school within the Region B region prior to the commencement of the 2021 school year.
Independent Children’s Lawyers Costs
The Mother shall pay $6,732 to the Legal Aid Commission of New South Wales within three (3) months of these Orders. The Legal Aid Commission of New South Wales as the beneficiary of this Order may either defer the time for payment and / or waive the obligation for payment in part or in whole.
The Father shall pay $6,732 to the Legal Aid Commission of New South Wales within three (3) months of these Orders. The Legal Aid Commission of New South Wales as the beneficiary of this Order may either defer the time for payment and / or waive the obligation for payment in part or in whole.
Vaccinations (machinery provisions)
If for any reason the children’s vaccinations pursuant to the Consent Orders dated 19 February 2020 (“the Consent Orders”) have not been completed prior to 23 December 2020, then the following Orders will apply to supplement and vary as necessary the Consent Orders:
(a)The parties are to do all things reasonably necessary to agree on and appoint a general practitioner near the Mother’s residence for the children by 1 February 2021, and;
(i)failing agreement by 1 February 2021, for the purposes of the Consent Orders only, the Mother’s general practitioner shall be appointed by these Orders as the children’s general practitioner for the purpose of giving effect to the Consent Orders.
(b)For the purposes of the Consent Orders:
(i)the reference to “Dr F” shall be deemed to be a reference to the children’s new or appointed general practitioner.
(ii)the reference to “the father” shall be deemed to be a reference to “the mother”.
(iii)the children’s new or appointed general practitioner is to be given a copy of these Orders and of the Consent Orders.
NOTES
(A)That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
(B)Pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Lancefield & Lancefield is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
WOC 562 of 2018
| MS LANCEFIELD |
Applicant
And
| MR LANCEFIELD |
Respondent
REASONS FOR JUDGMENT
Ms Lancefield, aged 40, and Mr Lancefield, aged 41, are both public servants. They met at work while posted at Employer G and commenced a relationship in early 2008. They had their first son X, currently aged 11, in 2009, were married in 2009 and had their second son Y, currently aged 9, in 2011. They finally separated on 11 November 2017.
This case is about X and Y, and in particular about which parent they should primarily live with.
At the moment the children live with Mr Lancefield and his new partner Ms H in Town J, where he is working, and spend some school term weekends and half school holidays with Ms Lancefield at Town K, where she is working, and where she lives in a five bedroom house with her parents Ms L (known as Ms L) and Mr M. Ms Lancefield lives next door to her brother Mr N and his wife and their son.
Whilst the parties started with quite different proposals, the differences narrowed across the course of the hearing, and by final submissions the parties and the Independent Children's Lawyer (“ICL”) had agreed on a large number of matters. These were that:
a)the parties should continue to have equal shared parental responsibility for the children;
b)neither parent poses an unacceptable risk of physical or psychological harm to the children;
c)the children love, are attached to and have a strong relationship with each parent;
d)there is a benefit to the children in having a meaningful relationship with each parent; and
e)the children should spend such substantial and significant time with the non-resident parent as is reasonably practicable.
The real issue then comes down to whether the children should continue to live primarily with Mr Lancefield and spend time with Ms Lancefield, or move and live primarily with Ms Lancefield and spend time with Mr Lancefield.
Unfortunately, the distance between the parties means that, as the Family Consultant Mr E said:
…at best the children are likely to spend every third weekend with the parent with whom they are not primarily residing, and as well as school holiday time. This could well have some impact upon the children’s emotional and psychological wellbeing given that they possess a strong relationship with both parents.
The principal issues which remained for determination at the conclusion of the Hearing were:
a)the weight to be given to the increased risk that Ms Lancefield has, compared with the general population, of a relapse of her mental health into depression, and;
b)whether Mr Lancefield had engaged in family violence and in particular in coercive and controlling behaviour including accessing Ms Lancefield’s personal electronic communications during the relationship and post separation, and;
c)whether Mr Lancefield had sought to control and or to minimise, or had in the alternative failed to actively promote, the relationship between the children and Ms Lancefield, and;
d)whether the children would experience a more nurturing environment living with Ms Lancefield than with Mr Lancefield, and;
e)the children’s views, and the weight to be given to them, and;
f)the weight to be given to the existing stability the children have given the uncertainty inherent in a change of primary residence.
Procedural background
The matter was before the Court in Melbourne on 5 December 2018 and was set down for final hearing in the week of 15 July 2019 at Town R. The matter was not reached. The matter was transferred to Sydney. The hearing proceeded over 6 days in three sittings. The first two hearing days were on 5 and 6 September 2019. Evidence was taken from Ms Lancefield and her mother Ms L, and Mr Lancefield’s evidence was commenced. During the course of that hearing the parties and ICL agreed that a psychiatrist should be appointed as a single expert witness to assess Ms Lancefield.
The second three days, 19 to 21 February 2020, included updating evidence from Ms Lancefield, evidence from Mr Lancefield and Ms H, and evidence from Ms Lancefield’s treating psychologist Mr O, the single expert psychiatrist Dr P, and Mr E. At the conclusion of the evidence, Mr Lancefield, with the eventual support of the ICL, sought a further adjournment to allow Mr E to re-interview the children to ascertain their current views. That adjournment was allowed. The hearing concluded on 1 June 2020 with Mr E’s further report and oral evidence, and then with oral submissions supplementing previously filed written submissions.
Given the agreements at the conclusion of the evidence, a great deal of Ms L’s and Ms H’s evidence was no longer relevant to any facts in issue, and such evidence will not therefore be considered. However, one aspect of Ms H’s evidence remained relevant and is considered below.
Ms Lancefield’s mental health
Ms Lancefield’s mental health and its potential impact on her parenting capacity was a significant issue in the hearing. With the benefit of the evidence of Dr P, and also Mr O, this issue decreased in significance across the course of the proceedings, although it still remained one factor for consideration at the conclusion of the hearing.
However, it is highly relevant to the parties’ history and in particular to the circumstances surrounding their separation and to the events that followed. Accordingly it is convenient to deal with this issue now.
Ms Lancefield says she was indecently assaulted by a colleague in 2004. She reported the assault in about 2010 and charges were laid. In 2012 there was a mistrial. Ms Lancefield declined to testify again. On that basis there was no further trial. Ms Lancefield says she experienced bullying by fellow colleagues from about 2010 until 2015 as a consequence of making her complaint against a colleague.
It is not for this Court to make a finding about the occurrence of the alleged assault when it involved a third party who asserted their innocence and who was not found guilty. Nor is it for this Court to make a finding about the allegations of bullying. However, as the parties have proceeded on the basis that these are agreed facts, the Court will proceed on that basis for the purposes of these proceedings only.
Ms Lancefield also gave evidence of having attended a number of very traumatic events during the course of her duties as a public servant.
In 2015 Mr Lancefield was promoted to a managerial position and the family transferred to Employer Q, about a 30 minute drive from Town R, Victoria. The children went to school just across the border in Victoria.
Ms Lancefield went off on Workers Compensation for her mental health condition in 2015. From late 2015, about when she commenced on the antidepressant Pristiq, Ms Lancefield began to experience suicidal ideation. Ms Lancefield believes the suicidal ideation was a side effect of the medication.
Ms Lancefield transferred to Employer Q and returned to full time work with in mid-2016.
On 5 November 2017 Ms Lancefield confronted Mr Lancefield about having an affair with Ms H, his current partner. There was an issue between the parties about precisely when this new relationship commenced, however, it is not necessary to determine that issue in order to decide this case.
Mr Lancefield travelled for work from 5 November 2017. When he returned home on 10 November they had an argument. Ms Lancefield says Mr Lancefield was intoxicated, that she asked him to leave the home but he wouldn’t, and that she told him that she had experienced thoughts of suicide at work that day. She says he threatened that if she did not admit herself to hospital he would have her scheduled, but also that if she was admitted to hospital she would be lucky to even get visitations with the children in future. The precise events are in issue, and again it is not necessary to determine precisely what occurred to decide this case.
The next day, 11 November 2017, Ms Lancefield voluntarily admitted herself to the mental health unit of the Town R Hospital. She later transferred to Town S Hospital, and thence to the Region T Hospital in City U near her parents. While Ms Lancefield was in Town R Hospital, she says she told Mr Lancefield that she proposed returning to live with her parents at Town K with the children, and that Mr Lancefield reacted angrily.
On 20 December 2017 after almost 6 weeks of treatment and counselling, Ms Lancefield was discharged and commenced living with her parents in Town K.
Ms Lancefield says she tried to negotiate time with the children with Mr Lancefield on 27 December 2017. The following day, 28 December, she received a call from BUPA informing her that Mr Lancefield had unilaterally removed her from the family insurance policy. She believed this was retaliatory behaviour to discourage her from seeking time with the children.
In January 2018 she commenced outpatient treatment, and also treatment with Mr O on a work-cover referral.
Ms Lancefield recommenced work on 30 April 2018 at Employer K.
Both Ms Lancefield and Mr Lancefield gave a great deal of evidence about Ms Lancefield’s mental health, and there was extensive cross-examination on the issue, together with the voluminous medical material available.
The court had the benefit of hearing from Mr O. Ultimately, however, the parties submitted that the court would give more weight to Dr P opinion, which diverged from Mr O’s opinion in finding that the appropriate diagnosis was a major depressive disorder rather than a post-traumatic stress disorder.
With no disrespect to Mr O, I agree that it is more appropriate to deal with the issue based upon the independent assessment of the jointly appointed single psychiatric expert Dr P who undertook a forensic analysis, including a detailed document review, which Mr O did not, as Ms Lancefield’s treating psychologist, seek to undertake.
In these circumstances I will not go through Mr O’s evidence or opinions in detail. I do note, however, Mr O’s evidence of Ms Lancefield’s “extraordinary dedication to improving her mental health”, which he explained and supported in cross-examination by reference to evidence of her conduct. That is important independent evidence of Ms Lancefield’s past conduct with regard to management of her mental health condition, which I accept is relevant to her likely future compliance with treatment and management of her mental health, including if she starts to experience a recurrence.
Dr P provided a written opinion that summarised his findings based upon his two interviews and the detailed assessment of the voluminous clinical notes. Dr P opinion included the following:
In my opinion from 2009 onwards Ms Lancefield suffered with a major depressive disorder. It is evident that she has also experienced intermittent posttraumatic stress symptoms, focusing upon her history of sexual abuse and various traumatic incidents she has been involved with during her time as a public servant. However, it does not appear to be the case that she has endured persistent and pervasive symptoms of PTSD that would reach the threshold for a diagnosis of PTSD. I believe her primary psychiatric concern has been her major depressive disorder, with coexisting anxiety.
I understand that Ms Lancefield’s mental health again deteriorated in 2015 in the context of bullying and harassment in the workplace. This was followed by a further deterioration in 2017, leading up to her first admission to a psychiatric hospital. It is apparent that Ms Lancefield endured symptoms of a major depressive disorder and experienced suicidal ideation for the first time immediately prior to this admission. Her deteriorating mental state was set in the context of reported relationship dysfunction with her husband, alleged sexual abuse by her husband, and concerns regarding her husband's infidelity.
It is clear that Ms Lancefield’s mental health gradually improved during her admissions to the Town R Hospital, Town S Hospital, and Region T Hospital. Her engagement in the day program as an outpatient, long-term psychological therapy with Mr O, and compliance with antidepressant medication has resulted in her recovery.
It appears that Ms Lancefield has maintained her mental health stability for a significant period, at least during 2019 and progressing into 2020. During my interviews, she manifested a good level of insight, particularly concerning the pathological basis of her depressive symptoms, the benefits of antidepressant medication, the benefits of psychological therapy, and relapse prevention strategies.
Dr P concluded that:
… in my opinion Ms Lancefield was not suffering with symptoms of a major mental illness, including a mood disorder, anxiety disorder, or psychotic disorder. I elicited no evidence of a substance use disorder. I did not observe any significant features consistent with maladaptive personality traits amounting to a personality disorder.
In respect of Ms Lancefield’s parenting capacity Dr P stated that:
I have not evaluated Ms Lancefield in the company of her children; hence I am not able to provide any specific comments regarding her parenting capacity. Generally speaking, however, I did not elicit any symptoms of a major mental illness, or any specific risk factors, that would highlight significant concerns regarding Ms Lancefield’s current parenting capacity.
In respect of the ongoing management of Ms Lancefield’s mental health Dr P concluded that:
I concur with Ms Lancefield’s current treatment plan, in terms of ongoing compliance with antidepressant medication and ongoing regular psychological therapy with Mr O. I understand Ms Lancefield hopes to gradually cease antidepressant medication in the coming months. This is a reasonable proposition given her apparent long-term stability, which should be overseen by her GP. If Ms Lancefield experiences a deterioration of her mood in the future, consideration should be given to a referral back to a treating psychiatrist.
Dr P was cross-examined on these opinions by Senior Counsel for Mr Lancefield, in particular by reference to the contents of the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5) and agreed that:
…given her history of a recurrent major depression disorder, she is vulnerable to a further episode of major depression, yes.
In response to the proposition that the risk of recurrence was relatively high, Dr P pointed to the inherent uncertainty of predicting the likelihood of recurrence for an individual.
Dr P considered the positive and negative prognostic factors for a relapse. He accepted that factors which tended to support the likelihood of Ms Lancefield having a further relapse were; the previous episodes of depression, that her depression had been severe enough for admission to hospital, and a chronology of psychiatric history dating back to 2009.
Countering those factors he identified the prognostic indicators including that Ms Lancefield had achieved remission, had several periods during which she had not experienced symptoms of depression, and that she was in a prolonged remission period at this point of time. Dr P also gave significant weight to the fact that Ms Lancefield had and had demonstrated a good level of insight, also including the facts that she was admitted voluntarily, had engaged positively for a prolonged period of time with appropriate treatment, had taken antidepressant medication, is engaged with psychological therapy, and continued with the day program for a significant period of time. Dr P considered Ms Lancefield’s insight and willingness to access supports as a strong prognostic indicator, including strong support of her parents and of her current work colleagues.
Dr P concluded that:
in my opinion, if – if I had to say whether her future risk was – was minimal, moderate or high, I would say it’s in the – it’s in the moderate to low risk range as long as Ms Lancefield continues to engage in appropriate psychiatric and psychological treatment, which my understanding is she has done now for a long period of time.
I note that Mr O, although proceeding on the basis of his diagnosis of PTSD, also agreed that by reason of her mental health history Ms Lancefield was statistically more susceptible to having a future occurrence, or recurrence, of a mental health condition than a person without such a history. Mr O provided an opinion on the likelihood of recurrence which was more optimistic than Dr P. As noted above, I prefer Dr P’s opinion.
In terms of the requirement for ongoing treatment, Dr P thought there would be a benefit for her to continue ongoing psychological therapy once medication has ceased.
Whilst the correlation between depressive episodes and the development of a bipolar illness was explored with Dr P, the evidence did not support this as a risk to be considered and it was not pressed in submissions.
On the issue of whether Ms Lancefield’s perception of past events involving Mr Lancefield could have been influenced by her depression, Senior Counsel for Mr Lancefield put to Dr P that it is not uncommon for people with a major depressive episode to seek to deflect criticism from themselves, or to seek to blame others for all or part of the problems they have. Dr P conceded that was true. However, Dr P also stated that it is just as common for the response to be to internalise and self-blame.
Dr P did, however, agree that at times it would be reasonable to suggest that her insight would have been impaired because of her symptoms of depression.
Going further it was also put to Dr P that Ms Lancefield was, by reason of her mental health history “vulnerable emotionally”, however, Dr P would not accept that proposition.
Summary
Ms Lancefield has a significant history of mental health problems. I prefer the opinion of Dr P over that of Mr O because of the forensic process Dr P undertook. There is no criticism of Mr O implicit in this finding. Mr O has undertaken a therapeutic process, with great success, and did not approach the preparation of his opinion for the purpose of these court proceedings in the same forensic way that Dr P did. In any event, I note that on the significant issues of the quality of her recovery and of a likelihood of a recurrence, Dr P and Mr O gave relatively similar evidence.
I find that from 2009 onwards Ms Lancefield suffered with a major depressive disorder with coexisting anxiety, compounded by intermittent post-traumatic symptoms.
I find that Ms Lancefield’s mental health improved as a consequence of her voluntary admissions, engagement as an outpatient and long-term therapy with Mr O, together with compliance with antidepressant medication.
I find that Ms Lancefield has had a high level of treatment compliance consistent with a high level of insight into the importance of ongoing management of her mental health, and that at present she is not suffering from any symptoms of a major mental illness, including a mood, anxiety or psychotic disorder, nor does she have maladaptive personality traits amounting to a personality disorder.
I find that at present Ms Lancefield’s mental health does not raise any significant concerns regarding her current parenting capacity.
I find that by reason of her past history Ms Lancefield’s risk of a recurrence of a major depressive disorder is in the low to moderate range so long as she continues to engage in appropriate psychiatric and psychological treatment, as she has been for an extended period of time.
I further find that given her conduct since November 2017, when she voluntarily admitted herself, and her dedication to monitoring and treating her mental health since that time, that the probabilities are that she will continue to engage in appropriate treatments and to seek and accept help as required, ameliorating the likelihood of recurrence and also the consequences of a recurrence if it commences.
Despite a good current condition, Ms Lancefield’s mental health and the risk of a relapse and the consequences for the children if that occurs are, as Senior Counsel for Mr Lancefield submitted, relevant future risk factors to be taken into account.
Did Mr Lancefield engage in family violence, or coercive and controlling behaviour?
Ms Lancefield makes allegations that Mr Lancefield engaged in family violence within the meaning of the Act, and that he engaged in controlling and coercive behaviour both during their relationship and post separation.
Definition of Family violence
“Family violence” is defined by section 4AB of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.”
The definition of family violence is, by design, broad and inclusive and specifically encompasses not only matters such as assault and sexual assault or other sexually abusive behaviour, and but also stalking, repeated derogatory taunts, intentionally damaging property or injuring animals, unreasonably denying financial autonomy or withholding financial support, preventing the making or keeping of connections with family, friends or culture, or deprivation of liberty.
Standard of proof
The person who makes an allegation, usually, bears the onus of proving it. In this case Ms Lancefield bears the legal and evidentiary onus to establish the specific acts of family violence and or controlling and coercive behaviour alleged. The standard of proof is the civil standard of the balance of probabilities, per section 140(1) of the Evidence Act 1995 (Cth). However, without limiting the matters to be taken into account, subsection 140(2) requires the Court to take into account the nature of the legal issues involved, the subject matter of the proceedings, and the gravity of the matters alleged. This is the clear statutory successor to the principles enunciated by the High Court when considering the civil standard of proof in proving adultery in divorce proceedings in Briginshaw v Briginshaw (1938) 60 CLR 336.
Justice Rich said of the application of the civil standard in such circumstances:
In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.
Justice Dixon stated the principle as:
…when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. … … … reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.
Allegations of family violence are by their nature serious, and accordingly the Court is required to take into account the gravity of the specific matters alleged by Ms Lancefield and their possible impact on the proceedings when determining whether or not they have been proved to the civil standard.
Recollection and credit findings in parenting proceedings
Senior Counsel for Mr Lancefield also pointed to the considerations stated by Kent J in Carlson & Fluvium[2012] FamCA 32 at [165]-[169], which included, inter alia that:
[165] As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
…
[168] … … These parties are, and will remain, the parents of [the children] and adverse credit findings in this decision carry the inherent risk that, rather than bringing an end to long-standing conflictual issues, they may be embraced as vindication for the pursuit of further conflict in the future.
[169] Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.
So that as the Full Court said in Adamson and Adamson (2014) FLC 93-622 at [90] when agreeing with the above:
It follows from them that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to.
The fact that both parties are also public servants in whom the community places great trust, and that it is common ground that it is in both the parties and the children’s interests that neither party’s employment should be adversely affected by these proceedings, is also a relevant factor.
Nevertheless, where the Court can make a finding on such a contested issue, and that finding is relevant to the determination of the issues in dispute, the Court is required to do so.
Impact of Ms Lancefield’s mental health on her perception of events
Whilst Dr P was not in a position to state whether or not Ms Lancefield’s perception of Mr Lancefield’s behaviour was influenced by her mental health condition or medications, his evidence established that it was a possibility.
In terms of Ms Lancefield’s insight and perceptions at the times she had depression, during the period from October 2015 until mid-2016 while Ms Lancefield was on Workers Compensation, Mr Lancefield’s evidence was that Ms Lancefield was clearly depressed, would stay in bed until late every morning, expressed suicidal thoughts, and had trouble caring for the children. Ms Lancefield denied her presentation was this serious.
Yet there is no doubt that she was depressed, suffering from intermittent suicidal ideation, and that her depression was severe enough that she medically certified as totally incapacitated for any work. Putting aside Mr Lancefield’s evidence, by definition her presentation to medical practitioners was sufficient to justify a finding of total incapacitation for any work at all. Her own evidence was that the medication gave her suicidal ideation. Her evidence on this issue in cross-examination was not entirely satisfactory.
It is not a question of not believing Ms Lancefield because of her mental health status, but rather of weighing the possibility that her subjective perceptions of Mr Lancefield’s conduct may have been influenced or impaired by her depression and/or post-traumatic stress disorder. I accept that it is a relevant factor to weigh, together with the general matters outlined in Carlson & Fluvium above, when considering whether or not the relevant standard of proof has been discharged.
Sexual assault, touching and control
Ms Lancefield made an allegation that on 16 April 2017 Mr Lancefield committed a serious sexual assault on her, at a time when her self-protective capacities were diminished or absent as a consequence of alcohol inter-reacting with her anti-depressants. While a considerable amount of time was spent on this issue at trial, the parties ultimately and correctly agreed that the proper application of section 140(2)(c) of the Evidence Act meant that the Court could not make a finding that this occurred, nor alternatively a finding that this was a fabricated complaint. Noting the principles cited above it is therefore unnecessary to consider this further.
Ms Lancefield also said that following X’s birth, whilst suffering mastitis and while recovering from vaginal tearing, Mr Lancefield would often squeeze her breasts and smack and squeeze her buttocks so hard it would hurt, despite her protest. She said this behaviour continued throughout the relationship and was often the reason she did not want to have sex as she felt Mr Lancefield did not respect her. Ms Lancefield also alleged that in around 2012 she learned that Mr Lancefield had been keeping a diary of when they had sexual intercourse and of her menstrual cycle, and that when she complained he told her that “without sex there’s no marriage”.
Ms Lancefield also alleged that Mr Lancefield was controlling of her and monitored her. She said he would call her at work and if she did not answer immediately would accuse her of allowing men to chat her up at work. She said that Mr Lancefield tried to isolate her from her parents by calling out and interrupting her calls to them, and criticised her for going to see her father every year for his birthday. She alleges he blamed her for his weight gain due to her poor food purchasing choices when shopping.
Mr Lancefield denied all of this behaviour. In respect of these matters, apart from some very general evidence given by Ms Lancefield’s mother Ms L, this was a case of Ms Lancefield’s word against Mr Lancefield’s word.
Significantly there was, as Senior Counsel for Mr Lancefield submitted, bare cross-examination of Mr Lancefield on these allegations, as opposed to the extensive cross-examination on the matters dealt with further below. On the other hand, there was relatively substantial cross-examination of Ms Lancefield on these issues, in particular on the various histories she gave to different hospitals and medical and allied health practitioners at different times.
Whilst it is not unusual for complaints of family violence or coercive and controlling behaviour to come out over time, for obvious reasons, or for apparent significant omissions and inconsistencies to exist in the recording of complaints, as occurred here, these matters cannot be ignored when considering whether or not the court is comfortably satisfied that the alleged conduct has occurred.
Weighing all of the evidence, and taking into account the factors referred to above and in particular the inconsistencies across the reports, I am not satisfied that Ms Lancefield has proved these matters to the requisite standard. As with the allegation of actual sexual assault nor do I find that Ms Lancefield has fabricated her evidence.
I note that in coming to this conclusion I have taken into account my findings, set out below, with regards to Mr Lancefield’s monitoring of Ms Lancefield’s electronic communications both during the relationship and post separation, and in respect of his conduct with regard to the children’s relationship with Ms Lancefield. Whilst these findings do suggest an approach to the relationship and potentially a course of conduct consistent with many of Ms Lancefield’s allegations, I am still not satisfied that there are sufficient grounds to persuade me to the requisite standard that these allegations have been proved.
Monitoring of electronic devices and communications during the relationship and post separation
Ms Lancefield said that on a number of occasions during the relationship Mr Lancefield told her he was able to watch her on Google maps. She gave evidence, in particular, about a period in about 2011 when she had reconnected with an old friend “Mr V” who was living in the Country W. She says she was sharing her concerns about her relationship with Mr Lancefield to Mr V. She says that Mr Lancefield accessed her email account, without her knowledge or consent, and accused her of planning to leave him, and that he threatened her that if she did leave she would not get the children. She said they had a heated argument about this. She said she felt fearful and controlled and watched.
In cross-examination Mr Lancefield denied that he was able to monitor Ms Lancefield’s whereabouts with Google maps, but he did agree that he had accessed her individual email account in 2011. Mr Lancefield agreed that the account had a password on it. He said she had given him permission to access that account. He denied that he had gone through Ms Lancefield’s emails. However, he agreed that as a result of accessing her account he had confronted her about the communications she was having with her friend in Country W.
Ms Lancefield also alleged that Mr Lancefield continued to access her private electronic devices and communications post relationship.
Mr Lancefield gave evidence that on about 19 February 2018, two months after Ms Lancefield had been discharged from hospital, he:
…observed a search history on family iPad. This search history was connected to an iTunes account of Ms Lancefield’s which essentially shared the content of Ms Lancefield’s use of her phone with the iPad. I observed in the search history the following Google searches which had been entered:
(a) How to tie a hangman's noose.
(b) How to disappear without a trace;
(c) How to completely change your appearance; and
(d) How to disappear from your husband.
He said that he was concerned about Ms Lancefield’s welfare, and also about the safety of the children to spend time with Ms Lancefield unsupervised, so he spoke with welfare officers to ask them to do a check with Ms Lancefield. His evidence in cross-examination was that he turned his iPad on and as “family sharing” was activated, Ms Lancefield’s messages and internet search history popped up.
Ms Lancefield gave evidence that local police attended her parent’s house on 19 February 2018 and told her that Mr Lancefield had advised them of the content of the Internet searches and that they were doing a welfare check. Ms Lancefield’s evidence was that she was shocked that family sharing had been activated as she had not enabled this.
She said that she then consulted her brother, who she believed disabled “family sharing” on her devices, and that on his advice she created a new iTunes account and email address. She said she felt intimidated and stalked by this unauthorised access. She said she requested an AVO against Mr Lancefield for stalking but no action was taken.
At that time Ms Lancefield thought Mr Lancefield’s access to her private information had been disabled. However, Ms Lancefield’s case was that she later came to believe that Mr Lancefield was still accessing her private communications.
Ms Lancefield gave evidence that Mr V, or “Mr V” as his name is recorded in the transcript, was someone she had a brief relationship with following her separation from Mr Lancefield and that she had not told Mr Lancefield about Mr V.
She gave evidence that on 20 June 2019, shortly before the matter was first listed for hearing, while having a telephone call with X that:
X said to me “Dad’s reading Mr V’s text messages between you and him.” I then heard Mr Lancefield yell at X “Mind your own business!” I am concerned that Mr Lancefield has access to the text messages between Mr V and I and also that he is reading them in the presence of the children and they are aware of this.
In cross-examination Mr Lancefield was asked about this conversation. He agreed that the conversation had occurred but said that “I wasn’t reading the text messages between Mr V” and denied that he yelled at X saying instead he told him to mind his own business. He said that X would have come up with that view because there was an icon on Mr Lancefield’s laptop with a folder named “Messages from Mr V” that contained the messages from Mr V, however he stated that “The texts themselves were not open.” He conceded he had stored Ms Lancefield’s messages, which he got off the iPad through the family sharing app, “for the proceedings”. He denied that X knew the messages were between Ms Lancefield and Mr V, but when asked could not explain X’s statement if that was the case.
Mr Lancefield denied that he had accessed Ms Lancefield’s telephone, stating that he only “accessed the iPad”, which was of course mirroring Ms Lancefield’s communications.
Mr Lancefield was further cross-examined and asked about this issue, on 20 February 2020, and was asked:
Do you still have access to my client’s phone through the Family Sharing app or any other mechanism?---No.
When did that cease?---Months and months ago, I believe, if not over a year – a year ago. It – it ceased, I believe, about the time that the welfare check was done.
Well, the welfare check was done in February 2018; we’re two years on from that. I suggest to you that you’ve had access to her electronic devices after that time?---No.
How long after you became aware of the searches - - -
HIS HONOUR: Can I ..... say – what date range do the messages between the mother and Mr V that you had on your, or have on your, computer relate to?---Your Honour, from memory, I know they went through till about April, as I said, when the welfare check was done, and it was probably a couple of months before that. The iPad was flat and has been for some time – the boys don’t use it – and then we plugged it in, and these were starting to pop-up.
Ms H, Mr Lancefield’s current de-facto partner, was called to give evidence. Most of her evidence went to matters such as the children’s living arrangements when living with her and Mr Lancefield. This evidence supported the view ultimately reached by the parties and the ICL concerning the agreed matters.
Ms H also gave evidence that she had not experienced any domestic violence in her relationship with Mr Lancefield, and it was not suggested to her that this was not correct.
Ms H was, however, cross-examined about the issue of monitoring of Ms Lancefield’s electronic communications by counsel for Ms Lancefield. Given its significance Ms H’s evidence on the topic is set out in full:
Do you have access to Mr Lancefield’s laptop?---Yes. I do.
Likewise, the children have access to his laptop, don’t they?---They don’t know the password.
When you say, “they don’t know the password” they’ve certainly been able, at times, to use his laptop, haven’t they?---Providing – no, actually. They have their own Mac, Apple Mac computer. They use that one.
Are you aware of the folder on Mr Lancefield’s laptop and in particular, on his desktop, where he has stored messages of a personal nature between my client and a third party, Mr V?---I am aware of the folder. Yes.
And are you aware of it because it’s readily accessible on his computer?---I was there when he originally digitally transferred these messages to the laptop. That’s how I am aware of it.
And when was this?---It would have been, pre-trial last year, so before July, I believe.
Okay. So is it fair to say, in preparation for the trial in July last year, you were present when Mr Lancefield transferred the files that he had stored on another source?---Yes.
And was that source the laptop? Sorry. I withdraw that. Was that the iPad?---Yes. It was.
And is it the case that at that point in time, those messages were still available on the iPad?---The iPad is under a different PIN code to every other device that I had set up. So aside from myself, no one else knew the PIN code up until very recently, where I disclosed it to Mr Lancefield.
HIS HONOUR: Well, I just got a bit lost by that last answer.
MS DART: I’m just going to clarify it. In terms of the iPad that we’re talking about, whose iPad is it?---I believe it’s Mr Lancefield’s.
Right?---It was in the house when I first attended.
And when you say it was only your PIN code on that iPad, what do you mean by that?---The messages were causing a bit of a distraction for Mr Lancefield. So I had gone about setting up a different PIN code to what was initially on there to stop him from looking at it and being upset by it.
Okay. And when we’re talking about messages, what we’re talking about is messages from my client’s phone to other people?---Yes. And internet searches, I believe.
And so it’s the case, isn’t it, that Mr Lancefield was – until you took over management – continuing to access that iPad for the purpose of checking who my client was sending messages to and what she was searching on the internet?---We had no control over what came in. It was open on her end, it had to be disconnected from her end.
Did you ever say to Mr Lancefield, “Perhaps your ex-wife may not want you going through her private communications.”?---No. I didn’t.
Did you ever suggest to Mr Lancefield he send a message to his ex-wife to say, “Hey, there’s messages coming through.”?---No. He didn’t.
It’s the case, isn’t it, that the purpose of you taking over management of it was to continue to monitor those communications in order to see if something came out that would assist Mr Lancefield in these proceedings?---No. It wasn’t my intention.
Well, certainly, as of the transfer of data in July or just before July 2019, it was for the purpose of these proceedings, wasn’t it?---When we realised what was on there. Yes.
And it’s not only those messages – well, I withdraw that. At the time you went to transfer the messages and in the months leading up to it, you were continuing to monitor what was on that iPad, weren’t you?---From time to time, yes.
How is – well, I withdraw that. Can I ask, do you still have access to that laptop?---The laptop?
Sorry, I withdraw that. The iPad?---Yes. I do.
And you’re still getting my client’s messages and emails and internet searches up on there, aren’t you?---No.
When did that stop?---When she disconnected it from her end.
Summary
Mr Lancefield’s case was that this conduct ceased in about April 2018 although he kept the material for use in these proceedings.
However, Ms H agreed that in the months leading up to July 2019, she was “continuing to monitor what was on that iPad”… “From time to time” and stated that she had set up a different PIN code for the iPad to stop Mr Lancefield from looking at it and being upset by it.
Ms H’s evidence when considered in its totality is consistent with Ms Lancefield’s case that Mr Lancefield, with the assistance of Ms H, had continuing access to and was continuing to monitor Ms Lancefield’s messages and internet searches without her knowledge, and were collecting that information for the purposes of these proceedings, until at least the months leading up to July 2019. If the connection had stopped in February or April 2018 there would have been no need for ongoing monitoring.
If this conduct finished in April 2018 it was inappropriate for the reasons given below.
However, given Ms H’s candid evidence, which I prefer over Mr Lancefield’s as there was no reason for Ms H to give this evidence if it were not true, I find that on balance Mr Lancefield probably had access to and continued to monitor and collect information from Ms Lancefield’s account until at least some time until the months prior to July 2019.
The evidence does not establish whether Mr Lancefield took some active steps to re-establish family sharing as Ms Lancefield suggests, or whether Ms Lancefield merely failed to properly turn it off when she thought she had disconnected it. Ms Lancefield bears the onus on that issue and has not discharged it. Accordingly, I proceed on the basis that Ms Lancefield failed to properly disconnect family sharing and that Mr Lancefield took advantage of that fact to monitor her communications.
Ms H’s evidence that the ongoing receipt of the material was something they had “no control over”, and Mr Lancefield’s evidence seeking to distinguish between accessing Ms Lancefield’s telephone and only reviewing its contents which was being mirrored on his iPad, does not address the issue.
They did have “control”, in that they could have advised Ms Lancefield so that she could stop the mirroring. They could have deleted all of the material without reading it. They were under no compulsion to monitor or store the material, in particular for potential use in preparation for these proceedings.
There is no possibility that Mr Lancefield believed that Ms Lancefield consented to him having access to her electronic communications post separation.
On the issue of whether or not Mr Lancefield monitored Ms Lancefield’s electronic surveillance during the relationship, taking into account both the improbability that Ms Lancefield voluntarily gave Mr Lancefield the password access to her emails while she was using those emails to communicate with a friend about her concerns over her relationship with Mr Lancefield, and also the similarity of the conduct described to that proven to have occurred post separation, on this issue I am satisfied to the requisite standard that Mr Lancefield engaged in the alleged conduct with regards Ms Lancefield’s electronic searches and communications during the relationship.
There was a question as to whether or not this conduct constitutes “stalking” for, or otherwise falls within the definition of, “family violence” and if so whether such a formal finding should be made. As Senior Counsel for Mr Lancefield submitted in closing, there is a difference between this conduct, and more active measures to surveil a person such as placing a tracker on their car. Also, as it is agreed that there should be equal shared parental responsibility and that it in the interests of all parties for Mr Lancefield to maintain his role, and noting the discussion of Carlson & Fluvium above, I do not consider it necessary to make a formal finding that Mr Lancefield engaged in family violence within the meaning of the Act.
I note that although I am not making a formal finding of family violence, the Family Consultant when asked about Ms Lancefield’s allegations regarding Mr Lancefield accessing her messages by counsel for the ICL said:
Well, I think tracking of any party’s messages or phone communication or email is unacceptable. It could be viewed as one aspect of family violence, of controlling behaviour. Any party who does that, it’s not acceptable.
That is relevant as it means that the factual findings I have made are facts of the kind that the Family Consultant had in mind when giving his opinion by reference to “family violence” and/or “controlling behaviour”.
Further, X was clearly well aware of the issue and of what was occurring. It appears that X was concerned enough to raise it with Ms Lancefield while in Mr Lancefield’s presence. In this regard Mr Lancefield has modelled unacceptable behaviour. The modelling of this kind of behaviour is also conduct of the kind the Family Consultant clearly had in mind when giving his opinion about the critical importance of “controlling behaviour” in considering where children should primarily reside.
Did Mr Lancefield seek to control and minimise, and/or fail to actively promote the children’s relationship with Ms Lancefield?
Ms Lancefield’s evidence and submission was that Mr Lancefield consistently and over a long period of time sought to control the children’s relationship with Ms Lancefield and to minimise her involvement in their lives. While she does not allege that he sought to alienate them from her, her case was that Mr Lancefield did not fully comply with the consent orders for equal shared parental responsibility, did the bare minimum to comply with orders for time between the children and Ms Lancefield, and that Mr Lancefield did not actively promote the children’s relationship with her. She relied upon a number of examples, some of which are considered below.
Mr Lancefield’s evidence and submission was that in the early period post separation and hospitalisation he had legitimate concerns about Ms Lancefield’s mental health and parenting capacity, and that after he was satisfied these issues had been addressed he has complied with the court orders and acted reasonably to facilitate the children’s relationship with her.
14 November 2017: Mr Lancefield told X that parents were divorcing
Ms Lancefield alleged that Mr Lancefield unilaterally told X that they were getting divorced, and also that she was “sick in the head”.
Mr Lancefield agreed, after being taken to records from the children’s school dated 14 November 2017, that he had told X on that day that he and Ms Lancefield were getting a divorce, and also that he had told X not to tell Y.
Mr Lancefield denied having told X that Ms Lancefield was “sick in the head”, however he agreed, after being shown school records indicating that X had said he knew his mother was going to Sydney “to get better because she has lots of problems with her – pointing to head”, that he had explained to X that Ms Lancefield was sick and that “some people have noises and stuff in their head, or they need to speak to someone.”
I find that Mr Lancefield did not consult Ms Lancefield about how X or the children should be informed of these matters. Given the immediacy of what had occurred I do not place any weight on this incident.
December 2017 until March 2018: Mr Lancefield only facilitated one visit between the children and Ms Lancefield
Ms Lancefield’s evidence was that Mr Lancefield did not facilitate the children in spending time with her between separation and April 2018, except for one visit for 90 minutes at City U Mall.
Mr Lancefield’s evidence was that he had extreme concerns about Ms Lancefield’s mental health, and the possibility that she may either harm herself and/or the children.
Mr Lancefield based his concerns in particular on the fact that Ms Lancefield had been in psychiatric facilities for six weeks, and that after discharge she had written a letter addressed to the children, which he intercepted, which he considered to be highly inappropriate and indicative of ongoing impaired parenting capacity, and finally on the content of some Internet searches by Ms Lancefield which he had become aware of.
On 19 January 2018, at the encouragement of her doctors, Ms Lancefield wrote a letter to the children. Given the significance attached to this letter during the course of the trial it is appropriate to set out in full:
Dear X and Y,
I am so sorry I have not written or phoned you for a while. Daddy has made mummy very sad by not allowing me to come up and take you away for some mummy, X and Y time, which is not very grown up or fair for you. Mummy loves you both very much and I need more than just letters or phone calls with you. Daddy has been mean to mummy and that’s why I haven’t called you or come up to see you. Daddy has scared mummy for a little while. I’m scared he will open this letter and he won’t give it to you. I had hoped that your dad would be a little bit more grown up and would allow us to be together now that I am a lot better. I know Z would have loved to have had you around so you could all play. That won’t happen these school holidays and I’m very sorry for that as I know you were both looking forward to me taking you to Canberra and down the Region T. It should have been an enjoyable time and a very important time for u, especially since mum and dad separated.
My doctors have encouraged me to write this letter and I want you to know just how important I am to be included in your lives. It does not matter what your dad tells you about me, his words are words and I try not to let him get to me. Your mum is much stronger now and quite possibly much stronger than she has ever been. I want to prepare you, but mum has help to get you back. I have listened to what you both want. I won’t stop you from time with your dad or time alone with him when you talk on the phone.
I do want to know how you are going and what you are doing with your time if you write or give me a call, I know you have got this letter and would love that very much. Hope to hear from you soon!!
All my love Mum xxooxx
This letter was highly disparaging of Mr Lancefield. It sought to involve the children directly in the conflict between the parties. It sought to recruit the children as her allies against a common enemy in Mr Lancefield. It was not in any way child focused and was purely reflective of Ms Lancefield’s needs. It was an entirely inappropriate letter to send to the children.
I accept the submission made for Mr Lancefield that this letter was evidence that at the time Ms Lancefield was still in a highly emotional state and showed a reduced parenting capacity, and that it was not unreasonable for Mr Lancefield to be concerned about Ms Lancefield’s parenting capacity given this letter at that time.
Further, regardless of the circumstances in which he became aware of them, Ms Lancefield’s Internet searches for; “How to tie a hangman’s noose”, “how to disappear without a trace”, “how to completely change your appearance”, and “how to disappear from your husband”, would reasonably have made Mr Lancefield concerned about Ms Lancefield’s mental health, parenting capacity and, given her searches for how to disappear from her husband, the risk that she might seek to abscond with the children.
In respect of this period post discharge in early 2018 Mr E agreed that it was reasonable to consider that Ms Lancefield’s parenting capacity would have been diminished somewhat in terms of her ability to be a full-time parent.
Taking into account the ill-advised letter Ms Lancefield had sent addressed to the children, and Internet searches she had made, I am satisfied that at that time Mr Lancefield had a reasonable basis for being concerned about the children spending unsupervised time with Ms Lancefield.
On that basis I am satisfied that Mr Lancefield had reasonable concerns and that it is not appropriate to categorise Mr Lancefield’s behaviour during this period as involving an attempt to improperly control or a failure to promote a relationship between the children and Ms Lancefield.
March-April 2018: children’s school holiday trip to Town AA
Mr Lancefield arranged for the children to spend time with his parents in Town AA from 31 March 2018 until 7 April 2018.
Mr Lancefield agreed that he was aware that both children missed their mother and wanted to see her. Despite Ms Lancefield’s requests Mr Lancefield did not agree to the children spending time with Ms Lancefield in Sydney during that period.
It subsequently came out that Mr Lancefield had attended an interview in Sydney on 6 April 2018. He did not tell Ms Lancefield that he was attending an interview. He arranged to meet his parents at Suburb BB, on the Region CC of Sydney, to collect the children and he drove them back to Town Q.
When first questioned about this Mr Lancefield stated that his reason for not agreeing to the children spending time with Ms Lancefield was that:
I was on shift and had to travel a thousand kilometres to get home.
The clear inference from his evidence was that his work and travel commitments made it impracticable for him to facilitate time between the children and Ms Lancefield at that time.
He was then shown his roster for that period and it became clear that he had a travel day on 5 April as a paid day to attend the appointment and then the appointment on 6 April, and that his next day at work was on 23 April 2018.
While at this stage Ms Lancefield had not yet returned to work, and given the letter of 19 January and the Internet searches of 19 February, Mr Lancefield may still have had reason to be concerned as to Ms Lancefield’s mental health and parenting capacity, the excuse given that he had to return immediately to work was not sustainable. It is unfortunate that Mr Lancefield did not take action to arrange for the children to spend some time with Ms Lancefield in Sydney or surrounds supervised by her parents or brother, a supervision arrangement he agreed was appropriate a few weeks later in mid-April.
Mid-April 2018: parenting plan
At about the time Ms Lancefield returned to work, the parties entered an interim parenting plan. This plan provided that the children would live with Mr Lancefield, spend time with Ms Lancefield on 21 and 22 April 2018 between 9am and 5pm in Town R, and thereafter from May 2018 spend time with her once a month on the 3rd Saturday and Sunday from 9am to 5pm and otherwise as agreed, supervised (without admission by Ms Lancefield) by one of Ms Lancefield parents or her brother, and that the children would communicate with Ms Lancefield by telephone no less than 2 times per week.
On 21 April 2018 Ms Lancefield spent time with the children in Town R in the company of her brother Mr N. By that time in April 2018 the children had not spent time with her for 4 months.
July 2018: Interim orders
Ms Lancefield commenced these proceedings on 8 June 2018. The parties entered into consent interim orders on 24 July 2018, which have remained in place until now.
Those orders provided for equal shared parental responsibility, with sole parental responsibility for day to day decisions whilst the children were in each parties care; the children to live with Mr Lancefield, and spend time with Ms Lancefield during each school term on one weekend nominated by her in Town R, and on a second weekend to take place in Melbourne; and for 10 nights during the shorter school holidays (living with the maternal grandparents), and one half of the long school holidays, and; the children to communicate with Ms Lancefield at all reasonable times taking into account their commitments, and; with Ms Lancefield to continue to attend at, and act on the recommendations of, her treating mental health practitioners.
16 November 2018: Ms Lancefield’s Town R visit
Ms Lancefield gave evidence that in 2018 she travelled to Town R to spend time with the children in accordance with the interim orders, and arrived at about 10:40 AM. She let Mr Lancefield know she had arrived. He replied “You cannot have the children until 6pm because you failed to tell me that you were going to be in town earlier.”
When asked in cross-examination about this event Mr Lancefield, quite reasonably, stated that the children were at school until 4:10 PM.
In respect of why the children could not spend time with Ms Lancefield between 4:10 PM and 6 PM, however, Mr Lancefield’s reply was that “the orders didn’t allow for it, at that time.” He conceded that it was open to him to vary the orders in that regard. When asked again why he wouldn’t allow the children to go with Ms Lancefield straight after school he again replied “because the court orders didn’t allow for that.” Mr Lancefield agreed that the children had not seen or spent a lot of time with Ms Lancefield, and that they would have been very excited about seeing her, and it would have been a nice thing for the children. When asked a third time he said “As I’ve indicated twice now, because the court orders didn’t allow for it, and they had to go home and get changed before they went to her.”
In the context of Mr Lancefield answering three times that the reason he did not allow time to start earlier was because the court orders did not allow for it, it is difficult to give any weight to the reason then added that the children needed to change clothes first.
Whilst it certainly would have been preferable for Ms Lancefield to advise Mr Lancefield she was coming earlier, I accept this as an example of Mr Lancefield insisting on strict or bare compliance with the court’s orders, and failing to take an opportunity to give the children even 2 extra hours with Ms Lancefield to promote their relationship with her.
January 2019 – Mr Lancefield’s unilateral transfer to Town J
The matter was before the Court in Melbourne on 5 December 2018 and was set down for final hearing in the week of 15 July 2019 at Town R.
In January 2019 Mr Lancefield unilaterally relocated to Town J.
Mr Lancefield agreed in cross-examination that he had been attempting to get accommodation in Town J since the beginning of December 2018. He also conceded that “in December”… He was “well and truly aware of the transfer” and that he did not tell Ms Lancefield or the court his intentions when this matter was before the Court on 5 December 2018.
Mr Lancefield first told Ms Lancefield by letter dated 15 January 2019, and received by her on 16 January 2019, that he would be commencing his new job in Town J on 20 January 2019. When she reacted angrily to the news by text he said “I don’t understand why you are so upset as they are closer to you now.”
When challenged on his conduct in cross-examination Mr Lancefield stated that he did not anticipate that Ms Lancefield would be upset by his relocating the children without notice, because they were moving closer to her. Mr Lancefield did not tell the children until close to the move and this adversely impacted their capacity to say goodbye to their school friends and obtain closure before they moved in January 2019. This particularly impacted X.
Mr Lancefield’s failure to notify Ms Lancefield or the Court of this fact on or before 5 December 2018, when the matter was before the Court and allocated a hearing date at Town R in July 2019 is concerning behaviour.
Mr Lancefield’s failure to notify Ms Lancefield was in disregard of the Court’s order, entered by consent, for equal shared parental responsibility.
I find that Mr Lancefield’s evidence that he did not tell Ms Lancefield about the move beforehand because he did not think she would mind such a decision being made without her knowledge or input or consent, including because the children were moving physically nearer to her, was utterly implausible.
I am comfortably satisfied that Mr Lancefield did not advise Ms Lancefield, or the Court, or the children, about the upcoming relocation, to ensure that Ms Lancefield did not find out about it beforehand, and to deprive her of the opportunity to have any input into the decision.
Mr Lancefield’s unilateral relocation of the children without prior notice, and whilst the matter was before this court and the subject of interim orders for equal shared parental responsibility, was inconsistent with those orders, and I find was evidence of an intention by Mr Lancefield to exclude Ms Lancefield from the decision making process as to the location of the children’s residence, and to exercise effective sole parental responsibility.
20 February 2019: Enrolling the children in school without consultation, and instructing the school to restrict it’s contact with Ms Lancefield
Mr Lancefield enrolled the children in Town J Public School. He did not consult with Ms Lancefield about what school the children should attend, despite orders for equal shared parental responsibility. That followed naturally from his decision to keep his unilateral relocation a secret from her until it happened. It was a further breach of the orders for equal shared parental responsibility.
Mr Lancefield’s evidence was that “I provided to Ms Lancefield details about the move and the effect on the children in terms of their schooling.” This was suggestive of Mr Lancefield facilitating Ms Lancefield’s involvement in the children’s schooling education.
However, Mr Lancefield was cross-examined on Exhibit B, a file note on a conversation between him and one of X’s teachers created on 20 February 2019. The relevant portion reads:
I had a meeting 8:30am with Mr Lancefield (X's father) regarding situation at home. Mr Lancefield discussed the family dynamics and that new court orders for the placement of his sons will be processed soon. Mr Lancefield went on to discuss that the boys are not to leave with the biological mother of the boys and she is to have restricted contact with the school.
Mr Lancefield gave Mr E his “view that the children’s relationship with his partner is “evolving”. In the first interview X said that his relationship with Ms H was “alright”, however he stated that “she gets frustrated with tight schedules”, and Y said that it was “mostly fine with Ms H”. In the second interview X described Ms H as being “bossy” and Y stated that “Ms H makes many decisions relating to him and he finds it “annoying” and that “he was clear to tell the family consultant that he receives no affection from his father’s partner.”
Mr E recorded that:
21. Whilst Y stated that he and X have not had any discussion about where both of them would like to live, it remains evident that Y feels more aligned with his mother, and it appeared evident to the Family Consultant that Y as the youngest child still enjoys the seemingly nurturing approach that his mother has with him whereas X in being two years older appeared more accepting of his familial situation and the stability that he has experienced in living with his father.
Mr E concluded that while X was “somewhat guarded with regards to his feelings” whereas Y was “far more open in his experience of his nurtured relationship with his mother, which would appear to be absent in his father’s home.”
Mr E was questioned on his opinions regarding nurturing. He gave evidence that it came across to him, on the basis of what Y had told him over the interviews, that the nurturing Y feels he receives from Ms Lancefield is absent in Mr Lancefield’s home, and that Ms H has not evolved that kind of relationship with Y.
It was put to Mr E by Senior Counsel for Mr Lancefield that having seen Ms Lancefield earlier in the day, then apparently being brought to the interview by Mr Lancefield, that Y’s comments could have been a reflection of the fact that he misses his mother rather than him experiencing a lack of nurturing in Mr Lancefield’s household. Mr E would not agree to this proposition and maintained his opinion based upon his interaction with Y.
Mr E said that in terms of outward expression the question of nurturing was more significant for Y then for X. However, in response to a question as to whether the situation could be the same for X, Mr E gave evidence to the following effect:
Q: Can you infer anything about the likelihood that X is or isn’t finding it a nurturing environment from what Y has said, or could the experience be different for the different boys?
A: Well, I think their experiences are probably similar I just think that I found that Y was far more open in revealing his feelings but I found X as a child was more closed and more a matter of fact. Now that could either be reflective of their ages and X coming into puberty whereas Y being still more childlike and more upfront and honest in terms of how he feels about things. I certainly found X to be a more reserved child and therefore more reserved in the expression of his emotions so it would probably be determined if, for instance, a counsellor was seeing a child or children of X and Y’s ages over a period of time to get a better insight into what I’ve just suggested is in fact the reality of the situation.
In cross-examination Mr E agreed that it was not possible to know how the children would react to Ms Lancefield’s parents, and in particular Ms L, making decisions for them if they live primarily with Ms Lancefield. At the moment they only spend time with Ms Lancefield on weekends and in holidays when she is available, so that the situation is not presently comparable to the position in Mr Lancefield’s household, where Ms H undertakes a substantial portion of the parenting when Mr Lancefield is at work. However, Mr E also pointed out that as Ms Lancefield’s parents have been involved to some extent in the children’s lives the children’s response to them, when compared to Ms H, may reflect the different relationship between the children and Ms L and Mr M as grandparents, as opposed to Ms H being a relatively new stepmother. However, he conceded that it was not possible to be certain.
The submission made for Mr Lancefield was that this uncertainty means that it is not possible to know that the children will find Ms Lancefield’s home more nurturing than Mr Lancefield’s, so that little or no weight can be given to an assumed benefit to the children of increased nurturing arising as a result of a change of primary residence.
Whilst a degree of uncertainty necessarily permeates this issue, the expert evidence clearly supported the view that Y in particular, but also X, are likely to find Ms Lancefield’s home a more nurturing environment than Mr Lancefield’s home, and that this is an important benefit they will obtain by a change of residence.
I accept Mr E’s evidence and opinion on this issue and find that it is likely, although not certain, that the children will find Ms Lancefield’s home a more nurturing environment, and that this will be of benefit to them, and that this is also a factor weighing in favour of them living primarily with Ms Lancefield.
I think it is important to make clear that this is not to detract from Ms H’s substantial contribution to the boys wellbeing, nor to suggest that she does not love and care for them. There is no suggestion that she is neglecting them in any way, nor that they do not care for her. It is merely that, not surprisingly, they have a stronger attachment to their mother and a longer term familiarity with their grandparents.
The children’s views
The evidence of the children’s views, which came primarily from Mr E, established that X did not wish to change his primary residence but Y does.
X told Mr E that he was proud to be house Vice-Captain at Town J Public School, stated that he was “happy the way it is” in terms of his living arrangements and wasn’t “in the mood for moving”. When asked why this was his position X “indicated because of the moves that he has already had.” If the parties lived close together X would like an equal time arrangement. In response to questions from Senior Counsel to Mr Lancefield, Mr E stated that he thought that X’s view was “clear” rather than “strong”.
In his second report Mr E said of Y:
16. In an unsolicited manner, Y said to the Family Consultant, “I miss mum”. When I asked him what the main difference was between his parents’ homes, he replied by saying “dad doesn’t tuck us in like mum does”. At the same time, he indicated that the discipline at his father’s home that he might lose television and Xbox privileges, whilst commenting that he never gets in trouble at his mother’s home. He further added that Ms H makes me decisions relating to him and he finds it “annoying”.
17. At the same time, he wanted to point out that his mother was not annoying.
…
19. Again, in an unsolicited manner Y told the family consultant that he thought that X would like to change his primary home and when I asked him why he has concluded this, he replied by saying “because we really see mum”.
Counsel for Ms Lancefield asked Mr E about Y’s views:
Q: The converse is true for Y, that whilst he would cope or likely cope with remaining in the primary care of the father his preference is clearly to be in primary care of the mother.
A: That’s my view.
Mr E opinion, noting the children’s ages, was that he did:
114… not believe that significant weight can be accorded to the children’s views (about where they primarily reside) with regards to the finalisation of these proceedings.
In his second set of oral evidence in cross-examination by counsel for the ICL, Mr E stated that even taking into account X’s clearly expressed view, if the court was to find controlling behaviour his opinion was that the children should change primary residence.
I find that X has clear views that he does not wish to change primary residence while Y’s view is that he does wish to change primary residence.
Where two children of relatively similar ages have opposing views and each child would be able to live with each parent, and it is agreed that the children should live together, I take into account the views of each child but do not consider it appropriate to give more weight to the view of either child.
Whilst it might be possible to argue that X’s view should be given more weight because he is older, it would be equally possible to argue that Y’s view should be given more weight because his emotional and developmental needs are greater as he is younger.
In these circumstances I give equal weight to each child’s view.
Stability or the “status quo”
In cross-examination by Senior Counsel for Mr Lancefield, Mr E agreed that there was no doubt that the children have had a destabilised few years running up to and after separation and have now had a degree of stability in Town J for the last 18 months.
He also agreed that stability is a critical factor for young children and that change of residence would necessarily remove existing stability, including a change of school for Y that would not occur otherwise and a change of school for X without the possibility of some of his friends from his existing school moving with him.
Mr E agreed that if X changes residences it would be important for Ms Lancefield to ensure that she worked to facilitate his development of new friendships and his getting involved in extra-curricular activities. He thought it would be challenging but doable. The same applies to Y.
Senior Counsel for Mr Lancefield put to Mr E that any finding of controlling behaviour by Mr Lancefield would need to be of significant concern to outweigh the benefits of the “status quo” to which Mr E replied that that was a matter for the court.
Mr E agreed that he had expressed the view that Mr Lancefield’s care of the children was good or good enough, an expression sometimes used in child protection. It again was put to Mr E that unless there was a significant problem with Mr Lancefield trying to downplay Ms Lancefield’s relationship with the children the benefits of the status quo would not be outweighed by Mr Lancefield’s behaviour unless it was significant, to which Mr E replied if the court finds it significant then ‘yes’.
Conclusion
I have considered the primary and additional section 60CC considerations, as set out further below, and have these in mind in coming to my conclusion.
While Ms Lancefield’s current mental health does not raise any significant concerns regarding her current parenting capacity, her history of a major depressive disorder with coexisting anxiety from 2009, compounded by intermittent post-traumatic symptoms, and the low to moderate risk of a recurrence even assuming, as I do, that she will continue to engage in appropriate treatment, is a risk that must be carefully weighed and considered.
I also note that it is not clear to me whether Mr E also took into account Ms Lancefield’s mental health status when identifying coercion or control and willingness to facilitate a relationship as the two critical matters.
Having weighed the risks inherent in Ms Lancefield’s mental health history as best I can, together with the risks to the children’s development and relationship with Ms Lancefield, given the likelihood that Mr Lancefield will continue to act in the same way as he has done since separation, and also considering the children’s views, the benefit of the existing known stability against the risks inherent in a move, and the probable but not certain benefits of a more nurturing environment at Ms Lancefield’s residence, I have formed the view for the reasons given by Mr E and also considering Ms Lancefield’s mental health, that the greatest weight should be given to the risks to the children from Mr Lancefield’s established conduct in seeking to exercise sole parental responsibility and to control and minimise Ms Lancefield’s involvement in the children’s lives, and in failing to actively promote their relationship with her.
The factors relating to Mr Lancefield’s coercion or control and failing to support the children’s relationship with Ms Lancefield support a change of primary residence.
While Ms Lancefield is currently well, the low to moderate risk of a recurrence of a major depressive disorder, and the inevitable consequences of that on her parenting capacity, is a risk which weighs in favour of the children remaining with Mr Lancefield.
I find that the children’s need for a more nurturing environment and the probability, but not certainty, that they will receive this at Ms Lancefield’s residence also supports a change of residence.
I accept that a change of residence will necessarily involve instability and that there is an element of risk inherent in the unknown and that this would support the children remaining with Mr Lancefield.
I find that the children’s views must be taken into account but to a large extent balance each other out and do not favour either parent as the primary carer.
I note that both parties have, at different times, inappropriately sought to involve the children in the dispute and that this is a matter of concern. However, as both parties seem to have been engaged to some extent in this I do not find it weighs in favour of, or against, either party.
In summary, noting all of the section 60CC considerations which I also note further below, as best I can, I have tried to weigh in particular the risks of the low to moderate possibility of a recurrence of Ms Lancefield’s major depressive disorder, and the risks inherent in a move and the loss of existing stability, and the possibility that the children will not in fact experience greater nurturing in Ms Lancefield’s household, and the risks arising from the likelihood that Mr Lancefield will continue to act as if he has sole parental responsibility and to seek to control and limit and to not actively promote Ms Lancefield’s relationship with the children.
On balance, weighing all of these factors and the section 60CC considerations as best I can, I find that the best interests of the children will be served by changing their primary residence so that they live with Ms Lancefield from the end of 2020.
Best interests of the children
The paramount consideration is the best interests of the children (sections 60CA and 65AA). These are determined by reference to the primary and additional considerations in section 60CC.
Primary considerations
The two primary considerations, in order of statutory priority, are the need to protect the children from physical or psychological harm or being subjected or exposed to abuse, neglect or family violence, and the benefits to a child of having a meaningful relationship with both parents.
While it is accepted that the children could safely live with either parent, there is some risk of psychological harm to the children from continuing to live primarily with Mr Lancefield because of the likelihood that he will continue to seek to control and minimise their relationship with Ms Lancefield if they do so. This factor therefore favours a change of residence.
The second of the primary considerations strongly favours a change of residence given that, while Mr Lancefield has not sought to alienate the children from Ms Lancefield he has sought to control and has not actively promoted their relationship with Ms Lancefield, whereas there is no evidence that Ms Lancefield has not actively promoted the children’s relationship with Mr Lancefield. In these circumstances the children’s capacity to maintain a meaningful relationship with both parents is more likely to be facilitated if they live primarily with Ms Lancefield.
Additional considerations
The additional considerations in section 60CC(3) require consideration of:
a) 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
For the reasons as set out above, I find that X has a clear view that he does not wish to change primary residence while Y does wish to change primary residence. I accept Mr E’ opinion that both children would accept no change of residence and both would accept and cope with the change of residence at the end of this year.
In submissions Senior Counsel for Mr Lancefield relied upon the principles set out in The Marriage of Harrison and Woolard (1995) FLC92-598, In the Marriage of Brear and Corcoles-Alfaro FLC92-768, and R v R (2000) 155 FLR 29, and submitted, un-contentiously, that “the views of children are important, should not be ignored but not of themselves determinative.” This is uncontentious.
However, in a case in which all parties and the ICL agree that the children should not be separated, a view I also hold, and where one child’s view is to live with one parent and the other child’s view is to live with the other parent, and where the evidence is that both children would cope living with either parent, and where the children are relatively close in age, I do not consider it appropriate to give greater weight to the views expressed by either child over that of the other. It is not a question of not considering the children’s views. I do take both children’s views into account. However, I note that they to some extent equal out as a factor. I also accept Mr E’s opinion that this factor is not as important as the factors of coercion and control and the willingness to facilitate a relationship with the other parent.
b) the nature of the relationship of the child with each of the child's parents; and other persons (including any grandparent or other relative of the child)
Each child has an excellent relationship with each parent. They also appear to have good relationships with both sets of grandparents and with Ms H, as discussed above.
It is good relationships that allow the children to live or spend significant and substantial time in each household.
To the extent to which the children experience Ms Lancefield’s household as being more nurturing than Mr Lancefield’s household, this appears to reflect upon certain aspects of their relationship with each of their parents, in combination with their relationships with the maternal grandparents, and in particular Ms L, and with Ms H, as set out above.
The reasons set out above noting Mr E’s opinion also supports the children living primarily with Ms Lancefield.
c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity: to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
Up to separation each parent participated in making decisions about major long-term issues. Post separation Mr Lancefield has made many unilateral decisions which has excluded Ms Lancefield from fully participating in this decision-making. Ms Lancefield bears no blame for this. To the extent to which Mr Lancefield’s participation in these decisions excluded Ms Lancefield after consent orders were made for equal shared parental responsibility, Mr Lancefield’s participation by excluding Ms Lancefield has not been child focused.
Both parties have taken the option to spend as much time with the children as possible.
c(a) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
Each parent has fulfilled their obligations to maintain the children within their ability to do so.
d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Senior Counsel for Mr Lancefield cited In the Marriage of Jurss (1976) 9ALR 455; FLC 90-841, and submitted that when considering this issue the court should take into account the children’s disrupted lives, including changing schools in January 2019, and emphasised the fact that the court cannot know how a change in residence in schools will impact on the children or on Ms Lancefield’s mental health, or if the children will in fact experience a more nurturing environment.
There is no doubt that an element of uncertainty and risk is inherent in the change of the primary residence and schools of the children, particularly across a distance which may effectively terminate many of their relationships with their peers.
There is also no doubt that the children will experience a period of instability as a consequence of a change of primary residence. Although he has to change schools X will be affected by the fact that there will be no one from his current school cohort entering his new high school with him, as there would be at Town J.
This is likely to be particularly difficult for X. Firstly, because he does not wish to change primary residence. Secondly, because he will know that the Court’s decision to move his primary residence will have been taken despite his clearly expressed view.
I accept Mr E’s opinion that this should not occur before the end of the year, so that X is able to finish his primary schooling and then make the change to a new high school in the Region B at the same time he would otherwise be making a change to a new high school at Town J.
However, I accept Mr E’s evidence that X will cope with the move if it is delayed until the end of this year.
Similarly, Y will experience a period of instability through changing schools while still in primary school. The emotional impact on him may be less than X, as his expressed view is being given effect to and he, perhaps more than X, is likely to feel the additional nurturing at Ms Lancefield’s residence.
The benefits of stability are not to be treated lightly nor the risks associated with a move underestimated.
However, as set out above, given my findings relating to Mr Lancefield’s conduct above this factor though supporting no change of residence is outweighed by the factors which support such a change.
e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The distance between the parties means that, whichever parent the children primarily reside with, they will have relatively limited time with the other party.
Fortunately the parties are not so far apart that the children will not be able to spend some weekend time with them during school term time, potentially on some special occasions if the parent is willing to travel, and they will be able to have half school holidays.
It is not submitted that it was realistic to expect either parent to relocate.
f) The capacity of: each of the child's parents; and any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
Counsel for Ms Lancefield submitted that Mr Lancefield’s failure to actively facilitate the children’s time and relationship with Ms Lancefield demonstrated a lack of insight into the children’s needs and best interests and was indicative of a lack of, or insufficient, capacity to provide for the children’s emotional needs, or in the alternative a substantially lesser capacity to provide for their needs then Ms Lancefield.
Whilst each of the children’s parents has the capacity to provide for the children’s physical, and educational and general emotional needs, Mr Lancefield’s inability or unwillingness to facilitate or promote their relationship with Ms Lancefield, or to allow that relationship to occur without attempting to control it, and the problems inherent in him modelling a controlling domestic relationship with Ms Lancefield through surveillance of her personal electronic communications deeming it as appropriate behaviour, constitutes a deficit in his capacity to provide for their emotional needs.
My findings concerning the children’s need for nurturing is also relevant to this consideration.
g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
There is no particular issue in respect of the maturity, sex, lifestyle or background of the children or of either of the children’s parents that has not been dealt with above as part of the general considerations that requires additional consideration here.
h) If the child is an Aboriginal child or a Torres Strait Islander child: the 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 parenting order under this Part will have on that right
This is not relevant.
i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Counsel for the mother submitted that the father’s failure to actively facilitate the children’s time and relationship with the mother demonstrated a lack of insight into the children’s needs and best interests and was indicative of a poor attitude to children and to the responsibilities of parenthood.
For the reasons set out above I accept this submission.
j) Any family violence involving the child or a member of the child’s family
I refer to what I have found above regarding the surveillance of Ms Lancefield’s electronic communications. But does not need further elucidation here.
k) If a family violence order applies, or has applied, to the child or a member of the child’s family - any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the court in, or in proceedings for, the order; any other relevant matter
This is not relevant.
l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Given the history of the matter there are less likely to be breaches of the orders if the children live primarily with Ms Lancefield than if they live primarily with Mr Lancefield, given Mr Lancefield’s consistent pattern of making unilateral parenting decisions.
m) Any other fact or circumstance that the court thinks is relevant.
There are no other facts that I consider relevant.
Parental responsibility
The parties and the ICL agree that there should be equal shared parental responsibility. Although I have some concerns given the history of the matter, if the children reside primarily with Ms Lancefield the past issues are unlikely to recur and accordingly I accept that this is the appropriate order.
The geographical distance between the parties’ primary residences makes equal time impossible.
The parties and the ICL agree, and I accept, that the children should spend as much time with the non-resident parent as is reasonably practicable and possible, including special occasions.
It is not reasonably practicable for the children to spend school days with the non-resident parent.
The nature of the orders proposed for time with the non-resident parent are similar regardless of which parent the children primarily live with.
I am satisfied that the orders for time with the father are appropriate and practical taking into account the geographical distance between the parties.
Vaccination – machinery provision orders
At the commencement of the hearing the children were unvaccinated. There was a dispute in the evidence as to why this was the case. I was informed that both parties were in favour of vaccination so long as “certain criteria … have been met” and those criteria were reduced to writing and the parties entered into consent orders for vaccination of the children on the first day of the second tranche of hearings, 19 February 2020.
I was informed at the conclusion of the hearing that, due to the COVID-19 pandemic affecting access to medical resources the consent orders had not been able to be given effect to.
The consent orders are premised on the children living with the father and the parties should seek to comply with them as soon as practically possible.
In the event that the ongoing issues with COVID-19 mean that the children have either not commenced or have not completed the vaccination process prior to the change of residence on 23 December 2020, in order to avoid any confusion because of the structuring of the current orders, I will make machinery provision orders which in no way change the substance of the consent orders, but which reflect the change of primary residence to ensure that the existing consent orders can be given practical effect if they have not been given full effect prior to 23 December 2020.
Independent Children’s Lawyer’s costs
The ICL’s costs were $13,464.00. As required by law the ICL made an application that these costs be shared equally between the parties.
The father submitted that he had had the primary care of the children, had paid half the cost of Mr E’s and Dr P’s reports, half the cost of the transcript which is shared with the ICL, on which basis the court might not award the full half of those costs against the father.
The mother also submitted that given the substantial costs of the hearing it would not be appropriate to require her to contribute towards the costs of the ICL. In the alternative she made a submission that time should be allowed for application to be made to the Legal Aid Commission to dispense with the requirement to pay costs.
The parties are both in full-time employment. Whilst they have personal living costs and costs associated with the children that does not distinguish them from any other member of the general population.
Section 117 sets out the relevant factors especially at (2A) and (4) and (5). I note the observations of Justice Kirby in CDJ v VAJ (1998) 197 CLR 172, particularly the observations to the effect that generally one would expect that parents should be equally responsible for the costs of a child representative.
The parties have chosen to litigate the matter to conclusion, as they were entitled to, but that does not seem to me to be the basis on which the taxpayer should bear this aspect of the cost of their litigation.
Accordingly I will order each party to pay the Legal Aid Commission of New South Wales one half of the ICL’s costs being $6,732. I will allow three months to pay.
I note that the Legal Aid Commission of New South Wales, as the beneficiary of the order, is at liberty to waive or reduce the requirement for payment by either party without reference to the court and without requiring an amendment to these orders.
Decision summary
I am comfortably satisfied that it is in the best interests of each of the children for there to be equal shared parental responsibility and for them to change primary residence and live with Ms Lancefield as of 23 December 2020, a date suggested by the ICL which I accept as an appropriate date.
I am also comfortably satisfied that it is in their best interests to spend time with the father in accordance with the proposal of the ICL and noting that the proposals for time with the non-resident parent as between the parties were relatively similar.
I will also make orders relating to the changeover point, non-denigration, communication and ancillary matters as proposed by the ICL.
I certify that the preceding two hundred and ninety-two (292) paragraphs are a true copy of the reasons for judgment of Judge B Smith
Associate:
Date: 29 June 2020
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