Leyton & Jacks
[2023] FedCFamC2F 860
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Leyton & Jacks [2023] FedCFamC2F 860
File number(s): ADC 220 of 2011 Judgment of: JUDGE JENKINS Date of judgment: 14 July 2023 Catchwords: FAMILY LAW - parenting – lengthy history of litigation between parties – one child no longer subject to the proceedings – allegations of unsafe living environment – mental health concerns – risk of eviction – child nearly 15 years of age with long standing views – psychological impact on the child of significant change to parenting arrangements - ability to meet the child’s emotional needs – parental insight – equal shared parental responsibility where there is ongoing hostility and lack of trust Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 60CA, 60CC, 65D, 65DAA
Federal Circuit and Family Court of Australia Rules 2021 (Cth) r 8.20
Cases cited: Andrew & Delaine [2009] FamCAFC 182
Grella & Jamieson [2017] FamCAFC 21
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Division: Division 2 Family Law Number of paragraphs: 102 Date of last submission/s: 20 February 2023 Date of hearing: 28 September 2022, 17-19 October 2022 & 13 December 2022 Place: Adelaide Counsel for the Applicant: Mr McQuade Solicitor for the Applicant: Daniel John Lawyers Counsel for the Respondent: Mr Praolini Solicitor for the Respondent: Angela Ferdinandy Counsel for the Independent Children's Lawyer: Ms Fuda Solicitor for the Independent Children's Lawyer: Legal Services Commission of SA ORDERS
ADC 220 of 2011 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LEYTON
Applicant
AND: MS JACKS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE JENKINS
DATE OF ORDER:
14 JULY 2023
THE COURT ORDERS THAT:
1.That all previous Orders be discharged
2.That the parties have equal shared parental responsibility for X born in 2008 (“X”).
3.X live with each of his parents on a week about basis from the conclusion of school (or 3.00pm) Friday until the conclusion of school (or 3.00pm) the following Friday and each alternate week thereafter.
BY CONSENT:
4.X spend time for special occasions as follows:
(a)With the mother on Mother’s Day from 10.00am to 5.00pm each year;
(b)With the father on Father’s Day from 10.00am to 5.00pm each year;
(c)With the mother from 3.00pm Christmas Eve until 3.00pm Christmas Day in 2023 and each alternate year thereafter NOTING X will be in the father’s care from 3.00pm Christmas Day until 3.00pm Boxing Day in 2023 and each alternate year thereafter;
(d)With the mother from 3.00pm Christmas Day until 3.00pm Boxing Day in 2024 and each alternate year thereafter NOTING X will be in the father’s care from 3.00pm Christmas Eve until 3.00pm Christmas Day in 2024 and each alternate year thereafter;
(e)On X’s birthday if a school day from the conclusion of school until 6.30pm in the parent’s care he is not living with that day and from 10.00am to 5.00pm if a non-school day or such other times as agreed in writing between the parents.
5.That unless otherwise agreed by the parties in writing the parents are at liberty to take X on one extended holiday per year of up to 14 days duration ON THE FOLLOWING CONDITIONS:
(a)If the holiday is interstate the travelling parent provide the other parent at least seven (7) days prior written notice by way of a detailed itinerary including flight and accommodation details and contact telephone numbers;
(b)If the holiday is outside the Commonwealth of Australia, the travelling parent provide the other at least 42 days written notice by way of a detailed itinerary including flight and accommodation details and contact telephone numbers; and
(c)The travelling party shall provide the other parent make up time for the time missed to be facilitated by the other parent at a time agreed in writing within three (3) months of the conclusion of the extended holiday.
6.Unless otherwise agreed in writing all handovers that do not take place at X’s school take place at the carpark at the B Store at C Street, Suburb D.
7.The parties do all things and sign all documents, including obtaining a mental health care plan or other such documents necessary to ensure X attends upon Ms E, psychologist or such other psychologist as recommended and only on advice of Ms E and follow all directions and treatment as recommended by Ms E or other psychologist until such time as determined by the psychologist.
8.The parties are at liberty to receive any and all information from X’s medical or allied health practitioners and keep each other informed via SMS as to the details of any practitioners names and contact details that X attends, and this Order hereby authorises any such practitioner to release any information to the other parent that they request.
9.The parties are at liberty to obtain at their own expense from the school all notices, newsletters, school reports, photographs, invitations and other information normally provided to parents, and to attend parent/teacher interviews (separately) or other activities to which parents are normally invited to attend including but not limited to sports days, concerts and ceremonies and this Order hereby authorises any such information to be released to each of the parents at their request.
10.That each party shall contact the other immediately via SMS in the event of serious accident, medical emergency or hospitalisation of X and that both parents shall be permitted to attend upon any hospital or place where X is being cared for.
11.That each party keep the other informed of their current telephone number and residential address and advise the other of any change within 48 hours of the change occurring.
12.The parties be restrained, and an injunction be granted restraining each of them from criticising or denigrating the other party or the other party’s family in the presence or hearing of X or to anyone involved in X’s school community and from allowing any other person to do so.
THE COURT FURTHER ORDERS:
13.That within 14 days the Independent Children’s Lawyer meet with X and explain the outcome of these Orders, thereafter the Independent Children’s Lawyer be discharged.
14.That all extant applications do stand otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Leyton & Jacks has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS
INTRODUCTION
This is a parenting matter concerning the care arrangements for X, who is soon to be 15 years of age. The father’s application initially sought orders in relation to the parties’ other child, Ms F, however she is now 18 years of age.
X currently lives in an arrangement, pursuant to interim orders, where each fortnight he spends nine nights with his mother and five nights with his father.
X has told multiple sources over a significant period of time that he wishes to live in an equal shared care arrangement.
The father seeks that X live with him and spend alternate weekends and holidays with the mother due to the living conditions in the mother’s home, the ongoing threat of eviction and the mother’s mental health.
The mother is concerned about the father’s ability to meet X’s emotional needs but concedes the importance of supporting X’s wishes and therefore promotes orders for equal shared care.
At the conclusion of the evidence, the Independent Children’s Lawyer (“the ICL”) supported the mother’s position with regards to time spending.
ISSUES TO BE DETERMINED IN THIS CASE
·What is the state of the mother’s home?
·Does the mother’s home pose a risk to X from a physical safety or hygiene point of view?
·Does the mother’s living situation put X at psychological risk?
·Is the mother’s hoarding behaviour symptomatic of a broader mental health issue?
·Would X be at risk of psychological harm if he lived primarily with the father?
·What are X’s views and how much weight should they carry?
·What is X’s relationship like with each of the parents and his step-mother?
·Are each of X’s parents able to meet his needs, including both physical and emotional?
·Should the parties share in long term decision making for X?
THE PARTIES AND THEIR HISTORY LEADING TO THIS APPLICATION
The parties were in a relationship from 2004 until about October/November 2010.
The father, Mr Leyton (“the father”), is currently aged 50 years old. He has re-partnered with Ms G (“Ms G”). They have a child together, H, who was born in 2020. Ms G has two children from a previous relationship, J who is about 14 or 15 years of age and K who is about 12 or 13 years of age.
The mother, Ms Jacks (“the mother”), is currently aged 52 years. She has not re-partnered.
Both parties reside in the Suburb D area.
The parties have a lengthy history of litigation. On 20 October 2011, the parties agreed to final consent orders that the children live with the mother for eight nights per fortnight and with the father for six nights per fortnight.
In July 2017 the father filed an application seeking that Ms F be enrolled at L School. Further final orders were made on 25 January 2018 for Ms F to attend that school on the basis that the father would pay the school fees.
The father filed a new application on 11 May 2018 seeking the children be placed in his care as the mother was homeless and living with the children at the Suburb D Caravan Park. Final orders were made on 9 July 2019 giving the father sole parental responsibility for both the children and ordering that they live with him and spend time with the mother on alternate weekends and holidays, subject to the mother having appropriate accommodation.
In September 2020 the mother overheld the children as she said the children were refusing to go to the father. The father filed a further application in this Court and an order was made returning the children to him on 13 October 2020. The mother did not however return the children.
Further orders were made on 2 December 2020 providing for the children to spend time with the father, however it appears that Ms F did not wish to spend the three weeks during the school holidays with the father. As a consequence she has not spent time with the father since November 2020. X continued to spend time with the father save for a period between September 2021 and January 2022 when the mother again overheld him, asserting he did not feel “safe and comfortable” going there.
The current orders in relation to X were made following a contested interim hearing on 24 February 2022. I understand that X has for the most part lived with the mother and spent time with the father in accordance with those orders since that time.
THE EVIDENCE
This matter proceeded by a face to face hearing.
It has not been possible to include every aspect of the evidence in these reasons. However, I have taken all the evidence into account. While I may not mention something specifically in these reasons, that does not mean I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
SHOULD THE COURT MAKE AN ORDER FOR EQUAL SHARED OR SOLE PARENTAL RESPONSIBILITY?
Each parent seeks an order for sole parental responsibility. The ICL promotes an order for equal shared parental responsibility.
Section 61DA of the Family law Act 1975 (Cth) (“the Act”) states as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
In this matter I do not find that there are reasonable grounds to satisfy either s 61DA (2)(a) or (b). In any event, the Court is still at liberty to make an order for equal shared parental responsibility if it would be in the best interests of the child.
There have been two Family Assessment Reports prepared in this matter by Mr M. The first dated 7 January 2022 (“the first Family Report”) and the second dated 19 September 2022 (“the second Family Report”).
In the second Family Report at page 14 Mr M observed:
The relationship between the parents is one of ongoing chronic hostility and antagonism. They do not trust each other; neither believes that the other parent is a capable and responsible parent.
Whilst this could be an argument for sole parental responsibility, it is equally a reason for an order for equal shared parental responsibility. If one parent is accorded that responsibility it is unlikely they will consult or involve the other parent and the evidence in this case shows that X desperately wants each of his parents to be involved in his life. I shall return to this further in my judgment.
In any event, X’s school has been determined and there are no significant medical or other long term issues for X save for continued psychological support if required. The parents both agree that this should continue and are supportive of same. Accordingly I find that it is in X’s best interests for the parties to have equal shared parental responsibility.
WHAT ARE THE LEGAL PRINCIPLES THE COURT APPLIES IN DETERMINING WHERE A CHILD SHOULD LIVE?
Pursuant to s 60CA of the Act the best interests of a child are the paramount consideration for the Court when making a parenting order.
Section 65D of the Act directs the Court to make such parenting orders as it thinks proper. The Court may therefore use its discretion to determine what is "proper". In this regard the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21 has said at [18]:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
HOW DOES THE COURT DETERMINE WHAT IS IN X’S BEST INTERESTS?
Section 60CC of the Act sets out the matters to be taken into consideration when determining best interests.
There are two primary considerations. The first of which is the need to consider the benefit to X of having a meaningful relationship with each of his parents. Secondly I must consider the need to protect X from harm.
If there is conflict between those two considerations, then greater weight must be given to the need to protect X from harm.
Do the parties’ proposals provide for a meaningful relationship between X and each of his parents?
The Full Court of the Family Court of Australia in the case of McCall & Clark [2009] FamCAFC 92 at [115] observed that the Act does not provide a definition of the word "meaningful", however they noted with approval the view of Brown J in the decision of Mazorski & Albright [2007] FamCA 520, in which her Honour said the term was synonymous with notions such as "significant", "important", "of consequence" and "valuable to the child".
Based on this definition the parties both propose orders that would enable each of them to continue to have a meaningful relationship with X.
Is X at risk of harm in either parent’s care?
The mother seeks orders that provide for equal shared care. Although she raises some concerns about the father, these are not of such magnitude as to impact that proposal. Rather, the mother’s concerns go to X being in his father’s primary care and shall be dealt with further in the additional considerations below.
The father’s case is however clearly put on the basis that X would be at risk of harm if he lived primarily in the mother’s care. This risk is predominately due to the state of the mother’s home. The father argues the home is physically unsafe by virtue of the clutter and unhygienic state. Furthermore, he asserts that X is at psychological or emotional harm because he would be embarrassed to bring friends home, would be at risk of homelessness and would otherwise feel responsible for his mother’s wellbeing.
What is the state of the mother’s home?
The mother has been described as what is commonly known as a “hoarder”; that is, someone who has a propensity to collect and store items in their home to such an extent that it becomes at times uninhabitable.
The mother’s psychologist, Ms N has prepared a short report in this matter. In that report at [7] she observes the mother :
…has struggled to downsize and hangs on to possessions as they “may come in handy later” or she is emotionally attached to them. She prefers to call herself a “collector” or “clutterer’ rather than a hoarder.
Although the mother disputes the extent of the problem, the mother’s living situation has been described at various times as living in “squalor” whilst the Department for Child Protection (“the DCP”) have reported her home as being “extremely cluttered”. Whilst the mother would prefer the word “collector”, and I accept the word “hoarding” has a negative connotation, I have intentionally chosen to use the word “hoarding” in this judgment as it is the only word that truly describes the situation alluded to by the father.
The father’s case is that the mother’s hoarding has been an ongoing problem and refers back to complaints made as early as 2016. The father also relied on numerous housing inspection reports conducted of the mother’s home(s) between May 2018 and November 2021 in support of his assertion that the house was not just “cluttered” but also unhygienic. I have read all of those reports although I may not refer to each one in detail.
The reports show what appears to have been a gradual decline in the state of the mother’s home (s) over that period:
·In the August 2018 report the following summary was provided: “Rubbish throughout, food waste decomposing build-up of dishes, floors require moping, kitty litter and food stuffs.” However the detailed observations state that each room was clean and whilst the photos show some clutter and untidiness as well as some kitty litter around the kitty litter tray, they fall far short of what one might expect in terms of hoarding.
·The December 2018 report summarises as follows: “Property extremely cluttered with previous household items, very overgrown weeds front and rear, however property very clean throughout, smelt pleasant throughout.” The photos nonetheless confirm a substantial build-up of boxes and other items in the lounge area and bedrooms.
·The report of May 2019 contains no summary and all the rooms are said to be clean. Nonetheless, the photos continue to evidence a significant amount of boxes and other items in the lounge area, kitchen and bedrooms.
·By January 2020 the report photos show an ever increasing amount of boxes and other items with the not unreasonable comment: “we need to be able to see more of each room”. However there is scant commentary on the cleanliness of the home save to say there were cat dishes on the floor.
·The February and July 2020 reports were similar in their content.
·By the October 2020 report however, there were references not only to clutter but to a strong smell of cat waste throughout, cat litter in the lounge, the kitchen being extremely dirty, dirty dishes, food waste and dirty cat litter trays.
·The January 2021 and April 2021 reports were almost identical.
·The last reports of September 2021 and November 2021 make it clear the mother had failed to address any of the issues.
In addition to those inspection reports, Mr M attended the mother’s home on two occasions as part of his family assessment. His first attendance was on 29 November 2021 following which he described the mother’s home as follows on page 6:
Rubbish was scattered on the front lawn and the small veranda of the house. [Ms Jacks] could not have been accused of going to any length to conceal her living arrangements prior to the writer's visit. The walk across the rubbish strewn front yard did not fully prepare the writer for the state of [Ms Jacks]' house. The interior of the small house was cluttered and crowded with a very broad range of materials. These materials seemed to range from displayed china, cup and saucer collections to complete rubbish. There was no apparent order to the material in the house. The house had all characteristics of being the home of a very poorly controlled hoarder.
The state of the house was far beyond untidy or cluttered. The house and garden would require a considerable effort by a group of people over a few days and a number of skips to tidy up, clean and declutter. It appears from the documents that this has taken place on at least one occasion. The writer was surprised that the landlord has not evicted [Ms Jacks] from the house because of the state of the house and front yard.
The mother concedes that subsequent to that visit, in or about July 2022 she was close to being evicted from the home. It would seem that but for the assistance of support services she may well have been evicted.
Seemingly as a result of that assistance, by the time of Mr M’s subsequent visit on 3 September 2022, he recognised there had been some improvement. He made the following observations at page 6 of the second Family Report:
The area of the house where the writer was and where the interview took place at a small table had changed considerably since the writer had been previously there. The area was no longer one of depressing squalor. The stuff and material of the area had been neatly organised and stacked. The home remains the house of a hoarder. Despite the variety of materials of the room being neatly stacked this neatness does not in any way reflect a neat and orderly house. [Ms Jacks] told the writer that she was expecting a skip to be delivered the next week.
This skip will be provided to her by a local volunteer group who have been helping her organise her house. [Ms Jacks] was full of praise for this group who appear to have provided her with considerable help and support in recent weeks.
However, as X would not allow Mr M to see the state of his room, he was not able to comment on the entire house. It is unclear whether X’s resistance was because of the state of his room and/or his concern that it may result in not spending time with his mother or for another reason, perhaps because he felt it was unjust to be subject to such scrutiny.
I attempted to clarify with Mr M the types of items that were stacked around the home in order to gauge the level of risk, if any, to X of living in such an environment. In this regard Mr M struggled to particularise what he had seen, describing the house as having “rubbish” everywhere. Ultimately his evidence was that he had seen a lot of plastic water bottles and paper but not food scraps or dirty plates.
Regardless, it is clear that at times the house has been unhygienic and possibly a fire hazard and that to get the house to even a minimal standard has required the mother to rely heavily on support services. It also appears that those services, at least in more recent times, only became involved as a result of a mandatory report made by X’s psychologist Ms E, albeit at the behest of the father, rather than at the instigation of the mother herself.
I also accept the evidence of Mr M that the mother presents as in denial about the extent of the problem, is prone to blaming the issue on factors out of her control and is otherwise overly optimistic about the future. For example, the mother attributes some of the clutter to living in a small house as well as on her inability to lift heavier objects. She also tries to deflect by suggesting the father also has a hoarding issue but that it is less obvious due to the space he has on his property. Furthermore, she believes the problem may be solved by selling objects on eBay or even by opening a second hand store.
Having heard all of the evidence, I share Mr M’s opinion at page 21 of the first report where he states he has “absolutely no confidence in [Ms Jacks] being able to take control of her physical living environment and that if she could, being able to maintain if [sic] for more than a very brief period” and that the mother is likely to revert back to old habits when the Court is not overseeing the matter.
Flowing from this, there will always be a risk of eviction. The mother has been homeless in the past and I accept the submission that support services are not an infinite resource.
Does the mother’s home pose a risk to X from a physical safety or hygiene point of view?
The father’s case is that the mother’s home poses a health risk to X. His evidence at [158] – [160] of his Trial affidavit was as follows:
The condition of the house is obviously dangerously unsafe. The unsanitary, unhygienic state is not a safe environment for anyone to live, let alone children. Reports from inspections carried out by the landlord in the past have identified the mother's home in line with hoarding and squalor.
The sanitation issues arising from this are numerous. And it has issues for air quality. Dust, Odour, and ammonia from decaying waste products can cause serious air quality issues in a hoarder's home. It may be difficult to breathe and respiratory problems may develop. It's dangerous enough to clean up such an environment without respiratory protection, but if people and animals live in these conditions, it could have a very detrimental effect on their health over time.
Further, Cockroaches, rats, flies, and other pests are attracted to rotting food and animal waste products. A severe hoarding situation can become a haven for pests that spread diseases to the people and animals living in these unsanitary conditions. When the mother's previous landlord provided an affidavit to this Honourable Court, [Ms O], it was sworn that neighbours had complained of vermin coming and going from the mother's house.
(as per the original)
Whilst I accept based on the inspection reports that there have been substantial periods where the mother’s home has been, to say the least, extremely cluttered and in an unhygienic state, what is less clear is the health and safety risk posed to X at any given time. There is no expert evidence to support the father’s assertions about air quality and the like. I also note that any such risk would be contrary to the father’s position that X should spend alternate weekends and extended holiday times in that home. Furthermore, the DCP have attended the home and following their investigations did not substantiate any concerns.
Does the mother’s living situation put X at psychological risk?
In his first report Mr M predicted at page 25:
He [X] is faced with years of taunting and shaming by his peers because of the condition of his mother's house. [X]'s world will constrict and become very limited if he continues to live in the care of his mother.
Mr M’s opinion in that same paragraph was that:
[X] is in an emotional bind. He is unable to leave his mother's care voluntarily. To leave his mother would be to abandon her. If he leaves, there will be no one to care for her and to look after her. [X] loves his mother he would be unable to abandon her. To place [X] in his father's care relieves him of the responsibility of making a decision to leave his mother and to abandon her. By placing [X] in his father's care any anger that [Ms Jacks] and [Ms F] express will be at the Court and [Mr Leyton] and not at [X]. [X] remains strongly influenced by his sister and [Ms Jacks].
As such, Mr M is of the view that X would be psychologically better off in the father’s care. He said under cross-examination:
If he’s placed at his father’s full-time care, the boy has a chance of getting some perspective on what is happening with his mother and what is happening in her life, rather than becoming completely immersed and enmeshed in it.
He went on to say:
The risks are that, if he’s [[X]] is] overwhelmed, he might develop his own emotional problems – anxiety, for instance… Another one is he might develop behavioural problems. And the obvious ones are alcohol and drugs. Another risk is he just becomes completely devoted to his mother and cares for her for the rest of his life. Lives with her, doesn’t realise his own dreams and hopes and ambitions, and his life becomes socially and emotionally circumscribed by his mother’s mental health needs.
…it would be hard for him just to have the emotional energy and the emotional confidence to go out and get into relationships.
It was also argued that X, who was reluctant to criticise his mother’s living arrangements, may suffer anxiety as a result of keeping secrets about his mother’s house or due to worrying about becoming homeless or picking up on his mother’s concerns in this regard.
However the evidence of X’s psychologist, Ms E, was that she saw no signs that X was stressed or anxious about his living situation and Mr M conceded that Ms E would be better placed to report on the actual impact on X, given she had seen him for a lengthy period of time on a therapeutic basis. I note that Ms E was also originally arranged by the father, who has taken X to most of his appointments so there is no suggestion that she is in any way aligned with the mother.
Furthermore, the other available evidence is not in line with Mr M’s concerns. Under cross-examination X’s psychologist Ms E said as follows:
His [X’s] level of functioning is quite unique to a 14 year old man, young person. He has recently secured some work at [P Company] and using his funds to save up for [lessons] so that he can become a [professional]. He plays instruments. I think I have made a whole long list but I have forgotten because he is just functioning beautifully, socialising very, very well. He has a group of really great friends. We have had to put a little bit of a protective barrier around some of his friends see him as the caretaker or the helper and tend to come with him – to him with issues and drama and, yes, he seems to be the voice of reason. So he is actually probably quite mature in some ways. I believe if you were to ask his teachers he has the utmost respect for authority, very polite, considerate and, yes, his most recent report he was very, very happy with; it was the best report he has ever had with As and Bs and he was particularly chuffed about his A plus in music. He works really, really hard to be who he is today and that doesn’t happen in a bubble. So I’m suggesting that the people that are around him are somewhat responsible for that too. As a 14 year old kid he is very unique.
This does not seem to be largely in dispute. Indeed in the second Family Report, the father was reported at page 2 as follows:
[Mr Leyton] said, "He is seemingly maintaining a positive attitude. He has a good circle of friends who want to do well at school. He is striving to do the best that he can….
[Mr Leyton] said that [X] is good at self learning. According to [Mr Leyton], [X] has made "leaps and bounds with maths."
Furthermore, Ms E did not accept X was somehow parentified, as identified in the earlier Child Impact Report (“the CIR”) prepared by Ms Q in October 2020. Ms E was clear that she had made no observations that X was in any way in a caring role for his mother. Under cross-examination she said you would expect to see a sense of “chaos and dysfunction in terms of poor school attendance” and a reduction in academic performance which was not the case for X.
The father does however report that X has been experiencing stomach aches, muscle cramps and tiredness which he believed was a symptom of stress. In this regard, X confirmed to Mr M that he has been under a lot of stress but that this was when Court dates were approaching. The biggest stress for X appeared to be not knowing where he would be living and whether he would spend time with each parent. Ms E evidence was that “I would anticipate once family court issues have been resolved, X's symptoms are likely to reduce, and his prognosis is good”.
Importantly Ms E gave evidence that she had been working with X on his understanding that he was not responsible for either of his parent’s happiness and that she had seen a shift in this regard in about June last year. She had also been giving X techniques and strategies to make him “independent of the fight” between the parents. Perhaps for this reason, Mr M’s concern that X’s wellbeing would decline upon his sister leaving the home, does not appear to have eventuated.
Is the mother’s hoarding behaviour symptomatic of a broader mental health issue?
Mr M’s evidence was he had never been in a home as bad as the mother’s and that the “person in charge” is “non-functional”. He was of the opinion the mother’s hoarding behaviour was symptomatic of a much bigger mental health problem. However, although the mother has been diagnosed with major depressive disorder, anxiety and post-traumatic stress disorder it is unclear if there is any connection between these diagnosis and hoarding and/or what specific treatment would assist. I note the mother has not been psychiatrically assessed as a part of these proceedings.
In terms of treatment, the mother attends upon her General Practitioner every couple of months who oversees her medication and according to the mother has “a good chat” about how things are going.
The mother’s evidence was that she also attends upon her psychologist, Ms N, as often as she can get in to see her, which appears to be about every month or so. She has been seeing Ms N for about four years, since the retirement of her previous psychologist. The mother’s evidence was that Ms N assisted her with “coping better” on a day to day basis.
The father argued that Ms N’s evidence should not be relied upon as she was not available for cross-examination. Nonetheless, the mother sought to rely on her affidavit arguing that pursuant to r 8.20 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth) the father did not give written notice that Ms N was required for cross-examination.
Rule 8.20 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth) states as follows:
Notice to attend for cross-examination
(1) This rule applies only to a trial.
(2)A party seeking to cross-examine a deponent must, at least 14 days before the earlier of the following:
(a)the first day of the trial in which the affidavit is to be relied on in evidence;
(b)the first day the affidavit is otherwise to be relied on in evidence;
give to the party who filed the affidavit a written notice stating the name of the deponent who is required to attend court for cross-examination.
Ms N’s affidavit was prepared pursuant to orders made on 14 June 2022 which also included orders relisting the Trial. As there were no pending interim applications at that time it must have been understood the affidavit was intended to be used at that Trial. In any event there was no application made to either dispense with the requirements for r 8.20, or to adjourn the Trial to enable Ms N to attend to give evidence. Accordingly, Ms N’s affidavit will go into evidence, unchallenged.
Ms N’s evidence at [4] and [6] is as follows:
[Ms Jacks] has shown incredible improvement over the years. Both her resilience and confidence have increased.
She was definitely happier, confident and more motivated in sessions from that point [The children returning to her care]. [Ms Jacks] said “Anxiety is so much better now” (that she has the kids) and she is “even managing the pain better”.
The only thing I can comment on, is the improvement in [Ms Jacks]’s mental state, confidence and sleeping since her the children chose to stay with her.
I cannot find on the evidence before me that the mother’s hoarding behaviour is symptomatic of a broader mental health issue or that the mother’s mental health generally impacts on her ability to care for X.
Would X be at risk of psychological harm if he lived primarily with the father?
Following Mr M’s first Family Report, X became aware that there was a recommendation that he and Ms F go to live with the father and not see the mother for a six month period. This appeared to be the trigger for X, putting on social media a comment that he would “end his life” and which led to the father arranging for X to attend upon Ms E.
When asked under cross-examination what the impact of living primarily with the father and spending alternate weekends with the mother would be on X, Ms E stated the following:
I would have some grave concerns of a rapid decline in his mental health and I make that opinion and judgment given that’s how he came to seeking psychological care in the first instance. There was the threat of not being able to spend time with his mum and good, quality time, for a length of time. I think there’s a big risk of [X]’s mental health declining and, yes, it would – it would be something that I think his suicidal ideation, his sense of hopelessness and helplessness would increase with such a dramatic change.
In addition, Ms E was concerned that if X’s care arrangements changed dramatically that he was likely to withdraw from his friendship group, he would internalise his thoughts, and would not have the capacity to enjoy his friendships or engage in activities. She was worried that his friends may become more of a therapeutic support rather than a friendship group who just enjoy each other and have fun. She said it was possible he might shut himself off and develop depression which could lead to further threats of self-harm.
Ms E was of the view that if X went to live with his father he would require weekly appointments and daily “check ins” with her to manage the situation. However she was also concerned that the therapeutic relationship may have been impacted by her admission she had been the one who reported the mother’s living situation to the DCP.
Nonetheless, the father argues that Ms E’s evidence should be treated with caution as she has not seen the mother’s home or read the inspection reports. Whilst I accept Ms E does not have firsthand knowledge of the home, it was clear from her evidence that she understood X may not be disclosing the real situation due to fear of not being able to live with the mother. She also acknowledged his “people pleasing” tendencies.
Overall it is my view that Ms E gave her evidence in a straightforward and professional manner, making concessions where appropriate. She has worked with X over a significant period and albeit she has not attended the home, her insights into his psychological wellbeing were very compelling.
Consequently I find there is a significant risk to X’s psychological wellbeing if he were ordered to live primarily with his father.
What are X’s views and how much weight should they carry?
X has consistently reported that he wishes to live in an equal shared care arrangement between his parents. In the CIR X qualified this by saying the time should build up to equal and only if the father was not living with Ms G. Thereafter X repeated this desire, in January 2022 to Mr M, in August 2022 to the DCP, in September 2022 to Mr M and consistently to Ms E. He has also repeatedly expressed frustration that his views are not being heard.
In 2020 X complained to Ms Q stating at [49]:
I feel ignored all the time….I’ve said all these things over the years… no one listens.
In May 2022, at the behest of Ms E, he wrote a letter to the Court, which she annexed to her report. In that letter X says:
Since approximately year 4/2018 I have been worried about my living arrangements. The worry I have is if I am not allowed to have contact with either Mum or Dad.
I would like to be listened to because this is a case that involves me and my wellbeing.
I want to have equal care arrangements of 1 week at mum's and 1 week at dads then I don't have to worry about not seeing either parent for some time and my parents will hopefully not disagree and there will be no more need for court.
Whenever court comes around I get extremely stressed out because I'm worried that I don't have a say in anything and that I will lose all contact with either mum or dad.
I think having both parents in my life is extremely important and if I couldn't see my parents, I'm not sure how I would cope.
I think having both a mother and father figure is important in a person's life.
I want to be like other kids; have a normal life and not have to be stressed and sad because of court.
Ms E gave evidence that X hopes that he is now listened to. In addition she says that the lack of control X feels about his living situation is contributing to his anxiety.
Nonetheless, it is also evident that X’s wishes are impacted by his view that if the parents have shared care, they will stop fighting. As stated by Mr M in the first Family Report at page 23:
X is caught in a world of contradictory, opposing emotional forces. He is caught between the emotional forces, emotional influences, emotional demands and emotional needs of his mother, his sister and his father.
X told Mr M in the second report at page 4:
I want the Court to know I like it as it is now. I just want it (the fighting between his parents) to stop.
In the end however, it cannot be ignored that X is nearly 15 years of age. Ms E described X as an intelligent and articulate young man. Her evidence was that he was not a regular 14 year old and had a very good sense of his identity.
Furthermore, I do not accept Mr M’s opinion that X has no understanding what shared care would entail. X has had many years of living in some form of shared care between the parents. He has experienced substantial time in each parent’s care. He is well placed to know the reality of what he has been asking for and the negatives of living in each parent’s home.
In my view X’s views should be given significant weight in this matter.
What is X’s relationship like with each of the parents and his step-mother?
It is evident from the Family Reports that X has a positive relationship with each of his parents and that he is loved by both. Although Ms E gave evidence that X tended to be more open about his emotions and psychological state with his mother and a little more wary with the father, this did not appear to be of significant consequence.
There is also some evidence that both X and Ms F may have struggled to accept the father’s new relationship with Ms G. Mr M noted the common difficulties that arise with blending two households including the competition for affection and attention between siblings. He also observed at page 19 of the first Family Report that Ms G was in an “unenviable situation”, was an “easy and convenient target for complaint” and that “the complaints are often symptomatic of wider problems and often reflect and echo the conflict between parents”.
Mr M observed at page 18:
In an ideal world [Mr Leyton] and [Ms Jacks] would have been able to work together to assess how the children were coping with the changes. Ideally the parents would have been able to work together co-operatively to support the children as they adapted and responded to the changes that were taking place in their lives. This did not happen.
Whilst the father asserts that the views expressed by the children were not genuine and that they were likely influenced by the mother, stating that there were no such complaints in the Family Assessment Report of Ms R completed in September 2018, any ill will towards Ms G appears to have dissipated. In the second Family Report at page 5, X stated “I get on good with Ms G”.
Are each of X’s parents able to meet his needs, including both physical and emotional?
Although X appears to be having his practical day to day needs met in each parent’s care, there is evidence that both parents lack insight into the impact their ongoing conflict has had on him. In particular, there is evidence that each parent has discussed the contents of reports with the children, with the suggestion the mother discussed the first Family Report recommendations with X and the father the contents of the CIR with Ms F.
In addition, it is probable the mother all too readily accepted the comments of the children when they refused to go back and spend time in the father’s household and may have directly or indirectly encouraged their negative views. On the other hand the father refused to accept the expressed wishes of the children; interrogating them and calling them liars and blaming the influence of the mother.
I note the mother and the ICL also raise concerns about the father’s treatment of Ms F and his step-child J. Having heard the father’s evidence, there may indeed be merit to those concerns, however given their joint position that X should spend time with the father in a shared care arrangement, I do not consider it necessary to make specific findings in this regard.
I do find however that each parent has at times lacked insight into X’s emotional needs, in particular the impact that their ongoing litigation is having on him.
What is the order that is likely to bring an end to any further proceedings?
What is readily apparent from the evidence is that X is in desperate need for certainty. As he expressed to Mr M at page 4 of the second Family Report: “I want to be like a normal or semi normal kid and know where I’m going to live.”
The need to protect X from future litigation weighs heavily in my decision making.
WHAT ARE THE ORDERS THAT ARE IN X’S BEST INTERESTS?
As I am making an order for equal shared parental responsibility I must consider pursuant to s 65DAA of the Act whether it would be in X’s best interests to spend equal time and/or substantial and significant time with each parent and in either case whether such an arrangement would be reasonably practicable.
Having weighed the various considerations identified in this judgment, including the myriad of risks to X, I determine that it is in X’s best interests to live in an equal shared care arrangement. In particular I accept there is a possibility X and his mother may face eviction however this is mitigated to a degree by the mother’s involvement with her support services. In any event, I find the greater risk is to X’s psychological wellbeing if he is not listened to.
I have also considered each of the matters in s 65DAA (5) of the Act including the distance between the parties and the impact on X and find that an equal shared care arrangement would be reasonably practicable.
In making an order for equal shared care, I acknowledge that this is not in line with the recommendations of Mr M. However the Full Court of the Family Court, in Andrew & Delaine [2009] FamCAFC 182, held the Court is not bound to accept the recommendations made by an expert, and particularly a Family Consultant. Unlike Mr M I have had the benefit of hearing all the evidence and seeing the witnesses being cross-examined and having done so, I respectfully disagree with his ultimate recommendations.
Finally, the Court would like X to know that he has indeed been listened to and before the ICL is discharged they are ordered to meet with X and explain the outcome to him.
Accordingly, I make the orders as are set out at the beginning of this judgment, including a number of orders which the parties have made by consent.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 14 July 2023
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