MARSDEN & MARSDEN
[2018] FamCA 157
•16 March 2018
FAMILY COURT OF AUSTRALIA
| MARSDEN & MARSDEN | [2018] FamCA 157 |
| FAMILY LAW – CHILDREN – Parental responsibility – With whom the children shall live and spend time – Separation of siblings – Where the two eldest children have been living with the father and the youngest child has been living with the mother – Where both parents seek sole parental responsibility for all three children and for the children to live with them – Where there are concerns about the mother’s parenting capacity in relation to the two eldest children – Where the mother’s relationship with the youngest child is a protective factor for the child – Orders made for the father to have sole parental responsibility for the two eldest children and the mother to have sole parental responsibility for the youngest child – Orders made for the two eldest children to live with the father and the youngest child to live with the mother – Orders made permitting the children to determine when to spend time with the non-resident parent on reaching age thirteen. FAMILY LAW – FAMILY VIOLENCE – Where there is a positive finding of coercive and controlling family violence by the father – Where conflict between the parents is significantly impacting the children – Where the parents are historically non-compliant with orders – Where failing to return the youngest child to the mother in accordance with orders constituted abuse – Orders made for the youngest child to spend time with the father every second weekend until the age of thirteen – Orders made for a recovery order to lie in the Registry of the Family Court and for suspension of the father’s time with the youngest child if he fails to return her at the conclusion of the weekend. | |
| Family Law Act 1975 (Cth), ss 43, 60B, 60CA, 60CC, 61DA, 65DAA, 117 United Nations Convention on the Rights of the Child, art 19 | |
| B and B (1993) FLC 92-357 Gahen & Gahen (No 2) [2013] FamCA 936 Godfrey & Sanders [2007] FamCA 102 In the marriage of I and I (No. 2) (1995) FLC 92-625 Marsden and Marsden [2016] FamCA 220 Fogarty, J, ‘Unacceptable risk – A return to basics’, (2006) 20 Australian Journal of Family Law, 249 |
| APPLICANT: | Ms Marsden |
| RESPONDENT: | Mr Marsden |
| INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
| FILE NUMBER: | SYC | 6980 | of | 2009 |
| DATE DELIVERED: | 16 March 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 10-14 October 2016, 15-16 December 2016, 23-24 March 2017, 18 May 2017, 6 June 2017, 17-18 August 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Mahony and Mr Daniel |
| SOLICITOR FOR THE APPLICANT: | David H Cohen & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Wong and Mr Batey |
| SOLICITOR FOR THE RESPONDENT: | Platinum Lawyers Pty Ltd |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Guterres |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
Orders
Previous orders
All previous parenting orders in relation to the children, M born … 2002 (“M”), A born … 2004 (“A”) and V born … 2007 (“V”) are discharged.
Parental responsibility
The mother shall have sole parental responsibility for V.
The father shall have sole parental responsibility for M and A.
Live with
V shall live with the mother.
M and A shall live with the father.
Spend time
M and A
M and A shall spend time with the mother in accordance with their wishes and at times arranged directly between either of them and the mother.
The father is restrained from doing anything to prevent, restrict or hinder M and A from spending time with the mother in accordance with their wishes.
V
Until she reaches 13 years of age V shall spend time with the father as follows:
(a) Each alternate weekend from after school Friday until before school Monday (extended to Tuesday if Monday is a public holiday) such time to commence on the first Friday following the making of these orders;
That for the purposes of the father’s time with V the following shall apply:
(a) on school days, handover shall occur at V’s school;
(b) on non-school days, handover shall occur at Suburb AA McDonalds and shall be supervised by BB Group;
(c) such supervised change over, in accordance with order 9(b) above, shall continue until V attains the age of 13 years.
Once V turns 13 years of age she shall spend time with the father in accordance with her wishes and at times arranged directly between herself and the father.
Supervision
The parties shall do all things necessary to ensure that, in respect to changeovers that occur at Suburb AA McDonalds, BB Group is available to supervise such handover and for this purpose, all costs associated with supervision shall be paid for by the father.
Restraints
The father is restrained from attending V’s school on days other than the days he is to collect and return V pursuant to these orders.
The mother shall be restrained from seeking to remove V from school early on the days on which V is to be collected from school by the father pursuant to these orders.
Substitute time
In the event that V is not in attendance at school on a day the father is to collect her, and that as a result V does not spend time with the father, then V shall spend make up time with the father the following weekend from after school Friday until before school Monday.
Suspension of time
That pursuant to section 67Q of the Family Law Act 1975 (Cth) (“the Act”), a recovery order and warrant be issued to the Marshall, all officers or agents of the Australian Federal Police and all officers of the police forces of all the states and territories of the Commonwealth of Australia (officers and agents) authorising and directing them to:
(a)at any time and with such assistance as they require and if necessary by force to:
(i) stop and search any vehicle, vessel or aircraft; and
(ii) enter and search any premises or place;
(iii) where there may be reasonable cause to believe that the father or V born …2007 may be found;
(iv) and to take possession of the child V.
Upon recovery of the child the officers and agents are, pursuant to section 67Q(d) of the Act, directed to deliver the child to the child’s mother.
(b) The officers and agents are authorised and directed to arrest, without warrant, any person who acts in breach of these orders.
That the recovery order shall lie in the Registry of the Family Court at Sydney for a period of twelve months from the date of these orders.
That in the event the father fails to return V to the mother at the conclusion of her time with the father and the father fails to comply with a request by the mother to deliver V to her at a nominated time and place, the mother shall be at liberty to approach the Registrar of the Court to activate the recovery of the child pursuant to these orders.
In the event the father fails to return V at the conclusion of her time with him, in accordance with these orders, the father’s time with V shall thereafter be suspended.
Information sharing
The father shall authorise the schools that M and A attend to provide copies of all school reports and progress notes to the mother and shall ensure that reports from any treating health professional for M and A to be provided to the mother within 7 days of their receipt by him.
The Mother shall authorise the schools that V attends to provide copies of all school reports and progress notes to the father and shall ensure that reports from any treating health professional for V be provided to the father within 7 days of their receipt by her.
Should M or A require urgent medical attention, or be admitted to hospital, the father shall notify the Mother as soon as practicable.
Should V require urgent medical attention or be admitted to hospital the mother shall notify the father as soon as practicable.
The mother shall notify the father in writing of any decision made in the exercise of parental responsibility for V, including but not limited to; the high school V will attend, any application for a passport and any overseas travel.
The father shall notify the mother in writing of any decision made in the exercise of parental responsibility for M and A including, but not limited to; any application for passports and any overseas travel.
Each party shall provide the other no less than 8 weeks written notice of any plan to travel overseas with any of the children including a copy of itinerary.
Communication between the parties
Each party is restrained from communicating with the other except in relation to the welfare of the children or as set out in these orders and all such communication shall be in writing.
Additional Restraints and Injunctions
Each party is restrained by injunction from:
(a) abusing, insulting, or denigrating the children or the other party or members of the other party’s extended family or household to, or in the presence or hearing of any, of the children and from permitting another person to do so;
(b) discussing any allegation made or evidence given in these proceedings to, or in the presence or hearing of, any of the children and from permitting another person to do so;
(c) physically disciplining or striking the children;
(d) questioning the children, or discussing with them the appropriateness of the other party’s behaviour or parenting practices or parenting matters;
(e) presenting the children to NSW police for the purposes of initiating or making a complaint to police about the other party, other than as may be requested by NSW police.
During periods that V is spending time with the father, the father shall ensure that V has her own bedroom and her own bed.
That either party is at liberty to provide a copy of these orders to the school V may attend from time to time.
Costs
That the father is to pay one half of the liability of costs for the Independent Children’s Lawyer.
That the Independent Children’s Lawyer is hereby, discharged.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Marsden & Marsden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 6980 of 2009
| Ms Marsden |
Applicant
And
| Mr Marsden |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These are parenting proceedings relating to competing applications between Ms Marsden (“the mother”) and Mr Marsden (“the father”) in relation to the children of their marriage - M born in 2002 and currently aged 15 (“M”), A born in 2004 and currently aged 13 (“A”)(“the boys”), and V born in 2007 and currently aged 10 (“V”) (collectively “the children”).
The competing applications have been made in the context of a lengthy history of litigation between the parties since they separated on 3 November 2009. The children have been detrimentally affected by the dispute between their parents.
There have been several different parenting regimes that have applied since the parties separated in November 2009. These will be outlined in the body of this decision. The current arrangement is that M and A live with the father and spend some time with the mother. M essentially determines the amount of time that he spends with the mother. A usually spends every second weekend with the mother. V lives with the mother and spends one evening and two days every second week with her father.
For reasons that I will explain, I am of the view that the current arrangements whereby V sees her father every second weekend are appropriate and should continue. However to minimise the prospect of parental conflict that has plagued these parties and the children, I am of the view that, wherever possible, changeovers should occur by way of drop off and pick up from V’s school. This will necessitate the time that V spends with the father to be extended to commence on Friday after school and conclude on Monday before school.
Regrettably the history of conflict between the parties is such that the children are unlikely to receive respite until such time as they can determine which parent they wish to spend time with. In the circumstances of this case, I have determined that an appropriate age is when the children reach 13 years of age. That applies to M who is now 15 and A who is now 13. The informal arrangement between the parties is that both boys spend time with the mother in accordance with their wishes. That arrangement should similarly apply to V spending time with her father once she reaches 13 years of age.
PROCEDURAL HISTORY
The application is being considered in the context of a lengthy history of litigation between the parties from the time of separation in late 2009. In fact, since 2009, there have been 32 separate applications and over 80 hearing days on various issues concerning the parties’ ongoing parenting dispute.
Much of the history of conflict between the parties, and subsequent litigation, has been outlined in a judgment of Le Poer Trench J delivered 22 May 2015,[1] and subsequent judgments of mine delivered 14 October 2015[2] and 8 April 2016.[3]
[1] Marsden & Marsden [2015] FamCA 387.
[2] Marsden & Marsden (No. 2) [2015] FamCA 855.
[3] Marsden & Marsden [2016] FamCA 220.
For personal reasons impacting upon counsel for the father on 16 December 2016, it was necessary for the proceedings to be adjourned indefinitely. For personal reasons impacting upon counsel for the mother it was necessary to adjourn the proceedings on 6 June 2017. It was subsequently necessary for the mother to retain new counsel in the proceedings. Those adjournments were entirely appropriate however it has unfortunately resulted in the hearing of this matter being protracted. The Court expresses its appreciation to Mr Daniel who appeared on behalf of the mother in the final two days of the hearing. In a relatively short period of time, Mr Daniel was able to obtain command of a complicated factual history and present helpful submissions to the Court.
relevant facts and factual contentions
Mr Marsden was born in 1977. Ms Marsden was born in 1969. The parties commenced their relationship in 1999 according to the father, and 2000 according to the mother. That difference in recollection is not material to this decision. It is agreed the parties were married in 2001.
The mother left the former matrimonial home in 2008 and 2009 for short periods, including taking the children to a women’s refuge for a few days in October 2009.
The parties separated on a final basis in or around November 2009 when the mother left the former matrimonial home with the children to stay with her sister and family.
On 18 November 2009, the father filed an initiating application in relation to parenting and property issues.
In December 2009 the mother moved into rented premises in Suburb O and, in mid-February 2010, the father moved from the former matrimonial home in Suburb CC to rented premises in the same street as the mother. The property was located near Suburb O Public School, where M and A then attended.
The mother now resides in the DD area and the father in proximity to the Sydney central business district (“CBD”).
Both parents make allegations that the other parent suffers from poor mental health. The parties’ respective contentions, in that respect, have been canvassed in several interim proceedings.
In these proceedings both parties stated that they did not have the financial capacity to retain a single expert with relevant psychiatric qualifications. As result of this, the Court is without evidence as to the psychological health of the parties and no finding is made in that respect. It is clear however, that the parties have had a bitter and acrimonious relationship and they, and their children, have been, and continue to be, emotionally affected by that conflict.
There have essentially been five different phases of parenting arrangements;
·The children lived primarily with the mother from separation until 3 February 2011.
·The children lived primarily with the father from February 2011 until August 2014.
·From August 2014 the children lived primarily with the mother until;
a)August 2015 when M returned to living primarily with his father, and
b)April 2016, when A commenced living primarily with his father.
The children did not spend any time with the father between August 2014 and August 2015 and A and V did not spend time with the father from February 2016 until A came into his care on 23 April 2016. This occurred after the mother indicated to A that, as part of a behaviour management plan, she intended to remove his computer. V recommenced seeing her father for a period in May and June 2016 however, after two incidents that occurred at changeover in July 2016, V did not spend time with her father until the commencement of the hearing in October 2016.
Since the commencement of the hearing, and with some exceptions, V has spent one night every second weekend with her father and A has started spending one night every second weekend with his mother. The father stated that M lives with him and usually spends time with his mother every second weekend but that he has missed a couple of weekends because of work commitments or because he had arranged time with a personal trainer. If that is the case M will then usually go to his mother’s on a Saturday morning. The father’s broad summary of that informal arrangement did not appear to be disputed.
Until an issue arose between the parties in April 2017, during those times that V stayed with her father, she would stay with him and her brothers in a two-bedroom unit located close to the Sydney CBD. The father explained that when V stayed at his place that she slept in the top bunk of a double bunk bed located in the same room that A and M shared.
Since approximately May 2017, the father has been living in a three bedroom rental property close to the CBD of Sydney. The father stated that V shares one bedroom with her younger brother A when she stays at that property.
The history of disputation between the parties is such that they have each made numerous reports to Police alleging that the other parent has mistreated or neglected the children. The mother was unchallenged on her evidence that between the time of separation in 2009 and the date of the hearing, police had responded to a complaint from one or other of the parents on approximately 60 occasions. Many of those historical police records have been referred to in earlier interim proceedings.
In these proceedings it is not productive to provide details of each police interaction. The police interactions that are relevant to this decision primarily occur after an event that occurred in August 2014 where the mother alleges that the father assaulted the two boys. The mother’s allegations were subsequently the subject of a police intervention. As will be discussed, that event and its aftermath have had a significant impact on parenting arrangements and the intensity of the parents’ dispute. On 2 December 2009 Federal Magistrate Altobelli, as he then was, made orders with the effect that the mother have sole parental responsibility for the children and that they live with her and spend time with the father, initially supervised but after four weeks, on an unsupervised overnight basis. Similar orders were made on 22 January 2010.
On 14 February 2010, the father took M to the police to report an allegation by M that the mother’s brother- in-law (Mr EE) had touched his penis while he was in the shower. The police took out an Apprehended Violence Order (“AVO”) against Mr EE, but subsequently withdrew the complaint. The police referred the allegation to a Joint Investigation Response Team (“JIRT”) consisting of Police and officers of the Department of Family and Community Services (“FACS”). JIRT subsequently took no action in respect to the complaint.
On 22 March 2010 Federal Magistrate Sexton, as she then was, made orders, which, in respect to the boys, relevantly provided;
M and A spend time with the father as follows:
(a)On each alternate weekend from the conclusion of school on Friday until 5.00 p.m. on Sunday, when the father will collect M and A from Suburb O Public School and the father will return the children to the mother inside the foyer of FF Police Station at the conclusion of the time;
(b)Each Wednesday from the conclusion of school until 6.00p.m. when the father will collect M and A from Suburb O Public School and will return the children to the mother inside the foyer of FF Police Station at the conclusion of the time;
(c)For four nights and five days of each short school holiday period, from the middle Friday at 9.00a.m until the following Tuesday at 5.00p.m. when changeover will occur in the foyer of the FF police station; and
(d)For two non-consecutive periods of 7 days in the 2010/2011 Christmas school holiday period, being from Boxing Day at 10.00a.m. until Saturday 1 January at 10.00a.m and from 10.00a.m. on Saturday 15 January 2011 until 10.00a.m. on Saturday 22 January 2011.
The orders of Sexton FM provided for V to spend less time with the father.
The father lodged an appeal against her Honour’s decision but that appeal was subsequently withdrawn.
In March 2010 the parties were each concerned whether V, who was then three, had been the subject of a sexual assault and each independently took her for separate medical examinations. It was not established that any assault had occurred. On 29 June 2010, Loughnan JR, as he then was, made orders that the Father be restrained from attending at Suburb O Public School, M’s football training and matches, extracurricular activities, approaching the mother when the children are with her or interfering in any way with the mother’s time with the children.
On 13 July 2010, further orders were made by Loughnan J that handover was to occur at a Suburb GG contact centre.
In the period between October 2010 and January 2011, at times when M was living with the mother, he left her care sometimes to visit the father and on one occasion to go to a local shop.
On 7 December 2010, Police attended upon the mother after M had left her care earlier that morning. M reported to Police that the mother had smeared cheese over his face. A contact record by FACS dated 7 December 2010 also reports M stating that the mother squirted sauce into A’s mouth as a disciplinary tool in circumstances where he found sauce objectionable. In these proceedings, the mother could not recall that event, however, in the course of a criminal trial involving the father, on 5 December 2014, the mother admitted to that conduct and I accept that it occurred on at least one occasion.
On 24 December, 2010 further orders were made by Loughnan J that, in the event that any of the children leave the mother’s household without her permission, the mother will forthwith contact the father to advise him that the child has left the premises and forthwith upon the father sighting the children, that they be returned to the mother via FF Police Station.
In a statement tendered in the criminal trial involving the father, M reported that, while staying at his mother’s place on 22 December 2010, his mother had locked him in his bedroom with a key and had refused to release him to go to the toilet.[4] The mother denied this incident and noted the there was no lock on M’ door. It may have been the case that the mother directed M to stay in his bedroom. However, I accept the mother’s evidence that she did not physically lock M in his bedroom. On 25 January 2011 further orders were made by Loughnan J which, by way of summary, were as follows;
a.The father to spend time with the children at Suburb GG Contact Centre for no more than 2 hours per fortnight.
b.That the mother have sole parental responsibility for the children in relation to all major decisions, and is not required to consult with the father in relation to any major decision relating to the children.
c.The Father be restrained from moving within a two Kilometre radius of the mother’s home, the children’s school or child care.
d.The Father be restrained from communicating with the mother via any means except in writing through the mother’s legal representative
[4] Transcript of 11 October 2016 at pages 6-7.
On 3 February 2011, the parties entered into final parenting orders by consent (“the consent orders”).
By way of summary, the consent orders provided that the children live with the father, that the father have sole parental responsibility and that the children spend time with the mother on alternate weekends, for half of the school holidays and special days, with additional overnight time on a Thursday for V. There were also various orders restraining the father from attending the children’s school at changeover times, from moving the children’s residence and school from the Suburb DD area, or from living within a two kilometre radius of the mother’s home.
Litigation recommenced on 25 October 2011 with the father filing an application for contravention against the mother for an alleged contravention of the consent orders. Essentially, the contravention application alleged that the mother contravened order 19, of the then applicable orders, by punching M on his thigh on 16 October 2011.
In her judgment delivered on 23 December 2011, Stevenson J, found that;
I am satisfied that the mother had a reasonable excuse for her conduct on 16 October 2011. I accept her evidence that she slapped [M] on his leg with an open hand and that she did not punch him. I accept that the child was attempting to jump out of a moving car on a busy road and that the mother had to take swift and strong action to ensure his safety.
The mother alleges that on 27 August 2014 the father assaulted M and A, leaving a bruise on M’s face. The father vehemently denies this allegation.
On 29 August 2014, following interviews with M and A, the police charged the father with stalking and intimidating, intending to cause fear or physical or mental harm (a domestic violence offence) in relation to M, and with common assault in relation to both M and A.
On 30 August 2014, a provisional AVO was made naming the children as protected persons. An interim AVO was made against the father for the protection of the children at the DD Local Court on 3 September 2014.
In September 2014 the mother commenced taking the children to see Dr Q who is a clinical and children's psychologist.
On 16 September 2014, the mother initiated parenting proceedings in this Court seeking that the consent orders be discharged, that the children live with her, that she have sole parental responsibility, and that the children spend no time with the father. The mother also sought interim orders that the consent orders be suspended and that the children live with her and spend no time with the father.
On 9 November 2014, the mother called the police following an incident where she alleged M physically and verbally assaulted her.
On 12 November 2014, Senior Registrar Campbell ordered that the children commence living with the mother.
On 5 and 9 December 2014, the father’s criminal proceedings were listed for hearing at DD Local Court.
On 11 March 2015, the criminal proceedings against the father were listed at DD Local Court for further hearing, with cross examination of M occurring. On 23 June 2015, the criminal proceedings were listed for a further hearing at the DD Local Court. The proceedings were, however, discontinued by agreement between the parties. The agreement provided for the father to be subject to an AVO for a period of nine months. The parties disagree as to why those proceedings were discontinued.
On 22 May 2015 orders were made by Le Poer Trench J that the family law proceedings be expedited and that the Independent Children’s Lawyer (“ICL”) nominate a therapist for the children to attend. The ICL subsequently nominated Ms R (“Ms R”) family therapist, clinical and forensic psychologist.
On 14 July 2015, an incident occurred with the mother calling the police in respect to M's behaviour after she banned him from using the internet. The police attended and called an ambulance to take M to the DD Hospital for assessment by the mental health team.
The hospital records contain the request by the police, under section 22 of the Mental Health Act 2007 (NSW), for M to be assessed. The summary provided by the requesting officer noted:
[M] has told police he broke a plate and held it to his neck as he doesn't want to live, he has also stated that he hates life and wants it to end. [M] was also very sombre and introverted initially and became stubborn and highly emotional later, crying and hyperventilating. When asked did he think his behaviour was normal [M] has replied "Yes", "I don't want to live.
The hospital’s discharge summary, dated 15 July 2015, stated:
[M] is a 13yo adolescent, currently living at home with his mother and 2 younger siblings, and currently in Year 7
[M] was bought in by Police under a Section 22 after threatening suicide with a shard of glass, in context of his mother barring internet access due to behavioural issues, and is on background of previous diagnosis of depression, previous CAMHS [Child and Adolescent Mental Health Service] referrals with no engagement by patient, and previous similar threats and homicidal threats when distressed.
[M] is currently in Yr 7 but has had poor attendance for the last 3 school terms, and no attendance for the last 7 weeks. His mother reports he is constantly on the internet playing "minecraft", and today his mother limit set by barring his internet access. He has then become intimidating, aggressive and angry, breaking a glass plate and threatening to harm himself with a shard of glass.
[M] has previously been diagnosed with Depression by his Paediatrician [Dr P], and started on Sertraline, but has recently been non-adherent. He has had previous threatening behaviours towards his mother and siblings resulting in police taking out an AVO against him, to protect his family. He denied any cigarettes, alcohol or illicit substances (sic).
[M] has previous traumatic history of physical and emotional abuse from father, with subsequent AVO and family orders barring father’s contact with family
On review, [M] was not schedulable under the mental health act.
He was discharged home with plans to refer to CAMHS.
Impression of behavioural disturbance with poor and immature emotional regulation/coping mechanisms, poor sense of personal responsibility in context of limit setting.
Between 9 August 2015 and November 2015 the children attended family therapy with Ms R.
On 13 August 2015 police were requested by the mother to attend a further incident involving M. The report states:
A verbal argument has taken place between the [mother] and [M] in the lounge room since he has not been attending his new school [S School] in [Suburb T] the last few days.… Within the argument [M] has said to the [mother] "I don't want to live with you any more, I hate you”. By [M] saying this towards the [mother] was due to the fact [the mother] had disconnected the Internet from [M’s] laptop because of him not attending school. When the [mother] told [M] he could not use the internet this has caused him to become angry towards her resulting in the verbal argument. The [mother] has told police and signed the official notebook of [the attending constable] stating she did not want to take any action or provide any more details regarding the verbal incident that has taken place between herself and [M] at the residence. The [mother] has stated she does not hold fears from [M] but would like to have him in the custody of his biological father [Mr Marsden] as she believes he would be happier with that situation. The biological father Mr Marsden was contacted and told [Suburb DD] police he would like to have [M] come and stay with him at his residence.
The police report into the incident notes that the proposed action was approved by a duty Sergeant at DD Police Station and arrangements were made for M to be taken to the station in order for the father to collect him. The report further notes that the proposed action and changeover of M to the father was consented to by the mother.
As a result of M’s poor attendance at school, arrangements were made for him to attend the S School which specialises in providing assistance to children who are experiencing difficulties with their education. M commenced attending the S School on 27 July 2015.
By way of a letter dated 9 September 2015[5], the Assistant Principal of S School noted that M had commenced at the school on 27 July 2015 and, as at the date of writing, M had attended the school for a total of twenty out of thirty-two days. The letter commented:
At school, [M] has engaged in his class work, participates appropriately and completes work as required. He interacts positively with staff and students and is proving to be a cohesive member of the school community.
[5]Exhibit 24.
Subsequently M resumed his education at U School. After moving into the care of his father, M’s school attendance improved significantly. M resumed socialising with his friends and he has also resumed playing sport.
On 14 October 2015, I made orders which, by way of summary, provided that A and V live with the mother and that M lives with the father, and, that any time that A and V spend with father, be as agreed to in accordance with the recommendations of Ms R, and that M was to spend defined time with mother.
Regrettably A also experienced difficulties at school. By letter dated 12 October 2015 the principal at W School, where A then attended, wrote to the mother informing her of the following:
As you are aware, [A] continues to experience high levels of anxiety at school, which have resulted in inappropriate behaviours escalating over recent times. His behaviours of absconding from the classroom, defiance and oppositional behaviour make it very difficult for the school to provide a safe and appropriately supervised plan for him. Strategies that have already been tried and implemented in the school to support [A] and reduce the risks presented, are currently not being effective.
[A’s] safety and wellbeing remain our highest priority. After considerable consultation with the Regional Student Wellbeing Team and Regional Consultant, and as outlined in the previous letters to you, dated 3 September and 17 September 2015, it is necessary for [A] to remain on partial attendance until an appropriate program of intensive Family Therapy is sought, such as [Z] Services.
The letter advised that, in the circumstances, the school would only permit A to attend school for the balance of Term 4 on those days when one to one supervision was available. That supervision appeared to be available between three to four days each week on average.
The mother attended a meeting at W School on 23 October 2015 with the school principal, Ms QQ, a psychologist and a student wellbeing team, together with the school’s learning support officer. The minutes of the meeting record Ms QQ advising the mother that A was “emotionally on edge” and “constantly in a fight/flight mode”. Various strategies were agreed to assist A both at home and at school.
On 25 October 2015 the father spent some time with V accompanied by the mother, as they spent some time walking around a shopping centre and had lunch together.
On 3 November 2015 A suffered from distress to such an extent that he left the school premises. That event was described in a referral to Y Family Services (“YFS”) which was completed by Ms R, in the following terms:
On the 3rd of November 2015 A left the school premises in a distressed state and refused to return from the side of the road. It was advised that he be taken to the nearest hospital; however, he refused. An ambulance came but the paramedics did not want to force him. His mother, who managed to calm him down after a period of time, took him home.
After that incident, a further meeting was held on 4 November 2015 which included the same participants as those who attended the earlier meeting on 23 October 2015. In addition, a representative from DD Family Services and the MM Project (MMP) program were present. At that meeting, Ms QQ again expressed concern for A’s mental health and recommendations were made for A to attend a program at YFS.
An “Individualised Positive Behaviour Support Plan” dated 4 November 2015 prepared by the school (“the Support Plan”) reported:
[A] is presenting to school in a distressed state daily, at times refusing to come to school or engage when he is at school. He arrives at school late daily because he refuses to get out of the car, therefore it is difficult to manage supervision via “meet and greet”. He is no longer responding to the relational interventions provided by the teacher and staff.
The Support Plan also reported:
[A’s] mental health needs prevent him from accessing the curriculum. It is very hard for him to engage, focus or maintain engagement with tasks or social interactions with others.
Significantly the Support Plan recommended that:
For [A] to have greater mental health support for his trauma presentation and the family to improve communication and boundaries. For the whole family to begin the healing process.
The Support Plan also noted, in the context of the “main issues”:
[A] is very withdrawn at school, defiant and non-compliant. He poses a flight risk and is currently very unpredictable. [A’s] behaviour is best understood from a trauma perspective.
The Support Plan records that:
[A] plan was established that [A] would not attend school until he receives mental health assessment and intervention in addition to family intervention. [The mother] was agreeable to same.
The outcomes/agreed actions were noted in the Support Plan to be as follows:
[Ms QQ and Ms R] to complete the [YFS] referral collaboratively.
[The mother] to continue ensuring [A] completes some learning at home as planned, with regular breaks and engagement opportunities.
Risk assessment and plan to be sent out by [Ms QQ] and reviewed by all stakeholders.
[Ms QQ] to communicate [DD Family Services] and [MMP Program]’s concerns about risk assessment to the SWBT coordinator.
[The mother] to follow up with CAMHS [Child and Adolescent Mental Health Service] appointment for A and continue assessing support and intervention through SSFS.
[The principal] to follow up with CAMHS and check if they are supporting [A] and offer background information.
Under the heading “Negotiated attendance”, the Support Plan recorded:
[A] to stay at home and complete learning with [the mother] until he has engaged in intervention for his mental health.
The Support Plan records an agreement reached between W School and the mother that A would not return to the school until he received mental health support. This is confirmed in the Z Family Services referral form completed by Ms R which records that:
A decision has been made by the [education authority], which states that [A] does not return to school until he has intensive mental health support. This decision was made on the 3rd November 2015 following a serious risk management issue and due to [A’s] level of distress at school.
As a result of that decision, which meant that A would not attend school until he received intensive mental health support, the mother made a decision not to re-enrol A and V at W School. That decision was opposed by the father and was subsequently the subject of proceedings in this Court. The relevant orders made on 8 April 2016 were as follows;
1. That the child, [V] born … 2007, is to remain enrolled at [X] School.
2. On condition that the father pays the outstanding fees payable to [W School], the parties are to do all things and sign all documents necessary to effect the re-enrolment of the child, [A] born … 2004, into [W School].
3. In the event that it is not possible for [A] to be re-enrolled at [W School], the parties are to enrol [A] at the most appropriate school as determined by the New South Wales Department of Education.
On 23 April 2016 the mother attempted to implement a behaviour plan for A involving the removal of his computer from his room. A refused to cooperate and threatened to go to his father. The mother subsequently permitted A to return to his father.
On 9 May 2016, consent orders were made which, by way of summary, provided;
·that other than with respect to education, the parties have equal shared parental responsibility.
·That education arrangements to be determined by the parent with whom the child is living.
·That M and A were to live with the father and V was to live with the mother.
·The father was to spend time with V no less than alternative weekends from 12.00 noon Saturday until 1.00 pm Sunday.
·The mother was to spend time with M and A each alternative weekend from after school Friday until 5.00 pm Sunday and in the alternative week from after school Wednesday until 7:30 pm.
The consent orders of 9 May 2016 also provided for the father to attend upon Ms R within two weeks and the mother to attend with Ms II of MMP. The father was to request that Ms R contact Dr JJ for the purposes of providing psychiatric intervention for the children and systemic family therapy. The orders also provided for the parties to do all things necessary to participate in the program at YFS. The parties were restrained from taking the children to any health providers counsellors or therapists other than Ms R, MMP, or Dr JJ.
There appeared to be a brief period of cooperation between the parties after the consent orders were made.
On 27 May 2016, with the agreement of the mother, V spent time with her father from Friday until Sunday evening. On 3 June 2016, the parties also agreed for V to spend two nights with her father. V advised her mother that she had an enjoyable time attending the Vivid light festival with her father.
On 2 July 2016 the Father attended at McDonald's in Suburb AA to collect V in accordance with the orders. At the handover he requested the mother to agree to V spending additional time with him. The precise events that occurred are unclear, however a video recording, tendered in the proceedings, shows that the mother became hostile to the request and called to V to get out of the car. The mother contends that she became agitated as result of the father saying that she would not see V again. The father claims the mother parked her vehicle in front of his to stop him from leaving, causing V to become distressed. The mother denies that she attempted to obstruct the father’s vehicle. The mother approached the car and attempted to physically remove V from the vehicle. The father claims that the mother attempted to remove V from the moving vehicle. The mother claims that the father drove off while the car door was open. The video evidence of the event does not permit a determination to be made as to which of the parties’ version of the event is correct. It is clear, however, that V was in great distress at the time and can be heard crying out as if in pain as the father was driving off in the car.
After the changeover on 2 July 2016 the father failed to return V to her mother at the required time on Sunday 3 July 2016. The father retained V in his company until approximately 7 July 2016.
At a further change over at McDonald’s Suburb AA on 22 July 2017, the father alleges that the mother drove her vehicle over his foot. The mother denies that allegation. The evidence in these proceedings is not such that I am in a position to make any finding in respect to which of the parties version of events is accurate.
On 30 July 2016 the police attended the changeover at the mother’s request and, after initially refusing to go with her father, V agreed to go after she was spoken to by a Police officer. V did not spend time with her father after that changeover until shortly after the commencement of the hearing in October 2016.
On 31 August 2016 the father attended V’s school asking to see V. The Principle declined his request.
On 10 November 2016 both the mother and the father attended hospital to be with A who had been admitted in respect to a broken arm that he had sustained at school. The parties also attended on 24 November 2016 when A was required to undergo surgery in respect to the broken arm. The parties dispute the extent to which they were able to cooperate with each other when visiting A.
On 6 November 2016 an incident occurred where M refused to turn off his computer when requested to by his father. This resulted in the father knocking the computer tower to the ground and kicking it.
On 14 December 2016 A was selected by his school, KK school, to present a farewell speech at year six graduation. It was accepted by all parties that this was a significant achievement given the difficulties A had earlier experienced at his previous school being W School. The mother expressed concern however, that the father had not arranged for her to be in attendance on the occasion.
On the weekend of 14 and 15 January 2017, the father did not return V to the mother at the time he was required to by the relevant orders in force at this time.
On 25 February 2017, there was a further incident in the McDonalds car park at Suburb AA as result of a representative of LL Group, the organisation retained to supervise changeover, not being in attendance at the time of the schedule changeover. The mother objected to V moving into the care of the father in the absence of a representative of LL Group. The father called the police to attend McDonald’s. The mother left McDonalds with V, but subsequently returned and the changeover occurred. The father did not return the child to the mother as required by the relevant orders on the following day. Instead the father kept V until 28 February 2017.
The mother states that, on 23 April 2017, V advised her of matters that occurred during the course of the weekend that she spent with her father that gave rise to a concern on the mother’s part that the father was possibly engaging in conduct that amounted to sexual grooming of V. The mother subsequently reported the information to a counsellor at the DD Family Services and a report was made to FACS. The Court was informed that the mother had prepared an application in a case dated 18 May 2017 in respect to the matters mentioned to her by V. That application however, was not filed. In the course of proceedings on 18 May 2017, the mother provided an affidavit setting out the basis of her concerns in respect to the father’s conduct.
The proceedings on 18 May 2017 were adjourned to enable the father to have the opportunity of considering and responding to the matters raised in the mother’s affidavit of 18 May 2017.
On 1 June 2017 the father filed an application in a case supported by an affidavit seeking interim orders for V to live with him and, for a period of time, not to spend time with the mother.
On 6 June 2017 counsel for the mother indicated that the mother did not intend to proceed with an application in a case alleging that there was an unacceptable risk arising from the information communicated to her by V on 23 April 2017. On 6 June 2017, counsel then appearing for the father indicated that the father intended to proceed with his application in a case filed 1 June 2017. As a result of the inability of counsel for the mother to continue sitting on that day, arrangements were made for the parties to file written submissions in respect to the father’s application in a case. That application in a case was not subsequently considered.
APPLICATIONS
The mother sought the following orders in her Initiating Application filed 16 September 2014:
1. That all previous Parenting Orders made on 3 February 2011 be discharged.
2. That the children of the relationship namely [M] born … 2002, [A] born … 2004 and [V] born … 2007 live with the Mother.
3. That the Mother have sole parental responsibility for the children.
4. That there be no Order for contact for the children to spend time with the Father.
5. Such further or other Orders the Court deems fit.
The father sought the following orders in his Further Amended Response filed 1 June 2017:
1. That, pending further Order, the Orders of 9 May 2016 in respect of contact be suspended.
2. That the Father, Mr Marsden born … 1977, have sole parental responsibility for the children:
a. [M] born … 2002;
b. [A] born … 2004 ; and
c. [V] born … 2007.
3. That the children live with the Father.
4. That the Mother, Ms Marsden born … 1969, be restrained and injuncted from contacting the children by any means whatsoever, pursuant to these Orders.
5. That the Mother be restrained from attending upon [MM Project (MMP)], [DD] Family Services and [Ms II].
6. That the mother shall attend upon a counsellor as recommended by the Independent Children's Lawyer in regard to managing and addressing the unfounded allegations of sexual grooming and physical abuse made by her against the father, and in regard to managing and addressing the emotional needs of children.
7. That, following compliance with Order 6, and no earlier than 6 months from the date of Orders, that the Mother spend time with the children every alternate weekend for 2 hours at a supervision centre as agreed by the parties, and failing agreement, the [NN Contact Centre], with the Mother to bear all costs associated with supervision.
8. Costs.
The ICL sought the following orders as set out in the Minute of Order proposed by ICL provided on 18 August 2017:
1. All previous parenting orders in relation to the children, [M] born … 2002 (“[M]”), [A] born … 2004 (“[A]”) and [V] born … 2007 (“[V]”) are discharged.
Parental responsibility
2. The mother shall have sole parental responsibility for [V].
3. The father shall have sole parental responsibility for [M] and [A].
Live with
4. [V] shall live with the mother.
5. [M] and [A] shall live with the father.
Spend time
6. [M] and [A] shall spend time with the mother in accordance with their wishes and at times arranged directly between either of them and the mother.
7. The father is restrained from doing anything to prevent, restrict or hinder [M] and [A] from spending time with the mother in accordance with their wishes.
8. [V] shall spend time with the father as follows:
a. During school terms, each alternate weekend from after school Friday until before school Monday (extended to Tuesday if Monday is a public holiday) such time to commence on the first Friday following the making of these orders;
b. in the Terms 1, 2 and 3 school holiday periods, from after school on the last pupil day and to conclude at 3.00 pm on the following Friday;
c. in the school holiday period following Term 4, the father’s time with [V] is to commence after school on the last pupil day of the school year and to conclude at 3.00 pm on 24 December.
9. That for the purposes of the father’s time with [V] the following shall apply:
i. on school days, handover shall occur at [V’s] school;
ii. on non-school days, handover shall occur at [Suburb AA] McDonalds and shall be supervised by [BB Group]
iii. such supervised change over in accordance with order 9(ii) above shall continue until [V] attains the age of 13 years.
10. The for the purposes of Order 9 the parties shall do all things necessary to ensure that [BB Group] is available to supervise such handover and for this purpose all costs associated with supervision shall be paid by the father.
11. The father is restrained from attending [V’s school] on days other than the days he is to collect and return [V] pursuant to these orders.
12. The mother shall be restrained from seeking to remove V from school early on the days on which [V] is to be collected from school by the father pursuant to these orders.
13. In the event that [V] is not in attendance at school on a day the father is to collect her, and that as a result [V] does spend time with the father, then [V] shall spend make up time with the father the following weekend from after school Friday until before school Monday.
Suspension of time
14. That pursuant to section 67Q of the Family Law Act 1975 (Cth) (FLA) a recovery order and warrant be issued to the Marshall, all officers or agents of the Australian Federal Police and all officers of the police forces of all the states and territories of the Commonwealth of Australia (officers and agents) authorising and directing them to:
a. at any time and with such assistance as they require and if necessary by force to:
i. stop and search any vehicle, vessel or aircraft; and
ii. enter and search any premises or place;
where there may be reasonable cause to believe that the father or [V] born … 2007 may be found;
b. and to take possession of the [V].
c. Upon recovery of the child the officers and agents are, pursuant to section 67Q(d) of the FLA, directed to deliver the child to the child’s mother.
d. The officers and agents are authorised and directed to arrest, without warrant, any person who acts in breach of these orders.
15. That the recovery order shall lie in the Registry of the Family Court at Sydney for a period of twelve months from the date of these orders.
16. That in the event the father fails to return [V] to the mother at the conclusion of her time with the father and the father fails to comply with a request by the mother to deliver [V] to her at a nominated time and place, the mother shall be at liberty to approach the Registrar of the Court to activate the recovery of the child pursuant to these orders.
17. In the event the father fails to return [V] at the conclusion of her time with him, in accordance with these orders, the father’s time with V shall thereafter be suspended.
Schooling
18. The mother shall ensure that [V] attends school on time daily unless [V] is medically unfit to attend school and in those circumstances the mother shall obtain a medical certificate to support her non- attendance at school.
Information sharing
19. The father shall cause copies of all school reports, progress notes and or reports from any treating health professional for [M] and [A] to be provided to the mother within 7 days of their receipt by him.
20. The Mother shall cause copies of all school reports, progress notes and or reports from any treating health professional of the [V] to be provided to the Father within seven days
21. Should [M] or [A] require urgent medical attention, or be admitted to hospital the father shall notify the Mother as soon as practicable.
22. Should [V] require urgent medical attention or be admitted to hospital the mother shall notify the father as soon as practicable.
23. The mother shall notify the father in writing of any decision made in the exercise of parental responsibility for [V] including but not limited to the high school [V] will attend; any application for a passport and any overseas travel.
24. The father shall notify the mother in writing of any decision made in the exercise of parental responsibility for [M] and [A] including but not limited to application for passports and any overseas travel.
25. Each party shall provide the other no less than 8 weeks written notice of any plan to travel overseas with any of the children including a copy of itinerary.
Communication between the parties
26. Each party is restrained from communicating with the other except in relation to the welfare of the children or as set out in these orders and all such communication shall be in writing.
Restraints and Injunctions
27. Each party is restrained by injunction from:
a. abusing, insulting, or denigrating the children or the other party or members of the other party’s extended family or household to or in the presence or hearing of any of the children and from permitting another person to do so;
b. discussing any allegation made or evidence given in these proceedings to or in the presence or hearing of any of the children and from permitting another person to do so;
c. physically disciplining or striking the children;
d. questioning the children or discussing with them the appropriateness of the other party’s behaviour or parenting practices or parenting matters;
e. presenting the children to NSW police for the purposes of initiating or making a complaint to police about the other party, other than as may be requested by NSW police.
28. During periods that [V] is spending time with the father, the father shall ensure that [V] has her own bedroom and her own bed.
29. That the mother is restrained from presenting [V] for therapy with [Ms II] or otherwise at the DD Family Support Services or with [Mr OO].
30. That either party is at liberty to provide a copy of these orders to the school [V] may attend from time to time.
31. That each party who’s costs associated with the appointment of the Independent Children’s Lawyer by the Legal Aid Commission of New South Wales are to each pay one half of the liability of costs for the Independent Children’s Lawyer.
32. That the Independent Children’s Lawyer is hereby, discharged.
EVIDENCE
The mother relied on the following documents:
·Initiating Application filed 16 September 2014;
·Affidavit of Ms Marsden filed 14 September 2016;
·Affidavit of Ms Marsden dated 18 May 2017.
·Affidavit of Mr PP filed 9 September 2016; and
·Affidavit of Ms EE filed 12 September 2016.
The father relied on the following documents:
·Amended Response filed 4 October 2016;
·Further Amended Response filed 1 June 2017;
·Affidavit of Mr Marsden sworn and filed 4 October 2016;
·Affidavit of Mr Marsden sworn and filed 3 April 2017
·Affidavit of Mr Marsden sworn 1 June 2017
The ICL relied on the following documents:
·Family Report of Ms Z dated 19 February 2016; and
·Updated Family Report of Ms Z dated 11 August 2016.
·Ms Z also prepared notes of an interview with the parties and the children which she conducted on 7 October 2016. She appraised the Court of that interview in her oral evidence on 10 October 2016.
In addition a substantial amount of material was tendered into evidence by each party and the ICL.
credibility
I agree with the observation of the ICL:
When your Honour considers their respective evidence, your Honour, in my submission, will need to take that into account that they were both unreliable witnesses, in my submission. Their evidence was to a significant degree self-serving, and your Honour would accept that their perception of events is so distorted by their animosity towards each other that your Honour would have difficulty accepting their evidence without some sort of corroboration.
I have adopted that course in considering the evidence of the parties.
The Law
Concepts and Principles
The relevant statutory provisions applicable to proceedings in relation to children are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60B sets out the objects and principles of Part VII. The objects of Part VII, as found in subsection (1), are to ensure that the best interests of children are met by;
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(4) notes that an additional object of Part VII of the Act is to give effect to the United Nations Convention on the Rights of the Child (“the Convention”).[6] Article 19 of the Convention requires parties to the Convention to take steps, including through “judicial involvement”, to:
protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
Writing extra-judicially, Hon. John Fogarty AM, a former judge of this Court said:
… unacceptable risk in the High Court’s formulation [in M v M (1988) 166 CLR 69] requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.[47]
[47] Hon. John Fogarty AM in ‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249 at 261.
Where an unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm.[48]
[48] Stott & Holgar and Anor [2017] FamCAFC 152 at [38].
In this matter, the ICL correctly identified that one of the primary considerations in this matter is the need to protect the children from harm, abuse, neglect and family violence.
Each parent has had little regard for the presence of the children while they have been in conflict. Worse than that, both parents have actively involved the children in their dispute by repeatedly taking them to the police station when they each make complaints about the other. That conduct on the part of each of the parties has caused emotional trauma to the children.
At paragraph 59 of her February report, Ms Z stated that the children have impressed as “children who have been significantly impacted by the long term stress of significant family dysfunction.”
Ms Z agreed that, on one view, orders providing for V to live with the father may remove her from the parties ongoing conflict in the sense that he would consider himself successful in the proceedings and that “when the heat is less off the father, and he is feeling more that he has control of the parenting of the children, he is then more able to allow the children a relationship with their mother”.[49]
[49] Transcript of 17 August 2017 at page 57.
The risks associated with making such an order, however, were described by Ms Z as follows ;
Yes, look, I think that there has got to be – I mean, the allegations about the father’s behaviour towards the children and the mother over all these years, and my experience, too, of the father’s use of his emotional demeanour to try and influence others, and when that influence may not have occurred, then the emotional demeanour will change quickly, but possibly from tears and upset to angry indignation, that’s not a healthy environment for a child to live in, so that’s a child feeling that they need to behave in a certain manner in accordance with a certain set of requirements, otherwise there might be consequences that could be abusive.[50]
[50] Transcript of 17 August 2017 at page 57.
Further, when referring to the incident where the father pushed over M’s computer tower and kicked it, Ms Z was asked to comment on the impact of that sort of conduct on the children. Ms Z replied as follows;
I’m saying what I understand the father’s behaviour is using himself to manipulate the children and in a coercive manner which they would understand. Apart from that, there are numerous incidents – allegations of those kind of – of that kind of volatility, and we have seen it verbally, and I have seen the chain through the affidavit material. The children would be aware of that. That sets the children up to be in a constant state of fight
and flight, and as long as they can manage to behave in such a way that they think their father will be calm, then everything – their lives are much easier. So it means that they need to adjust themselves to – and this would be the case for the mother, too; she would have learned to have adjusted herself to avoid the consequence of the father’s volatility, verbally, physically, whatever.Would it be in the child’s interests to be in a constant state of fight or flight?---No. It’s never in any child’s interests to be in that state…
In so far as Ms Z bases her opinion on allegations of volatility in respect to the father’s behaviour, I accept the validity of her opinion. In that respect, I refer to the evidentiary findings I have made above regarding the father engaging in conduct that, at times, has been aggressive, and is coercive, controlling and intimidating and, on occasions, vindictive.
The boys appear to have developed some resilience in dealing with the father’s conduct. In that respect, in her report dated 19 February, 2016 at paragraph 43, Ms Z refers to M as saying to her “Dad yells and swears but in the end everyone does what they’re supposed to do”.
Ms Z also observed that, when she last saw the boys in October 2016, they seemed a lot calmer in the arrangements than they had when they were living with their mother.
I have earlier indicated that I am of the view the children are not at risk of physical harm whilst in the father’s care. The question is whether the order I propose making for V to spend every alternative weekend with the father would place her in a situation where she would face an unacceptable risk.
Fortunately to date, V has not been as exposed to the same level of parental conflict as have her brothers. I am concerned that if she is exposed to parental conflict on an ongoing basis that she will also be exposed to the father’s controlling and coercive behaviour including the possibility of the father not returning her to her mother’s care in accordance with Court orders.
On balance, I have concluded that there is a benefit to V of having a meaningful relationship with her father and that benefit outweighs the risk of her being so exposed to her father’s conduct.
I have earlier noted that Ms Z stated that when she observed the boys in October 2016, at the time they were living in the care of the father, they seemed a lot calmer with the arrangements as compared to experiencing the disciplinary issues that I have also earlier referred to when living with the mother. As I have noted, those issues gave rise on several occasions to the mother requesting assistance from the New South Wales police force. I have expressed my concern in respect to that occurring in the future. On that basis, I have decided that it would be inappropriate for orders to be made for the boys to live with the mother, but the present informal arrangement should continue whereby the boys spend time with the mother in accordance with their wishes.
As noted, Ms Z expressed the view that in light of the extent of the acrimony between the parties, that orders should be structured that provide for the children to have “the least exposure or no exposure” to the parents ever being together.[51] In that context Ms Z agreed that it would be appropriate for orders to provide for changeover to occur at the children’s schools.[52] I accept the validity of that opinion. Accordingly, I propose to order that changeover occur at V’s school wherever that is possible. This is significant because it will necessitate the period that V spends with the father being extended to commence after school on Fridays and end before school Mondays.
[51] Transcript of 17 August 2017 at page 55.
[52] Ibid at page 89.
Ms Z expressed the view that if changeovers cannot be arranged at school they should occur in the presence of a professional supervisor. I agree with that advice. [53]
[53] Transcript of 17 August 2017 at page 60.
Orders
Have regard to the findings I have made I am satisfied that the orders proposed by the ICL are appropriate in respect to;
·Parental responsibility
·Live with arrangements
·Spent time arrangement other than in respect to holiday time.
·Change over
·Substitute time
·Suspension of time
·Schooling
·Information sharing
·Communication between the parties
·Restraints and injunctions other than in respect to counselling
For reasons that I have discussed, in order to avoid V being exposed to the conflict between her parents, change over should occur at her school on Friday afternoon and Monday morning. On non-school days the current arrangements in respect to supervised changeover should continue but with the times being moved to Friday afternoon and Monday morning, as specified in the orders. The father earns considerably more than the mother and it is appropriate that he continues to pay for the cost of such supervision.
As result of concerns that I have regarding V being exposed to coercive and controlling conduct on the part of the father, I am of the opinion that it would not be in V’s best interests for the Court to make orders for her to spend block periods of time with her father of more than a few days. This will be facilitated by the order for V to spend time with her father every second weekend. That order will continue irrespective of whether or not it occurs during a school holiday. If V’s experience is such that she feels comfortable in her father’s care, once she reaches the age of 13, she will be able to make a decision if she wishes to spend additional nights with her father including to spend time with him during school holidays.
I do not agree with the order proposed by the ICL to restrain the mother from seeing and obtaining advice from counsellors of her choosing in respect to addressing personal and parenting issues. In so deciding, I note that both the father and the ICL have concerns as to whether the mother has received appropriate advice from a counsellor at the DD Family Services and from the School Counsellor at V’s School. The Court is not a party to the advice that the mother has or has not received from those sources, and in those circumstances, I am not in a position to make an assessment as to whether or not that advice has or has not been appropriate.
In that context, I note the findings that I have made that the mother has been exposed to family violence and, in those circumstances, and in the absence of clear evidence as to the mother being provided with inappropriate advice, the mother is entitled to choose the counsellor who she considers to be most appropriate in assisting her to deal with issues arising from the dispute that she has been involved in with the father and to assist her in enhancing her parenting skills.
Similarly, V has been exposed to her parents’ conflict for virtually the entirety of her life. There is evidence that, on at least two occasions, she was emotionally distressed to the point of crying as result of what she witnessed. The first incident occurred at the DD Police station on 28 June 2013. The second incident occurred in the McDonalds car park at Suburb AA, on 2 July 2016. In addition, V has been the subject of what I regard as abusive conduct on the part of the father in failing to return her to her mother’s care at the time required by the relevant orders and at the time V expected that would occur. In those circumstances it is not inappropriate for the mother, as the primary carer of V, to obtain counselling for her to address any issues arising from her experiences and to provide guidance in developing resilience in circumstances where, unfortunately, she may well be exposed to elements of her parent’s conflict for another three years. As V’s primary carer the mother is entitled to engage services of that person or persons who she considers most appropriate to provide that assistance to V.
On the final day of hearing the parties and the ICL attempted to craft orders that would facilitate information sharing between the parties in respect to education and health issues. The orders I have made reflect the substance of submissions by counsel in respect to those matters.
Costs of the ICL
The litigation has also absorbed considerable public resources, including the costs of the ICL. The ICL has sought costs.
The conduct of the ICL and counsel instructed by the ICL has been exemplary throughout the proceedings. The Court has substantially adopted the recommendations of the ICL.
Section 117 of the Act provides that, subject to certain qualifications, each party to proceedings shall bear his or her own costs. However, this has no application to the ICL, who is not a party in the proceedings.
Subject to the statutory provisions set out below, section 117 of the Act empowers the Court to make orders for or against the ICL and such order as to costs of the ICL in such proportions as the Court considers just.[54]
[54] De Roma & De Roma [2013] FamCA 566.
Section 117(3) of the Act provides:
To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
Section117(4) of the Act provides:
However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
The court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
In this matter the mother has a grant of legal aid and is therefore exempted from paying the ICL’s costs.
The father gave evidence that he has had a successful career. Whilst I recognise that he has incurred considerable legal costs in the period since the parties separated, he has not satisfied me that he would suffer financial hardship as a result of an order that he pay a portion of the costs of the ICL.
Section 117(2) of the Act provides that if the Court is of the opinion that there are circumstances justifying it in doing so, the Court may make such order as to costs as the Court considers just.
The matters relevant to determining what order, if any, should be made for costs are set out in section 117(2A). They are:
a)The financial circumstances of each of the parties to the proceedings;
b)Whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
c)The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
e)Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
f)Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
g)Such other matters as the Court considers relevant.
Section 117(5) of the Act provides:
In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
Accordingly, the ICL should be presumed to be unfunded and, in those circumstances, the Court is generally inclined to order the parties’ to contribute to the Independent Children's Lawyer’s costs.[55]
[55]Gahen & Gahen (No 2) [2013] FamCA 936 and De Roma & De Roma [2013] FamCA 566.
Nevertheless, the considerations set out in section 117(2A) must be taken into account in deciding whether or not to order a party to pay the costs of another.[56] However, there is “nothing to prevent any factor being the sole foundation for an order for costs” being made.[57]
[56]In the marriage of I and I (No. 2) (1995) FLC 92-625.
[57] Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish and Anor (2005) 33 Fam LR 123 at 124.
In this matter I have had regard to the considerations set out in section 117(2A). Those considerations that I regard as being of greatest relevance are set out in section 117(2A)(c) and 117(2A)(g). In terms of section 117(2A)(g), I am satisfied that the approach of the ICL was consistently considered and balanced. This was particularly important in this matter where, in terms of section 117(2A)(c), the mother and father adopted absolute, uncompromising positions in respect to the orders they respectively sought.
There is no valid reason why the father should not meet one half of the costs of the ICL.
I certify that the preceding three hundred and sixty-five (365) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 15 March 2018
Associate:
Date: 16 March 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Injunction
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Procedural Fairness
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