MARSH & DENPAK

[2015] FCCA 2105

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARSH & DENPAK [2015] FCCA 2105

Catchwords:
FAMILY LAW – Parenting – long dispute – children now 12 and 13 years of age – poor communication between the parties – allegations of abuse and neglect not substantiated – harmful effects of long term conflict on the children.

Legislation:

Family Law Act 1975, ss.60, 61, 65

Waterford & Waterford [2013] FamCA 33
Mazorski and Albright [2007] 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR [2010] HCA 4

Applicant: MR MARSH

Respondent: MS DENPAK

File Number: ADC 5514 of 2007

Judgment of: Judge Harland

Hearing dates: 8, 9 and 10 July 2015

Date of Last Submission: 10 July 2015

Delivered at: Melbourne

Delivered on: 7 August 2015

The REPRESENTATION

For the Applicant: Mr K (appearing as McKenzie friend)

Counsel for the Respondent: Mr Anderson

Solicitors for the Respondent: Warmings Solicitors

Counsel for the Independent Children's Lawyer: Ms Cocks

Solicitors for the Independent Children's Lawyer: Adey Lawyers & Mediators

ORDERS

1. That all previous orders be discharged.

2. The mother and the father have equal shared parental responsibility for the children [X] born [omitted] 2002, and [Y] born [omitted] 2003 (“the children”).

3. The children live with the mother.

4. The children spend time with the father during school terms as follows:

   (a)In week 1 from after school Wednesdays until before school on Fridays; and

   (b)In week 2 from after school Wednesdays until 4.30pm on Saturdays.

5. That in addition to any period of time provided for in paragraphs 4(a) and (b) herein the father have contact with the children as follows:

   (a)On Father’s day from 10.00am until 5.00pm;

   (b)On each of the children’s birthdays:

   (i)In the event the same falls on a non-contact week day, for a period of three hours at times to be agreed between the parties;

   (ii)In the event the same falls on a non-contact weekend, then for a period of four hours at times to be agreed between the parties;

   (c)From 5.00pm on 24 December until 5.00pm of 25 December each year.

6. That the father’s time as provided for in paragraphs 4 and 5 be suspended as follows:

   (a)On each of the children’s birthdays in the event the same falls during a contact visit for a period of three hours at times to be agreed between the parties, save and except if such birthday falls on the last day of a contact period in which case there be no variation thereto;

   (b)From 5.00pm on 26 November until 5.00pm on 27 November each year;

   (c)From 5.00pm on 25 December until 5.00pm on 26 December each year.

7. That any handovers which do not take place at the children’s school shall take place at [omitted] McDonald’s.

8. That the parties do comply with all treatment and medication requirements in regards to the children’s health as may be directed by the children’s treating medical practitioner(s).

9. That the parties be restrained and an injunction be and is hereby granted retraining each of them from:

   (a)Denigrating the other party in the presence or hearing of the children or suffering any other person to do so;

   (b)Removing the children from the State of South Australia and/or the Commonwealth of Australia without the prior written consent of the other party or order of this Court.

10. That the parties do all things necessary to ensure the children’s names are recorded and maintained on the Airport Watch List until such time as the parties agree jointly in writing or by further order or until the child concerned attains the age of eighteen years.

11. That in the event of any proposed overseas travel by the mother with the children the mother not less than sixty days prior to the proposed departure date advise the father in writing as to the intended itinerary, departure and return dates, means of travel and accommodation details as well as details as to the nature and purpose of the proposed travel.

12. That both parents be retrained from physically disciplining the children and from allowing others to physically discipline the children.

13. The parents will both be entitled to attend all events involving the children including

    (a)Sporting fixtures

    (b)Extracurricular activities that allow for parental attendance

    (c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions

14. That within 7 days of the date of these orders the father do all acts and things to defriend the children from his Facebook account and is restrained from exposing the children to his social media activities.

15. That the order appointing the Independent Children’s Lawyer (ICL) dated 30 June 2014 be discharged after the ICL has met with the children to explain the orders.

16. That the father give the mother written notice of any scheduled hospital stay including the estimated length of hospital stay and recovery time.

17. That in the event the father is hospitalised for more than 7 days, the children will live with the mother during the father’s hospital stay and the mother shall ensure the children are able to visit the father.

    IT IS NOTED that publication of this judgment under the pseudonym Marsh & Denpak is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 5514 of 2007

MR MARSH

Applicant

And

MS DENPAK

Respondent

REASONS FOR JUDGMENT

1. [X] and [Y] probably do not remember a time when their parents have not been in conflict.

2. The parties married on [omitted] 2000. They had two children: [X] born on [omitted] 2002, aged 13, and [Y], born [omitted] 2003, aged 12. The parties separated in 2003.

3. Both parties have re-partnered. The mother has been in a relationship with Mr K (“Mr K”) since 2007. They do not live together but spend significant time together. When the children are in the mother’s care they stay at the mother’s house during the week and at Mr K’s home on the weekends. This means that the children are spending time in three houses regularly which is not ideal for the children’s sense of stability.

4. The father’s trial affidavit is concerning. He speaks of Mr K and the mother as being abusive towards [X] over a number of years but does not provide detail. It is clear that the father is very negative towards the mother and her partner. I have real concerns that the father has exposed the children to his negative views. He calls the mother’s family terrorists. He claims to have witnessed them engage in terrorist activities in Bali many years ago. He has expressed his views to the children.

5. At the beginning of the hearing the father was seeking orders for sole parental responsibility and that the children live primarily with him. He changed his position after he was cross-examined which is to his credit.

6. The mother maintained her position throughout the hearing. She seeks sole parental responsibility, that the children live primarily with her and that the children spend time with the father on alternate weekends.

7. The issue which emerged at the hearing as being of the most concern was the lack of communication between the parents and their focus on the conflict at their children’s expense.

8. I have considered all of the evidence. It is not necessary for me to refer to every piece of evidence to determine the issues in dispute.

9. The mother and Mr K have a child together [Z], aged 5.

10. The father and his wife have two children together, [A] aged 8 and [B] aged 6.

History of children’s spend time with arrangements since separation and litigation

1. Judge Brown provided helpful written reasons on 20 October 2014 after an interim hearing which detail subpoenaed material before him and the history of the dispute.

2. The parties went to Court and parenting orders were made in 2003. The father started having overnight time with the children in 2004.

3. On 21 June 2005 Judge Dawe made final orders by consent. Those orders provided for the children to live with the mother and spend time with the father as follows:

   a)From 10am Wednesday until 4.30pm on Friday in week one:

   b)From 10am Wednesday until 4.30pm on Saturday in week two.

4. The father withheld the children in 2007 and the mother commenced urgent proceedings. The father alleged that the mother had attempted a female circumcision on [Y]. There was a forensic investigation found that [Y]’s injury was not caused by cutting and that there are a number of innocent ways in which the injury may have occurred.

5. The father withheld the children in 2013 after [X] ran away and disclosed abuse. The children did not see their mother for 6 weeks. Judge Brown made orders returning the children to the mother’s care and suspending the father’s time for 6 weeks so the children could settle back in to the mother’s household.

6. On 20 May 2014 the Court made orders that the children be returned to the mother’s care with the father’s time suspended.

7. On 30 June 2014 the Court appointed an Independent Children’s Lawyer (“ICL”) and ordered that the children spend time with the father on alternate weekends.

Allegations of the father against the mother

1. The father has made numerous reports to child protection authorities over the years about the mother and her partner. The themes of his complaints include neglect, emotional unavailability and cultural/religious practices.

2. In 2007 the father reported that the mother was going to carry out female genital mutilation. No finding of abuse was made.

3. The father has made numerous reports to child protection authorities. The father’s evidence is that he no longer reports things directly but encourages others to as he feels he has been labelled. He encourages the children to talk to counsellors and others. This is of concern.

4. Pages 84 and 85 of the annexure to the father’s affidavit contain part of the intake form for SA Health at 17 April 2014. Those notes record the father planning to keep [X] with him and not return him to his mother’s care; it is not suggestive of the health worker advising the father to do so. It also noted that the father was going to seek to vary the parenting orders.

5. The child protection history is extensive with 30 notifications since 2003 with no confirmations of abuse.[1] There is a note of conversation between a social worker at Families SA and the father where the father refers to the Child and Adolescent Mental Health Service (“CAHMS”) being useless. They spoke to him about discussing the issue with his ex-partner and the father said it was not an issue between his ex-partner and him, it was the stepfather. This was in the context of the father complaining that Families SA was doing nothing to prevent his son from committing suicide. [2]

   [1] Page 138 of the annexures to the father’s trial affidavit.

   [2] Page 146 of the annexures to the father's trial affidavit.

6. The father sought orders that the mother not allow her partner to come into contact with the children. That order was always unrealistic in the circumstances where the mother and her partner have been together since 2007 and have a child together. The father has also failed to adduce evidence to support such an order.

7. The father was comprehensively cross-examined by the ICL. She made the point that the concerns about [X] being suicidal predated June 2014. The father was shown his initiating application which provided for the children to live with the mother. He was asked to identify what had changed since June 2014 to explain the adoption of his position at the beginning of the hearing that the children should live primarily with him. The father was unable to do so. The issues concerning [X]’s performance at school, running away and suicidal ideation all settled down. It was put to him that the children have settled down and the father agreed that the children seemed happy.

8. It was apparent that the father did not have a good grasp about what parental responsibility means. Once it was explained that parental responsibility is concerned with decision making and not time the father said it would just cause problems. He said the children would be able to tell the mother about anything they wanted her to know about. At that point I asked the father if he really thought it was appropriate that the children be the go-between between the parents. He claims not to have done this in the past but says because they do not talk; the mother will ask the children to clarify things. I do not accept the father’s claim that he has not involved the children in this way. It is plain that both parents have involved the children in their dispute.

9. The father conceded that he did not tell the mother about engaging psychologists for the children and that he did not tell the mother about [X]’s hospital attendance where his mental health was assessed. He believes the mother got the information through legal paperwork.

10. The orders that the father sought would potentially put the children in the middle of their parents’ conflict even further, as they are expected to negotiate the time spent with the mother. The father conceded that the children had not complained about the mother’s partner of late. He also conceded that there had been several school holiday periods where he did not raise any complaints regarding the children spending time with the mother during those periods.

11. Children particularly in chronic high conflict situations will tend to tell their parents what they think they want to hear. [X] and [Y] can be in no doubt that their parents dislike each other and distrust each other. The father could not accept the possibility that the children are telling him what he wants to hear. The children are very well aware that the father dislikes Mr K and does not want the children to be anywhere near Mr K.

12. The ICL put to the father that it is a conflict of loyalty for the children. The father said he has not said that Mr K is not a good person to be around but has said that if it is true (about Mr K bullying [X]) “no one should treat you like that”. The father’s answer is self-serving. It is clear he has been negative to the children about Mr K, the mother and her extended family.

13. The father also showed his lack of insight when he said that he does not tell the children about Court but when they ask he tells them as he said they should know if they are interested. He then said he does not tell them the details.

14. It was clear during the father’s cross-examination that the father was so focused on his own concerns that he could not see the issues from any other perspective other than his own. It was clear too that he was obsessed about the problems all coming from the mother’s home. He does not take any responsibility for his role in involving the children in their dispute.

15. The ICL put to the father that he encourages the children to report things to mandatory notifiers so things are documented for Court and that he has created an atmosphere encouraging the children to criticise the mother and her household. The father denied both allegations but I find that the father has done both of these things whether consciously or not.

16. Somewhat concerning in response to being asked about the February 2015 Families SA letter the father said he had gone to three parenting courses but that the mother refuses to.  If the father has attended post-separation parenting courses, the message has not gotten through to him.

17. The ICL asked the father about the text messages regarding the missed football games. On that occasion he conceded he did not check the schoolbag to see if the football shoes were there. He said that usually they are not. This is another example of the father deflecting responsibility.  He then sought to complain about Mr K stalking him at football games even though he has not raised this allegation in any affidavit.

18. The mother found an offensive poem in the father’s handwriting in [X]’s bag. The father said he did not know how [X] got it. It could have been in the bin and or he could have gotten it off the internet. The father gave a further explanation but had to be pressed to take responsibility. He then said it was more an adult thing than a children’s issue and he had been careless but that was the only thing. Given the father’s lack of insight about these issues, I am unable to accept that this is the only thing he has been careless about.

19. The father was then shown an extract from his Facebook account. Both children are Facebook friends of his. He is aware that [Y] is under the age allowed by the Facebook rules. The father said he told her she should not do it but all her friends were on it. He said he asked her friends. The impression I had was that the father was more concerned about being [Y]’s friend than actually exercising parental responsibility about this issue. He was shown extracts from his Facebook account which contain highly offensive, misogynistic and sexually explicit material. The ICL put to the father that he is endorsing those views by reposting those comments. These posts are examples of appalling role modelling for both his children. It includes references to men committing suicide. The father’s lack of judgement is particularly concerning in light of his concerns about [X]. It is unfortunate when it is necessary to protect children from their own parent’s Facebook usage rather than a parent monitoring a child’s Facebook usage appropriately. Initially the father tried to excuse this by saying that the children would not have seen it because there are so many things posted to his Facebook page and he posted these late at night so that they would be off the first page and therefore, the children would not see them. The father does not know that, and in any event it is easy to search through a person’s posts. Again the father’s initial response was to deflect responsibility. It was only when he was confronted with it head on that he conceded that he made a big mistake.

20. The father was in hospital for 6 weeks with heart problems and a blood infection. He needs to have another heart operation in about two months’ time and understands that he will be in hospital for about a week. He agreed that he did not tell the mother about his surgery. He said that whilst he was in hospital the mother threatened to withhold the children and threatened to bring the matter to Court. Given the length of the father’s hospital stay it was reasonable for the mother to be concerned about the children and feel that the children would be better in her primary care as she is their other parent. He said that the children came to the hospital to see him each day after school. My impression was that this is more about meeting his needs than the children’s and whilst it would be important to the children to visit him during the hospital stay it may well have been more beneficial to the children and also less stress if the children were with their mother during that period, provided that the mother ensured the children visited their father.

Allegations of the mother against the father

1. The mother believes that the father has made many false allegations against her and her partner over the years in an attempt to gain full-time care of the children.

2. She complains that the father neglects the children’s oral hygiene and fails to give them their medications.

3. She also complains that the father does not supervise the children’s homework. She says [X] wants to live with the father because he does not have to do homework there and can stay up later.

4. The mother also expresses concern in her trial affidavit that the father had not disclosed previous suicide attempts by [X] to her which she learnt about from CAMHS.

5. She also expresses concerns about the negative comments the father makes about her extended family including that they kill Christians which the children have expressed concern and confusion about.

1. The mother also makes several complaints about the family report in her affidavit.

2. The mother also complains that the father does not support the children’s extra-curricular and sporting activities causing them to miss out.

3. The mother also expressed concern about the father exposing the children to negative and inappropriate content on Facebook and YouTube.

4. The mother is very negative about the father. She says the father does not look after the children’s needs; he does not get the children to do outdoor activities, and that his job is just sleeping in. She complains that the husband does not provide adequate hygiene for the children.

5. [Y] has breakouts when she is stressed. The mother says that she text messaged the father about this a couple of times but he did not pay attention and did not treat it. The mother says she knows this because [Y] told her when she asked why her skin looked like that. [Y] said the father could not find cream. The mother says she text messaged the father with the name of the cream and told him to get it from the pharmacy.

6. [X] is asthmatic and he has both preventer and reliever inhalers. The mother is critical of the father that he does not ensure that [X] takes his medication. The mother said she text messaged the father about it but could not recall when or if she did so more than once. She said that it is the father’s responsibility too as a parent and he should know this. The mother says that [X] has the inhalers in his school bag on Mondays and Tuesdays. She says she takes it out of [X]’s school bag before he goes to his father’s which means he does not have the inhalers on either Wednesday, Thursday or Fridays. The concern here is that the mother was more concerned about the father not taking some responsibility than concerned that [X] has access to his medication at all times. It is a similar issue to the father; both parties are more concerned about criticising the other parent than actually focusing on the best interests of their children. It is a really poor reflection on both parents and reflects the dysfunctional relationship.

7. Flixotide is the preventer inhaler that [X] has. The mother does not send the flixotide inhaler to the father’s home because she says she told the father to get a prescription from the GP. He cannot recall when she did this; she thought maybe it was last year. She did not raise it in her 2014 affidavit. The father’s counsel suggested to the mother that it could travel in [X]’s school backpack so that it would not be a problem. The mother says that [X] has a different school bag when he is in his father’s care.

8. The mother conceded that she has not had an update from [X]’s doctor about his asthma.

9. The mother says one of the reasons why she opposes the current arrangements remaining in place is because she is only able to help the children with their homework on Mondays and Tuesdays. It is clear from the material that the mother is proactive about the children’s schooling and interested in their education. It is apparent from her email communication with the school.

10. It is also clear that the children’s school performance has been steady. [Y] has been gaining confidence. The mother also stated that the children tell her that the father does not help them with their homework.

11. The mother did not raise in her affidavit that [X]’s teacher contacted her concerned about a story that he wrote containing references to suicide and swear words. She annexed an email about it to her affidavit. The father’s counsel suggested that she included this issue in the affidavit because she wants to discredit the father. The mother said that the father always uses swear words when he gets angry. The mother is also concerned that [X] does not respect women. Given the father’s Facebook posts on this subject, the mother is right to be concerned about the father’s role modelling on that issue. The mother denies trying to get school teachers on her side after Judge Brown reinstated 2005 orders to support her case.

12. The mother did not tell the father about [X]’s story but left it to [X] to tell his father. This is an example of the mother abdicating her parental responsibility and placing the burden on the children. The mother says she has no issue with the father attending school for sports days and other activities parents are invited to.

13. The mother wrote to the school expressing concerns about the children’s mental health shortly after Judge Brown suspended the father’s time. The mother says she did that because the children were confused and [Y] was sad and crying. She took the children to see

    
    

    Dr C. She conceded that she did not tell the father about this. Due to the parents’ inability to communicate, the children have seen two different psychologists. The mother did not re-engage the psychologist for [X] after he wrote a story about suicide because she says when she asked [X] about it he said he was only joking. She did not tell the father about this issue.

14. The mother complains that the father lacks motivation and interest in the children participating in sports and extracurricular activities. The mother complains about this but did not communicate to the father about these activities. She enrolled [Y] in art classes on Wednesdays in the father’s time but did not tell him.

15. The family consultant recommends that the mother and her partner engage in counselling to address any issues [X] has with her partner in their relationship. The mother has not acted on these recommendations. The mother says she has no problem with her partner. She also conceded that she did not do anything about the therapy which Families SA recommended in their letter of February 2015. Similarly to the father, the mother is concerned about blaming the father and she does not take any responsibility for her own actions.

16. The mother said she is very angry with the father and says she does not know what to say about whether he is a good father or not.

17. The mother seeks an order that the father be restrained from attending her at Mr K’s address. She conceded that she has never sought an intervention order against the father and makes no allegations about the father attending either home uninvited. There is no basis for making such an order.

18. The mother says she and Mr K see each other every day and that Mr K comes over during the week but goes to sleep in his own home and that they generally spend weekends together at his home.

19. The mother says there is no issue of physical discipline in her house and she is willing to agree to a mutual order restraining both parties from physically disciplining the children or allowing anyone else to do so.

20. The 2005 orders provide for Christmas Day to be shared. The mother wants to change this. She conceded that there has been no problem with this but that she wants to take the children on holiday to Indonesia this year if the father agrees; otherwise they will go to Queensland.

21. The mother says the arrangement where [X] stays after school on Tuesdays to do homework was a teacher’s suggestion.

22. The mother conceded that the children had not seen Dr C since June 2014 because the children are settled.

23. The mother says she did not approve of [Y] having a Facebook account and asked her to shut it down. As [X] is 13 she does not mind him having a Facebook account.

24. The mother says she spoke to [X] about Headspace after receiving the Families SA letter. [X] indicated he did not need it and the mother did not make any enquiries. The ICL suggested to the mother that she assessed [X] as not needing help. The mother says she should have taken steps to enrol [X] in the program. The ICL asked if she communicated with the father about this. She said no and when asked why she said she did not think.

25. The mother denies ever saying that she would kill [X] while he was sleeping. The mother said she was not aware of [X] attempting suicide at her home. The mother also denies there being any violence in her relationship with Mr K.

[X]’s self-harm and suicide attempts

1. [X] ran away from his mother’s home after taking money from her. [X] was assessed at [omitted] Health Service. Families SA approved [X] staying with a friend overnight as [X] did not want to go back to his mother’s home. [X] complained about being abused in his mother’s home mainly by his step-father. Significantly the father refused to take [X] for the night because he had been accused of being a problem in the family because he had repeatedly tried to get full custody of the children.[3]

   [3] Page 39 of the annexures to the father’s trial affidavit.

2. On 4 April 2014 in class, [X] was asked to discuss what a girl in a picture was thinking. He said he thought the girl was thinking about suicide. He said he knew because he has thought about it a lot and had tried it a few times by choking himself. He said the step-father would get angry at him a lot and that he gets blamed for things as he is the oldest. The teacher contacted the father and recommended that he contact CAMHS to seek counselling support for [X]. The father wanted the teacher to contact CAMHS for him but the teacher told him he had to make contact. They rang together.[4]

   [4] See page 17 of the annexures to the father’s trial affidavit.

3. The mother minimised these concerns about [X] to the family consultant. She felt that the father unduly influenced him. It is of concern that the conflict seems to blind her to concerns about [X].

4. It is clear that [X] is a sensitive and vulnerable child who has been negatively affected by the years of conflict between his parents. There is no doubt that [Y] has also been affected but it seems that she is a more robust child.

5. [X] ran away from the mother’s home after an incident where he took some birthday money to school and got in trouble for it. The details are in dispute but do not matter for these purposes. The mother called the police and reported him as missing. When the police found [X] he made comments about wanting to commit suicide. The police took [X] to hospital for an assessment. The father says the birthday money was running away funds although he did not include this in his affidavit material. The father says he told [X] that he did not need to run away to the streets but could come to him or to a friend and told him to tell the school social worker. The father agreed that he did not tell the mother about this. The father said he did this because in the past he has been labelled as trying to brainwash the children. The father again shows no insight about putting [X] in the middle in this way. The father said he told [X] to tell the people at school as he did not want to become involved and be classified as causing a problem.

6. The father could not accept the proposition that [X] may have made up a story to tell the father because he was already in trouble with the mother and Mr K and did not want to get into more trouble.

7. The father’s said his wife was very upset when she found [X] in his room having tried to kill himself. He had tried to hang himself but the cord broke. It occurred about two weeks after the incident where [X] ran away. The father says he came home just as the wife found him and started screaming. He says that [X] was upset that he could not do it properly. The father made [X] call Kids Helpline and child protective services rather than making the calls himself. He said he wanted [X] to talk to someone and he was standing right there. He agreed that he did not tell the mother as he was concerned about how she would react.

8. The father’s wife was in Court throughout the proceedings but was not called as a witness in support of the father’s case. The ICL was highly critical of the father failing to call his wife as a witness when she was the one who found [X] after he tried to commit to suicide in their home. The whole manner of how the father dealt with the situation raises some concern.

9. It is very concerning that the father did not contact the mother about this incident. The father says that [X] did not want him to as he was afraid Mr K would get angry. The concerning aspect is that [X] was living with the mother most of the time yet she is not told about something as serious as [X] trying to commit suicide. The father said that if [X] did not want the mother to know because of Mr K he was not going to push him. This is another example of the father abdicating his parental responsibility.

10. The father retained [X] and also kept him from school because he says the school told him they could not prevent the mother from collecting the children from school. He kept both children home from school for the next several weeks. He says that he took school work home.

11. The father said that [X] mentioned other attempts where he tried to choke himself but again he did not tell the mother because [X] asked him not to.

12. The ICL suggested to the father that if it was of such serious concern he would report it or tell the mother. He replied that when he does report things he is labelled a troublemaker so he tells the children to report things to professionals themselves. This is inappropriate and is an example of the father abdicating his responsibility.

13. The ICL put to the father that if [X] talks about suicide again he will not tell his mother. The father replied that he doesn’t think the mother takes the threats seriously. He also complained about the mother not telling him things. He denied this being a tit-for-tat situation but said it just causes more problems. He would tell [X] to tell them and tell professionals. He had to concede that he does not know if [X] told the mother or not. What is clear from all of this is that at the heart of the problem is that the parents actually need to act like the adults and communicate with each other rather than expecting their children to somehow be a conduit between the difficult issues. Both parents have put their children in an impossible situation which has been ongoing for years. Both parents need to take a long hard look at their own actions and work out how they can put the children’s needs first ahead of theirs.

14. It is also clear that the father accepts uncritically anything negative the children have to say about the mother’s household. The father also assumed that when [X] complains that the mother said she would kill him in his sleep that the mother said that. The ICL suggested to him that it would be very unlikely that the mother would have said that to [X]. The father said he would not put it past her.

15. The father says that the children do their homework at his house at the table and he says he checks it. Although he did say they do some of their homework on a computer so things may slip by him. He said after reading the mother’s affidavit he contacted the school about their homework. The school has made a special arrangement for [X] to stay after school on Tuesdays to do his homework.

16. The father was hospitalised for six weeks earlier this year and again the father did not think that was something that he should tell the mother about. My impression was that by the father keeping the children at his house even when he was in hospital was more about meeting his needs than concern for the children. He says the children came to see him in the hospital every day after school. There was no consideration that this might have been stressful for the children and there was no consideration that as the other parent, the mother is entitled to know about his health and by knowing what was going on would have been able to reassure the children during what was no doubt a stressful situation for the children

Families SA letter

1. It is also most concerning that both parents say that they received a letter from Families SA which is annexed to the mother’s trial affidavit dated 13 February 2015. The letter indicates that the Department had spoken to the parents after receiving a notification that [X] may have been displaying significant symptoms of emotional distress. The letter indicated that [X] was interviewed at school and that the investigation was carried out including obtaining information from a range of different sources. Significantly the letter says the following:

   “It has been assessed by Families SA that there are no child protection concerns in relation to either parent or household; rather just discord between the adults in [X]’s life due to the long-standing Family Court proceedings. Families SA assess that it would be in [X]’s best interest to have ongoing therapeutic involvement as a means of him being able to discuss any future worries he may have, and to assist him in adjusting to the changes in his family structure.” 

2. The letter included pamphlets from Headspace. The letter continued to say that the main concern is the level of acrimony between the parents and moving between two very different households when there is such high conflict. It refers to the importance of the contact between the parents being without conflict because it can stress the children and affect their well-being and that it can also put them in a position where they feel torn between households and feel conflicting loyalties. The letter states that this can result in behavioural, social and developmental issues for children. The letter goes on to recommend that each parent receive separate therapeutic support about how their behaviours impact on the children to increase their level of insight and to influence them to avoid conflict. The letter also included information about blended families and managing conflict.

3. It reflects very poorly on both parents that neither did anything about this letter. They prefer to see it as being the other parent’s entire fault rather than considering their contribution to the problem. I want to make it very clear that both parents are at fault and that both parents have failed the children and are continuing to by failing to address the ongoing acrimony. The letter from Families SA is not the first time they have heard about this.

Mr K

1. Mr K prepared an affidavit and was cross-examined. He disagrees with his portrayal in the family report and disagreed with the family consultant’s conclusions. He says he has raised his voice as all parents do and he says that he generally has a good relationship with the children and denies the concerns expressed in the family report about him yelling at the children.

2. Mr K said that when [X] ran away he was worried about the money. He says that the father is relentlessly negative about himself and the mother. He says that there has never been any physical or mental abuse in their household.

3. He accepts the recommendation that he attend therapy with [X]. He said he is happy to be involved in anything that is in the best interests of the children.

4. Mr K did many of the handovers when [Z], his daughter with the mother, was young. He says he has not done handovers for some time. He agreed that handovers took place at Bunnings until last year. He would prefer the handovers to remain where they are currently as the mother intends to return to work.

5. Mr K denies choking [X] 3 years ago and pulling his hair 5 years ago.

The family consultant

1. The family consultant Mr B prepared a family assessment report dated 26 August 2014.

2. The mother had the assistance of an interpreter throughout the hearing. Whilst it is clear she can speak some English it was also apparent that she needed the assistance of an interpreter particularly in a court room setting.

3. The mother complained to the family consultant that the father sought to scare the children into not going to Indonesia to see her family, calling them terrorists and saying other scary things to them. I think the mother is justified in this as it came out very clearly in his evidence. It is concerning that the father does not appear to have thought how this would negatively impact on his children and how it could affect their sense of identity. It is clear that the father has expressed his views about the mother’s family to the children.[5]

   [5] See paragraph 85 of the Family Assessment Report.

1. She did not have the assistance of an interpreter for the family report interviews. Her partner gave her some assistance until the report writer asked him to leave the interview as he thought that he was taking over for the mother and the report writer wanted to hear her views. It is a limitation of the report that the mother did not have an interpreter to assist her.

2. Another limitation of the report is that the family consultant did not observe the children with their half-sister [Z] and her parents. He did observe the father’s other children with the children the subject of these proceedings and their parents.

3. The family consultant observed the children to be timid and concerned about their parents’ reactions to their views. [X] talked about two incidents where he says Mr K physically abused him four years ago when he pulled his hair and two years ago when he put his hands around his throat.  [X] was more concerned about the yelling that occurred randomly about small things. Both children were adamant about wanting to live primarily with their father.

4. It is not surprising given these issues, and particularly the fact that the mother was self-represented. However these factors are not sufficient to disregard the report entirely.

5. It is clear that the parents have two very different parenting styles and their households are different. This is not necessarily a bad thing as many parents who are together have different parenting styles. However it adds to the difficulty for the children transitioning between those households when there is a high level of conflict as there is here.

6. The family consultant records that the children were adamant in their views that they wanted to live primarily with their father. They also wanted their parents to get along better.

7. The subpoenaed material supports this family assessment report. He notes that a psychosocial assessment report dated 21 of November 2007 noted that there was considerable acrimony between the parents that had a negative effect on the children.

8. The family consultant dismisses concerns about [X]’s mental health and the escalation in his behaviour since 2013. He notes that there is little evidence that Mr K has harmed [X] apart from disclosure made previously, stating that: “This would lead to the assumption that either [X] is manufacturing evidence, possibly from adult influence at Mr Marsh’s, who is clearly wanting primary care, or that there is some substance to [X]’s allegations of mistreatment.”

9. The family consultant refers to Mr K as presenting as an intense person and as the children are mild and timid they might be overwhelmed by him and perceive him as being hostile. The intensity that the family consultant referred to was also apparent in Court both when he was giving evidence but also when he was sitting back in the courtroom listening to the evidence.

10. The family consultant also refers to the ongoing acrimony and notes that constant stress interferes with the children’s ability to concentrate and learn and refers to the children’s academic results.

11. When the family consultant interviewed the family, the circumstances were quite different. It is apparent that since then the shared care arrangement has been reinstated that the children have settled down.  There is no evidence that [X] has any current mental health issues. Neither parent has sought psychological assistance for the children since June 2014.

12. On the premise that the children are settled the only concern the family consultant has about the current arrangement continuing is the level of acrimony between the parties. He acknowledged that this is different to his recommendations in the family report.

13. He observed that both parents refer to comments the children have made to them. Children who are exposed to parental acrimony say things to please rather than what they are actually feeling. These children have experienced their parents’ acrimony for years. The dilemma is whether or not the children are expressing their own views or views influenced by their parents.

14. With respect to concerns about suicidality and self-harm, a parent should err on the side of caution and act proactively. The family consultant expressed concern that the father abdicated parental responsibility to [X] after the incident where he tried to commit suicide at home and the father made [X] call kids helpline and did not call an ambulance. He said that caring and protective parents would have shared the information so that the child’s behaviour could be monitored. Significantly, the mother had care of [X] 9 days out of the fortnight but did not know about this risky behaviour. Children act impulsively and may not realise the gravity of what they are doing. The father said [X] did not want to tell the mother. The family consultant expressed the view that this inappropriately empowered [X] and it concerns him, asking the question where is the advocate for [X].

15. The ICL told the family consultant that [Y] told her mother that she wants to live with her. The family consultant replied that is not uncommon for an adolescent girl to want to live with the parent of the same gender. As the parents are able to contain their acrimony then there is scope for informal arrangements if the children want to try something different.

16. The family consultant agreed that the father’s material accessible on Facebook show very poor role modelling.

17. The family consultant expressed the view that if handovers are a flashpoint, then handover should take place at school rather than between the parents, though he acknowledged that the handovers on Saturday as part of the long-standing arrangement.

18. The family consultant says that [X] has a fragile personality. It was appropriate for the ICL to extend an invitation to [X] to engage with CAHMS services rather than being imposed upon him. The issue is the children are burdened by the conflict between the parents which they cannot control.

19. The family consultant had the impression that the mother minimised [X]’s suicide and self-harm attempts and that she had a tendency to downplay that.

20. He did not think that there is justification for reducing the father’s time to alternate weekends in accordance with the mother’s proposal. He also said that if it is accepted that [X] wants to live with his father than he might be angry and confused and act out passively or overtly but it is important not to give too much power to [X] as he would not be able to handle it.

21. The mother cross-examined the family consultant and complained that he was biased. He agreed that it was a limitation of the report that he did not observe [Z]. The mother asked why he kept asking her about religion. The family consultant replied because the father raised it as a risk issue with respect to the Bali bombing and visiting Indonesia was part of his exploration.

22. The mother complains that the family consultant asked the children negative questions about her partner. She was unable to find any paragraph in the report referring to that and said that the children told her.

23. The mother also complains that crucial information was not included in the report by the writer such as her partner’s helpfulness with the children’s homework and sport. The family consultant apologised for that.

24. The family consultant agreed that the children should not be exposed to the father’s opinions such as those he expressed on Facebook. He said that the post referring to ‘hang the bastards’ in the context of the father saying he is worried about [X] committing suicide by hanging shows poor insight.

25. The mother also asked why there was so much weight placed on the children’s views on the report. The family consultant did not feel that the children were being coerced and thought the children’s views were very clear. The family consultant thought he was objective. Being objective does not mean not expressing an opinion in favour of one person’s proposal over the other.

Legal Principles

1. The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.

2. The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). S.65D of the Act gives the Court the power to make a parenting order which is defined by s.64.

3. In deciding whether to make a particular parenting order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations and s.60CC(3) being the additional considerations.

4. There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

5. The Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII, as stated in s.60B, that the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

6. The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski and Albright [2007] 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.

7. There are 13 additional considerations which are set out in s.60CC(3) which I will refer to later in these reasons.

8. I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence the extent that doing so is consistent with the child’s best interest being treated as paramount.  There are no issues of family violence in this case.

9. S.61DA(1) provides that when making a parenting order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility (s.61DA)(4)).

10. If the presumption is not rebutted and I accept it would be in the best interests of the child to make an order to equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make orders that the child spend equal time and if not equal time then substantial and significant time with each parent.

11. For a parenting order to involve the child spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the child to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the child’s daily routine and on occasions and events that are of particular significance to the child and for the child to be involved in occasions and events that are of special significance to the parent.

12. In MRR v GR [2010] HCA 4, the High Court found that s.65DAA(1) requires a court to consider both whether the best interests of a child is served by an order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a court to make an order for equal time. At paragraph [13] of the judgment the high court said:

    “Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”

13. Both parents seek sole parental responsibility. Both parents have failed in aspects of their parental responsibility and have failed to communicate with each other about important issues concerning the children’s welfare. This has been to the children’s detriment. Particularly in light of the fact that the children spend substantial periods of time in both parents care each week I find that it is not in the best interests of children for either parent to have sole parental responsibility. Both parents need to work on their communication with each other and need to focus on it being beneficial for the children. It is clear at times that they have communicated with each other about issues - this is clear from the text messages between them. The parents need to work on doing this consistently.

14. It is clear that the children enjoyed a meaningful relationship with both their parents. They love their parents dearly and are loved by their parents. I am not satisfied that there are issues of family violence in either parent’s household.

15. The children did express clear wishes to the family consultant the family report is quite old and circumstances had changed since that period. Much of the difficulties of the children arises out of the years of conflict between parents that the children have been inappropriately exposed to and the very different parenting styles of parents.

16. The evidence has not established that the mother’s partner has been physically or emotionally abusive to the children and particularly [X]. He is an intent person and very assertive and that might be confronting at times for children. There are clear recommendations about [X] and the mother and her partner engaging in family therapy to address those issues. I would encourage them to do that but I’m not going to order it, as if it only occurs because of a court order then it would be counter-productive.

17. The children have half siblings in both households and there is nothing to suggest that they do not have a close and loving relationship with their siblings.

18. At times the parents have excluded the other from decision-making with respect to the children’s needs rather than being parents failing to take up the opportunities to participate in decision-making spending time with children.

19. These orders do not involve any significant change in circumstances of the children. There will be less handovers between the parents and apart from the handovers on Saturdays, handovers will take place at school. The distance between the parents, is not significant enough to raise any issues of practical difficulty and expense. There is a dispute between the parents as to where the handover which is not to take place at school should take place. For several years, the handover was at Bunnings. Last year, Judge Brown make an order that handovers take place at McDonald’s. Neither handover location is exactly halfway between the parents’ houses and involved one parent having to travel approximately 4 ½ kilometres further. The McDonalds is closer to the mother’s house. That is not a significant distance. Bunnings is closer to the father’s house. No difficulties have been raised about either handover location. I see no reason to change the current handover location which has been in place for several months.

20. Both parents can provide for the children’s physical and intellectual needs. Both parents have failed at times in providing for the children’s emotional needs. Both parents took the children to separate counsellors without telling the other parent. It is hardly in a child’s best interests to be seeing different professionals rather than seeing one person consistently. It is a failure on both parents’ parts in the exercise of their judicial responsibility. These issues have been addressed in some parts of this judgement and I do not propose to go through them again.

21. Both parents have been so focused on blaming each other that they have failed to see the damaged they have caused their children. The father needs to stop looking for negative things happening in the mother’s household. He needs to stop involving the children in the dispute and stop encouraging the children to make reports to various authorities as it puts enormous pressure on the children. The mother needs to stop focusing on negatives about the father. One can only hope that after the experience of this court case the parents will have an awakening and will be able to focus on protecting the children from further conflict in the future. It will be long overdue.

22. The mother is Indonesian and has extended family in Indonesia. The children have not had an opportunity to explore their Indonesian heritage and to meet their Indonesian family. This is an important part of their identity and they should be given an opportunity. It is very important that the father stop making any negative comments about the mother’s family to the children or in their presence.

23. Both parents need to realise that they created two children they love dearly together and that the children are made up of both of them so when they criticise the other so relentlessly and the children are aware of it, the children are likely to think that their parents are criticising part of them and only love part of them. Both parents have a lot of work to do to undo the damage they have done by engaging in the conflict for years. The text messages between the parents, which form part of Exhibit A, show that at times, the parents can communicate appropriately with each other about the children. At other times, their communication degenerates into blaming each other and making accusations against the other. Both parents need to protect the children from their negative feelings towards the other and communicate constructively with each other. They should seek professional assistance to help them with this. This will only work if they take responsibility for their own actions. If they can do this then the children will benefit.

I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date: 7 August 2015