Mason and Wilson (No. 2)

[2008] FamCA 1191

FAMILY COURT OF AUSTRALIA

MASON & WILSON (NO. 2) [2008] FamCA 1191

FAMILY LAW – CHILDREN – Sole parenting order – Rebuttal of presumption of equal shared parental responsibility

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA(1) and (4)
The Evidence Act 1995 (Cth) s 140(1)

Neil v Nott (1994) 121 ALR 148
Re F: Litigants in Person Guidelines (2001) FLC ¶93-072
Johnson v Johnson (1997) FLC ¶92-764
Dobbs & Brayson (No 2) (2007) FLC ¶93-354
Crispen and Crispen [2008] FamCAFC 14
Newlands & Newlands (2007) 37 Fam LR 103
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Goode v Goode (2006) FLC 93-286

APPLICANT: Ms Mason

RESPONDENT: Mr Wilson

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 6729 of 2007

DATE DELIVERED: 19 December 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 18, 19 & 25 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MR HOWE

SOLICITOR FOR THE RESPONDENT: JKB LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR CURTAIN

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: C.E. FAMILY LAWYERS

Orders

IT IS ORDERED:

1. THAT pursuant to s61DA(1) and (4) of the Family Law Act 1975 (Cth) the presumption that it is in the best interests of the children J born … July 2001 and N born … November 2003 (“the children”) for the mother and father to have equal shared parental responsibility be rebutted.

2. THAT the mother have sole parental responsibility for the children.

3. THAT each of the mother and father communicate with the other by e-mail or SMS immediately should either of the children suffer any significant medical event or emergency.

4. THAT paragraphs 5 and 6 of the Order of Senior Registrar FitzGibbon made 31 July 2007 be discharged.

5. THAT all extant applications, both interim and final be otherwise dismissed and the proceedings be removed from the docket of Young J.

6. Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

7. THAT should no appeal be lodged against this Order within a period of one (1) calendar month then the appointment of the Independent Children’s Lawyer be discharged.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6729 of 2007

MS MASON

Applicant

And

MR WILSON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

ISSUES

1. This court hearing and judgment were necessary to determine complex parenting and children’s issues concerning J born in July 2001 and N born in November 2003 (“the children”).

2. The mother, Ms Mason, was born in November 1978 and the father Mr Wilson was born in September 1956 and they lived in a relationship for approximately four (4) years.  They have each accepted that they should be called the parents of the children.

3. J is a child of the mother and father and N was born outside their relationship.  The person identified by the mother as being his biological father was served with court documents but has elected not to participate in these proceedings or in N’s life.

4. The parties, with the considerable assistance of the Independent Children’s Lawyer and other professionals, have been able to resolve and agree on consent orders where both children will live and the time that they will spend and otherwise communicate with each of the parents.  There remains three issues that were specifically identified to be determined in this hearing by the court and they were:

   (a)whether the presumption of equal shared parental responsibility should be rebutted and whether the mother should have an order for sole parental responsibility for the children;

   (b)the venue and circumstances of changeover outside of school times; and

   (c)in what circumstances and arising out of what medical occurrence should the parent with whom the children are then with notify the other person of any serious illness or medical emergency.

5. Additionally and underlining so much of the emotion and concern of the father in this case are the circumstances, approach and timetable in properly advising N that he is not his biological child and the likely impact both upon N and J.

6. In that regard there were ongoing discussions between all parties and, whilst these were out of court, nevertheless the court was ultimately advised that the mother and father agreed to consult with an appropriate child psychologist as to these important issues and their impact on the children. On this issue the various medical professionals who have given evidence have also recommended appropriate professional assistance and consultation but ultimately the real challenge to, and onus upon the parents, is to best manage these future discussions in the best interest of both children.

CONSENT ORDERS

1. On the first day of the four day hearing for parenting orders the parties were able to conclude and execute minutes of consent orders, which were then pronounced by the court.  For completeness and because there is a departure from previous interim court orders I set out the entirety of those consent orders:

   IT IS ORDERED BY CONSENT:

   1.THAT the children [J] born […] July 2001 and [N] born […] November 2003 live with the mother.

   2.THAT both children spend time and communicate with the father as follows:

   (a)on each alternate weekend commencing Friday 28 November 2008 from the conclusion of school on the Friday until the commencement of school the following Tuesday and such time spent shall continue until the first applicable weekend in July 2010;

   (b)from that weekend in July 2010, and on a continuing basis from the conclusion of school on Friday until the commencement of school the following Wednesday morning;

   (c)for one half of every school term holiday by agreement but in default of agreement for the first half in odd numbered calendar years and for the second half thereof in even numbered calendar years;

   (d)for half of every long summer school holiday period by agreement but in default of agreement for the first half thereof in odd numbered calendar years and for the second half thereof in even numbered calendar years – and for the purposes of these orders that long summer holiday period is defined to commence at 5.00 p.m. on 26 December in each calendar year;

   (e)from 5.00 p.m. on 24 December until 1.00 p.m. on 25 December in all even numbered calendar years;

   (f)from 1.00 p.m. on 25 December until 5.00 p.m. on 26 December in all odd numbered calendar years;

   (g)from 5.00 p.m. on the day prior to the Sunday of Father’s Day until 5.00 p.m. on Father’s Day;

   (h)on each of the children’s birthdays and on the father’s birthday from the conclusion of school until 5.30 p.m. if a school day and otherwise from 10.00 a.m. until 2.00 p.m. if not a school day and if the children are not then living with the father on those days.

   3.THAT the times specified in order 2(a) hereof be suspended for the following times:

   (a)from 5.00 p.m. on the day prior to the Sunday of Mother’s Day until 5.00 p.m. on Mother’s Day;

   (b)on the children’s birthdays and the mother’s birthday from the conclusion of school until 5.30 p.m. if on a school day and from 10.00 a.m. until 2.00 p.m. if not on a school day.

   4.THAT the mother shall sign all documents and do all acts and things properly required to authorise any school attended by each of the children to provide to the father, and his expense, copies of all school reports, newsletters and similar documents of and concerning the children.

   5.THAT any communication between the mother and father required by these orders shall be undertaken by e-mail or SMS and for this purpose both parties will at all times ensure the other party has an appropriate e-mail address and telephone number for the purposes of receiving SMS messages.

   6.THAT the children be at liberty to telephone whichever parent they are not living with at any time and each parent do all things necessary and co-operate with the children to ensure that they are able to make such reasonable telephone calls.

   7.Pursuant to s62B and s65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

   8.THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties.

   IT IS NOTED:

   A.THAT the above orders were agreed to by all parties in the hearing of a defended children and parenting dispute.  There are continuing disputes and the hearing will proceed and resolve the issue of sole or shared parenting and other specific issues.

   B.THAT the signed minutes of consent orders, executed on 18 November 2008 by the parties remain upon the court file.

AFFIDAVITS

1. Both the mother and father had previously filed many affidavits in these proceedings though they largely dealt with previous interim hearings or circumstances of with whom the children should live and what time should be spent with the other parent.  Given the limited issues remaining for determination more limited and specific material was put before the court.

2. The mother relied on her affidavits filed 13 October 2008 and 11 November 2008 and the affidavit of her partner, Mr B, filed 12 November 2008.  The father relied on his affidavits, and annexures thereto filed 9 April 2008, 29 September 2008 and 14 November 2008.

3. I have carefully read and evaluated the facts and evidence contained in each of those affidavits.

4. Additionally there were further affidavits filed by the medical professional witnesses and the Family Consultant and I have read and separately identified and considered the evidence and recommendations of these witnesses later in this judgment.

PREVIOUS COURT HISTORY

1. The initiating court application was filed by the mother on 15 November 2006.  Thereafter there have been many orders made in the Federal Magistrates Court and, on and after 23 May 2007 in this court.  A brief agreed summary of those orders are provided in the joint chronology which has been incorporated into these reasons for judgment.

2. I have read the court files from the Federal Magistrates Court and the various interim orders made on live with and spend time issues and other specific matters. The issue of parental responsibility has not previously been determined by a court.

3. The first substantial interim hearing in this court was before Senior Registrar FitzGibbon and orders were made and a substantial judgment delivered on 31 July 2007.  The orders pronounced were interim in nature and dealt primarily with the time to be spent by the father with the children and other orders to prepare the matter for trial.  Of interest however is paragraphs 5 and 6 thereof which provided:

   “5.THAT until further order neither party tell the children or either of them about the biological parentage of [N] nor allow any other person to do so nor discuss it in their presence of hearing without order of this court.

   6.THAT upon direction of the Independent Children’s Lawyer the parties attend upon a counsellor to discuss how and when to inform [N] of his parentage”.

4. The issues dealing with parentage are dealt with by the Senior Registrar in paragraph 36 of his Judgment.  Those orders have either been disregarded or otherwise there has not been an appropriate time for the parties to act or the change in the appointment of the Independent Children’s Lawyer has negated the intent of the orders.  Aside from those observations I do not further comment upon those orders and reasons for judgment then delivered.

5. The proceedings first came before me on 12 October 2007 and I delivered extempore reasons which concluded the issue of service of and the non-appearance of the biological father of N and that the case should proceed in his absence.  My orders of that day required an update of the psychiatric report of Dr G.  I observe that was the first day of the Less Adversarial Trial but all counsel who appeared that day and the solicitors for both the father and the Independent Children’s Lawyer have continually changed.

6. The hearing next came before me on 20 December 2007 again with all different legal representatives.  Further interim orders, including supervision of the father’s time with the children were then pronounced and a further extempore judgment was delivered.

7. The next hearing of the matter was listed on 15 April 2008, again with different legal representatives.  It was on that day that the final hearing was listed on the next available four day fixture, that is to commence 18 November 2008.  Other procedural and interim orders were made and significantly paragraph 7, in the context of earlier orders then provided:

   “7.THAT any and all issues of and concerning the disclosure to the child [N] of his parenthood be adjourned as an issue to be considered on the adjourned defended hearing date”.

8. On 18 June 2008 Watt J pronounced orders for a different changeover venue, it then being ordered to be the H Police Station and with an appropriate undertaking from Mr B not to be in attendance.

9. The final defended hearing then commenced before me as fixed.

INDEPENDENT CHILDREN’S LAWYER

1. At the commencement of this hearing Mr Curtain, appeared as counsel for Mr Edney, solicitor, who had replaced the previous appointed children’s solicitor, Ms Morgan, and did not present any recommendation to the court.  In his final submission however, and on instructions, he conveyed to the court the recommendation on behalf of the Independent Children’s Lawyer that an order should be made for the mother to have sole parental responsibility. 

2. As to changeover the preference expressed was the R Contact Centre notwithstanding distance, time and cost involved but primarily on the enforced separation of the mother and father from each other and thus further minimising any potential conflict or disturbance in the presence of the children.

3. No separate recommendation, other than appropriate common sense, was presented on the issue of disclosure of medical situations that may seriously affect the children from time to time.

FATHER – IN PERSON

1. The decision of the Full Court in Re F: Litigants in Person Guidelines (2001) FLC ¶93-072, modified the guidelines to be used in proceedings where a litigant appears without representation from what was previously said by the Full Court in Johnson v Johnson (1997) FLC ¶92-764.

2. Those Guidelines are explained by the Full Court to be as follows:

   (a)a judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;

   (b)a judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;

   (c)a judge should explain to the litigant in person any procedures relevant to the litigation;

   (d)a judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;

   (e)if a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considered that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;

   (f)a judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects.  A judge is not obliged to provide advice on each occasion that particular questions or documents arise;

   (g)if a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;

   (h)a judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated.  (Neil v Nott (1994) 121 ALR 148 at 150);

   (i)where the interests of justice and the circumstances of the case require it, a judge may:

   §draw attention to the law applied by the court in determining issues before it;

   §question witnesses;

   §identify applications or submissions which ought to be put to the Court;

   §suggest procedural steps that may be taken by a party;

   §clarify the particulars of the orders sought by a litigant in person or the bases for such orders.

   The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.

3. The Full Court in Re F: Litigants in Person Guidelines, after stating that the skill set of each individual litigant in person could vary greatly, further held at paragraph 229 that:

   “With these matters in mind, we think that the giving of such assistance should lie in the discretion of the trial judge and should not be required by mandatory guidelines nor should the nature of the interventions from the bench be rigidly proscribed or prescribed. The exercise of such discretion serves the goal of achieving a fair trial so that the interests of justice can be served. Therefore, the application of the guidelines must depend on the circumstances of the particular case”

4. The Full Court had earlier said at paragraph 225:

   "…we think it is necessary to appreciate that the imperative to do substantive justice as between the parties requires the conduct of the presiding judge to be assessed by a standard which is properly informed. The informed nature of that standard must, in our view, take account of the responsibility of the Court seized of the family law matter to properly understand the litigant in person's position within the litigation."

5. This decision in Re F: Litigants in Person Guidelines has been affirmed and followed in subsequent decisions of the Full Court and in particular the Full Court in Dobbs & Brayson (No 2) (2007) FLC ¶93-354 at 82,076 upheld its applicability to Less Adversarial Trials under Division 12A:

   “These guidelines were formulated in respect of trials prior to the introduction of Division 12A by the amending Act. However, we think the statements set out in the guidelines generally remain relevant and apposite to child related proceedings conducted under Division 12A. “

6. I have endeavoured to ensure that the father has had at all times been accorded procedural fairness and has had a proper understanding of the procedures of trial and his rights in conducting his own case. I am satisfied that the father had a very substantial knowledge of all matters and facts and he was certainly firm and positive in the way he presented his submissions to the court and asked questions of witnesses.

BACKGROUND HISTORY

1. At the commencement of this case the Independent Children’s Lawyer submitted a Chronology limited to specific and relevant matters and facts and summaries of previous orders of the court.  All parties either agreed or did not oppose that this presented an accurate and non-contentious chronology (save for the existence of any de facto relationship) and I have incorporated that Chronology into this Judgment and rely upon its contents.

DateEvent

September 1956  Father born now aged 52 years.

February 1969  Mr B born now aged 39 years.

November 1978  Mother born now aged 29 years.

July 1999  Son of Mr B born now aged 9 years.

August 2000  R Magistrates Court - father charged with wilful and obscene exposure and behaving in an offensive manner.  Twelve (12) months CBA 50 hours community work and attend course Sex Offenders Program.

July 2001  J born now aged seven years.

October 2002  R Magistrates Court - father found guilty of wilful and obscene exposure.  Eighteen (18) months jail wholly suspended for two (2) years.

May 2003R Magistrates Court - father dealt with for breach of suspended sentence made 17 October 2002.

October 2003  R Magistrates Court arising from breach of Order made 28 May 2003.  No Order is made as to the suspended sentence.

November 2003  N born now aged five years.

5 June 2004Notice of Discontinuance filed discontinuing Application in a Case

March 2006Mr B meets the mother.

May 2006  Mother and Ms B commence relationship.

15 November 2006  Mother files Application seeking, inter alia, Orders for residence of both children.

21 November 2006  Order of Federal Magistrates Court providing, inter alia:

1.        J live with the father.

2.        Mother have defined times with J.

3.        N live with the mother.

4.        Father have defined times with N.

5.Further hearing of the matter adjourned to 20 December 2006.

21 November 2006  Independent Children's Lawyer appointed by the Federal Magistrates Court.

20 December 2006  Order of Federal Magistrates Court of Federal Magistrate O’Sullivan providing, inter alia:

1.Adjourning matter to final hearing on 23 May 2007.

2.Order in relation to the father spending time with the children over Christmas 2006.

3.Mother restricted from allowing Mr B to come in contact with J during the time she is spending time with J and is restricted from allowing Mr B from being left alone with the child, N.

4.Both parties, their servants and agents, are hereby restrained from denigrating the other in the presence of or to the children or allowing another person to do so.

5.The parties are hereby restricted from consuming any alcohol or drugs in the presence of the children or to have consumed any alcohol or drugs during the time they are spending with the children other than prescribed medication.

6.The parties, their servants and agents, are hereby restrained from physically punishing the children.

17 January 2007  Date of report from Victorian Institute of Forensic Medicine to “…show that [the father] is excluded from identification as the father of [N]”.

14 February 2007  Mother files Amended Application to vary Orders so that both children live with her and father have supervised time with the children.

19 February 2007  Order by Federal Magistrate Burchardt providing, inter alia:

1.All Applications adjourned to the Federal Magistrates Court on 27 February 2007.

2.Order 1 of the parenting Order made on 21 November 2006 and 20 December 2006 regarding the father’s time to be spent with the children are suspended and the children live with the mother.

It was noted that the father consented to Order 1 insofar as it reflects the understanding the father came to with DHS and the father shall seek to have Order 1 reinstated on the next return date.

27 February 2007  Order Federal Magistrate Walter providing, inter alia, father spend time with both children, such time to be supervised.  Further, mother to undergo psychiatric or psychological assessment as directed by the Independent Children's Lawyer whilst father is to co‑operate with Department of Human Services in undergoing a psycho‑sexual assessment.

7 March 2007  Response filed by father.

18 May 2007  Father files Application in a Case seeking Orders for the children to live with him and restraining MR B from having contact with the children.

22 May 2007  Mother files a Response to an Application in a Case.

23 May 2007  Order of Federal Magistrates Court before Federal Magistrate O’Sullivan providing, inter alia:

1.The matter transfer to the Family Court of Australia.

2.Paragraph 3 of Orders made 20 December 2006 in relation to Mr B discharged. 

18 July 2007  Order made by Senior Registrar Fitzgibbon providing, inter alia:

1.Proceedings adjourned to 31 July 2007.

2.Until further Order both parties be restrained from questioning J and N “…about the other parent or about activities in the other parent’s household and about any of the evidence in this case”.

3.“That until further Order neither party allow any other person to denigrate the other parent to the children or either of them or do so in their presence or hearing”.

24 July 2007  Mother files Amended Response to Application in a Case seeking the children live with her and seeking variation to the father’s contact time.

31 July 2007  Order made by Senior Registrar Fitzgibbon providing, inter alia:

1.Discharging Orders made 27 February 2007 requiring the father’s time to be supervised.

2.Defined times for the father spending time with the children.

3.Until further Order neither party, their servants or agents, question the children about the other parent or their household or discuss evidence in this case.

4.Until further Order neither party denigrate the other in the presence or hearing of the children.

5.That until further Order neither party tell the children or either of them about the biological parentage of N nor allow any other person to do so nor discuss it in their presence or hearing without the Order of this Court (paragraph 5).

6.All extant interim Applications dismissed noting that the Contravention Application of the father is adjourned to 30 August 2007.

7.All final Applications adjourned to the Priority List before Justice Mushin on 12 September 2007.

12 September 2007  Trial Notice Orders made by Registrar Field.

Order by Justice Mushin providing that all Applications be given priority and referred to the Regional Co‑Ordinating Registrar for listing as a first day less adversarial trial.  Further, the requirement for the attendance of a Family Consultant at the said listing be dispensed with.

12 October 2007  Order of Justice Young providing that:

1.Father attend upon a general practitioner to obtain a referral to a treating psychiatrist other than Dr G for the purposes of then conferring with that specialist and for an assessment and monitoring of the father’s medication and receiving appropriate psychotherapy.

2.All Applications be adjourned for mention before Justice Young on 27 November 2007.

27 November 2007  Order made by Justice Young providing, inter alia:

1.All extant Applications adjourned for case management before Justice Young on Thursday, 20 December 2007.

2.Paragraph 2(a) of the Order of Senior Registrar Fitzgibbon made 31 July 2007 be varied so that the period of time the father spends with the children be supervised by Mr C.

3.Preparation of a report by a Family Consultant.

20 December 2007  Order made by Justice Young providing that:

1.All extant Applications adjourned for case management as mentioned on 15 April 2008.

2.Mother and father do all things necessary to complete applications for placement at GordonCare Contact Centre.

3.Defined times for the father to spend time with the children on Christmas Day.

4.The mother and father not to denigrate or harass the other on changeover and to ensure they are punctual at their respective collection return times. 

5.The father be and is hereby restrained from discussing with or speaking to the children about any issue involved in these proceedings or showing them any written document or related to these proceedings.

6.That the mother not permit the children, or either of them, to play in the vicinity of the dam on the property or to swim in that dam unless they are fully and properly supervised at all times by an adult.

7.The mother forthwith be permitted to enrol J at the T Primary School and that he attend that school for the commencement of the 2008 school year.

8.Ms Y or as otherwise nominated prepare an updated family report.

9.That telephone contact times continue as has been previously ordered and that both the mother and father ensure that they strictly comply with their requirements in this regard.

20 December 2007  Order by Justice Young.

15 April 2008  Order of Justice Young providing, inter alia:

1.All Applications adjourned to 11 September 2008.

2.Fixing the matter for hearing of no more than four days commencing 18 November 2008.

3.Paragraphs 2, 3, 4 and 6 of Orders made 20 December 2007 be discharged.  (These Orders were in relation to the father’s time with the children.)

4.Order that the father spend time with the children unsupervised at defined times.

5.Mr N prepare an updated family report.

6.Paragraph 13 of Orders made 20 December 2007 be discharged (provided that telephone contact time continue as previously ordered).

7.That otherwise the current injunctive and protective Orders of 20 December 2007 continue in full force and effect.

18 June 2008  Order of Justice Watt providing, inter alia:

1.Amending Order made 15 April 2008 to provide changeover for the children to take place in the foyer of the H police station.

2.Order made on the undertaking of Mr B that he shall not leave the car should he accompany the mother on contact changeover until the car has left the vicinity of the H police station.

12 July 2008  Mother files Response to Application in a Case.

25 August 2008  Order made by Registrar Kaur in chambers releasing report of Mr N.

11 September 2008  Order of Justice Young providing, inter alia:

1.Procedural Orders in relation to filing documents.

2.As soon as practical the Independent Children's Lawyer convene an out of Court conciliation discussion on all children and parenting issues.

23 September 2008                   Order by Justice Young providing, inter alia:

1.Mother’s application adjourned to 30 September 2008.

2.Parties attend upon Mr N to enable preparation of report.

3.Father’s time that otherwise would exercise with the children pursuant to Order of 15 April 2008 suspended.

FAMILY LAW ACT

1. Section 60CA of the Family Law Act 1975 requires the court, in deciding whether to make a particular parenting order in relation to a child, to have regard to the best interests of the child as the paramount consideration.

2. The objects of and principals underlying Division 7 of the Act and its amendments from 1 July 2006 are intended to ensure that the best interests of children are paramount and are fully and wholly considered by the court in determining appropriate parental responsibility orders.

3. It is important for the mother and father to wholly understand their obligations and for such purpose I therefore have incorporated within this Judgment, the provisions of s60B of the Act.  The objects are there stated to be:

   (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.

4. Sub-paragraph (2) thereof highlights the principles underlying those objects which are:

   (a)children to have the right to know and be cared for by both parents, regardless of whether their parents are married, separated, have never married or have never lived together;  and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);  and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;  and

   (d)parents should agree about the future parenting of their children;  and

   (e)children have a right to enjoy their culture.

5. I have had careful regard both to the objects and principles as expressed above.  There likely are emotional, behavioural, conduct and personality issues which may, on the facts of this case partly nullify those objects and principles.  The mother and father do not have a meaningful and co-operative relationship for the various reasons that I have explored in this Judgment.  Ideally, as parents, they should be more understanding and co-operative with each other and other relevant adults and it would be very helpful if they, but particularly the father, each reflected upon and acted more positively to perform their primary obligations to their children.

6. Section 61DA of the Family Law Act 1975 provides that there is a presumption of equal shared parenting responsibility when making parenting orders. That presumption relates solely to the allocation of parental responsibility as defined in s61B. The specific sub-section provides as follows:

   (1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

7. The basis upon which that presumption may be rebutted by evidence is identified in sub-section (4) where it provides as follows:

   (4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

8. It is therefore necessary to evaluate, on all of the evidence in this case, whether equal shared parental responsibility is an outcome that is in the best interests of both children.

9. How the court determines what is in the best interests of a child is prescribed by s60CC of the Act and there are both primary and additional considerations that must and have been considered.

10. The primary considerations are:

    (a)the benefit to the child of having a meaningful relationship with both of the child’s parents;  and

    (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

11. The relevant additional considerations must be considered within the framework that these parents have resolved, by consent, the issues of with whom the children live and what time they are to spend with and their communication with their father.  Within that framework and having regard to the specific issues remaining before the court the additional relevant considerations that I have considered and assessed in determining the best interests of both children are:

    (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

    (b)the nature of the relationship of the child with:

    (i)each of the child’s parents;  and

    (ii)other persons (including any grandparent or other relative of the child);

    (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

    (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

    (i)either of his or her parents;  or

    (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

    (f)the capacity of:

    (i)                   each of the child’s parents;  and

    (ii)any other person (including any grandparent or other relative of the child);

    (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

    (j)any family violence involving the child or a member of the child’s family;

    (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

    (m)any other fact or circumstance that the court thinks is relevant.

12. Thereafter sub-section (4) is relevant because of the additional considerations identified in sub-paragraph (c) and (i) and an examination is therefore required of the role that both parents have undertaken and fulfilled for each of the children and specifically in the context of their separation events and circumstances that have existed since that date are made relevant by s4A.

13. It is to better understand the post separation events that the parties have filed further affidavits and I have separately evaluated the evidence of both parties and Mr B in that regard.  Likewise the professional evidence of a psychiatric and psychological nature, and from the Family Consultant, have considered these post separation events and conduct within the parameter of what is best for the children and related to the necessary parental responsibility order.

PARENTAL RESPONSIBILITY – CASE LAW

1. Crispen and Crispen [2008] FamCAFC 14 was a Full Court appeal from the decision of the Magistrate’s Court of Western Australia to rebut the presumption of equal shared parental responsibility and vest the mother solely with the responsibility for making all major long term decisions. The father was to have responsibility for day to day decisions of the child whilst she was in his care. The parenting orders made provided that the child spend 4 nights per fortnight with the father and the rest of the time live with the mother.

2. In that case the Magistrate held that the presumption in s 61DA had not been rebutted but should not apply on the basis that (at paragraph 25) “there was an inability of the parties to effectively communicate and that there was obsessional conduct on the part of the father”, and that furthermore there were other factors leading to the conclusion that it was not in the best interests of the child that there be equal shared parental responsibility notwithstanding that it would be in the child’s best interest to spend substantial and significant time with both parents. The Full Court did not disturb the findings or orders of the Magistrate and therefore dismissed the appeal.

3. In another recent case the Full Court allowed an appeal from a judge at first instance in Newlands & Newlands (2007) 37 Fam LR 103 ordering that the matter be remitted for a rehearing of parenting issues. The trial judge ordered the parties to have equal shared parental responsibility save in respect of education over which the wife was to exercise parental responsibility solely. The Full Court, in discussing the trial Judge’s rebuttal of the presumption of equal shared parental responsibility commented upon the provisions in the legislation for the allocation of responsibility noting that such an order was permissible under the Act, but holding that it was not an option for the trial judge given that it had been proposed by neither party. The Full Court expanded on the change of terminology in the Act at paragraphs 86-88 inclusive referring to what was said by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at paragraphs 9.29-9.30:

   9.29“In the absence of a specific issues order, we think it unlikely that the Parliament intended that separated parents could only exercise all or any of their powers or discharge all or any of their parenting responsibilities jointly in relation to all matters. This is never the case when parents are living together in relation to day to day matters, and the impracticability of such a requirement when they are living separately only has to be stated to be appreciated.

   9.30 As a matter of practical necessity either the resident parent or the contact parent will have to make individual decisions about such matters when they have the sole physical care of the children. On the other hand, consultation should obviously occur between the parents in relation to major issues affecting the children such as major surgery, place of education, religion and the like. We believe that this accords with the intention of the legislation”.

1. In addition Newlands referred to the judgment in Goode v Goode (2006) FLC 93-286 where the Full Court at 80,894 commented upon those paragraphs from B and B saying:

   35.“Whilst we consider this is still a correct description of the concomitance of parental responsibility where no order has been made by a court, we do not think in light of the amending legislation it has application once an order for equal shared parental responsibility is made by the Court. This is made clear by the provisions of ss 61C, 61D and 61DA.

   36.While it may be self-evident from the provisions of s 61C, note 1 makes it clear that the legal position prevails only to the extent it is not displaced by a parenting order made by the Court. Note 1 states:

   This section states that the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and section 61D(2) for the effect of a parenting order.

   37.Thus, where no contrary order has been made, parents may exercise this responsibility independently or jointly. This would be so whether the parties were married, living together, never lived together or separated as long as there was no contrary order in force.

   38.Section 65DAC sets out the effect of a parenting order that provides for shared parental responsibility. The section requires decisions about major long-term issues about children to be made jointly by those persons who are to share parental responsibility and that they are required:

   (a)to consult the other person in relation to the decisions to be made about that issue; and

   (b)to make a genuine effort to come to a joint decision about that issue.

   Section 65DAE provides that if a child is spending time with a person under a parenting order, then that person is not required to consult with a parent or other person who shares parental responsibility about decisions that are not major long-term issues, unless the Court has made a contrary order.

   39.We therefore consider it clear that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC. In the former, the parties may still be together or may be separated. There will be no court order in effect and the parties will exercise the responsibility either independently or jointly. Once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, the major decisions for the long-term care and welfare of children must be made jointly, unless the Court otherwise provides”.

2. These comments made by the Full Court on what is intended by the term “equal shared parental responsibility” are illustrative for the purposes of this decision insofar as they demonstrate that what is required by the Act is that there be cooperation and communication in coming together equally to make decisions in respect of the long term care of the children. This is a process which would be unworkable in a relationship with high levels of conflict and where one parent sought to usurp at every opportunity the authority and decision making capacity of the other.  In such circumstances as here exist there would be no “equality” in the decision making and the resultant conflict could not possibly be in the best interests of the child.

OBSERVATION OF WITNESSES

1. I have had the very real benefit of observing the father and mother and Mr B in giving their evidence on oath and in observing them in the courtroom, their demeanour, behaviour and character.  That observation of the witnesses has been of real assistance in formulating appropriate orders.  Those observations are acutely available to a trial judge and the legal authority for such a position is that part of the Judgment of Kirby J in Minagall v Ayres (1966) SASR 151 at 154 per Hogarth J; see also Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at 313:

   “By conventional theory, the observations made by a trial judge of the appearance and demeanour of a witness giving evidence are not only available to be used in the determination of a dispute but amount to important ingredients of the decision-making process.  They normally provide the primary decision-maker a distinct advance which controls, and even limits, the exercise by the appellate court of its statutory functions in an appeal by way of re-hearing:  see Owners of Steamship Honestroom v Owners of Steamship Sagaporack [1927] AC 37 at 47; Jones v Hyde (1989) 63 ALJR 349 at 351; 85 ALR 23 at 27; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178ff.”.

2. I have had the significant benefit of hearing all of the evidence in its entirety, of reading carefully all of the affidavits, the exhibits to the affidavits and the other exhibits in the proceedings.  I have reflected upon and have weighed all parts of the individual testimony against the balance of all evidence prior to delivering these reasons for judgment.  I stress that, in this case, my court observations of the parties were of very real benefit and importance.

3. In Zantiotis and Zantiotis (1993) 92-367 the Full Court of Nygh, Lindenmayer and Gun JJ in a joint judgment, said at 79,837-79,838:

   The headnote also says that the Court of Appeal followed the South Australian cases of Minagall v Ayres [1966] SASR 151 at 156, Jobst v Inglis (1986) 41 SASR 399 at 417 and Angaston and District Hospital v Thamm (1987) 47 SASR 177 at 178-179. In the last mentioned case King J. said at pp. 178-179:

   ‘The principle of law which was expressed in Minagall v Ayres and which was accepted by the judges who constituted the Court in Jobst v Inglis, is expressed in a passage in the judgment of Napier CJ, with whom Travers J agreed, at 156 of the report. It is as follows:

   “But, while we agree with Hogarth J, we desire to guard ourselves against being understood as laying down any absolute rule upon the subject. It seems to us that it is a matter of what we should regard as "fair play and common sense". The condition upon which a judge is at liberty to take notice of what he has seen for himself is that the parties should know or be informed of what he has noticed, and have an opportunity of answering or dealing with it.”'

   The rule, as appears from the passage cited, is not to be regarded as absolute in the sense that it must be applied rigidly to every observation which a judge might make of a party during the course of a trial outside the witness-box. Something will depend, no doubt, on the circumstances of the particular case and upon the significance of the particular observations. It is clear, however, that where the judge makes observations of the actions or demeanour of a party, which actions and demeanour are not observable by counsel, and makes use of those observations in a way which has a significant influence upon his decision of the case, he is required in justice, before making such use of those observations, to make those observations and the possibility of his using them in the course of his judgment known to counsel at a stage of the hearing at which counsel still has an opportunity of dealing with them in a proper and effective way.''

4. Further in W and R (2000) FamCA 31 the Full Court after considering the earlier authorities stressed at paragraph 38:

   “…that it was imperative for the trial Judge in the present case to draw to the attention of the husband's counsel the fact that he proposed to draw the adverse inferences which he did against the husband on the basis of Mr Marshall's evidence.”

5. The unique role and observations of a trial Judge have recently been highlighted by the House of Lords, Appellate Committee, in the case of In re J (a child) (FC), judgment delivered 16 June 2005 and I refer to this opinion to support my observations in this case.

6. In paragraph 4 and paragraphs 10-12 (inclusive) of the Judgment of Baroness Hale of Richmond the role of the trial Judge in the evaluation of oral evidence was considered and it was there stated that:

   “10.     The Court of Appeal appears to have intervened on the basis, first, that the judge’s conclusion on the risk was not justified by the evidence and second, that he had given it too much weight in his overall conclusion. Yet the assessment of the risk depended entirely on the judge’s evaluation of the father’s present intentions and likely future behaviour and its impact upon the child. There was objective evidence of the risk in the fact that the father had made the allegations in writing and then withdrawn them when he saw that they were damaging rather than helping his case. Whether he might do so again depended crucially on the judge’s evaluation of his oral evidence. The judge was the only person who could do this. He concluded that, while the father was sincere in his current intention not to raise such allegations again, there was a serious risk that if disputes arose in future, as they might easily do, he would resurrect them. These were findings of credibility and primary fact with which, for all the reasons explained by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360, at pp 1372-3, an appeal court is not entitled to interfere”.

STANDARD OF PROOF

1. The appropriate standard of proof that I have applied is the civil standard, namely the balance of probabilities. The more serious that the matter or allegation was, or its importance in this case, then I have more strictly examined the level of proof required. 

2. S.140(1) of the Evidence Act 1995 (Cth) provides that a Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. Sub-paragraph (2) further provides that, without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)        the nature of the cause of action or defence; and

   (b)        the nature of the subject – matter of the proceeding; and

   (c)        the gravity of the matters alleged.

3. In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2, Dixon, J. said:

   “Except upon criminal issues to be proved by the Prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal.  But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal.”

4. Subsequently the High Court said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 62 ALJR 70 at 170 – 172:

   “The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct”.

5. A more recent discussion of the standard of proof to be applied in non-criminal proceedings is contained in the Judgment of Lord Nicholls in Re H v Ors  (Sexual Abuse: Standard of Proof) [1996] 1 ALL ER 1 at 16 where His Lordship stated:

   “Despite their special features, family proceedings remain essentially a form of civil proceedings.  Family proceedings often raise various serious issues, but so do other forms of civil proceedings.

   The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not.  When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.  Fraud is usually less likely than negligence.  Deliberate physical injury is usually less likely than accidental physical injury.  … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.

   Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher.  It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred.  The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established”.

6. The civil proof therefore requires “a reasonable satisfaction” following a search for the truth and an evaluation of evidence adduced having regard to both statute and case law and in the context of the respective power or capacity of a party to produce or counter such evidence (Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454).

7. The law requires that satisfaction be on a level of probability not certainty.  I approached the determination of issues of proof on the basis that I can be fairly and properly satisfied of any alleged fact before accepting same.  Conjecture or suspicion is not sufficient as the proof of the fact must be both rational and reasonably open and likely.

MOTHER

1. The mother lived with the father from 1998 until their relationship concluded and they separated in November 2002.  Thereafter she continued to share accommodation with the father until August 2004 and then lived with the paternal grandmother for a further twelve months.

2. The only biological child of their relationship, J, was born in July 2001.  The mother’s relationship with the father had concluded prior to her conception of N whose birth came about from a casual encounter.  The biological father has no knowledge of or contact with N and pays no child support nor provides any other financial assistance.

3. The evidence before the court detailed the enforced separation of J from his mother, as a result of the father’s actions and ultimately the orders of the Federal Magistrates’ Court pronounced 21 November 2006 and the subsequent orders made by that court.  I have read all previous court orders and have a clear understanding of the initial separation of the children from each other and the then orders dealing with their day by day circumstances.  I do not propose to further develop the evidence of the mother and subsequently that of the father in regard to those matters, as in the particular circumstances of this case there are now agreed consent orders for both children to live with the mother and spend time and otherwise communicate with the father.

4. The mother was impressive in her evidence.  I accept that she has no current issues with alcohol or drugs and now lives in a solid relationship with her partner, Mr B.

5. At the outset of her oral evidence the mother was asked and explained why she sought, in the best interests of the children, an order for her to have sole parental responsibility.  She explained that she could not share information with the father as “he is not normal – a very difficult man”.  She then added that “I always take the father into consideration and it is the interests of the children that I am concerned about … that is what I base my decisions upon …”.

6. The mother summarised her reasons for seeking sole parental responsibility as follows:

   (a)        every issue is so very, very difficult;

   (b)if [the father] presents an issue to me and I do not immediately accord to that, then [the father] will immediately branch out and affect everyone in the children’s lives;

   (c)I don’t get to say anything … if we don’t go along the road the father suggested then things go wrong;

   (d)our level of communication is really very poor and ineffective;

   (e)the father is not able to discuss any small issue … it leads to …issues and conflicts, endless communication needed to resolve / come to a decision on a small issue;

   (f)he has over-held the children and does not understand the issues or consequences of his behaviour.

7. Subsequently, and when being cross examined by the father the mother’s evidence was that:

   “We cannot agree upon issues or discuss issues.  I have put my faith in the court system.  I cannot resolve any issues with you”.

8. I accept the mother’s evidence.  I accept that she has and does still respect the role of the father and has co-operated with him on his time spent and communication with the children, often to the extent that it has seriously impacted upon her and her family with the level of upset, turmoil and abuse created by the father.  On an evaluation of all of the evidence in this case I conclude that the mother’s evidence is very likely to be truthful and may, in some aspects, understate some of the very real difficulties and conflict with which she and the children have been confronted.

9. The mother’s primary affidavit was filed 11 November 2008 and in that document, particularly paragraphs 11 and 12 thereof she details, and was not cross examined upon, the many concerning and aggressive incidents involving the father that have occurred over the past several years.

10. A broad summary of her evidence involved the continual interaction of the Department of Human Services, police and others in supervising, managing and resolving difficult issues, most usually brought about by the actions or behaviour of the father.

11. Previously the father’s time with the children was supervised by professionals or friends, post December 2006, but ultimately that in itself raised many problems and his time now spent with the children has been unsupervised by agreement since February 2008.

12. The various incidents identified by the mother involving police, the school which J attended and other supervision issues are identified in her affidavit and I prefer and accept her evidence to any contrasting evidence given by the father on any of these incidents.

13. I particularly highlight and identify the ongoing vendetta which the father adopted towards Mr B and his actions in threatening and making unfounded allegations against him.  This conduct was both unjustified and inflammatory and created increased tension and an unsavoury situation for the children.  Simply put the father’s conduct was contrary to the best interests of the children.

14. The courts and, over the recent court hearings as the Judge managing this case, I have made various orders endeavouring to better manage, limit and control conflict and aggression in this case and to return the children to the mother.  These situations have largely been brought about by the inappropriate behaviour and actions of the father and they have created significant stress and upset to the children.  Again his actions have not been in the best interests of the children.

1. I accept that there have been issues of family aggression and violence caused by the attitude or behaviour of the father.  In her affidavit the mother has raised, in paragraphs 15 – 23 (inclusive) various serious incidents that identify unacceptable or aggressive behaviour of the father.  I accept her evidence and what is particularly clear is the ability that the father has to alienate people and organisations with whom he has dealings concerning his children.  The phrase “war zone” is perhaps over dramatic but it does highlight the conflict and turmoil that the father has brought to the children and the mother’s household.  The mother does have an intervention order but nevertheless her evidence which I am prepared to accept is that “over the last few years I have lived in fear of the father’s irrational outbursts and harassment … I am unable to live without continual stress and intrusions of privacy”.  I accept that he “stalked the children and assaulted the mother at a music festival”.

2. A serious complaint of the mother is that the father has continually and intentionally involved the children in these court proceedings and, notwithstanding their tender years has provided them with details of the allegations and issues before the court.  Tragically the father asserts that J knows and understands the issues and the hurt and wrong that has been occasioned to the father.  In that context the mother’s complaint, which I accept, is that she cannot discuss any management issue of the children with the father and that there has always been real conflict and issues on changeover.

3. The mother’s further affidavit filed 13 October 2008 highlights the role that she maintains the father has adopted as the “advocate for the children”.  I accept the mother’s evidence as detailed in paragraphs 3 – 7 (inclusive) of that affidavit.  The evidence there highlights the often irrational, somewhat bizarre, conduct and behaviour of the father.

4. I accept the mother’s evidence that decisions cannot be made jointly for or in the best interests of the children.  I accept that the mother has endeavoured to provide a structured, balanced life and upbringing over the past few years for both children but that has been made very difficult, almost impossible, by the behaviour, reaction and conduct of the father.

5. I am sufficiently confident, on the evidence of the mother and her partner to conclude that she has shown a marked willingness to co-operate with the court and with the father to facilitate time for him to spend with the children, even on an unsupervised basis.  Though she seeks an order for sole parental responsibility her evidence was “that she did not see any value in the father being excluded from discussions … but only when a decision needs to be made … because decisions cannot be made jointly”.  I accept that the mother has and will most likely continue to listen to and even discuss matters with the father.

6. As to changeover the evidence of the mother is that she wants primarily to avoid confrontation.  That largely means therefore that the adults not be physically present, but I see no real alternative.  Currently the changeover is in the foyer of the H Police Station with Mr B excluded from entering the building at that time.  Previously the parties exchanged the children at a local café but that was unworkable.  I acknowledge that there have been and may continue to be incidents at and within the police station and whilst I am not wholly comfortable with such a venue it is perhaps the best locally available option.  The alternative, for these parties to drive to a supervised contact centre in R presents very different issues and challenges for the children and requires significant peak time travel and financial cost to both parents. 

7. As to the exchange of notice or information on medical and other emergency issues then the consent orders now agreed to by the parties provide for both e-mail and SMS text messages and that should be the regular means of exchange in appropriate urgent circumstances.  As the parties are often not capable of civilly speaking to each other there can and should be written notification of matters of importance.  Aside from medical and health issues there are the practical issues of changeover that may need notification between parents, such as a delay in changeover arrival time.  All of these matters can be appropriately communicated without the parents speaking directly to each other.

MR B

1. Mr B is the partner of the mother and they have had a relationship continuing from May 2006.  I am not concerned to establish whether they live in a de facto relationship within the strict legal meaning of that term.  I accept they share a close and loving relationship and have confronted many physical and emotional difficulties in their dealings with the father. 

2. Mr B is 39 years of age, works as an electrician and earns a net income of approximately $1,000 per week.  He owns his home which is valued at approximately $450,000 and encumbered by a $100,000 mortgage.  The mother, her children and he live in that property and intend to permanently live there, and not in any other home, as soon as these proceedings are concluded.

3. The mother rents, and receives rental assistance for a property but I am satisfied that is not the home of her now family and for the purposes of this court hearing that fact is of no real relevance.

4. I accept that Mr B has a very good relationship with his eight year old son, and otherwise has developed a good and properly based relationship with both J and N.

5. In very stressful circumstances I accept that he has respected the role and influence of the father and has not usurped a fatherhood figure or responsibility.  He regards himself as a step father to both boys and has a good, friendly and sporting relationship with them.  He treats both boys as he does his own son.

6. The father has made previous unfounded and irresponsible allegations against Mr B, certainly complaining of physical beatings of his children but they are wholly unsupported by the evidence.  I give no weight to those allegations and to the extent that the father has alleged that there may be a level of unacceptable risk in the relationship between the children and Mr B I reject that allegation.  It is in no way substantiated on the facts before the court.

7. I find that there has been a previous hostile and difficult relationship engineered by the father towards Mr B.  It has been unnecessary and provocative and it has clearly created tension and ill feeling. 

8. What was an interesting development in this case was the evidence of Mr B that he was raised in circumstances of not knowing his father and being separated from him.  That fact was unknown to the father and his reaction was that he may now reflect upon and have a better understanding of the circumstances and insight that Mr B may have with N.  I make no particular finding on these issues.

9. Pursuant to current orders Mr B is not present at changeover of the children to the father when it occurs at the H Police Station outside of school term.  I intend to continue that changeover situation but the father must improve his behaviour and understanding of the family situation of the mother and cease his abuse and harassment of and directed towards the mother.

10. Generally I found Mr B to be a co-operative and reasonably impressive witness who has developed a supportive relationship with the mother and understands his circumstances in the home life and does assist in the upbringing of the children.

FATHER

1. The father is in receipt of a disability income of $250 per week.  He is the registered proprietor of his property subject to a modest mortgage, which had earlier been reduced with the payment of compensation monies in satisfaction of his proven claims of sexual abuse against a Church group.

2. The father’s most recent affidavit filed 14 November 2008 emphasised his demand for equal shared parental rights, both in theory and practice.  He opposed any rebuttal of that presumption and it is that position which he strongly argued throughout the proceedings but ultimately, and on an evaluation of all evidence I cannot and do not conclude that it is in the best interests of the children for such an equal shared parenting order to be pronounced.

3. The father focused substantially in this affidavit on certain alleged inappropriate financial dealings of the mother but if she is already under investigation by Centrelink, as disclosed in paragraph 13, I do not propose to take this issue any further in these reasons for judgment but to concentrate upon the significant children’s issues.

4. In the context of paragraphs 10 and 11 of that affidavit, and having heard from Mr B and the mother I do not accept the concerns and allegations of the father and do not find Mr B to be an unacceptable risk to the wellbeing, emotional and psychological development of the children.

5. The prior affidavit of the father was filed 29 September 2008 (prepared in his hand writing).  I permitted that affidavit to be read and form part of the body of evidence in the case as it afforded appropriate procedural justice to the father and ensured all of his relevant concerns were before the court.

6. Again substantial efforts are concentrated in that affidavit upon attacking the character, behaviour and motives of Mr B and in the context of the evidence in this case that approach by the father is largely misguided, erroneous and certainly has substantially contributed to conflict and turmoil in the extended family and in the presence of the children.  There is no evidence that I accept of mistreatment of the children.  I do accept that the father is both concerned and under stress but it may largely be brought about by his own perception and conduct and his inability to accept and allow the children to continue in their newly developing lifestyle.

7. I do not accept the father’s intended explanations for much of his conflictual behaviour.  I find that there have been specific times and events where he is overcome by upset or anger or where his judgment has been markedly impaired. 

8. The father does not yet have a fair and proper understanding of the anguish, conflict and upset that he has brought upon the children, their mother and their home environment.

9. As to the contents of paragraphs 5 and 6 of that affidavit I conclude only that they illustrate the lack of balanced behaviour and poor decision making of the father to have involved both the Department of Human Services and the Police in the particular circumstances which he should then have known and better understood was poor decision making and contrary to the best interests of the children.  I disregard paragraph 7 of that affidavit and otherwise observe that there was no meaningful cross examination by the father on other issues developed in paragraphs 8 – 12 (inclusive) of that affidavit.

10. Again I have approached this case on the basis of dealing with the primary issues and therefore matters of much lesser importance, such as the actual residential address of the mother or whether there is a de facto relationship between her and Mr B are matters of minor, if any, real importance.

11. Throughout this handwritten affidavit the father makes constant reference to his allegation that the mother is not or has not told the truth and takes upon herself a licence to mislead the court.  I reject those submissions and in all that I have seen of the mother in court and read in her affidavit material I conclude that generally she has endeavoured to be truthful and frank in her evidence.

12. Other matters in that affidavit go to the now resolved issues of with whom the children should live and what time should be spent with the other parent.  I do not traverse those matters as they are no longer in dispute.

13. The final affidavit relied on by the father was filed 9 April 2008 and insofar as that affidavit responds to supervised time with the children or otherwise the issues of with whom the children should live or time spent with the father I have read but otherwise leave those matters to one side as a result of the settlement of all such issues.  Insofar as there is a significant response to matters of and associated with the first Family Report prepared by the Family Consultant I have read and evaluated but elsewhere considered in detail that Report and the expressed concerns of the father.

14. As to why the mother should not be granted sole parental responsibility the father was firm and positive in his response that “she is not reliable” and that she “offsets responsibility”.  Further the father maintained that such an order would “leave the children open to an unacceptable risk”.

15. In summary the submissions of the father were that the best interests of the children required an equal shared parenting arrangement by which the children would benefit knowing that their father had significant and equal input and responsibility.  Balanced alongside this position the father was also adamant that the mother was not capable of handling such level of responsibility herself and without his advice and guidance.

16. I do not accept those submissions of the father.  They conveniently overlook the more balanced facts and the conflict, aggression, turmoil and inconvenience that have been brought into the children’s lives.

17. I had the very real opportunity to listen to and observe the father in court.  In earlier hearings when represented he twice became so angry and upset that he walked out, though politely and without outburst.  He has a fragile personality.  His actions and statements in court highlighted his focused and difficult character and outlook.  He is simply not attuned to co-operation on sharing in parental responsibility.

18. At the very heart of the father’s submissions was his ongoing love for the children and his desire to be equally involved in all aspects of their upbringing.  It is apparent that he holds a very deep and genuine love for both boys.  That is accepted by the mother and further he has always treated each of his children equally notwithstanding that he is not the biological father of N.  However my evaluation of all of the evidence, including the professional medical and consultants evidence, is such as to very strongly support my conclusion that, in the best interests of both children the presumption of equal shared parental responsibility should be rebutted and the mother should be entrusted hereafter with sole parental responsibility.

19. What is abundantly clear from the father’s evidence and submissions was his overwhelming concern to retain a very appropriate role in and part of N’s life.  That outcome has been supported by the mother and the Independent Children’s Lawyer.  There is specific agreement as to the engagement of a qualified and appropriate child psychologist and hopefully the successful future outcome of advising and supporting the children will ease the very real concerns of the father.  The parties have acknowledged that is a matter in which they should be assisted by experts and the organisation of that is for them.  In that regard I propose to discharge, if that has not already been so ordered, the earlier orders of Senior Registrar FitzGibbon on this issue.  I conclude that it is not appropriate to make any further order on this subject.

DR B

1. Dr B is a Consultant Psychiatrist.  He had previously consulted with the father and prepared a report for the Department of Human Services dated 12 July 2007.  That report was in evidence.  Additionally Dr G conducted an updated interview with the father on 10 November 2008 and prepared an oral report which was communicated to the court by way of evidence given by telephone in these proceedings.

2. The academic and professional qualifications and experience of Dr G were accepted by all parties.

3. In his first report Dr G outlined the psychiatric history that he had obtained from the father.  Tragically that involved the past episodes of sexual abuse from the Church and his paternal family’s history of alcohol abuse.  I read with care and understanding the disclosure of the father’s history of depression and exhibitionism and his past level of alcohol and drug abuse and dependence. 

4. As a background to his consultation with the father I record that Dr G had available various reports and court affidavits identified in his report.  He qualified his report as, in formulating his opinions, he was largely reliant upon the history provided by the father.  He was aware of the ongoing medication prescribed by Dr R.

5. The report describes the father as presenting as an “unhappy looking middle-aged man with above-average intelligence and excellent verbal skills … quite psychologically minded … He commenced the interview with a tirade in which he expressed his disgust at the legal process he was involved with and staff at the Department of Human Services”.[1]

   [1] Dr G’s Report dated 12 July 2007, page 2

6. It was apparent from the report that this consultation found the father to be at various points excitable and angry and at other times defensive and reasonably calm.  He expressed strong misogynist views and had little respect for family law, the court or its process or the Department of Human Services.

7. Dr G records “a high level of anger expressed at [the mother]” and it is recorded that the father then classified her as an “alcoholic, liar and unreliable person, who had been violent to him in the past”.[2]

   [2] Dr G’s Report dated 12 July 2007, page 3

8. Dr G observed and commented upon the father’s “apparent lack of willingness to consider other views of his behaviour” and that he exhibited “a tendency to resort to vehement outbursts should any alternate view be canvassed”.[3]

   [3] Dr G’s Report dated 12 July 2007, page 3

9. In his diagnosis Dr G concluded that the father does have a personality disorder and it falls most closely into the category of Borderline Personality Disorder.

10. Dr G then expanded upon his diagnosis, including chronic depression and exhibitionism, in the context of impacting upon the children and paramount among his concerns was the ongoing anger which the father maintained and expressed at both his former partner and at Mr B.  His professional opinion was that the upset and anger was largely about the personal pain and emotional trauma experienced by the father rather than any properly understood expression of concern for his children.

11. In the context of this first report Dr G assessed what ongoing contact or relationship, if any, there could or should be between the father and the children and he positively recommended counselling and an ongoing treatment program including psychotherapy and, on that basis, there should “not be an impediment to his contact with the children”. [4] In his follow up interview of 10 November this year Dr G interviewed the father for approximately one hour and noted a more stable personality and indeed he commented that he observed “a marked change”.  He found the father to be calmer and there was not a single outburst in that follow up interview.  He concluded that “his depressive state had improved”.

    [4] Dr G’s Report dated 12 July 2007, page 5

12. What remained however, was a level of anger towards both the mother and Mr G and specifically of the court process, though Dr G did observe that more of the anger had been transferred from the mother to Mr B.

13. Dr G held a very firm view that communication problems will remain between these parties and they will be significantly influenced by the father’s anger and generally what could be identified as irrational behaviour.  The concern that Dr G expressed to the court, upon questioning by counsel for the Independent Children’s Lawyer, was that “it was often the children who are put in an impossible situation”.  Dr G described the father as immature and driven by ongoing trauma and pain.

14. Significantly Dr G rejected any diagnosis of the father’s illness being that of Complex Post Traumatic Stress Disorder.  He supported his earlier conclusion that the father suffers a chronic personality disorder and that is consistent with and explains his “suspicious or slight paranoid view of the world”.

1. I was assisted by questions asked by counsel for the Independent Children’s Lawyer of this witness. The questions highlighted that the professional assessment of this witness that the father was preoccupied with the children being separated from him and what he concentrated upon was his hurt and his attitude rather than what was best for the children.  What further clearly emerged was that the father strongly subjected the children, primarily J, to his views on the family court, Mr B and others and he could not distinguish his own hurt and upset from directly influencing the children with such negative concepts.  Indeed at one stage during evidence, and by the interjection of the father, it became very clear that he would have had the court believe that J had specific well founded ideas on the alleged actions and injustice of the court.  It is only to be hoped that the father can, in future, separate his agenda from that with which he influences these young children.  I hold ongoing concerns in this regard.

2. In a like vein the father highlighted in his cross examination of Dr G that he grieves the loss of his children but does not speak for the children and it is each of them who allegedly know and comment on the unfairness of the current parental and time spent arrangements.  He emphasised that J has a grandfather and an uncle who were distinguished lawyers and his son therefore had an insight into the injustice of this court and the way it had impacted on the father and son relationship.  Indeed it was in this area of the case and with his prepared questions of this witness that his real personality and trauma was clearly exposed and that was both harmful and very inappropriate for both children.

3. What may increasingly be the situation is that the father has moved on from the pain of separation from the mother and I largely accept that he does not want to re-establish that relationship but it is the children and his uncompromising attitude towards equality in their upbringing that is more and more the reason for current conflict and incidents as have occurred over recent months.

4. Whilst the father endeavoured to obtain a concession from this witness that both he and the mother contributed to conflict that was not an outcome entertained by this witness and predominantly I reject the father’s question and direction in that regard.

5. I conclude that Dr G has made a valuable and likely accurate assessment of the father’s state of mind and certainly identified the existence of conflict, trauma and upset which cuts across the very basis of co-operation between these parents.  Indeed, based on the questions asked of him and responding to matters put by the father Dr G concluded that “the likelihood of conflict-free co-operation is not very high … and all of what I have heard this day does not change my mind”.   I agree.

6. The evidence of Dr G and certainly the questions asked by the father of him and the various statements from the father at this stage of the case support an outcome whereby the mother has sole parental responsibility for the children.  There will be ongoing parental conflict and many difficult situations in the months and years ahead, notwithstanding what real efforts both parents may make to minimise potential issues.  As I listened to and evaluated the evidence of Dr G what became very obvious was the necessity to give a level of certainty and security to the children, to minimise conflict in their presence and to exclude them from adult decision making.  I conclude that this can only be achieved by vesting in the mother sole parental responsibility.

7. As to issues of venue and changeover and the practical aspects of the movement of the children Dr G emphasised the plan of action should be to try and minimise time and interaction between the parents and that conclusion is very supportive of all of the matters, facts and outcomes that I have determined upon an evaluation of all of the evidence.

DR A

1. Dr A is an experienced and highly qualified psychiatrist who was engaged by the previous Independent Children’s Lawyer to consult with the mother and prepare a psychiatric assessment of her.  For the purposes of that report he had available all of the court documents and previous reports and orders identified at the commencement of his report.  He obtained a history from the mother and observed her in their conference.  That history is detailed at length in his report and no objection has been taken by any party in the proceedings as to its accuracy.

2. Dr A was not required for cross examination and his report was therefore available to the court without qualification.

3. His conclusion, which I wholly accept was that:

   “Neither her history nor her presentation suggest that she is currently suffering from or has suffered from a Mood Disorder, either Unipolar or Bipolar.  She openly acknowledged excessive alcohol and marijuana use in the past, with some evidence that she may have been dependent on marijuana.  She stated she no longer uses marijuana or alcohol…. On the basis of this assessment, which relied on the materials provided, the history given by [the mother] and my clinical evaluation, I found no evidence of a psychiatric disorder that would compromise [the mother’s] capacity as a parent”.[5]

   [5] Dr A’s Report dated 22 June 2007, page 9

4. I wholly accept that conclusion of Dr A and I find from all that I have observed in court and my reading of the various other reports, particularly the Family Consultant, that the mother is primarily focused on her children, their welfare and upbringing and over the recent years she has coped well in difficult and exacting circumstances.

DR P

1. Dr P is an experienced psychologist who has been treating the father and who has significantly developed a very appropriate professional understanding of the father and his complex personality and outlook on life.  It is envisaged by this witness and by the father that their ongoing professional treating relationship will continue and I have concluded that is very important for the father and therefore the children.  I encourage the father to continue his consultations with Dr P in the context of better understanding his personal development requirements and developing improved personal and social relationships with the mother and other significant adults and organisations involved with the children.

2. The first report from Dr P is dated 9 July 2007 and is in evidence.  Subsequently an updated report was prepared, dated 18 November 2008 and helpfully Dr P made himself available to the court to develop the contents of his report and respond to questions on behalf of all parties.

3. Again I benefited from the background history contained in both reports and it is a compliment to the father that he successfully completed the drug rehabilitation program in 2002 and otherwise has wholly abstained from alcohol and cannabis.

4. The initial assessment of Dr P was that:

   “In times of stress [the father] experiences heightened paranoia and fear of abandonment, which in turn seems to accentuate his feelings of mistrust and isolation, and compromise his capacity for emotional self regulation … [he] has a strong sense of parental responsibility towards his children, but at the same time his intense feelings of mistrust increase the likelihood that he will enter into the protective mode … his over-protective behaviours may appear to others to be out of proportion with the presenting circumstances”.[6]

   [6] Dr P’s Report dated 9 July 2007, page 2

5. Dr P then recommended regular psychotherapy sessions, on a weekly basis and continued medication and long term psychological counselling.

6. In his second report, and in his evidence to the court, Dr P emphasised that his professional assessment is that the father suffers from a condition known as Complex Post Traumatic Stress Disorder (PTSD).  This rather than any assessment of Borderline Personality Disorder, was said by him to be a more accurate and appropriate assessment of the father’s condition.

7. Dr P emphasised that the father does have ongoing feelings of despair, hopelessness and anger, and in particular does hold significant distrust and anger towards figures of authority, such as clergy and the courts.  The evidence of this witness is that he does not see the mother as such a figure of authority but nevertheless there is conflict, uncertainty and upset in their relationship.

8. I have carefully read and evaluated the prognosis delivered by Dr P in his second report and in his oral evidence to the court.  It is very evident that there is a significant level of patient / professional trust and respect and I accept that the father has improved considerably as a result of his ongoing psychological sessions, counselling and treatment. 

9. I clearly prefer the evidence of Dr G to that of Dr P as to the assessment and diagnosis of the father’s current mental outlook and state of mind.  Aside from that professional disagreement over the diagnosis both of these professional witnesses identified the father’s anger, conflict and misguided approach to matters concerning the best interests and wellbeing of his children.  In that context I was particularly attracted to and highlight Dr P’s assessment of and commentary upon the father where it is said that he is:

   “vulnerable to conflict particularly with individuals who are well aware of his hyper-arousability, his over-protectiveness towards his children, and his tendency to become psychologically immobilised with anxiety and anger (and therefore unable to take a decisive and rational action) in the context of a stressful situation”.[7]

   [7] Dr P’s Report 18 November 2004, page 4

10. The father’s psychotherapeutic treatment is ongoing and that is both proper and necessary.  I accept the evidence that he must further develop greater emotional control.

11. As a parent there is no issue whatsoever that the father has a close, loving and devoted relationship to both children.  I accept that he is both capable and caring and is sensitive, perhaps somewhat over-sensitive, to the needs of the children.  What he must strive to achieve is a more balanced, reasonable and understanding acknowledgement of the important role of the mother and the lesser role of others in the children’s upbringing and development.

12. In the context of the issue of equal or sole parental responsibility the report and evidence of Dr P was nevertheless helpful in highlighting the past and current ongoing conflict and issues between the parties and the necessity, in the best interests of the children for one of them, the mother, to be and remain the parent solely charged with primary responsibility for the children’s upbringing.

MR N – FAMILY CONSULTANT
REPORT OF 25 MARCH 2008

1. The Family Consultant, Mr N, was first requested to prepare a Family Report pursuant to s62G(2) of the Act pursuant to an order I made on 20 December 2007.

2. For the purposes of this substantial and very helpful report Mr N consulted with the parties, the children, Mr B and other professional witnesses (school teachers and a psychologist).  He also had access to all of the court evidence identified in the introductory paragraph to his report.

3. Mr N was requested to prepare a written report and in particular to concentrate upon:

   (a)ongoing supervision of the father’s time with the children and if it should remain a requirement of any order;

   (b)what should be the ongoing interim time spent with and communication order;

   (c)further periods which the father could or should spend with both children;

   (d)the best interests of the children;

   (e)any other matter of significance.

4. At the time this first Family Report was ordered there were issues as to the supervision of the father’s time with the children and other particular issues of the quantum of time to be spent and related matters which are now the subject of consent orders.  I have accordingly read and evaluated this report, and the evidence given in court by Mr N only on the issues which remain in dispute between the parents.

5. The mother is described as somewhat quiet, reserved and emotionally exhausted.  Her then major concern was and remains the father involving both children in the adult dispute and inappropriately providing them with information and detail that should be restricted.  Whilst she then acknowledged that the father had taken very real steps to improve his behaviour he nevertheless continued to “berate the children with countless questions seeking information about [the mother], which unnecessarily stresses the children”.[8]  Indeed, at that time the mother advised Mr N that she has “now undertaken the role of having to debrief [J] and help him try and understand that [the father] becomes very upset with anyone who disagrees with him”[9] as the mother has found this to be difficult and confusing for J.

   [8] Mr N First Family Report 25 March 2008 paragraph 16

   [9] Mr N First Family Report 25 March 2008 paragraph 19

6. What was apparent from this report and also from the evidence of the mother before me and my observations in court is that she is highly frustrated with the father’s approach and attitude to the family and the continuing, unproductive discussions.  There were then and there continue today complaints of inappropriate behaviour and harassment.  The mother complained of the inappropriate impact upon the children that had been caused by the father’s inability to formally accept that their relationship had concluded, though perhaps that situation has improved with the father’s acceptance of the end of that past relationship and his focus now being upon his parental rights and interests (as he understands them) and his continuing relationship with both children.

7. What was then the case and remains is that the mother does not generally have any meaningful level of communication with the father.  Whilst it is commented upon in that report and the mother then regarded it as a fruitless exercise, nevertheless I am satisfied that there have been some occasions of recent times where the parents have discussed issues of and related to the children, though no doubt this has been at the initiation and ongoing insistence of the father.

8. In paragraph 31 of that report it was stated that:

   “[The mother] indicated that she feels rather exhausted with everything.  On the one hand she would like to talk with [the father], but is fearful of saying the wrong thing.  She said that if she had to negotiate with [the father] it would be too emotionally intense.  However, if very clear court orders exist, it gives both parents solid directions as to what should or should not occur.  Further, she is not then left to make any direct negotiations with [the father]”.

9. I have elected to quote in full that above paragraph as it summarises my evaluation of the approach of the mother and her feelings of exhaustion and concern.  More importantly there are now specific orders for the children to live with their mother and spend time and communicate with the father and there should be few if any substantial ongoing negotiations.  That would be positive for these children and the father must accept the current final children’s orders and allow the mother and her new partner the time to develop and promote their lifestyle and relationship so as to better afford a positive outcome to the children.

10. Similarly the aggressive and inappropriate position adopted by the father towards Mr B must moderate and, in light of the evidence which Mr B gave and which I accept of his background and upbringing, perhaps the father has an additional understanding which might cause him to mellow his level of aggression and unacceptable behaviour towards the mother’s partner.

11. The observations of Mr N in that first report of the father were that he presented as “argumentative, self-righteous, forthright and presented his views from a social justice position of equality”.[10]  I certainly concur with that assessment but perhaps blend my conclusion with a hope and an understanding that the father has now a better perception of the difficulties he has created for the children and himself by past conduct and behaviour.

    [10] Mr N First Family Report 25 March 2008 paragraph 33

12. This first report of Mr N correctly highlighted a central issue to the father and that is in paragraph 41 where it was identified that the father “finds it frightening and is afraid that [the mother] wants to tell [N] about his biological father.  He does not want [N] to lose out on him being his father.  [He] also indicated being absolutely terrified that the court is able to and has the authority to terminate his relationship with his son”.

13. That very real and continuing circumstance, that is for the father to maintain his relationship as a parent with N is fundamental to so much of the upset and concern of the father in this case.  It is a matter upon which evidence was given and where I am satisfied both parents have a desire to involve professional psychological assistance in determining the manner and timing of making a full and proper disclosure to N both of his biological father and of Mr Wilson’s future role in his life.  Equally as important is having full and proper respect for J and his relationship with both his father and with N.  They have been raised as brothers and the understanding and knowledge that they have different fathers must be communicated to both of them in a passionate and balanced professional manner. 

14. The substantial report of Mr N explained the reaction of both parents to current and specific psychiatric and other medical evidence and in this regard I carefully read and evaluated paragraphs 42 – 49 (inclusive) of the report and the father’s reported responses to and issues raised by him in that regard. 

15. Mr N provided then an assessment of both children and their wishes and the observation of the interaction between both children and their parents and these were matters helpful to the court in understanding the family relationship and dynamics though of course they have been subsequently updated by further evidence.

16. The evaluation of Mr N, relevant to the current matters remaining in dispute is identified at paragraph 75 of his report where he concluded that:

    “In relation to considering shared parental responsibility, the parents are likely to experience difficulty at the moment reaching agreement about important decisions regarding the children because of their uncooperative parenting style.  Neither party is able to effectively communicate with the other.  [The mother] makes many of the day-to-day decisions regarding the children because they are in her care most of the time.  Both parents continue to seek involvement in the upbringing of the children, but presently they struggle to move beyond the current conflict and work together.  The current intense level of conflict between the parties would likely make it exceedingly difficult to effectively share parental responsibility at the present time … in the event the intense nature of conflict does not subside it may be in the children’s best interests for the court to consider sole parental responsibility to be granted to one parent as this may be more effective in managing the children’s affairs in the future”.

17. Otherwise I have carefully read and evaluated paragraphs 78 – 82 (inclusive) of the report though most of the matters and facts therein highlighted I have separately considered within the context of the evidence of Dr B and Dr P and otherwise from the evidence of the parents and other witnesses.

REPORT OF 22 AUGUST 2008

1. This further updated report of Mr N was likewise comprehensive and helpful.  It developed the earlier issues that the Family Consultant had examined and updated the identification of issues and the impact that they then had upon both children.

2. I have carefully read and evaluated this report and also I wholly understand that, in paragraph 56, Mr N respectfully recommended that both parents continue to share equal parental responsibility for decision making but with the children to live with their mother and spend, during school term three overnight evenings with their father in each fortnight and other time as there recommended. 

1. The tenor of the relationship between the parents then remained one of “enduring conflict … and this may make it exceedingly difficult to cooperate regarding some parental decisions”.  In paragraph 46 of the report the Family Consultant was persuaded to consider the ongoing plan which could be developed and managed between the parents and which might eventually provide a basis for shared parental responsibility.  At this time the Family Consultant was particularly aware of efforts being made by each of the parents to resolve “hostility and acrimony” and if successful this would have led to a more harmonious future relationship – at least that was the hope and expectation.

EVIDENCE IN COURT

1. Mr N gave evidence and was cross examined.  His recommendation to the court was formed on the basis of his involvement in the case, discussion with the parents and others and also because he was invited to be in court for the evidence of Dr G and Dr P. 

2. His report to the court given viva voce and his recommendation was that a shared parental relationship could not and would not be functional.  He said that “the likelihood of conflict perpetuating would continue”.  His conclusion was that, in the best interests of both children there should not be an order for equal shared parental responsibility.  He supported and recommended an outcome for the mother to have sole parental responsibility.

3. I found Mr N to be very frank and accommodating in his evidence.  He acknowledged his second report shifted his initial recommendation and did so on the basis that the parties would further be able to develop their relationship and reduce hostility and conflict both in front of the children and at all other times.  Sadly this has not proved to be the case and it would appear that the oral evidence of Dr G was a matter of real concern to the Family Consultant, as it was to the court.

4. I accept that the final recommendation from Mr N was firm and clearly expressed.  Notwithstanding his full knowledge of the consent orders as to the time that the father would spend with the children, both during school and holiday periods, the very clear and unqualified position of Mr N remained that the mother should, in the interests of the children, exercise sole parental responsibility.

5. The other issue before the court is as to the venue of changeover and I record that the Family Consultant would be more comfortable for the children to be exchanged at the R Contact Centre, notwithstanding the driving time and level of additional inconvenience involved in that outcome.  I have balanced those respected views with all of the evidence and the orders sought by the parents and the current working arrangements pursuant to the recent orders of Watt J.

6. As to the best circumstance for a decision to be made as to the manner and timing of disclosure to N of his parenthood the Family Consultant recommended a pause of at least 6 – 9 months following the conclusion of these stressful proceedings and for the parents to seek professional assistance in the timing and manner of explanation both to N and also having particular regard to the impact and effect it may have upon J.  Both parents have told the court that they will accept professional advice on this disclosure issue and it is difficult and somewhat unrealistic to impose upon them a regime or timetable.  They are the parents and on the basis of the mother exercising sole parental responsibility these matters can be discussed and implemented within a timeframe proper for the children, appropriate to their level of knowledge, understanding and likely reaction to the fact of biological fatherhood.

7. When asked by counsel for the Independent Children’s Lawyer Mr N indicated that he would make himself available to explain the orders made by the court in respect of parental responsibility to both children but that is an option for the parents to consider and accept on a mutual and co-operative basis, and one which did not immediately find favour with the father.

SECTION 60CC – FINDINGS

Primary Considerations

1. On an evaluation of all of the evidence I conclude that there is a need for both children to be protected form any likely exposure to abuse and family violence.  I clearly find there has been no physical harm or abuse to or neglect of the children by the father.  The children however have been directly and continually exposed to the father’s verbal threats, abuse of and behaviour to the mother and Mr B. 

2. Further the children have likely been exposed to a level of psychological harm from the required involvement and intervention of other organisations such as the police and Department of Human Services.  The children are entitled to an upbringing centred on their family without the unnecessary and provocative actions of the father in wrongly and without proper reason involving other authorities.  Both children have been exposed to very significant levels of inappropriate behaviour and conflict by the father and it is very much in their best interests for that to be minimised.

3. The children do have a loving and meaningful relationship with both parents and the consent orders agreed at the commencement of this hearing will provide for that situation to continue.  The rebuttal of the presumption of equal shared parental responsibility should not negate that meaningful relationship.  On the facts of this case it will hopefully bring some level of stability and certainty of decision making to the family and lessen the ongoing areas for conflict and disputation.

Additional Considerations

1. Whilst the father has endeavoured to develop the wishes expressed by the children their age and level of maturity is such that I have no real regard to their views.  In any event I do not accept the views of J as expressed by the father to the court, notwithstanding that he is a very intelligent child well advanced in learning for his years.

2. I find that the children have a close relationship with their mother and father.  They clearly have a good, though different relationship with Mr B. Significantly there were no extended family members of either the mother or father called to give evidence.

3. The father may express a willingness to encourage both children to have a close and continuing relationship with their mother.  The issue remains his ability to understand and accept that the children now live with their mother and that, in this particular family and in the best interests of the children, I have concluded that one parent must have the ability to make final decisions, both in the day to day lives and long term for these children.  I am wholly satisfied as to both the willingness and ability of the mother to foster and develop the children’s relationship with their father.

4. Given that the father will now have further time spent with both children I do not find that there will be any adverse effect upon the children arising from any rebuttal of the presumption and the pronouncement of a sole parenting responsibility order in favour of the mother.

5. Both parents have the physical capacity to care for the children.  The emotional capacity and understanding to reduce or eliminate turmoil or stress in their life and to understand their long term emotional wellbeing is a matter of very real concern having regard to the father’s conduct and behaviour and all of the medical evidence and generally the findings that I have made in this Judgment.

6. I retain a very marked concern as to the level of parental responsibility of the father and his failure to understand the impact of his actions on the children.  I have no such concern of the mother’s actions and her attitude to the children and I regard this factor as significant in supporting the rebuttal of the presumption of joint parental responsibility.

7. As to family violence involving both the children, the mother or Mr B I have generally touched on this issue in considering the primary consideration and the need to protect the children from any psychological harm, abuse or family violence.  The same considerations apply in respect of sub-paragraph (j) and I have evaluated all of the evidence in concluding my findings in this regard.  Again I emphasise that there is absolutely no physical violence demonstrated by the father towards the children and it is here appropriate that I again record his overwhelming love of both children.

8. Finality is required in this case.  The proceedings have been alive in this court and in the Federal Magistrates Court for much of the children’s lives.  I am confident that the rebuttal of the presumption and an order for the mother to have sole parental responsibility will be the order least likely to lead to the institution of further proceedings.

CONCLUSION

1. In all of the circumstances of the case and evaluating all of the evidence I conclude that it is in the best interests of the children to rebut the presumption of equal shared parental responsibility.  I conclude that the mother should have an order for sole parental responsibility for the children and I have so ordered.

I certify that the preceding paragraphs are a true copy of the reasons for judgment hereinof The Honourable Justice Young
Associate: