Masri & Masri (No 2)
[2017] FamCA 898
•9 November 2017
FAMILY COURT OF AUSTRALIA
| MASRI & MASRI (NO. 2) | [2017] FamCA 898 |
| FAMILY LAW – CHILDREN – Best Interests – Where there are allegations of family violence – Where there have been past allegations of sexual abuse – Where the allegations of sexual abuse were not pressed at final hearing – Where family violence was not a substantial issue at final hearing – Where the mother making further claims that the father has abused the children would be considered emotional abuse – Where the mother has significant personality vulnerabilities according to the expert – Where the children currently spend alternate weekends with the father – Where the risk of the mother making unfounded allegations of abuse has decreased – Where the expert recommends the children remain living with the mother – Orders made for the children to live with the mother and spend time with the father. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA |
| G & C [2006] FamCA 994 |
| APPLICANT: | Ms Masri |
| RESPONDENT: | Mr Masri |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | PAC | 5617 | of | 2014 |
| DATE DELIVERED: | 9 November 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 17, 18 ,19 & 20 July 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Judge |
| SOLICITOR FOR THE APPLICANT: | AJ & Associates Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Browns The Family Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
All previous parenting orders in relation to the children D born … 2011 and E born … 2013 (“the children”) be discharged.
The parents have equal shared parental responsibility for the children.
The children live with the mother.
The children spend time with the father as follows:
(a) During the school term, in a two week cycle as follows:
(i)In week one from after school or day-care Friday until the commencement of school or day-care Monday;
(ii)In week two from after school or day-care Tuesday until the commencement of school or day-care Wednesday;
(b)For one half of each NSW school holidays following Terms 1, 2 and 3 by agreement and failing agreement:
(i)In the first half of the holidays in each year ending in an even number, from the conclusion of the last day of required school attendance to 3pm on the middle Saturday of the holiday period; and
(ii)In the second half of the holidays in each year ending in an odd number, from 3pm on the middle Saturday of the holiday period to 3pm the Saturday immediately preceding the resumption of school; and
(iii)Subparagraph (a) above is to be suspended for the entirety of the school holiday periods referred to.
(c)For one half of the Term 4 NSW school holiday by agreement, and failing agreement:
(i)In the first half of the holidays in each year ending in an even number, from the conclusion of the last day of required school attendance to 3pm on the middle Saturday of the holiday period; and
(ii)In each year ending in an odd number from 3pm on the middle Saturday to 3pm the Saturday immediately preceding the resumption of school; and
(iii)Subparagraph (a) above is to be suspended for the entirety of the school holiday period referred to.
Notwithstanding the arrangements otherwise provided for by these orders, the following arrangements shall prevail on the following occasions:
(a)The children shall spend time with the father from 3.00pm Christmas Eve to 3.00pm Christmas Day in every year ending in an even number and from 3.00pm Christmas Day to 3.00pm Boxing Day in every year ending in an odd number.
(b)The children shall spend time with the mother from 3.00pm Christmas Eve to 3.00pm Christmas Day in every year ending in an odd number and from 3.00pm Christmas Day to 3.00pm Boxing Day in every year ending in an even number.
(c)The children shall spend time with the father during the Easter period from 3.00pm Easter Thursday to 3.00pm Easter Saturday in each year ending in an even number and from 3.00pm Easter Saturday to 3.00pm Easter Monday in each year ending in an odd number.
(d)The children shall spend time with the mother during the Easter period from 3.00pm Easter Thursday to 3.00pm Easter Saturday in each year ending in an odd number and from 3.00pm Easter Saturday to 3.00pm Easter Monday in each year ending in an even number.
(e)The children shall spend time with the mother from 9.00am to 6.00pm on Mother’s Day in every year.
(f)The children shall spend time with the father from 9.00am to 6.00pm on Father’s Day in every year.
(g)On each of the birthdays of the children, both children shall spend time with the party with whom they are not otherwise with for a period of three hours and failing agreement from 4pm to 7pm.
(h)On the birthday of each party the children shall spend time with that party (if they are not otherwise living with or spending time with that party) for a period of three hours at a time agreed between the parties and failing agreement from 3pm to 6pm.
Changeover shall occur with the children being collected from day-care/pre-school/school at the commencement of their time with the father and with the father delivering the children to day-care/pre-school/school at the conclusion of their time with the father and in the event that changeover does not coincide with the commencement or conclusion of day-care/pre-school/school, changeover shall occur at McDonalds Suburb F.
Each party is hereby restrained from physically disciplining the children, and such physical discipline is deemed to include any and all physical chastisement and causing the children to kneel down with their hands on their head whilst in time out.
Each party is hereby restrained from denigrating the other or a member of the other party’s family in the hearing or presence of the children or permitting a third person to do so.
The parties shall keep each other informed of:
(a)any serious medical problems or illnesses suffered by the children while in the other’s care;
(b)any medication that has been prescribed for the children;
(c)any other matter relevant to the children’s welfare.
For the purposes of communicating information as between them, the mother and the father shall:
(a)communicate by telephone concerning matters of an urgent nature and otherwise;
(b)by sending the other a text message.
Each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details within seven days of such change occurring.
The parent with whom the children are not ordinarily living or spending time shall have telephone communication with the children between 6.00pm and 6.30pm each Tuesday and Thursday, with such communication to be initiated by the parent with whom the children are not living or spending time by contacting the parent with whom the children are living or spending time on that parent’s contact telephone number.
For the purposes of Order 12 above, the parent with whom the children are living or spending time shall ensure that the children are available to receive the other parent’s call, that their contact telephone is switched on and in a reception area, that the children are provided with a quiet place for such phone call to take place and that the phone call is not placed on loudspeaker.
Within 14 days of these orders and within 14 days of the children’s subsequent enrolment at any school, the mother shall do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, forwards directly to the father, copies of all of each child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities.
Each parent shall ensure that the children are delivered to all extra-curricular events that occur whilst the children are in their care, and the parent delivering the children shall ensure that the children are provided with all necessary equipment, clothing and items as requested by the provider of the extra-curricular activity.
Each parent shall inform the other in writing as soon as practicable of any appointments with a specialist medical practitioner (“consultant”) in relation to the children; and
(a)Each parent shall do all acts and things to ensure that the other parent is provided with all reports by any such consultant;
(b)Each parent be permitted to attend on such consultant, such attendance or attendances to be at the sole discretion of any such consultant.
The parties shall do all things necessary to ensure the children attend only upon G Clinic, Suburb F in respect of ongoing medical treatment, and shall comply with the reasonable recommendations of such Medical Practice unless in circumstances of emergency, in which case the parties shall cause the children to attend upon the Emergency Department of the nearest hospital.
Each of the children shall be enrolled at and attend H School for primary school, or such other primary school as agreed by the parties in writing.
The parents shall each be permitted to allow the children to participate in and practice both the parents religions.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Masri & Masri (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 5617 of 2014
| Ms Masri |
Applicant
And
| Mr Masri |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
This matter concerns the long term parenting arrangements for six year old D and three year old E (“the children”), the children of Ms Masri (“the mother”) and Mr Masri (“the father”).
Both parents propose final orders that they share equally parental responsibility for the children. They also reached agreement at the completion of the proceedings about many other orders with respect to the care of the children.
The only significant matter in dispute concerns the children’s principal home. Each parent contends he or she is the more capable parent and proposes orders that the children live with them and spend substantial and significant time with the other parent. The independent children’s lawyer (“ICL”) supports the mother’s position that the children live with her. The only other matters in dispute between the parties relate to changeover and some very small variations about time to be spent with the non-residential parent.
The question for me to determine is which proposed suite of orders best meets the children’s best interests.
Background
The father who is 39 and the mother who is 31 began living together in 2008 or 2009 and married in 2010.
The parties’ first child, a daughter named D, was born in 2011 and is now six.
The mother took 10 months maternity leave after her daughter was born and then returned to work three days a week while the father has always worked full time except when he has been unable to work due to injury.
The parents’ second child, a boy named E, was born in 2013 and is now almost four. E was an unsettled baby and the mother sought mothercraft assistance in a residential unit for a few days when he was a few months old.
From about mid-2014 the parents began to experience some relationship difficulties.
Following an argument with the father on 24 October 2014 the mother attended at a hospital Emergency Department claiming that she had taken an overdose of prescription medication. On 6 November 2014 the mother presented at hospital claiming to have accidentally taken 20 Panadol tablets. The mother was not admitted to hospital following either of these presentations but she did engage with a psychiatrist after these incidents.
On 15 November 2014 the mother attended at hospital with an injured wrist which she reported had been sustained when she fell down the stairs.
On 18 November 2014 the mother attended at a police station reporting concerns about the father’s conduct including an allegation that he had assaulted her on 15 November. Police advised the mother that they would seek an Apprehended Domestic Violence Order (“ADVO”) for her protection against the father. The mother appeared to police to be under the influence of a drug and arrangements were made for her to be taken to hospital by ambulance. She was not admitted to hospital and returned home. Later that night police attended the family home and served an ADVO on the father and escorted the mother from the home leaving the children in the father’s care.
The following day the mother returned to the family home and found that the locks had been changed. The parents became engaged in a heated argument in the presence of the children who became highly distressed. Later the mother returned to the home with police and was assisted so that she could retrieve some personal items.
On 20 November 2014 an interim ADVO was made by a Local Court for the protection of the mother against the father.
On 21 November the mother commenced proceedings in the Federal Circuit Court for a property settlement and for parenting orders in relation to the children. As the matter was regarded as urgent interim orders were made on that day with the consent of the parties that the children live with the father and spend time with the mother in the presence of the maternal grandparents.
On 17 December 2014 orders were made that in addition to the consent orders made on 21 November 2014 the children were to spend time with the mother from Thursday to Saturday each alternate week with this time to increase by one day to include Sunday after 25 December. As at this stage there were ongoing concerns about the stability of the mother’s mental health her time with the children was to occur in the presence of the maternal grandfather or grandmother.
On 31 January 2015 the mother moved from her parents’ home to separate rented accommodation.
On 19 February 2015 the application for a final ADVO for the protection of the mother against the father was dismissed.
On 19 April 2015 there was an incident at the former family home where the father was living when the mother returned the children following her time with them. The incident escalated from a verbal dispute to include some physical interaction between the parties in the presence of the children and both parents say they called the police. The incident continued after the arrival of police who ultimately removed the father in handcuffs from the scene in the presence of the children.
The father was charged with assaulting the mother and resisting arrest but these charges were dismissed following a hearing. The Local Court also declined to make an ADVO against the father for the protection of the mother arising from this incident.
On 30 April 2015 as a result of the mother filing a medical report concerning her mental health the requirement for one of her parents to be present when she spent time with the children was lifted.
On 14 May 2015 the father was involved in a major motorbike accident and was seriously injured. He was hospitalised for three months following this injury and the children began living with their mother.
In June 2015 there was an altercation between the mother and her family and members of the father’s family in the children’s presence at the hospital when arrangements had been made for the children to spend time with the father.
The children were brought to the hospital to see the father on only two occasions following his accident.
On 8 July 2015 orders were made that the children live with the mother and spend time with the father and changeovers were to take place at a contact centre. The parents subsequently agreed between themselves not to utilise the contact centre for changeover but arranged for it to occur directly between themselves at a fast food outlet.
In November 2015 the parenting and property proceedings were transferred to this court.
In March 2016 the mother began an intimate relationship with Mr J (“ the mother’s partner”) who she had known for some time.
In April 2016 a psychiatrist, Dr K (“the expert”) was appointed to prepare a report in the proceedings. The parties met with the expert for the purposes of his assessment in July 2016 and the expert’s report was released on 3 August.
The expert recommended that the parents equally share parental responsibility for the children, that the children live with the mother and spend substantial and significant time with the father.
The parents divorced on 27 June 2016.
Further interim parenting orders were made on 14 December 2016. Pursuant to these orders the parties are to equally share parental responsibility for the children who are to live with the mother and spend time with the father each alternate weekend from after school Friday to before school Monday during school term time and for block periods during the school holidays.
In March 2017 the mother and children began living with her partner and one of his adolescent children.
The mother
Personal history
The mother who is 31 is of Southern European heritage. She has been employed by non-government agency for a number of years and has worked part-time since the birth of her children.
Although the mother sets out little information about her personal history in her affidavit the following history is contained in the expert’s report and was not challenged under cross-examination.
The mother reported to the expert that she had a “great” relationship with her mother and father. She told the expert that when her younger brother was born and she was aged seven she stayed for a couple of years in the care of her maternal grandmother (whom she regarded as her “second mum”) and also had a very close relationship with her maternal grandfather who was also a very significant figure in her life.
The mother’s own mother (“the maternal grandmother”) informed the expert that she had been sexually abused by her father (“the maternal great grandfather”) and brother (“the maternal great uncle”) and had suffered many psychological conditions throughout her life as a result of this abuse. The maternal grandmother also suggested to the expert that she had been the victim of family violence perpetrated by her husband (“the maternal grandfather”) which she had reported to police but her children [including the mother] had been upset about these allegations which she later retracted.
When reinterviewed about her upbringing, the mother said the maternal great grandparents’ relationship was “a normal loving family relationship”. The mother also denied that the maternal grandfather had ever been violent towards the maternal grandmother though she subsequently confirmed that her parents had been to court following an argument and the maternal grandmother calling the police but that “the matter was dropped”. The mother said she was unaware of whether the maternal grandmother ever required psychiatric hospitalisation but acknowledged that the maternal grandmother “went through trauma during her childhood”. The mother denied that it was possible that the maternal grandmother was hypervigilant regarding sexual issues because of her developmental experience.
Mental health
The mother was sexually assaulted at the age of 18 and understandably suffered psychologically as a result. In particular the mother experienced depression and an eating disorder for which she spent 18 months in treatment at a hospital. The mother began a relationship with the father 4 to 5 years later.
The issue of the mother’s mental health and personality vulnerabilities is of great significance in the parenting dispute and is a weighty matter for the expert in the formation of his opinion and recommendations.
The mother sets out little information in her trial affidavit in relation to her mental health in the period prior to the parties’ separation. She deposes only to having postnatal depression after the birth of her first child which was treated by counselling and support and that she did not need medication. She denies experiencing postnatal depression after the birth of the younger child but deposes to engaging with a counselling service.
The mother told the expert that although she did not have a psychiatric illness she had been diagnosed with post-traumatic stress disorder (“PTSD”) due to the father’s behaviour but was unable to identify specific symptoms of PTSD to the expert. She told the expert when interviewed in July 2016 that her mental health was then “fine” but was reluctant to provide details to him of her most recent treating therapist.
The mother specifically rejected the father’s allegations to the expert that she had cut her body and thighs but on further questioning by the expert she acknowledged she had done so during her relationship at the end of 2014. When asked about whether she had had an overdose, the mother acknowledged that this had occurred following her rape as an adolescent and then said there had been one intentional and one unintentional overdose in 2014. The mother told the expert that she had not disclosed these events [to him initially] because “this was already in the documentation”.
In her affidavit the mother deposes to an overdose on 24 October 2014 occurring in the context of an argument with the father about financial matters. She says that she took this action when the father was at a meeting and the children were asleep in bed. She contacted her mother and asked her to come to the home where she told her mother what she had done. The mother was taken to hospital and monitored but discharged in the early hours of the following morning.
According to the mother’s affidavit the second overdose event (on 6 November 2014) was accidental and also followed an argument with the father. The mother was not admitted to hospital in relation to this incident.
As there had been concerns about the mother’s mental health at around the time of separation, the children initially lived with the father and spent time with the mother in the company of her parents. She subsequently obtained a report from a registered psychologist in June 2015 and after this document was provided to the court the requirement for supervision by the maternal grandparents of her time with the children was lifted.
Although an affidavit from the psychologist was not filed in the proceedings it is annexed to the mother’s affidavit. I note that according to that report the mother informed the psychologist that the overdose in October 2014 was a result of the stress she suffered from years of abuse at the hands of the father. This is consistent with the mother’s report to the expert that she felt suicidal while in the relationship with the father as he made her feel “worthless, useless and incapable”.
The general tenor of the history given by the mother to the expert was that she was a victim of the father’s “atrocious behaviour” which was a causative factor of her depression and PTSD. Although the mother at the same time insisted that her mental health was fine she reported to the expert that she continued to see a domestic violence counsellor.
The expert’s report includes the following opinions relating to the mother’s personality and mental health:
She appeared relatively unconcerned by the father’s presence despite her alleged fear. She did not overtly express distress when exploring the alleged assaults of herself or the children. She was defensive and irritated by the report writer’s line of questioning … She consistently focused on the father’s misdemeanours and had difficulty in accepting responsibility for her own contribution to the circumstances. Her statements were inconsistent and unreliable.
…
The mother was seen to have significant personality vulnerabilities dating back to her childhood. It was likely that she was suffering from a Personality Disorder as alleged by the father. She was a reluctant and inconsistent historian, repeatedly providing misinformation during the course of the assessment. This was consistent with this diagnosis but impaired the capacity of the report writer to make a diagnosis. She had suffered from anxiety, depression and Post Traumatic Stress Disorder symptomatology in the context of unstable developmental experience, including separation and loss and rape. She had previously experienced Post-Natal Depression. It was likely that the conflictual and controlling relationship with the father had exacerbated her vulnerable mental health. This had previously impacted upon her parenting capacity. Her current mental state had subsequently stabilised.
Under cross-examination the expert was firmly of the opinion that the mother has significant personality vulnerabilities and it is likely that she suffers from a personality disorder. He referred to the extensive documentation he had perused as part of his assessment and noted that she had been diagnosed with a personality disorder by her treating psychologist at the time of the birth of the first child and by others including her general practitioner and a clinical psychologist at the mothercraft service to which she had been referred. He also opined that the diagnosis arose from her previous developmental history which included developmental exposure to traumatic circumstances which had impacted on her eating behaviour and self-concept and that she had experienced recurrent deliberate self-harm. The expert noted that there had been some disagreement amongst treating professionals and those who did not make the diagnosis of personality disorder had raised the possibility that her vulnerabilities may be a response to domestic violence.
In answer to questions asked by myself the expert agreed that the mother’s recent admissions for overdoses could be a form of dramatic gesture and that it is possible that her reports of overdose attempts were not reliable. The expert agreed that these were consistent with “the lack of reliability in every aspect of the mother’s presentation” which is also indicative of a personality disorder.
So far as the actual type of personality disorder is concerned the expert said the following in oral evidence:
[T]here are various aspects to her presentation. If someone is repeatedly misrepresenting their experience, that would be regarded as an antisocial personality trait. If someone is magnifying their experience and presenting in a more melodramatic manner, that would be identified as being more histrionic. Where the focus is, you know, on her needs to the exclusion of others, that would be regarded as a narcissistic aspect of her personality. The- and, as I mentioned, the [L Clinic] assessment after a four day admission was to identify her as having obsessional personality- an obsessional personality style which I didn’t identify. But the point that I would be making is that she has a personality disorder. It’s of a mixed type. She doesn’t specifically identify as being totally anti-social or totally narcissistic or, you know – and certainly her developmental history of trauma and behavioural dis-control would be typical of the borderline personality style, but, on balance she is showing that there are – there’s a lack of stable, reliable aspects to her presentation that would at times, particularly at times of stress – impact on her parenting capacity. The more recent allegations regarding child sexual abuse were also of concern.
Mother’s allegations against the father
The mother’s allegations of child sexual abuse, a matter to which I will return, were considered by the expert in his report and under cross-examination in the context of an assessment of the mother’s mental health.
When assessed by the expert the mother said that D had disclosed some sexual play between herself and her paternal cousins a month previously and reported that D had been kissing a boy at school. The mother and maternal grandmother also referred to D fondling her genitals after returning from a contact visit with the father and the mother told the expert that these allegations of sexual abuse were to be included in an updated affidavit.
At the final hearing the expert was informed that these matters were not included in the mother’s trial affidavit and there was no suggestion at the final hearing that the father or anyone in his household posed a risk of sexual abuse. The expert expressed the following opinion in relation to this approach to the allegations adopted by the mother:
And certainly it would be my view that, in a sense, having tried it on, or raised it – and, certainly, in my assessment, I was very clear in my view with regard to, you know, the probability of that. The fact that she has then put it to one side and moved on is again consistent with her trying it on, making up a story, rather than being very concerned and convinced by it. Certainly it was consistent with her manner in raising these concerns, because it was raised in a somewhat glib, matter of fact manner, rather than someone who was genuinely concerned, particularly where there was a history of sexual assault in the family.
The expert later opined in relation to the same matter:
… and so the fact that someone would do that, and to try anything on and misrepresent things in this context again is evidence of a lack of stability in personality and behaviour and the capacity to act in a consistently inappropriate manner.
Although the expert was cross examined about factual matters he took into account in forming his opinion he was not challenged about his opinion concerning the mother’s mental health functioning and personality dysfunction.
The expert is a child and adolescent psychiatrist who holds an honours degree in Medicine, a Masters of Medicine (psychotherapy) and is a member of the Australian and New Zealand College of Psychiatrists. He has had over 25 years experience in child psychiatry and is currently engaged in teaching and examining psychiatry registrars for the purpose of their specialist training. He has written and presented at conferences and seminars to a wide range of audiences and is engaged in other professional activities. He is particularly experienced as an expert in medico-legal and family law matters. The expert had available to him a very wide range of documents produced under subpoena and interviewed each of the parties on two occasions, together with various members of the respective extended families and observed the parents in their interactions with the children. He also conducted a number of telephone interviews. The expert was cross-examined by the legal representatives of both parties and the ICL and remained largely unshaken in his opinions. Having regard to these matters I accept his evidence and attach particular weight to it.
So far as the mother’s mental health is concerned I accept the expert’s opinion that the mother has suffered from significant personality vulnerabilities dating back to her childhood and suffers from a personality disorder though the exact nature of this disorder is not completely clear. I also accept the expert’s evidence that the mother had a propensity (at least at the time of the expert’s assessment) to have made serious allegations against the father from which she has subsequently resiled.
The impact of the mother’s personality vulnerabilities upon her parenting capacity and the risk of emotional abuse of the children are matters to which I will return.
Current circumstances
The mother has been in a sexually intimate relationship with her partner since March 2016. The mother was very elusive about this relationship when interviewed by the expert in July 2016 describing her partner as a person she had “been talking with” and had been on a couple of dates with but insisted it was not a serious relationship. This was at odds with the information provided by the eldest child who described the mother’s partner as the mother’s “boyfriend” and referred to him and his children as people of importance to her. This child also told the expert that [the mother’s partner] “would sleep over a lot and stay in her Mum’s bed”.
According to the mother’s affidavit she and her partner “became more involved” from around September or October 2016 and prior to that time that a “knew each other casually”. In oral evidence both the mother and her partner conceded that they had been in a sexual or intimate relationship since March 2016.
The mother now lives with her partner and his 17 year old son. The partner’s 11 year old son spends time with the family most weekends. They live in a large home on acreage. The mother continues to work three days per week.
The father
Personal history
The father who is 39 is of Middle eastern heritage. He was employed in the service industry for many years until his serious motorbike accident in May 2015.
The father sets out little other information about his personal history in his affidavit and most of the following information is contained in the expert’s report which was not challenged under cross-examination.
The father told the expert that he was raised as the middle of three boys and had a good relationship with his parents. He described having had a good childhood but said that his father was strict and demanding and on occasions used physical discipline.
The father and his brothers attended a private college and after completing the HSC the father worked in various jobs including the family business and in the service industry.
The father was previously married when he was 23 but that marriage did not result in any children.
The father was seriously injured in a motorcycle accident in 2015 including suffering from a broken pelvis, back, leg, ankle and damage to internal organs. He spent two to three months in hospital and has spent extensive time attending at rehabilitation.
Although he has been able to resume most daily activities the father has not resumed employment and suffers a significant degree of pain.
The expert did not assess that the father showed any indications of mental health difficulties though the expert concluded that the father had limited insight into the nature of his anger management problems.
Family violence/anger management
At the commencement of the final hearing it was contended on behalf of the mother that the father was a perpetrator of family violence which in effect explains the mother’s presentation and some of her mental health difficulties over the years. The father denied that he had ever been violent towards the mother and alleged that she had been the more aggressive party in the relationship.
For reasons explained more fully later in this judgment I formed the view that family violence (as opposed to conflict) was not a significant issue in the proceedings and it was not necessary to make findings as to specific instances of family violence alleged by the parties.
The expert also (quite properly) does not make findings with respect to the alleged incidents of violence and does not identify family violence alleged as a matter of significance in the proceedings.
The expert does however express the opinion that the father did use excessive and inappropriate discipline towards the children based on the father’s confirmation that he did require the eldest child to kneel in the corner with her hands above her head as a form of discipline. The expert also opined to the extent that both parents may have smacked the children in the past this was also excessive and inappropriate.
The expert also identified that the children’s exposure to recurrent high level parental conflict was a matter of significant concern and expressed a view concerning the father’s anger management.
The expert’s opinion concerning anger management arose in part from answers given to the expert by the father about his behaviour in particular incidents. For example, the father was asked about the incident in April 2015 when police were called in the course of an argument between the parents. The father described the children being exposed to a physical altercation between the parents, the parents yelling and screaming which triggered a response from neighbours, the police arriving and removing the younger child from the father’s arms and he being subdued by police and handcuffed. When asked about the impact on the children of the altercation the father blamed the maternal grandmother who had become involved. The expert then recorded the following:
When asked if he could have done anything differently, when considering the children’s needs and best interests, he justified his response. When it was put to him that he should have complied with the police instruction to hand over his son and minimise the children’s exposure to conflict, he raised his voice in a defensive manner. When this was pointed out to [the father] he appeared unaware of this.
The expert opines that although both parents had been involved in this interaction the father’s refusal to back down led to the children being exposed to highly stressful interactions between himself and the police.
The expert concludes that the father “was unaware of the impact of his anger and punitive discipline practises given his developmental exposure to his own father’s parenting practises”. He also concluded that “it was probable that [the father]’s frustration, tolerance and impulse control had been further impacted by his injuries, chronic pain and medication”.
Under cross-examination the expert remained firm concerning his opinions about the father. In particular the expert continued to emphasise the extent to which the children had been exposed to conflict and described “the capacity for further conflict between these parents at handovers” as “huge”. In this regard the expert had concerns about both parents’ capacity for things not to escalate. He did not hold the father solely responsible for this conflict despite his opinions concerning the father’s anger.
For the reasons previously given, I accept the expert’s opinion and am satisfied that the father on occasions has demonstrated difficulties controlling his anger in the presence of the children and shows limited insight into this matter and his role in perpetuating conflict with the mother to which the children have been exposed.
Current circumstances
Following separation the children lived with the father until his motor bike accident in May 2015. The children then came to live with their mother. After his release from hospital the father lived at the former family home until it was sold. The children began spending time with him on alternate weekends.
At the time of the final hearing the father lived alone in a rented three bedroom duplex except when the children are spending time with him.
The father has not formed a new relationship and was unemployed at the time of the final hearing due to his injuries. He has instructed solicitors to pursue a claim for personal injuries compensation.
The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their 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 (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
Primary considerations: s 6OCC(2)
The primary considerations (under s 60CC(2)) 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.
I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
Benefit to the children in having a meaningful relationship with both parents
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[1] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[2] and has also agreed with the reasoning of Bennett J in G & C[3]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
[1] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[2] (2007) Fam LR 518
[3] [2006] FamCA 994
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
Each of the parents and the ICL propose orders that would see the children live primarily with one parent and spend time with the other parent on weekends and holidays, weekdays during the school term and on occasions that are of particular significance to the children[4].
[4] The time that each of the parents proposes that the children spend with the non-residential parent falls within the definition of “substantial and significant time” in section 65DAA (3) of the Act.
In other words each of the proposals would ensure that the children share a meaningful relationship with both of their parents.
The need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
Abuse and neglect
There is no evidence to suggest and neither of the parties contends that the children will be subjected to or exposed to neglect in either of the parent’s households.
It was also not submitted at the conclusion of the final hearing that the children had been subjected to physical or sexual abuse in either household or that there was an unacceptable risk that this may occur in the future. The final orders proposed by each of the parties that the children live with one parent and spend substantial and significant time with the other is also consistent with the position of both parents that there is no unacceptable risk that the children will be harmed by being exposed to these forms of abuse or neglect in the care of either parent.
The expert had expressed the opinion in his report that further abuse allegations by the mother should be considered as a form of emotional abuse. However, it was not contended by the father that there was an unacceptable risk at the time of final hearing that the mother would subject the children to emotional abuse on this basis. As noted any suggestion that such a risk was present would be inconsistent with the father’s proposal that the mother spend substantial and significant time with the children. Rather, the father raised the question of the mother’s likelihood to make further unfounded allegations against him as a matter related to the mother’s capacity, a matter to which I will return.
Family violence
As previously touched upon, at the commencement of the hearing it was contended on behalf of the mother that the father was a perpetrator of family violence. This is clear from the case outline filed on behalf of the mother and as there was a Voir Dire concerning the admissibility of a recording of a conversation by the mother during one of the alleged incidents of family violence.
It was also clear from the father’s case outline and his application to introduce a recording of another event that he sought to prove that he had never been violent towards the mother as she alleged.
The mother had also presented a narrative to a psychologist in June 2015 and to the expert and to some other treating professionals that she had been the victim of serious ongoing family violence which had caused her to suffer depression and PTSD. However, she did not advance this narrative at the final hearing. Further, she did not contend that the father had exposed the children to family violence which may have caused them to suffer psychological harm or that there was an unacceptable risk that the children would be harmed by exposure to family violence in the future. Rather the mother deposed in her affidavit to three incidents in which she alleged she was the victim of family violence.
The father also did not contend that the children had been or would be exposed to family violence in the future but seemed intent on the court finding that he had not perpetrated family violence and that the mother’s allegations in this regard were false.
I approached the issue of family violence on the basis that it was not a matter that required particular findings as the parents had sought at the commencement of the hearing. In my view, it is of significance that neither party contended that there was an unacceptable risk that the children would be harmed from being exposed to family violence and each of their respective suite of proposed orders is consistent with this position.
Further, so far as the first alleged incident is concerned it does not in my view amount to family violence. The parties agree that the incident in question consisted of a verbal argument during which the mother attempted to take the parties’ infant oldest child from the father’s arms which the father resisted.
The second incident could if accepted amount to an instance of serious violence as the mother alleges at some stages in her evidence that the father caused her to suffer a broken wrist when he grabbed her or caused her arm to hit the wall or railing in the course of an argument in the parents’ home on 15 November 2014.
Although at times the mother maintained under cross-examination that the father had broken her wrist, there was no evidence adduced in the mother’s case that her wrist was broken and the hospital records state that there were no fractures. It is also curious to note that although this is the most egregious conduct alleged by the mother, she did not focus on it when assessed by the expert nor was it the focus of the interchange between the mother’s counsel and the bench when consideration was given to the issue of whether I would make findings concerning family violence. Generally, this allegation seemed to fall away in the course of the hearing and it was not sought on the mother’s behalf that I make a finding that this incident occurred as she alleged.
The third incident of alleged violence was said to have occurred on 19 April 2015, five months after separation when the parties were engaged in an argument when the mother returned the children to the father following her time with them and police were called. There is no dispute that the father was charged with assaulting the mother and that the charge was dismissed following hearing and the Local Court also declined to make an ADVO against the father for the protection of the mother.
The mother alleges that in this incident the parties had an argument over the fact that the father had obscured her face in a family portrait at the home. After the mother removed the offending portrait from the wall she deposes that the father grabbed her left wrist and thumb and started to twist them which hurt her and caused her to let go of the portrait. She says that a short time later when the father put out both hands to grab her again, she pushed his arms away causing him to step backwards and fall on the lounge. The father denies grabbing or twisting the mother’s wrist and says that the mother pushed and scratched him when he grabbed the portrait from her.
In my view a finding in accordance with either parent’s version would not be significant considering the limited compass of the matters in dispute in these proceedings. Of far greater significance to the matters in dispute is that following the interaction in the house the incident escalated from a verbal dispute to one which involved neighbours, the attendance of police and the father’s refusal to hand over the younger child which resulted in him being subdued by police and handcuffed. These events on both parents’ version occurred in the presence of the children who became very distressed.
In summary, the mother did not persist with the allegation she had previously made that she was the victim of serious ongoing family violence which caused her to suffer depression and PTSD and neither parent contended that there was an unacceptable risk that the children would be exposed to family violence. The oldest and most recent allegations of family violence were minor and the mother seemed to resile from the only serious allegation. In these circumstances I formed the view that it was not necessary to make findings as to exactly what occurred in any of these incidents as none of them would be determinative or particularly weighty when considering the matters in dispute between the parties.
However, I am satisfied that both parents engaged in conduct that was highly conflictual to which the children were exposed in the incident of 14 April 2015 and that the father exacerbated and extended the children’s exposure to conflict in his interactions with police in the course of that incident.
I also find on the basis of both party’s evidence that it is likely the children have been exposed to a number of other conflictual incidents between the parents or members of the respective extended families arising from the parental dispute. These include the incident at the hospital in June 2015 and two incidents (which appear to have occurred in 2016) where the mother challenged the father about the appropriateness of a vehicle he drove to changeover and another person being present with the father at changeover. Further, as recently as April 2017 the parents were also unable to resolve a dispute concerning the exact date for changeover during the school holiday period without resorting to involving their legal representatives.
Although both of the parties seemed keen to impress the court that they had been civil and amicable during changeovers in recent times, I am not satisfied that it is likely they can maintain this mode of communication in the future given the expert’s unchallenged opinion about the “huge” capacity for further conflict between the parents at handovers. I accept the evidence of the expert that physical contact between the parties should be minimised to reduce the exposure to the children of aggressive and conflictual behaviour by the parents. This favours the orders of the ICL in relation to changeover between the parties.
Additional considerations: s 6OCC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the children
The younger child who when interviewed was not yet three years old was unable to express any view.
It is reported in the expert’s report that the elder child was enthusiastic about her experience living with her mother. The expert also reported that it was evident that this child enjoyed her interactions with her father but expressed a wish to remain primarily in her mother’s care.
The expert is of the opinion that given the child’s age limited weight should be given to her views. He also expressed the view in his report that was not challenged under cross-examination that the child’s wishes and attitudes “had been influenced by interactions with her mother.” He went on to say “there was evidence she had been coached to express negative views regarding her father and family by her mother”.
In these circumstances I do not attach any weight to the views expressed by the older child.
Nature of the children’s relationship with each parent and other significant persons
The expert observed positive interactions between both of the children and each of their parents and grandmothers which he opined was indicative of a close and positive connection between the children and each of these adults. He said that the children’s primary attachment relationship was evident with their mother.
The mother’s partner was not assessed by the expert and the nature of his relationship with the children is unknown.
Each of the proposals of the parents support the children having an ongoing relationship with each parent and their extended families. The children’s primary attachment relationship with their mother favours orders that the children live primarily with her, so long as there are no unacceptable risk factors in her household.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making and to spend time and/or communicate with the children
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
Prior to separation it appears that the parents together made all decisions in relation to the children.
Following separation the children initially lived with their father for six months prior to him being seriously injured in a major motorbike accident.
Throughout this period the mother diligently took steps to obtain orders so that she could spend time with and communicate with the children. She commenced proceedings within days of separation and both parties consented to orders providing for the children to spend time with the mother. Initially that time occurred in the presence of the maternal grandparents as there were felt to be concerns about the mother’s mental health. The mother then obtained a report from a psychologist indicating that concerns about her mental health had been addressed.
Following the father’s motorbike accident and having regard to his serious injuries, the children came to live with the mother.
In my view it does not reflect well upon the mother that the children were brought to hospital to see the father on only two occasions during the months the father spent in hospital following his accident. Although there is a dispute between the parties about interaction between the extended families at the time, the mother alone was in a position to control the children’s contact with the father and did not ensure that they had that contact.
Orders were then made in July 2015 for the children to live with the mother and spend time with their father.
The father has some concerns which in my view are justified that the mother made a number of unilateral decisions concerning the children such as changing their child care and school arrangements. In my view she also misused her position as residential parent to exclude the father from decision making with respect to the children by imposing conditions such that the younger child attend child care even when the father was available to care for the child himself. The matter in my view supports the orders sought by parties that the parents equally share parental responsibility.
In submissions made on behalf of both parents this consideration was not addressed and is not a weighty matter in the dispute about where the children shall primarily live.
Since separation the father appeared to have maintained the children when they were living with him but has made no contribution to financially support the children from the time they came to live with the mother in May 2015. The father conceded under cross-examination that he was then in arrears of about $9700 in child support.
Although the expert noted that the younger child appeared to have delay in speech development and the mother had made arrangements for him to attend speech therapy, the father had not made any contributions towards the cost of that speech therapy. The father also conceded that the mother paid the costs associated with the children attending extra-curricular activities such as dance lessons. The father took the view (and even suggested that he had followed the advice of “a Magistrate”) that if he paid child support he did not have to pay for any expenses in relation to the children.
Likely effect of change in the children’s circumstances
The mother’s proposal will bring about little change in the children’s circumstances other than a small increase in the time they spend with their father.
The father’s proposal will bring about some significant changes for the children as they currently spend three nights per fortnight in his care which he proposes be increased to nine nights in his care. The current arrangement of the children spending half of the school holidays living with each parent will remain unchanged. This was also the father’s proposal when the family were assessed by the expert.
Although the expert assessed the mother as the children’s primary attachment he also assessed that “it was likely that [the children] would be able to tolerate a change in their current circumstances”. In forming this opinion the expert attached weight to his assessment that the children had loving and positive connections with each of their parents and extended families (despite their exposure to a high level of parental conflict) and had been identified by their family day carer to be resilient. The expert said that this resilience was evident during his assessment. He also noted that the children had spent extensive time in the care of each parent.
Despite the expert’s opinion that the children could manage a change in residence his recommendation was that this not occur and that they remain living primarily with the mother.
Capacity of each parent and any other person to provide for the children’s needs including emotional and intellectual needs
This is the most salient consideration in these parenting proceedings. The expert identified both strengths and vulnerabilities in each of the party’s parenting capacity.
So far as the mother is concerned the expert identified emotional and psychological vulnerabilities dating back to her disrupted early development which are referred to at length earlier in these Reasons. The expert made the following connection between the mother’s personality and her parental capacity:
[the mother’s exposure to an unstable home environment] had contributed to her vulnerable personality, which had impacted upon her capacity to attend to the children’s emotional needs. Core issues related to the ability to trust the father and the paternal extended family… [and] it was probable that she had pursued a range of claims against him.
The expert remained firm that although he was not able to identify definitely and with accuracy the mother’s personality disorder he remained firmly of the view that the lack of stable, reliable aspects to her presentation would at times particularly when stressed impact upon her parenting capacity.
So far as the future is concerned, the expert remained of the view that the mother’s personality style would likely continue to impact upon her parenting capacity. He opined:
And I think that is the concern with regard to the mother’s capacity, and that is where her personality style does impact upon, you know the children’s care, because the concern into the future will be that there will be similar challenges with regard to whether its preschool, whether it is primary school, whether it is this teacher, whether it is that child, or, you know this interaction, you know, between, you know, children at school. One can predict there are going to be challenges – that even though she is, as you have identified, currently a conscientious parent, she also does have the capacity to dig her heels in, even when it’s kind of common sense that, you know, it might be better to do something else…
And so that is the difficulty, and one can predict that there will – and that’s the aspect of personality which will be impacting upon her parenting capacity and her capacity to support the child’s relationship with the father, support the child’s progression through various developmental stages – well, not just this child, both children as they overcome the hurdles of pre-school, school, social relationships and so on.
Notwithstanding the expert’s opinion concerning the mother’s parenting capacity, it was still his recommendation that the children remain in her primary care. The expert acknowledged that it is difficult to put these concerns to one side but concluded overall that he was “impressed” with the children’s presentation and progression which he felt reflected well on the mother. The expert added that if the father had not had the motorbike accident and experienced the injuries that he did, then he would have been assessing the children in the father’s care and that “probably the children would have been progressing well in his care… and the recommendations may well have been different”.
Despite her personality vulnerabilities, the expert said the mother presented as a concerned and committed parent. He also expressed the view that the mother was more aware of the children’s intellectual needs than the father. It is also the mother who attended to the concerns about the younger child’s speech development and arranged for him to be provided with speech therapy.
A matter of some significance in the formulation of the expert’s assessment and recommendations relates to the mother’s pattern of making allegations about abuse of the children in the father’s household. Although as noted the expert recommended that the children live primarily with the mother, he added the caveat that “further abuse allegations should be considered as a form of emotional abuse and if unsubstantiated should result in a transfer of primary care to the father”.
Under cross-examination the expert acknowledged the difficulties associated with recommendations that certain behaviour should result in changes in care arrangements in the future. Ultimately the question was whether it was likely that the mother would make false allegations about the father’s care of the children in the future.
In assessing this likelihood the expert gained some comfort from the fact that the mother had not made any allegations about the father’s abusive conduct for over 12 months and in particular since the expert’s report was released. Further, the complaints that the mother had foreshadowed in her interview with the expert of possible sexual abuse in the father’s care which she then said she intended to include in her next affidavit did not form part of her case in the final proceedings. The mother also proposed orders at the final hearing that involved some increase in the father’s time with the children and which were inconsistent with any suggestion that the children had been adversely affected by the father’s aggressive and abusive behaviour.
The expert confirmed that at the time he made the recommendation (August 2016) that if there were further unfounded allegations of abuse this should result in a transfer of primary care to the father, he did take the view that there was a substantial risk of that occurring. At the time of the final proceedings the expert felt that some risk remained but overall he opined that it had reduced and agreed that the mother would probably be “good enough” as the primary residential parent.
For the reasons previously given, I accept and attach weight to the opinion of the expert and am of the view that there is not an unacceptable risk that the mother will emotionally abuse the children in the future by making unfounded claims of abuse in the father’s care.
The expert assessed the father as “less highly attuned to the children’s emotional and intellectual needs” than the mother. For example, during the period when the children were living with the father prior to his accident they spent particularly long hours in day-care being dropped off at 5am and remaining in care for about 12 hours. At the final hearing the father also appeared to question the younger child’s need for speech therapy.
The expert also identified that the father “was unaware of the impact of his anger and punitive discipline practises given his developmental exposure to his own father’s parenting practises”.
As a result of the serious trauma suffered by the father in the accident, there has been some impact upon his physical capacity to attend to the children’s needs.
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
The children are of Southern European heritage on their maternal side and of Middle Eastern heritage on their paternal side.
Although there were some suggestions of differences in religious practise between the parents I note that each of them identifies as Christian. The ICL proposes an order that the parents each be entitled to have the children participate in the particular traditions associated with their respective denomination when spending time with each parent. This would in my view give the children the benefit of each of the parent’s faith traditions.
The children are closely connected to extended family members on their paternal and maternal side and enjoy the benefits of the cultural traditions and heritage of each of their parents.
The older child enjoys dancing and spending time with her numerous cousins on both sides of the family. She speaks both parents second language. She told the family consultant that pink and rainbow are her favourite colours.
E who is three has yet to start school. He attends family day-care when his mother is at work and is doing well and enjoying his time with other children.
Despite having been exposed to significant conflict between the parents the children are assessed by the expert to be resilient and their presentation in his view is “impressive”.
Attitude to the children and responsibilities of parenthood demonstrated by each parent
Each of the parents clearly loves the children. The children also have the benefit of loving and caring extended paternal and maternal families.
However, it is noted by the expert, whose view I accept, that when assessed the mother focused on the importance of protecting the children from the father and the paternal family. It was the expert’s view that it was likely the mother had exaggerated or fabricated a range of allegations and had encouraged the older child to view her father as providing an environment where she was unsafe which the expert viewed as problematic.
To a large extent the mother appeared to have resiled from many of her allegations in the final hearing and the proceedings were not conducted on her behalf on the basis that the father or his family posed an unacceptable risk of harm to the children.
The father’s attitude as demonstrated by his failure to financially support the children since they have lived with the mother which appeared to persist at the time of the final hearing does not reflect well upon him.
I also accept the expert’s opinion that although the father has at all times been motivated to primarily care for the children, his magnification of the mother’s mental health issues, regarding them as unsafe in her care is opportunistic and also reflects poorly upon him.
However, in a similar vein to the mother, the father’s attitude concerning alleged impairment of the mother’s parental capacity due to mental health issues had softened by the time of the final hearing and he was no longer proposing that the mother’s time with the children be supervised.
Family violence
Although neither of the parents ultimately contended that the children had been harmed by exposure to family violence or that there was an unacceptable risk that this would occur in the future, both seemed determined in the proceedings to pursue allegations of family violence against one another or to vindicate their own position.
There are no current family violence orders in place and on the two occasions that such an order was sought for the protection of the mother against the father, the application was dismissed following a hearing.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
In my view, neither of the proposals of the parties are more likely to lead to the institution of further proceedings than the alternate proposal.
Other relevant matters
Curiously, even though the mother contended at some times in the hearing that she had been the victim of quite serious violence at the hands of the father, it was put on her behalf in final submissions that there had not been any recent instances of serious parental conflict. The mother was resistant to the proposal of the ICL that changeover of care occur at the children’s day-care, pre-school or school and the arrangement for changeover remained one of the only matters in dispute.
I do not for the reasons given make any findings about the specific instances of alleged family violence. I am satisfied, as was the expert, that the children have been exposed to recurrent episodes of high level parental conflict which the expert opines would have attributed to their experience of insecurity.
I accept the expert’s assessment concerning the high levels of conflict between the parties and for this reason make orders in accordance with the ICL’s proposal that limit the face to face contact between the parents as much as is practicable.
SUMMARY AND CONCLUSION
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[5] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[5] (2006) FLC 93-286
Where the Court is to determine parental responsibility, the starting point is s61DA. This section provides that 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. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
Each of the parents and the ICL propose that the parents equally share parental responsibility for the children. This is in accordance with the recommendation of the expert. Under cross-examination the expert maintained of the view that this would be in the best interests of the children. Although there were not high levels of mutual respect and trust and the parents had not to date demonstrated a capacity to co-operate in a respectful manner the expert nonetheless felt it was important that they both be involved in decision making and remained firm as to his recommendation in this regard.
As both parents seek such an order and the ICL and expert agree that it is in the best interest of the children an order for equal shared parental responsibility will be made.
As an order will be made for the parents to have equal shared parental responsibility for the children, under s 65DAA(1) of the Act, I must consider whether the children spending equal time with each of the parents would be in their best interests, and whether such an order is reasonably practicable.
Neither of the parents propose that the children spend time with their parents in an equal shared care arrangement. The parents appear to recognise that such an arrangement would be not in the best interests of the children and that there would be issues relating to the practicability of such an arrangement. The parents are likely to have the capacity to communicate with one another co-operatively enough to problem solve in the children’s best interests in relation to major long term decisions. However, they have not demonstrated any capacity for the level of day to day co-operation and flexibility that would be required for an equal time arrangement to work in the best interests of the children.
In circumstances where neither of the parties promotes such an arrangement and in light of the matters referred to I am not satisfied that an equal time arrangement with each of the parents is in the children’s best interests.
I am then required consider under s 65DAA(2) whether the children spending substantial and significant time with each of the parents would be in their best interests and reasonably practicable.
As previously noted in these Reasons having regard to the meaning of the expression “substantial and significant time” each of the proposals of the parents and the ICL would result in the children spending substantial and significant time with each parent. Practical impediments with respect to this arrangement are not present and having regard to the best interest considerations I am satisfied that the children spending substantial and significant time with each of the parents would be in their best interests.
Living arrangements and other orders
As noted at the outset the compass of this dispute is very limited. In determining the living arrangements that are in the best interests of the children, I have considered all of the relevant matters set out in s 60CC and attached particular weight to the nature of the children’s relationship with each parent, the extent to which each parent has fulfilled or failed to fulfil obligations to maintain the children and the capacity of each parent to provide for the children’s needs. Weighing the various factors in favour of each particular proposal and attaching weight to the recommendations of the expert, I am of the view that it is in the children’s best interests to live primarily with the mother and spend substantial and significant time with the father.
Ultimately, I am of the view that it is in the best interests of the children for orders to be made as proposed by the ICL. Although the ICL’s proposal and mother’s proposal are very similar, the proposal of the ICL in my view is a more appropriate compromise between the positions of each of the parties. The ICL’s proposal also contains some safeguards which are likely to benefit the children which are absent from the mother’s proposal such as providing for changeover to occur where ever possible at a neutral place.
I have made some inconsequential amendments to the ICL’s proposed orders which in my view are informed by common sense and improve ease of understanding.
For the foregoing reasons I make the orders set out at the forefront of this judgment.
I certify that the preceding one hundred and eighty-one (181) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 9 November 2017.
Legal Associate:
Date: 9 November 2017