Matevosian & Bystrom
[2024] FedCFamC1F 915
•23 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Matevosian & Bystrom [2024] FedCFamC1F 915
File number(s): BRC 12317 of 2021 Judgment of: JARRETT J Date of judgment: 23 April 2024 Catchwords: FAMILY LAW – PARENTING – Emotional and psychological risk of harm to children from parenting conflict – children living primarily in respondent’s household will promote their routine and stability – respondent to have sole parental responsibility Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CC, 61C, 61DA, 62G Cases cited: Carter & Wilson [2023] FedCFamC1A 9 Division: Division 1 First Instance Number of paragraphs: 62 Date of hearing: 22 & 23 April, 2024 Place: City F Counsel for the Applicant: Ms Gajic-Pavlica Solicitors for the Applicant: Morton & Morton Counsel for the Respondent: Ms Pendergast Solicitors for the Respondent: Carswell & Company Counsel for the Independent Children’s Lawyer: Ms Marsden Solicitors for the Independent Children’s Lawyer: Swanwick Murray Roche Lawyers ORDERS
BRC 12317 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MATEVOSIAN
Applicant
AND: MR BYSTROM
Respondent]
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
23 APRIL 2024
THE COURT ORDERS THAT:
1.The respondent have sole parental responsibility for the children X born 2016, W born 2017, Y born 2018 and Z born 2020.
2.The children live with the respondent.
3.The children spend time with the applicant as agreed between the parties in writing, and failing agreement as follows:
(a)each alternate weekend from after school or 3:00pm Friday until before school or 9:00am Monday;
(b)four nights in the Term 1, 2 and 3 school holidays, commencing at 9:00am on first day and concluding at 4:00pm on the last day, with this time to occur during the first week of the school holidays in even-numbered years, and in the second week in odd-
(c)numbered years, with the applicant to give to the respondent at least 28 days’ written notice of the dates she wishes the children to spend time with her;
(d)four nights each second week in the Christmas school holidays, commencing at 9:00am on the first day and concluding at 4:00pm on the last day, with this time to occur during the first, third and fifth weeks in even-numbered years and in the second, fourth and sixth weeks during odd-numbered years, with the applicant to given to the respondent at least 28 days’ written notice of the dates she wishes the children to spend time with her and providing that:
(i)the children are returned to the respondent at least two days prior to the commencement of the new school year; and
(ii)the children spend time period from 4:00pm Christmas Eve to 9:00am Boxing Day with the respondent in odd-numbered years;
(e)from 9:00am to 4:00pm on Mother’s Day if the children are not otherwise spending time with the applicant; and
(f)from 4:00pm on the day before Easter Sunday until 4:00pm on the day after Easter Sunday in even-numbered years, if the children are not otherwise spending time with the applicant.
4.On each of the children’s birthdays, the children spend time with the party they are not otherwise spending time with as agreed between the parties in writing and failing agreement from after school until 6:00pm if on a school day, and from 1:00pm until 5:00pm if on a non-school day.
5.On each party’s birthday, if the children are not otherwise spending time with that party, the children spend time with that party as agreed between the parties in writing and failing agreement from after school until 6:00pm if on a school day, and from 1:00pm until 5:00pm if on a non-school day.
6.The children’s time with the applicant be suspended or not occur:
(a)from 9:00am until 4:00pm on Father’s Day;
(b)from 4:00pm on the day before Easter Sunday until 4:00pm on the day after Easter Sunday in odd-numbered years;
(c)for a period of two consecutive weeks during the Christmas school holidays to enable the children to holiday with the respondent provided:
(i)the respondent gives the applicant 60 days’ written notice of the period that the children will be spending time with him;
(ii)the period is not to include the period from 4:00pm Christmas Eve to 9:00am Boxing Day without the written agreement of the applicant; and
7.Changeovers shall occur at the children’s school if on a school day, and if not on a school day then at Town B’s.
8.The children’s time with the applicant be suspended if she does not have a suitable motor vehicle in which to transport the children ensuring that each child is transported in a car seat appropriate for the child’s age in accordance with the applicable legislation.
9.Should the applicant not have appropriate accommodation where the children are able to have their own beds in a room separate from any other adults in her household, the children’s overnight time with the applicant be suspended and they be limited to spending time with her each alternate weekend between 9:00am and 6:00pm on Saturday and Sunday.
10.The children will communicate with the party they are not otherwise spending time with by video communication each Tuesday between 5:00pm and 5:30pm or at such other time as agreed between the parties in writing, and for the purposes of such communication:
(a)the party the children are not otherwise spending time with shall be responsible for initiating the communication; and
(b)the party the children are spending time with will ensure that the children are available to receive the call and speak freely and without restriction to the other party.
11.In the event of childhood illness lasting more than 48 hours or requiring medical or allied health treatment or emergency, the party with whom the child or children are spending time shall contact the other party as soon as practicable to inform them and provide details of the treating medical or allied health practitioner or hospital.
12.These orders provide the necessary authority for both parties to obtain any information, document or report at the requesting party’s cost from any treating medical or allied health practitioner or hospital regarding the children’s welfare and development.
13.These orders provide the necessary authority for both parties to obtain any information, document, report or photographs, at the requesting party’s cost, from the children’s day care, school, vacation care, extracurricular activities provider or sporting bodies regarding the children’s welfare and development.
14.The respondent shall take all necessary steps to ensure the children’s regular and continued attendance at counselling at a counselling service appropriate to the needs of the children as recommended by the children’s treating counsellor and shall provide a copy of these orders to the counsellor.
15.The parties will each continue to engage in counselling as recommended by their counsellor and shall continue in their attendance until such time as their counsellor provides written confirmation that their attendance is no longer required.
16.The parties shall communicate with each other via email communication except in the case of urgent matters in which telephone call, social media, or text message as appropriate will be used.
17.Each of the parties, their servants and agents be hereby restrained by injunction from denigrating the other party or their family and from discussing any issue in dispute between the parties with or in the presence or hearing of the children and from permitting any other person to do so.
18.Neither party shall drink alcohol in excess of the legal driving limit when the children are in their respective care or for 12 hours prior to the children coming into their care or allow the children to be in the presence of any person who is excessively affected by alcohol.
19.Neither parent use illicit or non-prescription drugs at any time the children are in their care or for 48 hours prior to the children coming into their care or allow the children to be in the presence of any person who is using illicit or non-prescription drugs or who reasonably appears to be affected by illicit or non-prescription drugs.
20.Unless otherwise agreed by the parties in writing and notwithstanding that the respondent has sole parental responsibility, the children remain at their current state school for the duration of their primary schooling.
21.The respondent shall provide to the applicant all necessary medications prescribed for the children whilst the children are in the applicant’s care and the applicant shall ensure that the children are given all medications prescribed to them and return any excess medications to the respondent at the conclusion of the children’s time with her.
22.The applicant is discharged from her undertaking filed 9 August, 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JARRETT J:
The parties have four children: X, currently aged seven years, W, currently aged six years, Y, currently aged five years, and Z, currently aged three years. In accordance with interim orders made on 18 August, 2022, the children reside with their mother, the applicant in these proceedings, five nights each fortnight and at all other times with their father, the respondent.
By this proceeding, the applicant seeks orders that would see the children live with her except when they were living with the respondent each second weekend from 3.00 pm or the conclusion of school on Friday until 3.00 pm or the conclusion of school on a Monday. She seeks orders for the children to spend equal time between she and the respondent over school holidays. She seeks orders for the children to share their time with the parties on special occasions and she seeks an order that she be solely responsible for long-term decision-making for the children.
The respondent seeks orders that the children live with him and that they spend two days each week and each alternate weekend with the applicant until they reach school age, whereupon they would spend each alternate weekend from after school Friday until Sunday afternoon rather than before school on Monday. He, too, seeks orders for the children to spend one-half of the school holidays with each parent and time on special occasions. He seeks an order for sole parental responsibility.
Although the independent children’s lawyer did not suggest proposed orders at the outset of the trial, her general inclination revealed in her case outline was to support the orders sought by the respondent. By the conclusion of the trial, that support had solidified into immutable support for the orders sought by the respondent although without the graduation that the respondent’s orders demonstrate.
As framed by the parties in their case outlines, the case concerns the resolution of allegations that the children are at an unacceptable risk of harm in the care of one or other of the parents by reason of them exposing the children to neglect or abuse as that term is defined in s 4AB of the Family Law Act 1975 (Cth).
Insofar as their cases concern an unacceptable risk of abuse in the other’s household, the orders that they seek give lie to the proposition that such a risk exists in the household of the other. Neither party seeks a no-contact order in respect of the other parent. Neither seeks orders that the time the children spend with the other parent be supervised in any way, either during the school terms or during the much longer school holiday periods.
A case in which orders for unsupervised time is proposed but which is premised upon the proposition that children are at an unacceptable risk of sexual harm in the care of the parent proposed to have the unsupervised time contains an irreconcilable tension that says more about the party propounding such a case than anything else. As it has turned out, neither party presses their case based upon the children being at an unacceptable risk of harm in the care of the other parent.
These concessions, however, have been made far too late. The existence of issues concerning abuse raised by these parties led to this proceeding being transferred to this Court. As it turned out, it did not need to be transferred to this Court and could have been dealt with, perhaps more efficiently, in the court from which it came.
In truth, this case concerns the emotional and psychological harm done to these children by their parents’ conflict and the actions taken by their parents to continue, advance and prolong that conflict. Thus, in addition to a consideration of the matters mandated by the Family Law Act 1975 (Cth), the outcome of the proceeding turns upon a balancing of the emotional and psychological harm done to the children in their parents’ respective households and that which might be done to them there, with the benefits that might be gained from living in one or other of the households.
The best interests of these children demand that they be protected as best they can from what I consider to be a significant risk of psychological and emotional harm arising from their parents’ ongoing conflict and animosity. For the reasons I am about to deliver, I consider that this risk exists more greatly in the applicant’s household than the respondent’s. The best way to reduce the children’s exposure to that risk is to make the orders proposed by the respondent.
The applicant is currently 29 years old. She lives in rented accommodation, but there is some uncertainty surrounding her continued occupation of the premises in which she presently lives. Her current lease, described to be of a “social housing property”, expires this year. The evidence shows that if the applicant remains eligible for social housing – I expect that she will – then the Department of Housing will request an extension of the lease for a further 12 months. If that cannot be secured, then “our department would source another property to headlease on your behalf for you and your family prior”. The current property is a four-bedroom residence with two bathrooms. The applicant has one room. Z and X have their own rooms, and Y and W share a room. She swears that she does not have any other persons living with her other than the children.
The applicant has not re-partnered, nor is she employed. She is in receipt of Centrelink Jobseeker payments in the sum of $812 per fortnight. Curiously, she does volunteer work with a local business. Why she volunteers rather than undertakes paid employment with them is not explained. The applicant has a current driver’s licence. She has a motor vehicle, appropriate car seats for the children and she is able to transport the children to and from daycare, school, appointments and other activities. She no longer smokes cigarettes, having quit approximately 12 months ago. However, and this did not form part of her evidence in chief, she uses vapes around the children although only outside of the house apparently.
The applicant says that she does “not suffer from any mental health conditions”. She takes issue with the respondent’s assertion that she has suffered from postnatal depression. She swears:
I was not diagnose(sic) with postnatal depression. I accept that I went through a difficult period following the passing of my foster mother […] after [Z’s] birth.
However, in her interview on 10 May 2022 with Ms C, a family report writer who prepared reports under s 62G of the Act for the Court’s use in this case, the applicant:
…stated that she suffered from postnatal depression after [X] was born, and [X] couldn’t breastfeed.
She went on to tell Ms C that:
[Mr Bystrom] was 100 per cent supportive of her, and this made her love [Mr Bystrom] even more. She said that she would express breast milk, and [Mr Bystrom] assists with feeding [X].
It was not suggested that Ms C’s evidence about these matters was inaccurate. Further, the applicant told Ms C that Mr Bystrom took the four children and left the relationship on 3 July, 2021 due to an accumulation of everything that had happened. She told Ms C that she was suffering depression and was not coping. She told Ms C that due to her depression, she withdrew from doing everyday tasks such as cooking and cleaning and would just read books. The applicant told Ms C that she had “previously” been diagnosed with depression and anxiety and she took medication for it on an informal basis. Her statements to Ms C are inconsistent with her evidence-in-chief insofar as it attempts to paint a different picture of her mental health. It is disingenuous and I reject it.
Why there is not a more fulsome explanation of her mental health conditions then and now is not clear, nor explained by the evidence. The applicant has undergone counselling and she continues “to link in with my counsellor at [D Family Services] when needed”. She does not explain what that means. She completed a “[…] parenting course” in November 2022 and a Circle of Security parenting program in February 2023. She has called no evidence concerning her mental health or the counselling that she has undertaken. She gives no evidence of the content of or the benefits she derived from the parenting courses she has undertaken.
The respondent is currently 40 years old. He is in receipt of a disability support pension and has been so since late 2004. He has a medical condition He says that he suffers from constant pain, which he generally manages without medication. It prevents him from carrying out some activities from time to time, but, remarkably, he says that it does not impact on his care of the children “at all”. Additionally, the respondent says that he has suffered from depression since separation. He takes antidepressants prescribed by his general practitioner and he attends on his general practitioner regularly to monitor his mental health. He, too, called no medical evidence about either his medical condition or his depression and their effects upon him. In late 2022, he says, he gave up smoking. Better late than never, I guess.
The respondent lives with his mother, Ms E, in her three-bedroom home. She is 67 years of age, quite disrespectfully described by Ms C as “quite elderly”. When they are with him, the three boys share a room with bunk beds and a single bed. Z sleeps in the respondent’s room in her own bed. The applicant intends to improve his accommodation circumstances in the event that the orders that he seeks are made. However, his hopes in that regard, in my view, are not likely to come to fruition, given his employment circumstances. I do accept, however, that he is likely to continue to remain living with his mother.
The respondent swears that he has completed the following courses since separation: a parenting orders program in May 2022, a 1-2-3 Magic and Emotional Coaching Parent Training in January 2022, a Scaredy Cats course for children with anxiety, a Circle of Security program in September 2022 and a trauma-informed session in July 2022. However, the respondent gives no evidence of the content of the courses or what, if anything, he learned from them.
The applicant and the respondent commenced their relationship in about 2014. The respondent was residing in City F and the applicant was in City H. After about six months, the applicant moved to City F. The parties thereafter cohabited. Their relationship was fraught and they separated and reconciled on two occasions at least, before separating on a final basis in or around early July, 2021. They were never married.
The first child, X, was born in 2016. He has been diagnosed with asthma, which is treated under medical supervision. X attends a local state school and is currently in grade 2. He has difficulties with his speech and when she first interviewed him a couple of years ago now, Ms C thought that his speech was very delayed.
Initially, when interviewed by Ms C, the parents had differing perceptions of X’s school performance. When she was first interviewed, the applicant told Ms C that he was going well. He was only in prep at that stage, but to the extent that a child can go well at prep, that is what he was doing. The respondent told Ms C that X was struggling. That evidence demonstrates a difference in perception of each of the parents about how X was going at school. It has some significance in these proceedings, and I will return to it later.
In her trial affidavit, the applicant swears that X has recently been going through a period where he has a number of toileting accidents at school. However, she says that she has been working with X and the school to help address the issue. She does not say what she has done in that respect, though and the applicant is unsure of where the behaviour is coming from, but she thinks that it may be connected to his previous difficulty with toilet training, ongoing stress – I will revisit that issue as well – and also as a way to get picked up from school. She does not suggest that she has been working with the respondent to address this ongoing toileting issue for X.
According to the respondent, X’s marks are below average, and although he has good friends at school and also in the area in which they live, he does not get invited to parties. About a month before the interviews with Ms C for a second report, X saw a paediatrician because there were concerns that he may have ADD or ADHD. The respondent describes X’s focus is “hit and miss”. On the second day of the hearing before me, as I understand what the respondent said, X, W and Y were all undertaking testing for ADHD and ADD.
Exhibit 1 in these proceedings is a bundle of letters, three in number, from the school attended by the three older children, the G School. One is written in relation to X, another in relation to W and one in relation to Y. They paint a bleak picture and far from demonstrating that X is doing well and far from demonstrating that he has a good circle of friends both in school and in the local area, the exhibits demonstrate that these children are struggling significantly. They are struggling in both academically and in their peer relationships. They are also struggling with the activities of day-to-day living.
For example, both X and W have difficulties with self-care tasks, that is, toileting. They have difficulties in working with their classmates. They have difficulties regulating their behaviour. The list in respect of both X and W is extensive and the school is assisting these children as best they can, according to the correspondence. But in respect of both of the two older boys, the school’s assessment is the same. Both have behaviours of concern that are having a profound impact on each child’s ability to engage in their scholastic programs. They have been given a range of extensive supports, but they are having little impact. The parents in this case are rightly concerned about these matters, as one would expect.
The report in respect of Y is a little less extensive but is to the very same effect. It is said that his behaviours, too, are having a profound impact on his ability to engage in the prep program and despite a range of intensive supports that have been implemented, there is little to show for those supports. So, these children have their challenges.
W was born in 2017. As I have indicated, he attends the same school as X. He has no health concerns of note as far as I can tell from the evidence. His concerns are more emotional or psychological. He suffers from a lack of concentration, according to the parents’ evidence, and he can be difficult to manage.
Y, was born in 2018, and according to the evidence of the parents, struggles with toilet training. I have reflected on the note from his preparatory school. As far as I can tell from the evidence, he has no health concerns of particular note, but he suffers from the issues I have already highlighted. He, too, is being investigated, as I have indicated, for ADD and ADHD. According to the respondent’s oral testimony, Y finds it hard to follow instructions and finds it hard to fit into structured school life. He has been having treatment for a medical condition, but that does not seem to be particularly serious.
Z was born in 2020 and she spent time in hospital after her birth. After her discharge and until now, she has had multiple hospital admissions. There are a couple of admissions of note. She had an admission to intensive care in K Hospital that has been the subject of some of the evidence and cross-examination before me. I have evidence about Z being removed from the K Hospital against medical advice.
The parties are in dispute about why she was removed from that hospital against medical advice. The applicant’s case is that she was coerced into an early discharge of Z from K Hospital at the respondent’s insistence, but there is no evidence upon which I could make any findings that he coerced her to that effect. The respondent’s evidence about this issue is that when Z was admitted to K Hospital, he remained in City F to care for the parties’ three boys whilst the applicant and Z went to Brisbane, that the applicant was in contact with him, she was missing him and the three boys and ultimately decided that she would return to City F with Z because, effectively, she had had enough of Brisbane. This evidence is, indeed, plausible. It makes perfect sense, given that these parties were caring for these four children, each of whom had their own special needs. Having to be in K Hospital, away from her home base and away from the support of the respondent and her other three children, must have been a wrench for the applicant. It makes perfect sense for her to wish to return to City F with Z as soon as she possibly could. That she would do so against medical advice is consistent with other evidence in the case that tends to suggest that she knows better than the professionals that advise her.
In that respect, the evidence from the J Hospital of the episode that occurred after the discharge from K Hospital in early 2021 is telling. The consultant paediatrician was moved to make a report to the Department of Child Safety about the applicant’s conduct in the hospital on that occasion. I will not repeat the evidence other than to say that it is a damning indictment on the applicant’s respect for those who were attempting to provide vital care for her seriously ill child.
I accept the evidence from the J Hospital unequivocally. To the extent the applicant provided explanations for her behaviour, I reject them. Having regard to the evidence from the hospital, I have no doubt that the applicant acted against medical advice to discharge Z from K Hospital, as the respondent contends he subsequently learned.
Neither party here suggests that these children will not benefit from a meaningful relationship with each of their parents. The orders that are now proposed by the parties are underscored by the proposition that these children will benefit from a meaningful relationship with each of them. I agree with that. I agree with the proposition that these children will benefit from a meaningful relationship with each of their parents. For all of the criticisms that one might level at the way in which they have parented these children and the way in which, more importantly, they have conducted their co-parenting relationship, they still have much to offer their children. Their children are entitled to know their parents, both of them, warts and all, subject to being protected from unacceptable risks of harm.
As I have already indicated, at one point in the life of this case it was suggested that there was an unacceptable risk of sexual harm to these children from one or other of the parents or somebody in the mother’s household. Those cases are no longer pursued, not surprisingly because there is no evidence to establish any such allegations. But the conflict that exists between these parents represents a singular risk to these children.
The nature and extent of the risk is summarised by Ms C in her two reports. She describes it as cumulative harm, a harm that accumulates over time by reason of children being exposed to the effects of their parents’ conflict, the effects of parents being unable to agree on matters from time to time, parents behaving in a way which ostensibly is in the children’s best interests but, in truth, is not by withholding children on spurious grounds, from having a relationship with the other parent, from engaging children in investigations that are completely and utterly unwarranted and by creating instability in the children’s emotional lives by having them worry about when it is they will next see one or other of their parents.
These parents have both been guilty of all of those things. The respondent has, from time to time, withheld the children. His reasons for doing so are unpersuasive. To the extent that it is necessary to say anything about it, I reject the proposition that either of these parents had any reasonable basis for considering that their children or any of them had been sexually abused by either the respondent or anybody in the applicant’s household. In fact, I have very grave doubt that what is reported by each of the parents as having been said by the children was, in fact, said.
To suggest that a child has been sexually abused is abhorrent if, in fact, it is the case that the person making the suggestion knows it not to be true. What is worse is convincing or attempting to convince a child that they have been sexually abused when they have not. Repeating allegations in the presence of children, having them investigated and having them examined can sometimes be worse than doing nothing at all. There is a real risk if it is continued that children will come to think that they are the victims of sexual abuse when they have not been.
It is of some concern here, then, to read in the evidence that these children are receiving counselling for sexual abuse. It is one thing to have children taught protective behaviours and that happens regularly enough without concern. But to have children counselled for sexual abuse, which assumes that they have been sexually abused when they have not, can be just as abusive as sexual abuse itself. That is part of the cumulative harm in this case, these allegations about sexual abuse and how they have been handled by the parents. It has led to the turmoil in which these children have lived.
I accept Ms C’s evidence given today that, really, the way to diminish the incidence of cumulative harm, not to prevent it or to cure what has gone before, but the way to diminish its ongoing effect on these children is to place them in the household which presents the most stability. I have concluded that that is the respondent’s household. I have concluded that because I am satisfied that he has just as much stability in his housing as does the applicant. I am satisfied that he has a demonstrated ability to properly manage and consider the children’s medical conditions. I am satisfied that he has a demonstrated ability to properly attend to the medication of the children. The evidence demonstrates that the applicant does not. I have already referred to the incidents at the K Hospital and the J Hospital.
When Ms C gave evidence about the children having a stable routine in their households, my understanding of her evidence was that she was talking about the establishment and maintenance of a predictable routine for children rather than the routine that exists for them now, that is, one routine in one household which changes with monotonous regularity to a different routine in another household. She was talking about having a consistent set of rules, rules that can be applied for most of the children’s time. Placing the children in one household for most of the time rather than for an equal time across both households promotes that sort of routine. It promotes the establishment of a single set of rules to which children are exposed and by which they have to live their lives for the great majority of their time, rather than constantly changing sets of rules.
So, to the extent that the respondent’s household represents the household which is more stable, I consider that it is likely that in his household, the daily routine and the set of rules that he will establish for the children or has established for them are likely to be more uniformly and consistently applied by him than any such regime in the applicant’s household. I formed the view, listening to the applicant from her evidence that she was likely to be, to use the words of counsel for the respondent, more reactive in her parenting style, not just to the respondent but to the children, which would mean less consistency in terms of the application of rules in her household and routine.
Counsel for the applicant suggested that there was more of a negative view of the applicant in the respondent’s household than there was of the respondent in the applicant’s household. I am not sure that the evidence permits me to make that finding. I am satisfied that in both households, neither parent thinks much of the other. I am also satisfied that the children know that and that they will continue to know that irrespective of the outcome of this case.
It is right to say, I think, that the respondent has engaged in some evidence-gathering behaviour. His presentation of Z to the hospital on multiple occasions does him no credit, where those presentations were for very minor matters. It fell from counsel for the independent children’s lawyer that the respondent seemed to be, without sounding disrespectful, an unsophisticated man. I think that is a fair description and in that context, it is not surprising to read in the notes of the J Hospital that when the respondent was questioned as to why he was presenting his daughter to the hospital for such minor ailments, his response was that his solicitors told him to. That provides, I think, the explanation for his conduct, and it is a plausible explanation. That is not to say that he does not hold a poor opinion of the applicant. He does. But I think that after these proceedings have been finalised, the behaviours about which he was criticised might well subside.
I was not addressed by any of the parties seriatim on the matters under s 60CC of the Act and in the context of the case and the way in which it was run, I did not need to be. But for the purposes of completeness, I record that there really is no issue between the parties here that these children have good, strong and positive relationships with both of their parents. Ms C suggested that perhaps the relationships could be better, but there is no evidence that I was taken to that would suggest that the relationships between these children and their parents was not appropriate.
Despite the deeds and misdeeds of the parties in this case, I am satisfied that each of the parties has taken the opportunities that have been available to them to participate in making decisions about major long-term issues for the children. That has been problematical, but they have, from time to time, been able to make decisions. It is easy to couch a parent expressing strong views as coercive or wishing to have their own way, but what the material demonstrates here is that, ultimately, joint decisions have been made from time to time.
I am also satisfied here that the parents have, as best as they can, fulfilled their obligations to maintain these children. The respondent makes a case that in the applicant’s household, the children suffer neglect and there is evidence to suggest that from time to time, the care of the children on a daily basis has been less than desirable. I refer in particular to the evidence about X presenting at school with soiled pants. But it is easy to be critical about these things. Ms C took the opportunity to observe that when the children were with the respondent in the course of interviews, that Z dirtied her nappy, but he did not take the opportunity to change it until after the interview observations were complete. One might have thought that it was something that required immediate attention.
In any event, whilst there is some criticism one way and the other about neglect of these children in their day-to-day care, the evidence does not permit of an overall positive finding that the children are at an unacceptable risk of harm through neglect in the care of either parent. Having regard to the significant issue concerning the emotional and psychological harm to these children by reason of their parents’ conflict, whatever risk from neglect that does exist, pales into insignificance.
There is a family violence order between these parties. It was an order made against the applicant in favour of the respondent. But it is a feature of this case, unlike so many others, that physical violence is not alleged one against the other in any serious way. It is more said to be verbal abuse. On that score, the evidence is deficient. There are no particulars in respect of which I could make any findings about violence, even if I was asked to do so.
Having regard to the evidence about the parties withholding the children one from another at various points in time, I am satisfied that each of these parties has been guilty of family violence as that phrase is defined in s 4AB of the Act. In Carter & Wilson [2023] FedCFamC1A 9 the Full Court pointed out that the withholding of children from a parent simpliciter does not amount to family violence. What was required was a further finding that the withholding of the child or children from the other parent was done in circumstances that might be said to be unjustified or unreasonable.
The circumstances here in which these children were withheld, having regard to the observations I have already made about the sexual abuse allegations, was both unjustified and unreasonable, and I so find. The withholding of the children on each occasion was an act of family violence. In those circumstances, the presumption of equal shared parental responsibility set out in s 61DA of the Act does not apply, and the making of a parental responsibility order is at large. I can still make an order for equal shared parental responsibility if I think that it is in the best interests of these children to do so. But, I do not.
I do not for a number of reasons, not the least of which is the fact that these parties themselves accept that an order for equal shared parental responsibility will not work. Each seeks an order for sole parental responsibility. The communication between the parties and more importantly, their understanding of the dynamics of the conflict between them and how they might address it is non-existent. In those circumstances, to attempt to make an order which requires these parties to engage in joint decision-making for these children is fraught. It will lead to more, rather than less conflict.
I asked counsel for the independent children’s lawyer in the course of submissions whether any order for parental responsibility was necessary at all. That was a reference to s 61C of the Act, which provides that in the absence of any order for parental responsibility, parents have, by the fact of parenthood, parental responsibility for their children, and they can make decisions for them severally rather than jointly.
I was superficially attracted to the notion that I should perhaps make no order for parental responsibility here. The respondent would be free to make whatever decisions he wished to make for these children as and when they needed to be made. They did not need to be made jointly, nor did he need to consult. But I am persuaded by the submissions that were made to me by each of the parties, really, that to adopt that course, too, would be fraught. Just as the respondent would be able to make those decisions himself, so, too, would the applicant. The effect of an order for sole parental responsibility would be to invest in the respondent just what it says, sole parental decision-making, and to strip any decision making from the applicant. That is no small step because to do so will be to deprive these children of the benefit of having input into decisions concerning their long-term care, welfare and development from each of their parents. They are entitled to input from each of their parents into those decisions unless the Court thinks that it is not appropriate. The making of an order for sole parental responsibility requires some reflection.
Having heard the evidence here and having regard to the submissions that have been made and the position of the parties, I consider that an order for sole parental responsibility is in the best interests of these children. It will obviate some further conflict between these parents and it may help smooth the way for these children in the future.
In terms of the orders more generally, I have indicated that I intend to make the orders sought by the respondent set out in his case outline.
So, the orders will be as per the respondent’s case outline except that it will be until Monday morning, so every second weekend from after school or 3 pm Friday until before school on Monday morning. There was argument about whether it should be Monday morning or Sunday afternoon. The respondent’s reason for Sunday afternoon is that it would provide consistency for these children if he was able to ensure that they attended school on a Monday morning. The disadvantage of the Sunday afternoon that was identified was that it may lead the parties to have contact with each other, and that might lead to further conflict between them, to which the children will be exposed.
I have concluded that Monday morning is in the best interests of the children for these reasons. First, there is the practical effect of the order, which means that the conflict that might exist between the parties and to which the children might be exposed will be avoided. Second, it will permit the applicant to have contact with the school when she is dropping the children at school. That is important for the children, not for the applicant, but for the children to see that she has engaged with them in their schooling careers both on a Friday afternoon when she collects them and on the Monday morning when she drops them off.
The children will have reinforcement from both parents that schooling is important and education is important because they will experience both parents facilitating their attendance at school. It will provide the applicant with an opportunity to engage for the benefit of the children with the children’s teachers. So I prefer Monday morning. I accept the submission by counsel for the applicant that there really is no evidence to suggest that there would be difficulty with these children going to school if they were in the applicant’s care.
Two further orders are necessary. One relates to the medication that these children might be prescribed from time to time. The evidence shows that there has been conflict between the parents about that and so to the extent that it is necessary to do so, there will be an order in terms of that foreshadowed by the independent children’s lawyer.
Finally, there will be one further order, namely that unless otherwise agreed between the parties and notwithstanding the order for sole parental responsibility, the children will remain at G School for their primary schooling.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 28 April 2025
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