MCCUNE & THEISSEN

[2019] FCCA 1805

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCCUNE & THEISSEN [2019] FCCA 1805

Catchwords:
FAMILY LAW – Parenting – where one parent seeks a week about arrangement – allegations of family violence – mental health concerns with respect of adolescent child – lack of communication between the parents – substantial and significant time ordered.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA

Applicant: MS MCCUNE

Respondent: MR THEISSEN

File Number: MLC 2931 of 2017

Judgment of: Judge Blake

Hearing dates: 29 & 30 April 2019

Date of Last Submission: 30 April 2019

Delivered at: Melbourne

Delivered on: 28 June 2019

REPRESENTATION

Advocate for the Applicant: Mr Maginn

Solicitors for the Applicant: None

Counsel for the Respondent: Mr Indovino

Solicitors for the Respondent: Aston Legal Group

Counsel for the Independent Children's Lawyer: Mr Serra

Solicitors for the Independent Children's Lawyer: Lampe Family Lawyers

ORDERS

1. The contravention application filed by the Mother on 1 April 2019 be withdrawn.

2. The parents have equal shared parental responsibility for the children of the marriage [Y] born on … 2006 ("[Y]") and [X] born on … 2009 ("[X]") (collectively "the children").

3. The children live with the Mother.

4. The children spend time and communicate with the Father as follows:

   (a)Each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday (or Tuesday if Monday is a public holiday or non-school day);

   (b)Each alternate Thursday from after school until 7.30pm that evening;

   (c)By telephone, with the Father to initiate the call to [Y]’s mobile phone, each Tuesday and Thursday at 5pm or thereabouts, for so long as the children wish to converse, and otherwise as initiated by the children;

   (d)For the children's birthdays from the conclusion of school, or 3:30pm, until 7.30pm if a school day and from 10:00am until 3:00pm if a non-school day;

   (e)For the Father’s birthday, from after school until 7.30pm if a school day, or from 10am to 4pm if a non-school day;

   (f)On special occasions as agreed between the parents; and

   (g)As otherwise agreed between the parents.

5. On the school term and summer school holidays, the children spend time with the Mother and Father as agreed between the parents in writing and in the absence of agreement as follows:

   (a)In 2019 and each alternate year thereafter with the Father for the first half and the Mother for the second half;

   (b)In 2020 and each alternate year thereafter with the Mother for the first half and the Father for the second half; and

   (c)School holidays commence on the last day of school and conclude the day before the first student day back at school where they are to return to the Mother by 7:30pm.

6. The children spend time with the Mother and Father respectively on Mother's Day and Father's Day each year by agreement, and in the absence of agreement, as follows:

   (a)If the Father is not already spending time with the children, the Father is to spend time with the children from 6pm on the day preceding Father’s Day until 7.30pm on Father’s Day.

   (b)If the Mother is not already spending time with the children, the Mother is to spend time with the children from 6pm on the day preceding Mother’s Day until 7.30pm on Mother’s Day.

7. In the event that Mother’s Day and the Father’s birthday fall on the same day, the children shall spend time with the Father in accordance with these Orders.

8. The Father’s time with the children pursuant to Orders 4 and 5 herein be suspended on the Mother’s birthday from 10am to 4pm. 

9. For the purposes of any changeovers that do not occur at school, the Father collect the children from the Mother's home at the commencement of the children's time with him and the Mother collect the children from the Father's home at the conclusion of time.

10. The Father and the Mother be restrained from attending the children's school save for public events such as school assembly, sporting events and concerts, parent-teacher interviews and on one occasion per week to assist with volunteer work.

11. For the purposes of Order 10 herein, the Mother and Father shall promptly effect drop-off to and collection of the children from school and shall not spend time with the children outside of their classroom activities or during the school recess period.

12. Each parent give all necessary consent and authority to enable the other parent to obtain information concerning the children's education, health care and extracurricular activities.

13. Each of the Mother and the Father shall make available to the other any medications prescribed by a registered medical practitioner for the children to enable the other to administer such medication to the children and the other parent shall thereafter administer the medication as prescribed and the medication shall pass between the parents so as to ensure it is in the possession of the parent with whom the children are.

14. The Father continue and complete the Parenting Orders Program at Catholic Care and provide evidence of completion to the Mother.

15. The Father do all things necessary to continue with family therapy for him and the children with Ms B for as long as Ms B recommends and the Father pay all the costs of such therapy.

16. Order 15 herein only applies to therapy concerning the Father and the children. The cost of attendance upon Ms B therapy solely for the children, is to be shared equally between the parties.

17. The Mother do all things necessary to make the children available for all appointments with Ms B.

18. The parents both do all things necessary to complete the autism assessment for [Y] with Dr C as soon as possible and to jointly meet with Dr C to consider any further steps if recommended by her, at their shared expense.

19. The parents do all things to continue the counselling for [X] with Ms D for as long as Ms D recommends, to be paid for at their shared expense.

20. The parents communicate by email and/or text message and any such communication be acknowledged or responded to within 48 hours of receipt.

21. Each parent shall notify the other with no less than 7 days prior written notice of any change of residential address, phone number, email address or other contact details.

22. The Mother and the Father be and are hereby restrained by injunction from;

    (a)discussing these proceedings with the children;

    (b)denigrating the other parent in the presence or hearing of the children;

    (c)allowing any other person to denigrate the other parent in the presence or hearing of the children;

    (d)allowing the children to access any messages or emails from the other parent on their respective phones; and

    (e)using physical force to discipline the children.

23. Without admitting the necessity for same, the Father be restrained from bathing the children or sharing a bed with them.

24. The Father and Mother return all clothes and personal belongings that the children bring with them at the end of their time with the children.

25. Each parent inform the other if they intend to take the children outside the State of Victoria and provide contact details and addresses of such holidays, such confirmation to be provided 21 days prior to any travel.

26. The Mother authorise the children's schools to provide to the Father, at his expense, copies of the children's school reports, school work, newsletters, photographs, notices and such other information which parents may receive from time to time, these orders to be treated as providing such authorisation.

27. The Mother and the Father share equally the costs of essential educational expenses as described in the Victorian Government Department of Education website, and optional extra-curricular activities as agreed.

28. Each of the parties must keep the other informed of any significant illness or injury suffered by either child and promptly inform the other of any treatment provider and/or location at which the child or children is a patient.

29. Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

NOTATION

Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2931 of 2017

MS MCCUNE

Applicant

And

MR THEISSEN

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Amended Initiating Application dated 9 January 2019 (‘Application’), the Applicant Mother (‘Mother’) seeks final parenting orders in respect of the children, [Y] (‘[Y]’) and [X] (‘[X]’) (collectively, ‘the children’). The Mother seeks, among other things, that the children live with her and spend time with the Father. In the Application, the Mother also seeks orders amending the child support payment formula and an order for immediate payment of arrears of child support.

2. The Respondent Father (‘Father’) opposed the Application. He seeks that the children spend equal time with him and the Mother.

3. The children were represented by an Independent Children’s Lawyer (‘ICL’). The ICL submitted that any final orders made by the Court should be broadly consistent with the existing interim orders, made by consent, by Her Honour Judge Riley of this Court on 29 January 2019.

4. For the reasons that follow, I have determined to make orders that are broadly consistent with those sought by the ICL.

Issues for Determination

1. In her Application, the Mother sought sole parental responsibility of the children. This claim, however, was ultimately not pressed and the Mother indicated she would concede to an order granting equal shared parental responsibility.

2. At the outset of the hearing the Mother also withdrew her claims in relation to child support.

3. The Mother had also filed a contravention application on 1 April 2019, alleging that the Father had contravened the interim orders made by Judge Riley of this Court on 14 June 2017. The contravention application had been listed for return on 27 May 2019. The advocate for the Mother, at the outset of the hearing, sought leave to withdraw that application and I subsequently granted leave for that to occur.

4. Accordingly, the principal issue for determination in this matter is the amount of time the Father is to spend with the children. 

5. The Father seeks to spend time with the children on a week about basis.  The Father contends, among other things, that he is a capable Father, that there has been a week about care arrangement in place over a period of about three years which only ended recently, that he has previously cared for the children during the Mother’s extended absences, that the presumption in the Family Law Act 1975 (‘the Act’) that parents spending equal time with children for whom they share parental responsibility has not been rebutted and that the parties have a reasonable standard of cooperation.

6. The Mother seeks that the children live with her and that the Father’s time be limited to each alternate Friday and Saturday night, with time to occur after school on a Thursday in the intervening week. The Mother argues, among other things, that time on a week about basis has proven to be untenable and not in the children’s best interests, that the children have struggled with the week about arrangement, that differing styles of parenting make it difficult for a week about arrangement to work and that the Father is a person with whom it is difficult to cooperate. The Mother also argued that the children have been more settled, and less anxious around their Father, since the week about arrangement ended.

7. The ICL’s position is that the Father should spend time with the children each alternate weekend from Friday after school until Monday morning before school, with time to also occur on a Thursday in the intervening week. The submission was that the children are settled and there is no need to alter arrangements which are working well, given in particular the difficulties faced by [Y]. The ICL also urged the Court to make final orders in the matter and not permit a revisitation of the issues in light of the Father’s efforts to improve his parenting since the preparation of the Family Report.

8. There were, in addition to the matters above, minor areas of disagreement in relation to special occasion and holiday time, which by the end of the hearing were either resolved or not of any great significance.

Factual Background

1. The Mother relied only on her affidavit sworn on 23 April 2019. She also tendered into evidence two documents that were originally annexed to an affidavit sworn by her on 1 April 2019. These two documents comprised a summary report from Health Care dated 26 March 2019, and case plans for each of the children prepared by the Department of Health and Human Services (‘DHHS’). A photograph was also tendered into evidence by the Mother.

2. The Father relied only on his trial affidavit sworn 16 April 2019.  In addition, he tendered into evidence a letter from DHHS dated 2 April 2019.

3. The ICL relied on the Family Report prepared by Family Consultant Ms A dated 5 December 2018 as well as psychiatric assessments of each of the Father and the Mother. Neither psychiatrist was required for cross examination, however each of their affidavits and attached reports were read into evidence.

4. A number of the background facts were not in issue in this matter. I set those out below:

   a)At the time of the hearing, the Father is 50 years of age and in good health. The Mother is 49 years of age and in good health.

   b)The parents first met in around 1988. They commenced cohabitation in 2001. They married in … 2006.

   c)[Y] was born on … 2006. At the time of the hearing, she was 12 years of age.

   d)[X] was born on … 2009. At the time of the hearing, she was 9 years of age.

   e)During the period of cohabitation, the Mother’s child from a previous marriage, Mr H, resided with the parties until he relocated to live in the US in 2014.  

   f)The Father has financially supported the Mother during their relationship, which included the provision of support and assistance to her ex-husband during the period that he was suffering from bowel cancer.

   g)The parties separated at a time between 2014 and 2015. There is dispute about the precise date of separation which it is not necessary to resolve for the purpose of this proceeding. The Mother spent two nights in temporary accommodation following separation.

   h)In 2014, the Mother travelled overseas for two periods of time, one of four weeks and one of two weeks. During those periods, the children lived with the Father and were cared for by him.

   i)In 2015, the Mother travelled overseas for approximately 7 weeks. During that period, the children lived with the Father and were cared for by him.

   j)In June 2016, the Mother travelled overseas for approximately 3 weeks. During that period the children lived with the Father and were cared for by him.

   k)From around December 2015 until January 2019, the children lived with each parent on a week about basis.

   l)On 5 December 2018, the family attended upon Family Consultant Ms A for the preparation of a Family Report. The Report was subsequently released to the parties. 

   m)Following receipt of the Family Report in December 2018, the Mother applied to this Court to vary the week about arrangement.  Consent orders were eventually entered into altering the arrangement to one under which the Father spends time with the children on a Thursday after school, as well as each alternate weekend from Friday after school until Monday morning.

   n)The Mother has recently remarried and the children presently live with her and her new husband and spend time with the Father in accordance with the existing interim orders.

The hearing and the evidence

1. Both the Mother and Father were cross examined in relation to the affidavits filed in this matter.

2. The Mother impressed me as a witness who was genuinely concerned about the welfare and best interests of her children. Under cross examination, she was challenged about the form of order she sought, in particular, her proposed order that Mother’s Day time take precedence over the Father’s birthday. She readily conceded that the Father could have the children on Father’s Day, Mother’s Day, and on their birthdays, and that all that she wanted was consistency and stability for the children. She appeared to me to be child focussed, and determined to do what was necessary to assist the children to move forward. She recognised that the manner in which she had dealt with parental conflict in the past had not assisted her children, and she presented as someone who was keen to change that.

3. The Father appeared to me as someone who genuinely loves his children and wants to be actively involved in their lives as much as possible.  Having grown accustomed to the week about arrangement for a period of three years, he is now in a situation where he clearly misses the children. That is understandable. Not only has he shared care, but there clearly was a period of time between 2014 and 2016 when the Mother relied on him to look after the children while she attended to other aspects of her life.

4. Whilst the Father clearly wants to be involved in the lives of the children, I formed the view from the evidence that his emotional insight into the needs of his children was not as well-developed as that of the Mother. I formed this view because:

   a)The Father was focused on financial matters. Whilst understandable, the Father did not demonstrate an insight into how this focus on money may be interpreted by the Mother and the children.

   b)The Father was slow to accept or understand that his involvement of the younger child, [X], in the completion of the elder daughter [Y]’s homework may impact on [Y]’s self-esteem, particularly given that she is already struggling with aspects of her schooling.

   c)His apparent indifference to understanding why his relationship with Mr H, the Mother’s eldest child, had broken down.

5. The Father’s less developed insight was also a matter picked up by Ms A in the Family Report.

6. There were a number of significant issues that arose between the parties during the hearing. I deal with each of these below.

The allegations of family violence

1. The Mother alleged that during the relationship, the Father was controlling of her and the children.  The allegations are made in her affidavit, and also in the Notice of Risk that she filed with the Court.  The allegations extended to controlling the finances of the family when they were together, as well as seeking to control the behaviour of the children.  A feature of the Mother’s case was that she had only just come to recognise the nature and extent of the Father’s controlling behaviour.

2. The high water mark of the Mother’s allegations against the Father in this respect is an allegation that he held a knife to his throat in the children’s bedroom when they were sleeping in 2012. The Father denies this allegation, but admits there was a heated argument which resulted in the police taking him to hospital.

3. The Father alleged that the Mother was verbally, emotionally and physically abusive, and that she would throw household items. The allegations are made in his affidavit, and also in the Notice of Risk that he filed with the Court. The high water mark of his allegations is that in 2011, the Mother threatened to jump out of a moving car when the children were in the car with them.

1. It is apparent when the evidence is considered in its totality that the parties have shared an at times fractured relationship. I am satisfied, having heard all the evidence, that each party has engaged in behaviour that was either abusive, inappropriate or sought to use emotions to manipulate a situation. I observe, however, that the most serious of the allegations made by either party in this matter are allegations about conduct that occurred some years ago now and that occurred when the parties were in a relationship. They are no longer in a domestic relationship. I also observe that there is not any existing intervention order or any other family violence order presently in place in relation to the parties.

2. The Mother also alleges that the Father exhibited controlling behaviours both during and after the marriage, and that he is a person with whom it is difficult to extract cooperation.  She also gave evidence that her means of coping with this was to accede to the Father’s wishes and that it is only in recent times that she has begun to learn how to assert herself for both her benefit and the benefit of the children. Her submission in respect of this was to some extent corroborated by the observations of Ms A.

3. I accept that the Mother felt controlled by the Father and that she has only recently become aware that this is an issue. I do not accept, however, that the Father sought to exercise control in a manner designed to intimidate the Mother. Having observed both parties in the witness box, it appeared that the Mother’s accession to the wishes and views of the Father, whether for better or worse, was a defining feature of their relationship.

4. In light of the above matters, I consider there is not an unacceptable risk to either the children or either parent being exposed to family violence.

The Father’s discussion of money

1. The Family Report Writer, Ms A, documented concerns raised by the Mother about the manner in which the Father speaks to the children about money. The comments made by the children to Ms A directly seemed to support this concern. For example, Ms A reported the following at paragraph 109 of her Report:

   [X] volunteered that her "dad talks about money a lot." For example, when she does not eat the food he has bought her, he says "I used that $5 for you, now you're not going to eat it!" [X] sighed when stating that sometimes she doesn't feel like eating it all. She clarified that "he means the money he spends is the love he gives me."

2. Ms A also reported that the Father raised fiscal matters throughout the interview.

3. The Father admitted to Ms A that he discussed money matters with the children. It was put to the Father during cross examination that he does in fact speak to [X] in the manner reported above to Ms A. He did not directly acknowledge this, instead simply saying that ‘I don’t believe I say that’.[1]

   [1] Tr. 30 April 2019, p. 93, l. 30.

4. The Father was also taken to evidence from the Mother about his need to verify school items purchased by the Mother prior to agreeing to fund half the cost. It was put to him that his enquiry of the Mother was a means of him seeking to exercise financial control over the Mother.  The Father rejected that proposition.

5. I am satisfied that the Father does often speak about money. I am satisfied that he is a person focused on family budgets, value for money and the cost of items. His focus on this appears to border at times on obsession: see for example, the incident referred to in the preceding paragraph in relation to his enquiries into the cost of school items. Such enquiries can easily be interpreted and seen by a person such as the Mother, who is emerging from feelings of being controlled in the relationship, as a further example of the Father exercising control. 

6. Insofar as the Father discusses the cost of items with his children, such discussions, insofar as they relate to raising children, are not uncommon. Many parents are at pains to educate their children on the cost of items.  The discussions can, however, be interpreted differently in a family setting where communication is poor and there is parental conflict in which children unwittingly find themselves caught. In that situation, irrespective of what the intention may be, a comment about the cost of items can be interpreted, as here, as a controlling measure. When received in this way it has the potential to be harmful to the recipient. Having observed the Father in the witness box, I note he has made efforts to improve his parenting, but I am not convinced he truly understood the impact of his discussions about finances on others.

[Y]’s health

1. It is very apparent that [Y]’s health, in particular her mental health, is of grave concern.

2. Both parents gave evidence that [Y] has been diagnosed with autism spectrum disorder, however a final conclusive diagnosis has not been obtained. Quite apart from this, [Y] has previously been admitted to the Hospital and there is evidence that [Y] has considered self-harm, as well as how such harm may be carried out.

3. There was no direct affidavit evidence before me, from a medical practitioner, as to [Y]’s condition or health.

4. Ms A, in the course of preparing the Family Report, gathered information from a psychologist at the Department of Education and Training, a psychologist who had seen [Y], a child protection practitioner who had had dealings with [Y] (including in relation to suicidal thoughts she was having on a daily basis at the relevant time) and [Y]’s current psychologist, Ms F. Having obtained that information, and from her own observations, Ms A noted as follows:

   ‘142. [Y] is psychologically vulnerable and at risk of serious harm. She has been having frequent suicidal thoughts for the last six months and she has a plan for enacting these thoughts. Her facial expression was sad at the assessment and she appeared to retreat into herself, not wanting to speak at the interview and placing her hood over her face. [Y]’s withdrawn behaviour and emotional lability at school is disturbing.’

5. The Mother asserts in relation to [Y], and also [X], that DHHS have found the Father to be the cause of emotional and psychological harm.

6. There is a DHHS case plan in evidence that records a one sentence notation to the effect that the Father is responsible for the harm to [X].  There is no similar notation on the form for [Y].  No independent expert medical evidence was led by either party in relation to the psychological health of either child, or factors that may contribute to the psychological health of either child.  In those circumstances I am unable to make any finding that the Father has caused emotional and psychological harm to the children through his actions.

7. What is apparent, however, when the DHHS material and the Family Report are read, is that these children are suffering from being in the middle of the entrenched parental conflict. Ms A notes variously that ‘The children appear to be immersed in parental conflict, in large part due to the poor communication between the parents…’[2] and ‘Both children reported firsthand experience of witnessing their parents fighting…’[3] and ‘The children have been exposed to adult matters, which is burdensome for children, particularly more sensitive children such as [Y] and [X]…’[4] To the extent that the children are exposed to, or suffering from, emotional or psychological harm, I am satisfied that at least some of that harm has been caused by the parents and their inability to co-parent in a manner that promotes the best interests of their children.

   [2] Family Report of Ms A dated 5 December 2018, paragraph 139.

   [3] Family Report of Ms A dated 5 December 2018, paragraph 140.

   [4] Family Report of Ms A dated 5 December 2018, paragraph 141.

8. There is a separate issue that arose in relation to the arrangements, and payment for [Y]’s specialist care. The Mother asserted that the Father was not proactive in, among other things, following up on the autism diagnosis assessment. The Father in his evidence denied any allegation that he had not been supportive of seeking appropriate specialist help for [Y].

9. Having observed the parties, I am not satisfied that the Father is not supportive or proactive in helping [Y] to obtain appropriate care. It is apparent, however, that appropriate care for [Y] may have been overshadowed by the parental conflict that exists between the parents. I am fortified in this view by Ms A’s observations at paragraph 142, who in relation to [Y]’s health observed that ‘Her parents have been neglectful in not continuing with her treatment at the recommendation of her psychologist in May 2017.’

The Family Report

1. Ms A observed the children with each of the parents.  In respect of the Mother, Ms A stated that the Mother appeared attuned to the needs of both children during the observation.

2. Ms A observed the Father asking the children a number of pointed questions. She commented about this in the Report, at paragraph 118, as follows:

   ‘… [The Father] appeared tense in his interaction with the children.  His questioning was incessant and he did not pick up on cues that they were not disinterested or reticent, continuing along the same line of questioning. [The Father] was intent on deriving answers from [Y], and he would sometimes ignore [X]’s attempts to gain his attention. There was very little reciprocity in play or conversation with [X].  The interactions were not child focussed and appeared to be serving his own needs. [The Father] asked the report writer questions about the Court Orders and recommendations in the vicinity of the children.  He only stopped when the report writer alerted him to the inappropriate discussion in their presence.’

3. Ms A also addressed a key issue in this matter, being the workability of shared care arrangements. Her comments in relation to this are set out below:

   ‘129. Generally, children manage equal shared care arrangements best when their parents are in regular, positive communication. This assists children transitioning from one home to the other, while limiting their exposure to conflict. In this situation, equal shared care is contra indicated based on the high level of parental conflict, the low levels of cooperation, the capacity to co-opt the children into the parental conflict, and the mental health of the children, most notably [Y]. It would appear that the shared care arrangement has been agreed upon as one of many compromises that have prioritised parental preferences at the expense of the well being of the children.’

4. In respect of her final recommendations, Ms A stated as follows:

   ‘145. There were indicators in this assessment that the children are experiencing distress when in [the Father]’s care. [Y] is displaying significant mental health issues and both children reported fear and anxiety in relation to [the Father]. In light of their vulnerability, the children may be assisted by living with [the Mother] and spending alternate weekends with [the Father]. The children be permitted to make two phone calls each week to [the Father], facilitated by [the Mother].

   146. [Y] to attend a comprehensive mental health assessment at the Child and Youth Mental Health Service (CYMHS), and the parents to adhere to a treatment plan.  In the interim, [Y] to obtain weekly psychological counselling assistance.

   147. The parents not to attend the children’s school, other than the provisions that were detailed in the prior Orders.  The school to receive a copy of the Order so that they are aware of the restrictions upon parental attendance.

   148. Non-denigration orders to be made, with the parties to be restrained from discussing adult issues with the children.

   149. [The Father] has a longstanding pattern of behaviours related to having his needs met, facilitated by the lack of assertiveness from people in his life.  He may not have an awareness of the distress that this has created for [the Mother] and his children. He may benefit from individual counselling, with a copy of this report made available to the psychologist.

   150. [The Father] to attend a parenting program, such as Dads Tuning Into Kids ( with a view to learning appropriate interactions with children.

   151. [The Mother] may be assisted by learning assertiveness and conflict resolution skills, with the assistance of a psychologist, as she appears to respond passively to [the Father], and she appears ill equipped to assist the children to develop their own assertiveness…

   152. In view of [Y] commencing secondary school next year and her concerns related to completing written tasks, [Y] to undertake a written expression assessment at her new secondary school and be provided with educational support, as necessary.’

5. Ms A was examined in relation to her Report by Counsel for the Father. In those exchanges, Ms A acknowledged that she had incorrectly referred to the Mother being housed in emergency family violence accommodation. She conceded that she had not spoken to or chased a psychiatric report for the Father. She also admitted that the Father had not used the word devastated to describe his feelings about the loss of his relationship with the Mother.

6. Despite the above concessions, Ms A stood by her findings and recommendations. She stated plainly that she remained concerned about the way that the children had reacted to the Father under observation.  She also stood by her view that whilst the Father appeared child focussed, his lack of parenting skills were more damaging to the psychological health of his eldest child [Y] than to the Mother. Ms A also acknowledged openly that the report was conducted over 4 months ago and that changing circumstances since this time, particularly efforts of the Father to improve his parenting skills, may produce a different report with different views and recommendations.

The mental health of the parents

1. Affidavits were received from both Dr E and Dr G. Dr E’s affidavit attached a psychiatric report for the Mother.  Dr G’s affidavit attached a psychiatric report for the Father.  Those reports both indicate that neither parent has any psychological or psychiatric issue. Neither Dr E nor Dr G were called for cross examination.

Relevant Law

1. Part VII of the Act sets out the provisions to be considered and applied when dealing with parenting matters.

2. Section 61DA of the Act provides that 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. The presumption does not apply if any of the matters set out in subsection (2) are satisfied. I am of the view that none of the exceptions to equal shared parental responsibility apply in this matter. This is a matter where both parents seek and accept equal shared parental responsibility, and I will make an order to that effect.

3. Section 65DAA(1) of the Act then requires the Court to consider whether, among other things, it is in the children’s ‘best interests’ to spend equal time with each of the parents.

4. Section 65DAA(2) of the Act then relevantly provides that if the Court does not make an order for equal time with each of the parents, the Court must consider, among other things, whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and whether the spending of such time is reasonably practicable.

5. ‘Substantial and significant time’ is defined in section 65DAA(3) of the Act. The concept of ‘reasonable practicality’ is defined in section 65DAA(5) of the Act.

6. It will be apparent from what I have set out above that whether the Court makes an order for equal time, or substantial and significant time, the Court must have regard to the best interests of the child. This reflects the obligation expressly set out in section 60CA of the Act that in determining whether to make a particular parenting order, a Court must regard the best interests of the child as the paramount consideration.

7. Section 60CC sets out how a Court is to determine what is in the child’s best interests.

8. Section 60CC(2) of the Act sets out the primary considerations that the Court is to have regard to when determining what is in the children’s best interests. Subsection (2)(a) provides that a primary consideration is the benefit to the child of having a meaningful relationship with both of the child’s parents. Subsection (2)(b) provides that a primary consideration is the need to protect the child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence. By virtue of subsection (2A), the Court is to give greater weight to the consideration set out in subsection (2)(b). Section 60CC(3) of the Act then sets out the additional considerations that the Court is to have regard to when assessing what is in a child’s best interests.

9. This is a matter in which the Father seeks equal time with the children. I propose to consider, by reference to the matters set out in section 60CC of the Act, whether such an arrangement, or any of the alternative proposed arrangements, are in the best interests of the children. If equal time is in the best interests of the children, I will then consider whether it is reasonably practicable to make that order having regard to the factors set out in section 65DAA(5) of the Act.

Consideration

1. This is a matter in which both parents want the children to have a meaningful relationship with the other. The ICL supports such a position. Both parents have, particularly post separation, been actively involved in the lives of these children. Each parent presented as a thoughtful and loving parent, concerned for their children. I am satisfied that an order for equal time, or an order that the Father spend alternative weekends and time in the intervening week with the children, will permit the children to have a meaningful relationship with both parents.

2. A relevant consideration for this Court is the need to protect children from family violence. I have discussed the key aspects of this earlier and have taken these into account in assessing the parenting orders to be made in this matter. I have also taken into account that notwithstanding the allegations made by each parent, each parent takes the view that the children should be spending time with the other parent. 

3. There is then separately the need to protect the children from physical or psychological harm. As noted above, Ms A noted that the ‘children are experiencing distress when in [the Father’s] care’.[5] She also notes that both children ‘reported fear and anxiety in relation to [the Father]’.[6]

   [5] Family Report of Ms A dated 5 December 2018, paragraph 145.

   [6] Ibid.

4. It is to be noted that this Report was completed some months ago and that the care arrangements have since changed from the week about arrangement that was in existence at the time of the Report to the present arrangement in which the Father spends alternate weekends with the children.

5. The Mother’s evidence in relation to the existing arrangements is that they have had a profoundly positive effect on the children. She says that the children are free to be themselves and can now be relaxed in the company of the Father.

6. The Father says that the children want to live in an equal shared care arrangement and that the children have told him that they love both parents equally.

7. I am inclined to accept the Mother’s evidence about the change in the children since the new arrangements were put into place. Not only does she have most of the day-to-day care since the orders in January were made, but she is also a person whom I have already found to have greater insight than the Father into the needs of the children. This is not to criticise the Father who brings his own qualities to the relationship with his children, but rather to draw the conclusion that because of the Mother’s greater insight, she is likely to be more attuned to the behaviours and needs of her children.  The fact that they are more settled and able to be themselves under the existing arrangement is, I consider, a significant fact.

1. There are then the views of the children to consider. [Y] expressed the view to Ms A that a change from equal time would disrupt her relationship with her parents. [X] also expressed to Ms A that she wanted equal time. I acknowledge that these statements were made. I give some weight to the statement, particularly having regard to the age of these children. [Y] in particular is certainly old enough to have her views considered.

2. I also, however, have had regard to the context in which the statements by the children were made. They were made at a time when a week about arrangement was the norm. They were made by children who have been involved in entrenched parental conflict. They were made by children who, given their ages, would have been aware of the Family Report process. Seen in that light, it needs to be considered that the statements made by the children may well have been made to avoid becoming entangled in the parental conflict.

3. There is then the matter of the nature of the relationship that the children have with each of their parents. I have already indicated that both parents have been involved in the lives of these children and love them.

4. Insofar as the children’s relationship with the Father is concerned, the observations made by Ms A about their anxiousness in the Father’s presence and their more relaxed state since the interim consent orders were entered into, is relevant. While the children have a relationship with their Father, the evidence suggests they are anxious with him in relation to certain things, for example his discussions about money and the cost of items. It is also apparent from the observations made by Ms A that the Father is sometimes not as attuned to the children’s needs as he could be, and this in turn may affect his relationship with them. Under cross examination, the Father admitted that [Y] could sometimes be frightened of him.

5. There are not any concerns expressed about the nature of the relationship that the children enjoy with their Mother. As Ms A has noted, and as I have accepted, the Mother is attuned to the needs of her children and she appears to enjoy a good relationship with them both.

6. As the history of this matter indicates, each parent has taken the opportunity to participate in parental decision-making as well as the opportunity to spend time with the children. This is not a factor that has significant weight one way or the other.

7. Each of the parents has fulfilled their obligations to maintain the children. Each has plainly had the ability to, and did in fact, care for the children when the week about arrangement was in place for a period of approximately three years. 

8. The Mother ultimately did not press her application in relation to payment of child support arrears. Despite this, the Father was asked about his arrears and provided an explanation for that in the witness box.  This issue was not one which was seriously agitated before me and accordingly I do not give it any weight when considering the extent to which the Father may have failed to fulfil any of his obligations to maintain the children. 

9. The next matter of relevance to consider is the capacity of each of the parents to provide for the needs of these children. It is plain, given the arrangements that have existed for much of the period since separation, that both parents have the capacity to meet the basic needs of the children, including with respect to accommodation, food, clothing and education.

10. I have already made findings above that the Mother is more attuned to the emotional needs of the children. I have also made a finding that the Father has less insight into the way in which his behaviour has impacted the children and that he is less attuned to their needs. I accept the evidence of the Father that he has sought to improve his parenting skills and has enrolled in parenting courses to facilitate this. He is to be commended for doing so. It is to be hoped that those efforts continue for the benefit of his children.

11. It is also relevant here to consider the particular needs of [Y] who is clearly in a state of distress. Both parties have demonstrated a commitment to ensuring that [Y] gets the care she deserves. To the extent it needs to be repeated however, the fact that the Mother is more attuned to the needs of the children is something that is likely to be of benefit to [Y] in her present state given the challenges that she is facing.

12. There is then the issue of which proposal would be least likely to lead to the institution of further proceedings. Counsel for the Father urged me to make an order granting any party liberty to apply after 12 months of the date of order to vary the arrangements. That submission was made on the basis, inter alia, that the Family Report was not up-to-date in the sense that Ms A had not been apprised of recent developments and that counselling or further counselling would take 12 months to complete. It was said that the situation should be open to being reassessed at that time.

13. I do not regard it as desirable to grant liberty to either party to apply to vary the arrangements in 12 months’ time or thereafter. The view I have come to is that this matter requires final orders to be made. The history of this matter shows that the children have endured a number of differing spend time arrangements with the parents since separation. This includes periods with the Mother, periods with the Father (when the Mother was overseas) and a lengthy period where there was a week about arrangement in place. I accept the evidence of Ms A at the time she wrote the Report (which was when the week about arrangement was in place) that the children were experiencing distress in the care of their Father. I accept the Father has taken steps to try and improve this. I also accept as noted above, the Mother’s evidence that the children are less anxious now and enjoy their time with their Father more. Given the variety of arrangements that have existed since separation, and given that the children now appear to be settled, I do not regard it as in their best interests to grant liberty to either party to apply to alter the arrangements in 12 months’ time. That possibility, in and of itself, is likely to unsettle the children.

14. In light of the Father’s submission that I should grant equal time, I turn to consider whether such an arrangement is practicable having regard to what is set out in section 65DAA(5) of the Act.

15. Before doing so, I observe that a submission made by the Father, at paragraph 9 of his Outline of Case filed on 24 April 2019, was that:

    ‘Pursuant to section 65DAA(1) there is a presumption for the Court to consider whether spending equal time with each of the parents would be in the children’s best interest.  The Husband asserts that the presumption of equal time is not rebutted and therefore proposes a week -about living arrangement’.

16. I am unable to ascertain in the text of the Act any presumption imposed to the effect that parents are to spend equal time with children. The requirement under section 65DAA(1) is that the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child. I have accordingly approached the matter on this basis.

17. Section 65DAA(5) as noted above sets out what is reasonably practical for the purposes of section 65DAA(1) in considering whether a child should spend equal time with each parent. Of significance in this case is subsection (5)(c). This section provides that the Court must have regard to the parent’s current and future capacity to communicate with each other and resolve difficulties that might arise in implementing any arrangement.

18. The factor above is the one that I have given most weight to in this matter.  Both parents struck me as sensible, intelligent people. They have, however, singularly failed to be able to communicate effectively with each other. This situation has persisted notwithstanding the very serious health concerns that [Y] faces. The lack of communication perhaps takes on a greater degree of significance when one considers that the Father does not have the same level of insight as the Mother.

19. I do not propose to delve into or make any findings about who is to blame for the present inability of the parents to communicate effectively. I simply find that both parents lack the ability to communicate with each other for the benefit of their children. I regard the complete absence of effective communication as the principal reason not to make an order for equal time.  My decision in this respect is supported when one has regard to the other reasons that I have set out above.

20. I turn to deal briefly with the competing positions advanced by the ICL and the Mother in relation to weekend spend time arrangements for the children and the Father. At the hearing, the Mother advanced the position that the children should be returned to her on Sunday evenings. This reduces the time that the Father currently has with the children under the interim arrangements. Presently, the Father has the children each alternate weekend until Monday morning.

21. The Mother gave evidence that she wanted the children returned on a Sunday evening so that she could ease their transition into the week of schooling ahead and plan for that week. I accept that the Mother has a process for preparing the children for the week ahead and that she regards it as in the children’s best interests to do that.

22. Ms A gave evidence that she was of the view that the Father could undertake this preparation as well. She also gave evidence that it was important for the Father to be able to contact the children’s school, and that allowing him to drop the children off on a Monday morning, as well as pick them up on Friday evening, would provide a secondary point of contact.

23. The position of Ms A was reflected in the orders proposed by the ICL. The ICL effectively supported no change to the present weekend arrangements given that the evidence (including the Mother’s evidence) was that those arrangements had resulted in the children being settled and more at ease with their Father.

24. I regard it as important for the children and also in their best interests that they not be subjected to any change to the present arrangements. In light of that finding, I do not propose to make an order that the children be returned to the Mother on Sunday evenings.

25. The orders I propose to make in this matter are attached. I have considered them in their totality. I regard the arrangements reflected in those orders as being in the best interests of the children as required by the Act.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Blake

Date: 28 June 2019