McDermott & Dubois
[2023] FedCFamC1F 204
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
McDermott & Dubois [2023] FedCFamC1F 204
File number: MLC 8895 of 2012 Judgment of: JOHNS J Date of judgment: 28 March 2023 Catchwords: FAMILY LAW – CHILDREN – parental responsibility – with whom children should live – with whom children should spend time – where final orders were made in 2013 – where the parties have had a highly acrimonious co-parenting relationship since the making of final orders – where the children are currently aged 17 and 12 years –where the eldest child refuses to live with or spend time with the mother – where the mother makes allegations of the father trying to alienate and influence the children – where the children have expressed clear and mature views – where the mother lacked insight into the effect of her actions upon the children – where the eldest child is of an age whereby it is inappropriate to make orders requiring that he spend time with the mother against his wishes Legislation: Child Support (Assessment) Act1989 (Cth)
Evidence Act 1995 (Cth) s 140(2)
Family Law Act 1975 (Cth) ss 60B(1) & (2), 60CA, 60CC, 61DA. 68Q
Cases cited: Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405
Mulvany & Lane (2009) FLC 93-404
Division: Division 1 First Instance Number of paragraphs: 173 Date of last submissions: 3 March 2023 Date of hearing: 20-22 February 2023; 3 March 2023 Place: Melbourne Counsel for the Applicant: Mr Robinson Solicitor for the Applicant: Keypoint Law Counsel for the Respondent: Ms Wynne Solicitor for the Respondent: Macgregor Solicitors Counsel for the Independent Children's Lawyer: Ms Bonney Solicitor for the Independent Children's Lawyer: Nicholes Family Lawyers ORDERS
MLC 8895 of 2012 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR McDERMOTT
Applicant
AND: MS DUBOIS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JOHNS J
DATE OF ORDER:
28 March 2023
THE COURT ORDERS:
1.That all previous parenting orders be discharged.
2.That the mother and the father have equal shared parental responsibility for making decisions regarding the long-term care, welfare and development of the child Y born 2010 (“the child”).
3.That the father have sole parental responsibility for making decisions regarding the long-term care, welfare and development of the child X born 2005.
4.That the child X live with the father.
5.That the child X spend time and communicate with the mother in accordance with his wishes.
6.That the child Y live with the mother and the father during school term and school term holidays as follows:-
(a)With the father from the conclusion of school on Friday or 3.00pm until the conclusion of school or 3.00pm the following Friday each alternate week, commencing Friday, 7 April 2023;
(b)With the mother from the conclusion of school on Friday (or 3.00pm) until the conclusion of school (or 3.00pm) the following Friday each alternate week commencing Friday 14 April 2023.
7.That the child Y spend time with the mother and the father during the long summer holiday period and on special days at times as agreed between the parties and failing agreement as follows:-
(a)With the father for one half of the long summer holiday period, being the first half commencing on the last day of the school year in 2023/2024 school holidays and each alternate year thereafter and for the second half concluding on the first day of the new school year in 2024/2025 holidays and each alternate year thereafter;
(b)With the mother for the second half of the long summer holiday period concluding on the first day of term 1 of the new school year in 2023/2024 and each alternate year thereafter and for the first half commencing on the last day of the school year in 2024/2025 school holidays and each alternate year thereafter;
(c)At Christmas as follows:-
(i)From 3.00pm Christmas Day until 3.00pm Boxing Day with the father in 2024 and each alternate year thereafter and with the mother in 2023 and each alternate year thereafter;
(ii)From 3.00pm Christmas Eve to 3.00pm Christmas Day with the mother in 2024 and each alternate year thereafter and with the father in 2023 and each alternate year thereafter;
(d)On Father’s Day with the father in each year from 5.00pm on the night preceding Father’s Day until the commencement of school Monday following Father’s Day;
(e)On Mother’s Day with the mother in each year from 5.00pm on the night preceding Mother’s Day until the commencement of school on the Monday following Mother’s Day;
(f)At Easter from the conclusion of school (or 3.00pm) on the Thursday immediately preceding Good Friday until the commencement of school or 9.00am on the Tuesday immediately following Easter Monday with the father in 2023 and each alternate year thereafter and with the mother in 2024 and each alternate year thereafter;
(g)On Y’s birthday with the parent she is not otherwise in the care of from after school to 6.00pm if a school day and otherwise from 10.00am to 2.00pm;
(h)With the mother on her birthday from after school to 6.00pm if a school day and otherwise from 10.00am to 2.00pm;
(i)With the father on his birthday from after school to 6.00pm if a school day and otherwise from 10.00am to 2.00pm;
(j)At such other or further times as agreed in writing between the parties.
8.That Y’s week-about time with the mother and the father resume at the commencement of term 1 in each school year with the parent with whom the child spent the first half of the long summer holiday period.
9.That the parties do all such acts as may be required to communicate with each other using the agreed online app (Our Family Wizard) or email.
10.That unless otherwise agreed between the parties all changeovers occur at the child’s school and if a non-school day at McDonald’s, D Street, Suburb C, and upon the father obtaining a motor vehicle at McDonald’s, B Street, Suburb E.
11.That each party be and is hereby restrained from:-
(a)Denigrating the other in the presence or hearing of the children;
(b)Discussing these proceedings in the presence or hearing of the children.
12.That the father do all acts and things as may be required to facilitate X’s continued attendance upon Ms F as may be directed by Ms F from time-to-time, the costs of such attendance to be paid by the father, utilising NDIS funding if approvals are obtained.
13.That the mother and the father keep each other informed at all times of their current residential addresses, email addresses, contact telephone and mobile telephone numbers and notify the other of any change to those details within 24 hours of such change coming into effect.
14.That forthwith the father do all acts and things as may be required to obtain a mental health care plan for himself for the purposes of referral to a psychologist of his choosing to support him in managing his attitude to and relationship with the mother and to facilitate his support of the relationship between the children and the mother.
15.That the mother do all acts and things as may be required to continue her attendance upon her treating psychologist, Dr G for a period of not less than six months or as otherwise recommended by Dr G, the costs of such attendance to be at the mother expense.
16.That the mother and the father each be authorised and permitted to provide a copy of these orders and Reasons for Judgment and the report of Dr H to all medical and educational institutions attended by the children, or either of them.
17.That each party notify the other as soon as practicable of any medical or other emergency relating to the children or either of them.
18.That the mother and the father be permitted to communicate with the children’s school to request copies of school reports, school circulars or notices.
19.That the mother and the father each be at liberty to attend significant school events, activities or other events to which parents are normally invited with respect to Y, and in the case of X’s events, the father be permitted to attend and the mother attend only in the event that X has provided a written invitation to the mother to so attend such event.
20.That the mother be and is hereby restrained from taking Y to any specialist medical, mental health or other health practitioner without the written consent of the father.
21.That pursuant to s 68Q of the Family Law Act 1975, to the extent these orders are inconsistent with the Family Violence Order made in the Magistrates’ Court of Victoria in proceedings … in relation to the children or the mother the said Family Violence Intervention Order is invalid.
22.That the appointment of the Independent Children’s Lawyer be discharged at the expiration of 30 days from the date of this order.
23.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
24.That all extant applications be otherwise dismissed.
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 the pseudonym McDermott & Dubois has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant father, Mr McDermott and the respondent mother, Ms Dubois are parents to two children, X, who is aged 17 and will turn 18 in 2023, and Y who is aged 12 and will turn 13 in 2023.
The parties separated in February 2012, and final parenting orders were made by consent on 31 July 2013 (“the final orders”). The final orders provide for the parties to have equal shared parental responsibility, for the children to live with the mother and spend time with the father according to a gradually increasing regime, unique to each child, for block periods during school holidays and on special occasions.
It is common ground that in the period since the final orders were made, the parties’ relationship has been marked by a high level of acrimony. The parties each gave evidence as to the complete breakdown of the co-parenting relationship, describing their parenting as “parallel parenting”.
At the heart of the current dispute is the conflict between the parties that arises as a result of their differing parenting styles. The Family Report Writer, Dr H, observed the father to have a “permissive” parenting style, whilst the mother is assessed as having a more authoritative and controlling parenting approach.[1] As the children have matured, the differing parenting styles has created conflict between the children, particularly X, and the mother, and has also heightened the dispute between the parents.
[1] Affidavit of Dr H filed 14 July 2022, [132].
The parental conflict is further amplified as a result of the parties’ differing views as to X’s needs. X was diagnosed with Autism Spectrum Disorder (“ASD”) in 2012 when he was aged 7 years. It is common ground that until 2021, the mother was the parent principally responsible for attending to X’s engagement with therapeutic support to assist him in managing his ASD. The mother maintains the view that X needs greater psychological support than is currently provided to him in the father’s care. It is her view that the father is dismissive of X’s condition and that he has failed to ensure that X has appropriate supports. In contrast, the father’s view is that X is progressing well, both socially and educationally. In support of that position, he relies upon the fact that X is undertaking Year 12 at a mainstream secondary school without the requirement of additional support, has ambition to undertake university studies next year and has a close circle of friends.
The conflict between X and the mother reached its crescendo in early 2021 when X ran away from her home to live with the father. This was the third occasion upon which he had run away from the mother’s home. However, unlike the previous two occasions, since that time X has refused to return to the mother’s care or to communicate or spend time with her. Other than one occasion, in 2021, when X met with the mother in a local park for his birthday, X has spent no time with the mother for in excess of two years.
X has expressed the view to his parents and Dr H that he does not wish to spend time with the mother. The mother does not accept that position and maintains that those views are a product of the father’s influence. As a result, the mother pressed her application for time with X, notwithstanding his age and his strongly held views. Both the father and the Independent Children’s Lawyer submitted that the Court should not make orders requiring X to spend time with the mother.
In relation to Y, at the time of the final hearing she was living with the mother and spending time with the father in accordance with the final orders, that is each alternate week from after school Thursday to the commencement of school the following Monday. Y has reported to the Family Report Writer that she wishes to spend more time with the father. The father seeks orders that Y live with the parties on a week about basis, whilst the mother maintains that the existing arrangements should continue. The ICL supports the father’s position.
For the Reasons that follow, I will make orders that:-
·The father have sole parental responsibility for X and that X continue to live with the father and spend time with the mother in accordance with his wishes; and
·The parties have equal shared parental responsibility for Y and that she live with the parties on a week about basis.
THE PARTIES
The father was born in 1964 and is aged 58 years. He is employed as a professional.
The mother was born in 1970 and is aged 52 years. She is Unemployed. The mother lives with her partner, Mr J, who is aged 46 years and is employed as an office worker. The mother and Mr J have lived together with the children since 2017.
The mother and the father married in 2001 and separated in February 2012.
X was born in 2005 and is aged 17 years. He was diagnosed with Autism Spectrum Disorder in 2012. X is studying Year 12 at K School. The father’s evidence is that X is planning to undertake tertiary studies upon the completion of Year 12.
Y was born in 2010 and is aged 12 years. She is in Year 7 at K School. Although she attends the same school as X, Y is attending school at a different campus.
BACKGROUND
It is common ground between the parties that the mother and X have had a turbulent relationship, particularly since he entered puberty and sought greater independence. It is also common ground that X has alleged that he has been subject to physical abuse at the hands of the mother.
During her oral evidence, the mother conceded that she had slapped X’s face on one occasion, but otherwise denied the allegations that she had engaged excessive physical discipline of the children.
X first ran away from his mother’s home in mid-2018. On that occasion, X returned to the mother’s home the following day. X again ran away from the mother’s home in mid-2019 and stayed with the father for approximately 4 nights.
In early 2021 X travelled to the father’s home by public transport following an argument with the mother. X refused to return to the mother’s care and has lived with the father since that time.
In early 2021 the mother applied for and obtained an interim intervention order against the father, with the mother and the children named as affected family members. That order suspended the operation of the final orders. As a result of that order, X was not permitted to continue living with the father. Notwithstanding that position, X refused to return to live with the mother. The father’s evidence is that as a result, X, who was then aged 15 years, “couch-surfed” between friends’ homes until the operation of that intervention order was suspended.
The father’s evidence is that as a result of the effect of that interim intervention order, which was to prohibit X from living with him, he was forced to bring his current application for parenting orders; that application was filed on 1 March 2021.
On 18 March 2021, interim orders were made by this Court which provided that X live with the father, Y live with the mother and spend time and communicate with the father from after school Thursday until the commencement of school Monday each alternate week. The orders also provided that pursuant to s 68Q of the Family Law Act 1975 (Cth) (“the Act”), to the extent that the interim orders are inconsistent with the family violence orders made in relation to the children, the family violence order is invalid. Otherwise, directions were made for the preparation of a section 11F report and the proceedings were otherwise adjourned for further interim hearing.
A Children and Parents Issues Assessment was conducted by Family Consultant Ms L on 14 July 2021. The parties and the children were interviewed for the purposes of that assessment.
At interview, X is reported to have described his relationship with the mother as follows:-
[X] described a long standing pattern of conflict with his mother which appeared to be influenced by her punitive parenting approach. He described his mother as assuming little responsibility for her behaviour and “blaming” him for all the conflict. He also described situations whereby his mother engaged in and exacerbated the conflict, instead of de-escalating the situation. He recalled his mother using physical discipline when he was a child, noting that she ceased doing this, because he was “now bigger”. [X] described his relationship with his father as close and emotionally safe, noting that his father was allowing him to “choose” what he wanted.[2]
[2] Child Inclusive Conference Memorandum to Court dated 14 July 2021, [12].
In relation to Y, she was observed as follows:-
She was reluctant to express how she felt and appeared apprehensive, particularly when asked questions in relation to her mother… It was apparent that [Y] was emotionally burdened by the fear of letting either parent down, if she were to express freely how she truly felt… She described her parents as “hating each other”.[3]
[3] Ibid, paragraph [14].
As to the parent’s relationship, the father was observed to have adopted a “passive approach” whilst the mother presented as “lacking in insight in relation to her parenting style and the impact this had had on the children, in particular [X]”.[4]
[4] Child Inclusive Conference Memorandum to Court dated 14 July 2021, [22]-[23].
At the conclusion of that assessment, Family Consultant Ms L recommended that the children engage with a Family Therapist to support the reintroduction of spend-time between X and the mother.
Following the release of that report, on 20 July 2021 orders were made by consent for the parties to engage with family therapy.
In December 2021, further orders were made by consent which provided for the parties to attend upon Ms M for family therapy. In addition, orders were made for the preparation of a Family Report by Dr H.
Dr H interviewed each of the parties and the children in March 2022. Her Family Report, dated 31 March 2022, is annexed to her affidavit filed 14 July 2022. Neither party required Dr H for cross-examination. Accordingly, her evidence is unchallenged.
At the conclusion of her Family Report, Dr H makes a series of recommendations including that:-
·The parties have equal shared parental responsibility for the children;
·Y spend equal time with her parents on a week-about basis;
·X spends time with the mother each week for a period of two hours for 25 weeks, after which time he spend further time as agreed by the parties;
·Changeovers to occur at the school or at McDonald’s Suburb C on a non-school day;
·The father engage in individual treatment with a Psychologist who has a good understanding of Family Law issues to help manage his attitudes towards the mother and difficulty supporting a relationship between the children and the mother;
·The mother engage in individual therapy with a Psychologist who has a good understanding of Family Law issues to assist her in developing insight into her parenting style and how she may adapt this to improve her relationship with Y. That treatment should also address the mother’s grief regarding the loss of her relationship with X;
·X to engage in therapy with a Psychologist who has expertise in working with ASD and parenting;
·Y to engage in individual therapy with a Psychologist over a period of at least 12 months to improve her insight into her emotional experiences and capacity to cope with stressors and the family dynamic;
·The parties engage a parenting coordinator to assist with parenting issues; and
·Any medical allied health professionals working with the family be provided with a copy of the Family Report.[5]
[5] Affidavit of Dr H filed 14 July 2022, pages 57-58.
Notwithstanding that the final hearing did not commence until almost one year after those recommendations were made by Dr H, it is common ground that the parties have done little to implement the recommendations that they engage in therapies to assist them.
The matter was allocated to my docket in May 2022 and trial directions were made in July 2022. At that time I made orders for the appointment of an Independent Children’s Lawyer. The final hearing commenced before me on 20 February 2023.
MATERIAL RELIED UPON
The father relied upon the following documents:-
·Amended Application for Final Orders filed 15 June 2022;
·Affidavit of the father filed 29 November 2022;
·Notice of Risk filed on behalf of the father on 1 March 2021; and
·Documents tendered throughout the course of the final hearing, being Exhibits F‑1 – F‑3.
The mother relied upon the following documents:-
·Outline of Case document filed 16 February 2023;
·Amended Response to Application for Final Orders filed 13 January 2023;
·Affidavit of the mother filed 13 January 2023;
·Affidavit of Mr J filed 13 January 2023;
·Affidavit of Dr N filed 3 February 2023;
·Notice of Child Abuse Family Violence or Risk; and
·Documents tendered throughout the course of the final hearing, being Exhibits M1 and M2.
The Independent Children’s Lawyer relied upon the following documents:-
·Outline of Case document filed 15 February 2023;
·Affidavit of Dr N filed 3 February 2023;
·Affidavit of Dr H filed 14 July 2022;
·Child Inclusive Memorandum dated 14 July 2021;
·Affidavit of Mr J filed 13 January 2023;
·Affidavit of Ms Dubois filed 13 January 2023;
·Mother’s Amended Response to Application for Final Orders filed 13 January 2023;
·Affidavit of Mr McDermott filed 29 November 2022;
·Father’s Amended Application for Final Orders filed 15 June 2022; and
·Documents tendered throughout the course of the final hearing, being Exhibits ICL-1 and ICL-2.
ORDERS SOUGHT
The ICL sought orders in the terms of the proposed minute tendered on her behalf on the final day of hearing (Exhibit ICL-2). Those orders largely accord with the proposals of the father.
The father’s orders sought are set out in the Minute of proposed final orders tendered on his behalf on the final day of hearing (Exhibit F-3).
In summary, the proposals of the father and the ICL are that:-
·The parents share joint parental responsibility for the child Y;
·X live with the father and spend time with the mother in accordance with his wishes;
·Y live with the parents on a week-about basis with changeover to occur after school each Friday (or 3.00pm if a non-school day); and
·The parties share equally the term holiday and long summer holiday periods.
The orders sought by the mother are those set out in the Minute of proposed final order tendered on her behalf on the final day of hearing (Exhibit M-2). The mother seeks orders as follows:-
·That the parties have equal shared parental responsibility for both children;
·That X live with the father and spend time with the mother each Saturday from 4.00pm until 6.00pm and the father do all things to ensure X’s attendance at such time; and
·That Y live with the mother and spend time with the father from the conclusion of school on Thursday until the commencement of school on Monday each alternate week (in accordance with the current spend time arrangement).
The mother seeks a sharing of school holiday time between the parents in relation to Y and as to X, seeks that he spend time with the mother throughout the school holiday periods in accordance with her proposals for term time; that is, that he spend time with her each Saturday from 4.00pm to 6.00pm.
The mother also proposes that both X and Y engage in psychological therapy, that the father also engage with a Psychologist nominated by her for treatment and that both parents be entitled to attend school events and activities and communicate with the children’s schools.
Finally, the mother seeks a notation to the orders in the following terms:-
I want the court to note that I love [X], that I am his mother and will always be here for him should he desire to live with me.
That proposed notation highlights the challenges facing the parents, and particularly the mother, and the limitations of a trial process in resolving what are long-standing relationship issues. The mother seeks from the Court an outcome which it is powerless to provide; that is, to ensure that an almost-18-year-old young man spends time with her in the face of his strongly held views (which have been implemented through his own actions) to have no time or communication with her.
THE HEARING
The trial was conducted before me over a period of four days. The witnesses required for cross-examination were the father, the mother, the mother’s partner, Mr J and Dr N, a Clinical Psychologist who had previously treated X.
The Family Report Writer, Dr H, was not required for cross-examination.
ISSUES
The issues remaining to be determined by the Court at the conclusion of the hearing are as follow:-
·In relation to the child X, whether any parenting orders should be made. The father seeks orders that are effectively a continuation of existing arrangements, while the mother seeks specific orders for X to spend time with her.
·What orders, if any, should be made requiring X to engage with a Psychologist?
·Should the existing arrangements for Y continue or should orders be made for her to spend time with the parties on a week-about basis, as is sought by the father?
·What time should Y spend with the parties during the Easter period?
·Where should changeover for the children occur?
LEGAL PRINCIPLES
Section 60B(1) of the Family Law Act 1975 (Cth) ("the Act") sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) of the Act sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child's best interests):-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order, the best interests of the child is the paramount consideration (s 60CA of the Act). Section 60CC(2) and (3) of the Act set out the primary and additional considerations the Court must have regard to in determining what is in a child's best interests. The Court must give greater weight to the need to protect the child from physical or psychological harm from being exposed to abuse, neglect or family violence (s 60CC(2)(b)). Otherwise, there is no requirement for the primary and additional considerations to be considered in a particular order or for any of those considerations to be afforded greater weight than others. Ultimately, the weight to be given to each of the considerations will depend upon the unique circumstances of each case.
As to the manner in which the Court is to take those considerations into account, May and Thackray JJ stated in Mulvany & Lane (2009) FLC 93-404 at [76]-[77] as follows:-
It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by parliament as those the court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis in Original)
There is a presumption that it is in a child’s best interests for parents to have equal shared parental responsibility (s 61DA of the Act). The presumption relates to the allocation of parental responsibility, not the time a child is to spend with either parent. For the reasons set out below, I am satisfied that in relation to X, it is not in his best interests for the parents to have equal shared parental responsibility. I am satisfied that the father ought have sole parental responsibility for making decisions regarding X’s long-term care, welfare and development. As to Y, I am satisfied that an order for equal shared parental responsibility is in her best interests and I will make orders to that effect.
THE EVIDENCE
In determining the matter, the relevant standard of proof is the balance of probabilities. Section 140(2) of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:-
(a)The nature of the cause of action or defence; and
(b)The nature of the subject-matter of the proceeding; and
(c)The gravity of the matters alleged.
I have read all documents upon which the parties have relied and the exhibits that were tendered during the hearing.
In what follows, statements of fact constitute findings of fact. In determining the matter, I have had regard to all of the evidence and had the benefit of observing the appearance and the demeanour of the father, the mother and those witnesses who were required for cross-examination. I have carefully considered the matter and in making findings to the requisite standard, I have had regard to all of the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.
The Father’s Evidence
The father gave evidence on the first and second days of hearing. He was cross-examined by Counsel for the mother and Counsel for the ICL.
Throughout his evidence, the father impressed as a truthful witness, albeit that he appeared worn down and exhausted by the Court process. His concern for the children’s well-being appeared heart-felt and genuine. The husband was softly spoken and passive throughout his evidence; on occasion he became tearful when giving his evidence.
At times, the father demonstrated little insight as to the impact of his own behaviour upon the children’s attitudes and responses to the mother. Nonetheless, the father demonstrated a capacity to consider alternate views, particularly in relation to the role he played in the fracturing of X’s relationship with the mother.
When questioned as to what actions he had taken to implement the recommendations of Dr H in her Family Report regarding therapeutic assistance he and the mother could engage in to repair X’s relationship with the mother, the father conceded that he had done nothing. The father’s view was that the breakdown of that relationship was attributable to the mother’s actions and that he had played no part in the disintegration of the relationship.
It was clear from the father’s evidence that he attributes much of X’s attitude towards the mother to her decision to apply for an intervention order against the father in early 2021 following X’s departure from her home. The father’s view was that in X’s mind, that action had rendered X homeless for a period, as he was not permitted to continue living with the father. It was also his view that the mother had mistreated X and that X harbours resentment for that.
The father was questioned as to the breakdown of the Family Therapy with Ms M. He agreed that Ms M had suggested that he attend a joint session with the mother and that he refused that request. It was his view that the issues in X’s relationship with the mother came as a result of her actions and that he had no role in those matters.
During cross-examination by Counsel for the ICL, the father conceded that he felt beaten down by the mother’s pursuit of these issues. His view is that she has ‘gas-lit’ him and that her actions have caused him distress.
Notwithstanding those views, the father denied the proposition that X had been influenced by his negative views of the mother. The father’s view was that he does not influence X as he does not discuss the mother or speak negatively of her in X’s presence. Nonetheless he conceded that he had never made it a secret that he doesn’t like the mother. I am satisfied that the father’s response to those questions is indicative of his lack of insight or awareness as to his influence over the children and the importance of his role in encouraging their relationship with the mother.
As to his view of the impact of X's ASD on his behaviour, the father agreed that X can be rigid in his thinking. Nonetheless, the father observed that X has ‘a great group of friends’ at school as well as friendships he has developed through his interests.
Whilst the father agreed that it was a high priority for X to have a relationship with the mother, his fear is that if he places too much pressure on X to have such a relationship, his own relationship with his son may be damaged.
Since X has commenced living with the father, it is his view that X has settled well, is focussed on his studies, has more confidence and presents as a physically different person.
As to the concerns raised by the mother that Y has mental health issues, the father’s evidence was that he does not observe her to have any issues with disordered behaviour. As to the mother’s desire for Y to attend therapy, it is the father’s view that she doesn’t present as though she needs therapy; it is his observation that Y is a ‘cheerful and happy’ girl. He observed that Y has friends at school and is happy in that setting.
In relation to his parenting relationship with the mother, the father conceded that he has difficulty having conversations with her; he agreed that he does not want to communicate with the mother. When it was put to him that in refusing to communicate with the mother, he was elevating his own needs above those of the children, the father conceded that he had not viewed his actions through that lens.
Throughout his evidence, the father impressed as a concerned parent who has been overwhelmed by the challenges in co-parenting with the mother. The father appeared weary of the litigation and conflict. It was evident that his priority was to preserve his own relationship with the children, particularly X.
The father’s evidence is that X is rigid in his views and that he is very vocal, animated and strong. As such, it was the father’s view that he did not have the ability to force X to spend time with the mother if he does not wish to do so. I accept the husband’s evidence in relation to those matters.
The Mother’s Evidence
The mother gave evidence on the second and third days of the hearing. She was cross-examined by Counsel for the father and Counsel for the ICL.
At the commencement of the hearing, the mother’s position was that there ought be a moratorium on the father’s time with the children and that both children should live with her. How those proposals could be implemented in circumstances where X refuses to communicate with or spend time with her was unclear. The mother’s case is that the children have been subjected to influence and pressure from the father and it is as a result of his actions that the children are rejecting her.
The mother’s attitude towards the father is best encapsulated at [267] of her trial affidavit wherein she deposed as follows:-
Since [Mr McDermott’s] and my separation, it has become apparent to me over time that he wasn’t just difficult or someone with an alternate parenting style, he is simply an unreasonable person who is incapable of promoting a positive and meaningful relationship between each of the children with me. I consider [Mr McDermott’s] conduct of consistent denigration of me to the children is the definition of psychological abuse and family violence. Together with his persistent, unfounded and unsubstantiated allegations of child abuse which were a deliberate and calculated attempt to meet his own personal objective of undermining, destroying, and ultimately severing my relationship with each of the children, entirely and permanently.
During cross-examination the mother confirmed that she maintains that view of the father.
The mother demonstrated little insight as to her role in the breakdown of her relationship with X and was inflexible and rigid in her views as to the father’s faults. When asked to consider her own conduct towards the children, the mother gave the impression that she was blameless.
When cross-examined by the father’s Counsel, the mother acknowledged that X alleges that she has hit him and that he may resent her use of physical force. The mother stated that those allegations were untrue. However, later in the cross-examination the mother did acknowledge that she had hit X on one occasion during the period when the parties were separated under the one roof. The mother sought at all times to minimise that event.
When interviewed for the Child Inclusive Conference Memorandum in July 2021, X reported to the Family Consultant that he had been subjected to physical discipline by the mother. At [30] of that memorandum, the Family Consultant noted that:-
[The mother] will need to engage in significant efforts to acknowledge how her past behaviour has hurt [X] and has damaged her relationship with him, only then can there be successful repair and reconnection…
The mother was cross-examined as to what steps she had taken to acknowledge the impact of her past behaviours on X. The mother conceded that she had not had any discussion with X regarding those issues. She further conceded that she had not apologised to X for her conduct or acknowledged that behaviour. The mother conceded that since X had commenced living with the father she had messaged him approximately once per week. She could produce no message to the Court where she had apologised or acknowledged her behaviour or her role in the breakdown of their relationship.
During her oral evidence, the mother maintained the position that she did not understand why X had left her home. Indeed, when it was put to her that she did not think she had done anything wrong, she stated that it was her view that X left because of the behaviours and actions of his father.
Further, the mother acknowledged that she had obtained the interim intervention order in an endeavour to force X to return to her home. She confirmed that she was aware that the existence of that order would preclude X from seeing or spending time with his father. The mother failed to recognise that that action served merely to drive a further wedge between her and X; ultimately, he elected to live with friends rather than return to her care when excluded from the father’s home by the operation of that order.
Even in the face of that consequence of her actions, the mother confirmed that she had not agreed to any variation of the intervention order against the father for X’s protection, notwithstanding the fact that X continues to live with the father. When challenged as to what protection X needs from the father, the mother responded that X is exposed to the father’s psychological abuse. The mother also expressed the view that Y also needs protection from her father.
Whilst the mother acknowledged that X, at age 17, has his own opinion, she stated that in her view it is a ‘biased opinion’. She confirmed her belief that X has been manipulated by the father.
Similarly, the mother maintains the view that Y has been manipulated to say that she wants to spend more time with the father.
It is the mother’s view that the father has not been diligent in ensuring X is receiving appropriate care and support for his ASD. Although the father arranged for X to attend upon his current treating Psychologist, Ms F, within one month of him commencing living with the father; the mother was critical of those arrangements. The mother was also critical of the failure of Ms F to communicate with her regarding X’s appointments.
When in the mother’s care, X attended upon Dr N, Psychologist. His therapeutic relationship with Dr N broke down due to X’s perception that Dr N had breached his confidence by sharing information with the mother. The evidence before the Court is that Ms F has been at pains to ensure that X’s therapeutic relationship with her is protected.
It was my impression that the mother had difficulty in accepting that position. The mother seeks to continue to be actively involved in and to control X’s therapeutic supports. That approach has no regard to the fact that X is almost 18 years, is high-functioning and independent, undertaking his VCE studies without any additional supports.
The mother’s attitude to and approach to Y’s care is similarly intrusive and controlling. The mother’s evidence is that she believes Y to have mental health issues. The mother confirmed that she has informed Y’s school of those views which has caused anger and distress to Y.
The mother’s evidence is that she bases her assessment that Y has mental health issues on the fact that she has on one occasion observed her to engage in a certain behaviour in her bedroom. In addition, the mother stated that she had found evidence of Y having engaged in another behaviour on three occasions. That occurred in term 3, 2022 when Y was in Year 6. In response, the mother’s evidence is that she reported that behaviour to Y’s general medical practitioner.
It was submitted on behalf of the ICL that the mother’s behaviour was rigid and inflexible; the mother was unable to afford the children privacy or space and she views the children’s conduct through a lens of disability. Having regard to the mother’s evidence, there is much force in that submission.
The mother is also convinced that the father is subjecting the children to coaching and influence. The mother conceded during cross-examination that she views the father’s home as an unsafe place for the children. Further, the mother conceded that the children are likely aware of her negative views of the father.
Throughout her evidence, I am satisfied that the mother demonstrated little awareness or insight as to the impact of her behaviour upon the children; her endeavour to control and manage the children without regard to their age or maturity has placed them under significant pressure and likely has been a catalyst for X’s decision to live with his father.
I have no doubt as to the mother’s devotion to the care of the children; she is a loving and committed parent. However, I am satisfied that the mother’s parenting style has not adapted as the children have grown with the consequence that the children have been rejecting of her attempts to control and manage them and their relationship with the father.
The Evidence of Mr J
Mr J is the mother’s de facto partner. He is aged 46 years and is engaged in full-time employment as an office worker. The mother and Mr J have lived together since 2017. Mr J has sworn an affidavit in the proceedings which was filed on 13 January 2023. In that affidavit he confirms that he does not have any children of his own but that he considers X and Y to be his children. Further he deposes that they consider him to be a ‘parental figure’.
Mr J presented as a supportive partner of the mother. In doing so he adopted the mother’s view of the father and his behaviour, even when he had no direct knowledge of such matters. For example, it was his view that X’s attitude and behaviour towards the mother shifted as a result of external influences, potentially the father suggesting things to him. However he conceded that he had no basis for that view, stating that it was just his ‘feeling’. Similarly, Mr J conceded that he blamed the father for undermining the mother to the children, notwithstanding the fact that he had never heard the father undermine the mother to them.
Mr J agreed that the mother does not perceive that she has in any way been at fault in relation to the breakdown of her relationship with X.
Mr J also conceded that Y has been deeply affected by X’s absence from the mother’s home. He described it as the home being broken, that there is a missing piece and that Y appears ‘weighed down’ by X’s absence.
Mr J appeared burdened by these proceedings. He conceded that the dispute had impacted his relationship with the mother and that they were attending couples therapy to address their issues.
Given that Mr J has had very little, if any, interaction with the father, in my view little weight can attach to his views regarding the father’s conduct. It is clear that Mr J has been an engaged and caring step-parent to the children. I accept his evidence as to his observations of the impact of X’s absence upon Y.
The Evidence of Dr N
Dr N is a Clinical Psychologist. She specialises in working with families with ASD children. She commenced treating X in early 2012 and X last attended upon her in late 2020.
Dr N has sworn an affidavit in relation to her treatment of X which was filed on 3 February 2023. Dr N was cross-examined by Counsel for the father and Counsel for the ICL. She confirmed in her evidence that she had not spoken with X for approximately two-and-a-half years and that she last spoke with the father approximately 11 years ago.
Dr N deposes that it is her clinical opinion that X has not independently initiated requests to live with the father full-time, but rather that the father had “likely encouraged or coached [X] regarding these requests”.[6] Dr N was challenged in relation to that assessment during cross-examination by the father’s Counsel.
[6] Affidavit of Dr N, filed 3 February 2023, [69].
During her oral evidence, she stated that X had often prefaced his views by stating that ‘my father told me to tell you’. Dr N conceded that she had not included those statements in her affidavit. When it was put to her that such evidence was important, Dr N provided a non-responsive answer, stating that she had provided evidence to the Court that she thought was helpful and relevant to the case.
She was further challenged that she did not speak to the father regarding her concerns. Her response to that proposition was that the father had not been involved in sessions with her throughout her treatment of X.
It was put to Dr N that X had become upset with her because she had informed the mother of matters he had disclosed to her during a session. Dr N stated that she could not recall. That evidence was unhelpful and unimpressive.
Dr N did concede that over the last three years of her treatment of X, the frequency of his visits reduced. She confirmed that X had informed her that he did not wish to attend sessions as frequently and in the last year of her treatment X attended on only one occasion per term.
Dr N confirmed that when X ran away from the mother’s care on the first two occasions, she did not seek to address those matters with the father. She confirmed that on those occasions, X was more specifically focussed on talking about his concerns regarding the mother and wanting to live with the father.
During cross-examination by the ICL, Dr N conceded that she had only received the mother’s narrative of the family unit for the preceding eight years. Further, she conceded that she had never had sessions with Y and had no knowledge of her views on the family dynamic.
Dr N also conceded that she was not in a position to give any view as to X’s functioning since September 2020.
Dr N also confirmed that at age 17, X was likely to have a rigid view of the mother. She also conceded that X is high-functioning and acknowledged that he is undertaking his VCE, has a circle of friends and plans for the future. She acknowledged that there were greater expectations on X in the mother’s home regarding homework, attendance to household chores and use of technology and that X found the father’s home to be ‘less pressured’.
It was submitted on behalf of the ICL that little weight can attach to Dr N’s evidence in circumstances where she has not seen X since September 2020, and she has had no input from the father. I accept that submission.
The Evidence of Dr H
As noted earlier, Dr H’s report dated 31 March 2022 is annexed to her affidavit filed 14 July 2022. Dr H was not required for cross-examination and therefore her evidence is unchallenged. Dr H interviewed both parties and the children. Her observations in relation to the parties and the children are insightful and helpful.
For example, Dr H makes the following assessment of the mother:-
[The mother] presented with an authoritative parenting style, characterised by high responsiveness and high demands. While parents with such a style tend to set limits and be consistent in enforcing boundaries, it seemed at times these were too stringent, causing conflict in the parent-child relationship, perpetuated by [the father’s] permissive parenting style. This appeared to be most relevant in relation to the accessing of technology and the capacity to engage in social interactions prior to completing homework and/or chores.[7]
[7] Affidavit of Dr H, filed 14 July 2022, [93].
That observation of the mother accords with the evidence of the father and also of my observations of the mother when giving her evidence.
X was reported to describe his relationship with the mother as follows:-
[X] claimed that he could not recollect any positive memories of time with his mother, and believed that she had never treated him well. He explained that during early childhood she spoke down to him or hit him, but acknowledged that any physical discipline had ceased by the time he reached year 7. He indicated that they were often in conflict, describing his mother as aggressive…[8]
[8] Affidavit of Dr H, filed 14 July 2022, [109].
With respect to his relationship with the father, Dr H reports X’s views as follows:-
[X] maintained that his father had always supported him in what he wanted to do. He conveyed that he found it easier living with his father, as they tend to agree about most things, rarely arguing. He was unable to identify any negative aspects of residing with his father.[9]
[9] Ibid, [114].
In relation to Y, Dr H reported that she expressed a desire to spend more time with the father, noting that:-
[Y] reported that she had a positive relationship with her father, and that there were few rules, with most of her time in his care was spent on the phone communicating with her friends. She acknowledged that she was not afforded the same freedom while with her mother, who believed that she could be more productive with her time.[10]
[10] Ibid, [123].
In observation with her mother, Y was observed to have positive interactions with her and no risk factors or concerns were identified.
As to the question of future arrangements for Y, Dr H observed as follows:-
Increased time between [Y] and her father is appropriate with consideration to her statements regarding time, and the possibility that in failing to do so, [Y] will start to exhibit a refusal/resistance pattern. This, however, should be conditional on [Y] engaging in individual therapy and by the father engaging in parenting programs to minimise the impact his negative attitudes and beliefs towards the mother has on [Y’s] relationship with her, and to minimise the negative outcomes of a permissive parenting style on [Y’s] development.[11]
[11] Ibid, [150].
In circumstances where the evidence of Dr H is unchallenged, I place significant weight on the observations and recommendations made by her. However, in circumstances where more than 12 months have elapsed since that report was released, in many respects, particularly in relation to X, events have overtaken the practicalities of implementing many of her recommendations. The time for action and implementation of recommendations regarding family therapy and counselling in relation to X has long passed. At 17, and immersed in his Year 12 studies, in my view it is likely to be highly disruptive to him were there any attempt to impose upon him arrangements for engagement with therapists or other experts for the purpose of trying to restore his relationship with the mother.
SECTION 60CC CONSIDERATIONS
The Primary Considerations: Section 60CC(2)
(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
Ordinarily it is in a child's best interests to have a meaningful relationship with both parents. The question of what is a meaningful relationship was considered by Brown J in Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At [26] of that judgment, Her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the child.
In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405, the Full Court considered the interpretation of s 60CC(2)(a) of the Act and concluded that:-
[119]… the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is "the prospective approach" although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents ...
…
[122]In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.
(Emphasis in Original)
Y has been in the primary care of the mother and has spent substantial and significant time with the father since the parties’ separation in 2012. She has an established and meaningful relationship with both parents and I am satisfied that it is in her best interests that those relationships should be fostered and encouraged.
As to X, all of the evidence supports the view that his relationship with the mother has fractured. He continues to enjoy a close and meaningful relationship with the father.
Having regard to his age and maturity, the issue before the Court is whether any orders should be made in an endeavour to attempt to repair his relationship with the mother.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
The mother contends that the children are at risk of psychological harm in the care of the father. I do not accept that position. Whilst the mother contends that the children are ‘unsafe’ in the father’s care, there is no evidence before the Court that persuades me that this is so.
Rather, it was submitted by Counsel for the ICL, and I accept, that the risk of psychological harm emanates from the mother. She persists in viewing X’s needs through the lens of his ASD. There is no evidence that her thinking or approach to his needs has adjusted as he has grown and matured. The impact of that approach has been to cloister and smother him, such that he has felt compelled to remove himself from the mother’s care and completely sever their relationship.
The risk that emerges from that approach is that the mother is now beginning to view Y through a similar lens. The mother’s perception is that Y has mental health issues. Y rejects that proposition and the father’s evidence is that he has observed no indication that Y has those issues. The mother’s approach to her concerns has been to notify Y’s new school and to communicate with her treating general medical practitioner. Those actions have angered Y and have the potential to compromise her relationship with the mother.
Having regard to those matters, in conjunction with the evidence of Dr H as to the challenges facing the children as a result of the differing parenting styles they experience between the parties’ households, I am satisfied that there is a need to protect the children from exposure to psychological harm when in the mother’s care.
The Additional Considerations: Section 60CC(3)
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The children have both been forthright and clear in the views expressed by them to Dr H. Counsel for the ICL submitted that the ICL met with both children in the week prior to the commencement of the final hearing. The views expressed by the children to Dr H were confirmed during that meeting. X was adamant that he did not want to spend time with the mother, whilst Y confirmed that she wished to spend ‘a lot’ more time with the father.
Having regard to the children’s ages and maturity, I am satisfied that significant weight should attach to their expressed views.
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
Following the parties’ separation, the children were in the primary care of the mother and spent substantial and significant time with the father. Y continues to remain in the mother’s primary care, whilst X has lived with the father and spent no time with the mother since early 2021.
Y continues to enjoy close and loving relationships with both the mother and the father.
In contrast, whilst X enjoys a close relationship with the father, his relationship with the mother has fractured.
(c) the extent to which each of the child's parent has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
I am satisfied that the mother has been a devoted parent who has undertaken primary responsibility for the children’s day-to-day care from the time of the parties’ separation until early 2021, in the case of X, and continuing in relation to Y.
The father too has been actively involved in the children’s care since the parties’ separation. He has been X’s primary care-giver since early 2021. The mother alleges that the children have been subject to coaching and influence when in the father’s care. However, whilst the children have been exposed to the negative attitudes of their parents towards each other, I am not satisfied that the father has engaged in the conduct alleged by the mother.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child;
The father has met his obligations to pay periodic child support in accordance with the assessment pursuant to the Child Support (Assessment) Act1989 (Cth).
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The orders that I make with respect to X will not affect any changes to his current circumstances. He will continue to live with the father and will only spend time with the mother if he elects to do so.
As to Y, I will make orders that she live with the parties on a week-about basis. A shift to that arrangement accords with her wishes and will ensure that she has the benefit of substantial and significant time with both parents. Importantly, from her perspective, it will enable her to spend more time with X. The evidence before the Court, particularly from Mr J, is that Y has been affected by the loss of time with her brother. I am satisfied that enabling her to spend more time in the father’s household will ensure that her relationships with the father and X are supported and strengthened.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The parties have lived in their existing residences for many years. The children are well familiar with travelling between the homes of the mother and the father and their schools. Having regard to those matters, I am satisfied that there is little practical difficulty or expense associated with the orders that I propose to make.
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Both parents have a demonstrated capacity to meet the children’s day-to-day physical needs. At issue is the capacity of each to meet the children’s emotional and psychological needs. The mother contends that the father is inattentive to the needs of X, particularly with respect to him receiving support and intervention to manage his ASD. I do not accept that submission.
The evidence of the father, which I accept, is that within one month of X coming to live with him, he engaged a Psychologist, Ms F, to provide assistance and support to X. The father confirmed his commitment to continuing to support X’s engagement with that therapy. Indeed the father proposes that an order be made requiring him to do all things necessary to facilitate X’s continued attendance upon Ms F as recommended by her. I am satisfied that it is in X’s best interests that I make an order to that effect.
The mother also sought orders that Y attend therapy to deal with her mental health issues. I am not persuaded that Y requires such intervention and I will not make orders to that effect. Other than the mother’s assertions which are based on very limited information, there is no evidence before the Court of Y having any mental health issue that requires active intervention.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Both parents have demonstrated a strong commitment towards their children and positive attitudes towards their responsibilities as parents.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
These matters are not relevant to the issues in dispute.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
These matters are not relevant to the issues in dispute.
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family -- any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
I have addressed the issues with respect to alleged family violence earlier in the judgment.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children;
Final parenting orders were initially made in respect of the children in 2013. Notwithstanding the finalisation of those proceedings there has been ongoing conflict and disputes between the parents in relation to the children since that time. That conflict culminated in the mother making application for family violence intervention orders in early 2021. On its face, other than the fact that the child X had elected to leave the mother’s care to live with the father, there appears to have been little basis for the making of that application. That application was the catalyst for the current proceedings as the father filed his Initiating Application so as to obtain an order suspending the operation of the intervention order, insofar as it related to him spending time with the children.
There is no doubt, having regard to the evidence of Dr H, that both children have been exposed to the conflict between their parents. That this is so is evident from the children’s own descriptions to the Report Writer as to their observations of the parents’ behaviour. For example, Dr H describes X’s observations as follows:-
[X] reported that it was clear that his parents separated because his father does not like his mother. He claimed, however, that his father does not express a strong opinion of her, and had agreed to support him if he wanted to see his mother again. [X] claimed that his mother regularly ridiculed and denigrated his father…[12]
[12] Affidavit of Dr H, filed 14 July 2022, [115].
Dr H’s assessment of the family was that both the father and the mother appeared to have exposed the children to adult issues at times and/or denigration of the other parent.[13]
[13]Affidavit of Dr H, filed 14 July 2022, [140].
Having regard to that history, I am well satisfied that it is in the children’s best interests that I make orders least likely to lead to the institution of further proceedings.
(m) any other fact or circumstance that the court thinks is relevant.
There are no other relevant factors or circumstances.
CONCLUSION
The first issue that emerges from the parties’ competing proposals is the question of whether or not the parties ought share parental responsibility for making long-term decisions in relation to X. It is common ground between the parties that they will have equal shared parental responsibility for making decisions regarding the long-term care, welfare and development of Y. I am satisfied that an order in those terms is in Y’s best interests.
As to X, I am not persuaded that the sharing of parental responsibility is in his best interests in circumstances where he lives with the father and at this time, wishes to have no time or communication with the mother. X is almost 18 years of age and any order I make allocating parental responsibility will only endure for a period of months, in any event.
In circumstances where the mother has no communication with X and therefore has no understanding or appreciation of his views in relation to any major long-term issue about which decisions might need to be taken, I am not satisfied that it would be appropriate or in his best interests for the mother to have a role in such decision-making. That view is bolstered given the history of conflict between the mother and father in relation to X. Accordingly, I will make an order that the father have sole parental responsibility for making decisions regarding X’s long-term care, welfare and development.
It is common ground between the parties that X will continue to live with the father.
The mother proposes that she spend time with X during the school term and holidays for two hours each Saturday. For the reasons earlier stated, I am not persuaded that it is in X's best interests to make any orders for him to spend time with the mother. Having regard to his consistent and clearly expressed views which were first articulated in early 2021 when he left his mother’s care and have endured since that time, I am satisfied that it would not be in his best interest to make any orders requiring him to spend time or communicate with the mother. I am satisfied that any orders forcing him to spend time would be highly disruptive and distressing to him. I am also satisfied that there is little prospect of X complying with such orders.
At issue is the question of what time Y ought spend with the father. The father seeks orders that Y live with the parties on a week-about basis. The mother maintains that the existing arrangement, that is that Y live with the father for four nights per fortnight, should continue. The ICL supports the father’s proposal.
The evidence before the Court is that Y seeks more time with the father and that is supported by the unchallenged evidence of Dr H. The views expressed by Y to Dr H and the ICL are consistent and have been expressed over a period of almost 12 months, Dr H having met with Y in March 2022 and with the ICL in February 2023.
It is Dr H’s view that given the conflictual nature and poor communication between the parents, ‘parallel parenting’ is likely to be the most appropriate approach moving forward’.[14] I accept that evidence.
[14] Affidavit of Dr H, filed 14 July 2022, [139].
I also have regard to the evidence of Mr J as to the loss Y feels as a result of X living with the father. It is clear from that evidence that Y seeks the opportunity of spending more time with her brother.
Having regard to all of those factors, I am satisfied that it is in Y’s best interests that her time with the father be increased and that she live with her parents on a week-about basis.
The father proposes that the week-about arrangement for Y continue during the school holiday periods. The mother proposes that Y spend one week of each school term holiday with each parent. Having regard to the similarity between the parties’ two proposals, I will make orders that the week-about arrangement continue through the school term holidays.
As to the long summer holiday period, the father proposes that the parties have one half of each of the long summer holiday periods, being the first half in odd-numbered years and the second half in even-numbered years. The mother proposes that Y spend time with the parties on a week-about basis during the long summer holidays. I am satisfied that it is appropriate that there be a sharing of the long summer holiday period. That period affords both parties the opportunity of having an extended holiday break with Y. I am satisfied that Y is likely to benefit from the opportunity of an extended period with each parent. Accordingly, I will make orders as proposed by the husband with there to be an equal division of the long summer holiday period.
As to special days, it is common ground between the parties that Y should spend time with the mother on Mother’s Day and with the father on Father’s Day. Accordingly, I will make orders for that to occur.
The mother also seeks orders that Y spend time with her on her birthday and the mother’s birthday. I am satisfied that Y should have the opportunity to spend time with the parties on her birthday as well as on the birthdays of her mother and her father. Accordingly, I will make orders as sought by the mother.
As to Christmas, it is common ground between the parties that Y should spend time with both parents over the Christmas period. The father proposes that changeover on Christmas Day should occur at 3.00pm whilst the mother maintains the changeover should be 2.00pm. Given the necessity for travel between the two households and the likelihood of lunchtime celebrations on Christmas Day, I propose to make orders that changeovers be effected at 3.00pm. As Y has spent Christmas morning with the mother each year since separation, I will order that she spend the period from Christmas Eve to Christmas Day with the father in 2023 and each alternate year thereafter.
As to Easter, the mother proposes that there be a splitting of the Easter holiday period whilst the father proposes that Easter be spent with each parent in alternating years to enable the opportunity of enjoying a holiday over that time. I am satisfied that the father’s proposals are sensible having regard to the ages of the children and therefore I will make orders as sought by the father with respect to the Easter holidays.
The parties are in conflict as to the changeover venue. The mother’s proposal is that changeovers occur at McDonald’s in Suburb E, whilst the father proposes that changeovers occur at McDonald's Suburb C. The father seeks the McDonald’s closest to his residence as he currently does not have a motor vehicle and a changeover at his proposed venue will avoid the necessity for travel with Y on public transport. He proposes that upon him obtaining a motor vehicle, the changeover venue should revert to the McDonald’s in Suburb E, which is closer to a mid-point between the parties’ respective homes. I am satisfied having regard to the children’s best interests that the father’s proposals are appropriate so as to minimise the necessity for the children to take public transport to effect changeovers. Accordingly, I will make orders to that effect.
The mother seeks orders that the father engage in psychological treatment with a Dr O. The father recognises his need to engage in therapeutic treatment and proposes that an order be made for him to attend upon a Psychologist of his choosing. Given the father’s evidence and his proposal to engage in therapeutic intervention, I am satisfied that an order as proposed by him is appropriate. That therapy should be guided by the recommendations of the treating Psychologist. The mother also proposes that she continue to engage with her treating Psychologist and I will make orders to that effect.
I am satisfied that the father’s proposals for X to continue his attendance upon Ms F as directed by her is in X’s best interests. X has an established therapeutic relationship with that Psychologist and, in my view, those arrangements ought not be disrupted.
Further, I am satisfied that it is in the children’s best interests that their treating Doctors and Psychologists be provided with copies of these orders and my Reasons for Judgment.
I am also satisfied that it is appropriate that both parents have access to and be permitted to communicate with the children’s school for the purposes of obtaining school reports, photographs, circulars and notices ordinarily provided to parents.
The mother also seeks an order permitting her to attend activities at the children’s school. Whilst that is appropriate in relation to Y, I am not persuaded that the mother ought be permitted to attend any school event related to X, unless she is invited to so attend in writing by X. I will make an order to that effect.
The father also seeks orders that the mother be restrained from taking the children to any specialist medical or mental health practitioner without the written consent of the father. Having regard to the history of this dispute and the mother’s stated concerns with respect to Y, I am satisfied that an order in those terms is appropriate. The mother has expressed very strongly-held views as to her concerns in relation to Y’s mental health. In my view, if Y is to attend upon any mental health practitioner for treatment, that should be with the consent and agreement of both parents having regard to her specific needs at that time.
I certify that the preceding one hundred and seventy-three (173) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 28 March 2023
0