McMurphy and McMurphy

FAMILY COURT OF AUSTRALIA

MCMURPHY & MCMURPHY

[2019] FamCA 947

FAMILY LAW – PARENTING – Allegations of risk of harm – evaluation of risk both parents pose to the children – should orders be made for living arrangements of teenage children – whether an order should be made for equal shared parental responsibility or sole parental responsibility.

Family Law Act 1975 ss.60B, 60CA, 60CC, 61DA

Re F: Litigants in Person Guidelines (2001) FLC 93-072
Bell & Nahos [2016] FamCAFC 244
McCall & Clark [2009] FamCAFC 92
Mazorski v Albright [2007] FamCA 520
M v M (1988) 166 CLR69
Stott & Holgar & Anor [2017] FamCAFC 152

APPLICANT:

Mr McMurphy

RESPONDENT:

Ms McMurphy

INDEPENDENT CHILDREN’S LAWYER:

K S Family Law

FILE NUMBER:

MLC

6417

2007

DATE DELIVERED:

11 December 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Williams J

HEARING DATE:

21 – 24 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Brown of Queen’s Counsel with Mr Schmidt

SOLICITOR FOR THE APPLICANT:

McMahon Fearnley Lawyers

THE RESPONDENT:

In Person

SOLICITOR FOR THE RESPONDENT:

N / A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Jenkinson of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN LAWYER

KS Family Law

Orders

All previous parenting orders be discharged.

Parental Responsibility

The father have sole parental responsibility for the children X born … 2002 and Y born … 2004.
In the event the father makes any major long-term decision which involves exercising parental responsibility in relation to the children (or either child), the father shall notify the mother via email within 48 hours of such decision being made.
The mother is at liberty to consult with any treating practitioner involved with the children (or either of them) and any educational institution at which the children (or either of them) are currently enrolled, with any such communication to occur not more than once per fortnight NOTING THAT nothing in this order requires any of the professionals involved with the children to act upon any information or instructions given by the mother.

The Child X

During school term time X live with each parent on a week about basis, with changeover to occur at the conclusion of school each Wednesday, or 3.00pm if not a school day.
X spend time with the father from 10.00am to 5.00pm on Father’s Day.
Subject to X’s views, X live with the mother during special occasions and holidays as follows:
(a)       from 10.00am to 5.00pm on Mother’s Day;
(b)       for one half of each school term holiday at times to be agreed and, in default of agreement for the first half;
(c)       during the long summer holiday period in 2019 from 2.00 pm on 26 December 2019 until 2.00pm on the middle day between 1 January and the last day of the long summer holiday.
(d)       at any times agreed between the parties in writing.
Subject to paragraph 7, and X’s views, X live with the father at all other times.

The Child Y

Y live with the father.
Y spend time and communicate with the mother as follows:
(a)       each alternate week, on a fortnightly cycle from the conclusion of school on Wednesday ( or 3.30pm if a non-school day) to the commencement of school on the Monday ( or 9.30am if not a school day ), or Tuesday if Monday is a public holiday or curriculum day;
(b)       each alternate Wednesday evening from the conclusion of school until 8.00pm.
(c)       from 10:00am to 5:00pm on Mother’s Day;
(d)       for one half of each school term holiday at times to be agreed and, in default of agreement for the first half;
(e)       during each long summer holiday period :
(i)commencing in 2019, and each alternate year thereafter, from 2.00pm on 26 December until 2.00pm on the middle day between one January and the last day of the long summer holiday.;
(ii)Commencing in 2020 and each alternative year thereafter:
1.   from the commencement of the long summer holiday period until 2.00pm on 26 December; and
2.   from 2.00pm on 1 January until 2.00pm on the middle day between 1 January and the last day of the long summer holiday period;
(f)        at any times agreed between the parties in writing.
That the Mother’s time with X and Y be suspended from 10.00am to 5.00pm on Father’s day.
All changeovers at the commencement or conclusion of school occur at school, and all other changeovers occur at the mother’s residence.
Each parent shall facilitate any reasonable request by Y to communicate with the other parent.
Each parent is at liberty to communicate with Y while he is in the other parent’s care by telephone at any time such communication is initiated by Y.
That the parties be at liberty to contact the children via telephone between 7.00pm and 7.30pm on any Monday, Wednesday or Friday that the children are in the other party’s care.
Both parents do all things necessary to enable Y to continue attending upon his treating psychiatrist, Dr CC.
Both parents be permitted to attend all school events, functions, concerts and the like that parents are usually invited to attend.
Both parents be at liberty to arrange and attend separate parent-teacher interviews for the children (or either of them).
Each parent take the children to all appointments set to occur during their time with the children.
The parties follow all care recommendations and administer all medications prescribed by the children’s treating medical practitioner according to the directions set out by that practitioner.
The parties ensure that all prescription medication is kept in a locked storage unit.
Each parent be restrained from denigrating, or making any critical or adverse comment about the other parent, or any member of the other parent’s family or friends, in writing or orally, to, or in the presence or hearing of the children, or either of them.
The Independent Children’s Lawyer is permitted to provide a copy of these Orders to:
(a) Any current school or educational institution attended by the children or either of them;
(b) Dr CC.
The father is permitted to provide a copy of these Orders to any educational institution attended by the children (or either of them) in the future.
The appointment of the Independent Children’s Lawyer be discharged, subject to any appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McMurphy & McMurphy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC6471 of 2007

Mr McMurphy

Applicant

And

Ms McMurphy

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is the father and the respondent is the mother of the children X born in 2002, aged 17 years and Y born in 2004, aged 15.

Issues in Dispute

The following issues were in dispute in the proceedings:
i)Does the father pose an unacceptable risk to the children, as alleged by the mother;
ii)Parental responsibility for the children, as each parent seeks an order for sole parental responsibility;
iii)Whether there should be orders in relation to X;
iv)Should Y live with his mother and spend time with his father in accordance with his wishes;
v)Should Y live with his father and spend five or six nights per fortnight with his mother.

Synopsis

I have determined that the father does not pose an unacceptable risk to the children and it is in their best interests that:
i)The father have sole parental responsibility for the children, subject to him providing prior notification to the mother of any decisions pertaining to the children’s education and health;
ii)There should be orders for X to live week about with each parent;
iii)Y should live with his father and spend five nights per fortnight with his mother, together with a meal each alternate Wednesday.
The reasons for my determination follow.

Background and relevant procedural history

The father is age 52 and is a health professional. The mother is aged 50 and is a health care worker. They cohabited and married in 2002 and separated on 5 August 2007. They divorced in 2008.
Their first child X was born in 2002 and their second child, Y was born in 2004.
At the date of separation X was almost five years old and Y was almost 3 years old.
Between separation in 2007 and 2008, the parties were involved in extensive litigation pertaining to both property and parenting.
On 16 April 2008, interim parenting orders were made by Senior Registrar Fitzgibbon which provided as follows:
i)The parents have equal shared parental responsibility for the children;
ii)The children live with her mother;
iii)The children spend time with their father for five nights per fortnight during school term and half of all school holidays.
During the course of the parenting litigation the mother alleged that the father had engaged in family violence, which was denied by him.
In 2008, the interim parenting orders became final orders by consent when the parties resolved their extant financial dispute.
Between April 2008 and May 2017, the parties substantially complied with the parenting orders and were not involved in litigation in this Court.
In May 2017, at the Magistrates’ Court the mother applied for and was granted an interim ex parte Intervention Order, which included the children as affected family members. A copy of the mother’s application is annexure 1 to the father’s Trial Affidavit sworn 19 June 2019. The interim order prevented the father having contact with the children.
On 19 May 2017, the mother’s application was resolved by way of an undertaking without admission by the father. The children’s time with their father recommenced.
In June 2017, the mother again applied for and was granted a further intervention order against the father, with the children named as affected family members. A copy of the mother’s second application is annexure 2 to the father’s Trial Affidavit. The interim order again prevented the father having contact with the children.
On 13 June 2017, the father filed an Initiating Application in this Court, which commenced the current proceedings.
On 20 June 2017, Senior Registrar Fitzgibbon made orders providing for:
i)the appointment of an independent children’s lawyer;
ii)a psychiatric assessment of both parties to be undertaken by Dr C;
iii)a family report to be prepared by Dr D;
iv)the mother to undergo a hair follicle drug test, as the father had voluntarily undertaken a hair follicle drug test the previous day.
On 28 August 2017, orders were made by a Senior Registrar Fitzgibbon reinstating the orders which were made in 2008, subject to the Independent Children’s Lawyer explaining the orders to the children.
Dr C’s psychiatric assessment of the parties was released on 9 November 2017. He opined that the mother was a risk to Y and a risk to the children’s relationship with their father.
On 20 November 2017, the father filed an Application in a Case seeking interim parenting arrangements, which was adjourned to 30 November 2017. On that date procedural orders were made adjourning the father’s Application in a Case to 17 January 2018.
Dr D’s family report was released on 4 December 2017 and recommended a reversal of the living arrangements for the children.
On 13 and 14 February 2018, the mother’s application for an intervention order was heard in the Magistrates’ Court. The mother withdrew her application on the second day of the hearing.
On 19 February 2018, Senior Registrar Field made orders as follows :
i)The parents have equal shared parental responsibility for the children, save for issues pertaining to health and education, for which the father has sole parental responsibility,
ii)Reversing the time arrangements, so that the children live with the father nine nights per fortnight and spend time with the mother five nights per fortnight.
The orders of 19 February 2018 are the existing arrangements for the children.

The proposals of the parties

The father’s proposal

The orders which the father seeks from the Court are set out in his Amended Minute of Proposed Orders .They are as follows:
Interpretation
1.        For the purposes of these Orders:
1.1.     “Children” means X and Y;
1.2.     “Y” means the child of the marriage, Y born in 2004;
1.3.     “First Half” with respect to a School Term Holiday Period means from 5:00 PM on the last day of the School Term preceding that School Term Holiday Period until 5:00 PM on the middle day of that School Term Holiday Period (and, in the event that there are two middle days, on the earlier of those two days);
1.4.     “X” means the child of the marriage, X born in 2002;
1.5.     “Long Summer Holiday Period” means the period commencing at the conclusion of Term 4 in a year (if the Children’s respective schools have different last days of Term 4, the later of those days), and concluding at the commencement of Term 1 the following year (if the Children’s respective schools have different first days of Term 1, the earlier of those days);
1.6.     “Regular Time Period” means any period other than a School Term Holiday Period and a Long Summer Holiday Period; and
1.7.     “School Term Holiday Period” means a school holiday period between two school terms in the same year, commencing at the conclusion of the earlier term (if the Children’s respective schools have different last days of term, the later of those days), and concluding at the commencement of the later term (if the Children’s respective schools have different first days of term, the earlier of those days).
Parental Responsibility
2.        The father have sole parental responsibility for the Children.
Live-with and Spend-time Arrangements
X
3.        Subject to orders 6 to 7 inclusive, X live with the father and the mother on a week-about basis, with changeovers to occur at the conclusion of school each Wednesday (or 3:30 PM if not a school day).
Y
4.        Y live with the father.
Regular Time with Mother
5.        Subject to orders 6 to 7 inclusive, the Y spend time with the mother:
5.1.     during each Regular Time Period on a fortnightly cycle from the conclusion of school on Wednesday of week 1 (or 3:30 PM if not a school day) until the commencement school on Monday of week 2 (or 9:30 AM if not a school day);
5.2.     for one half of each School Term Holiday Period at times to be agreed and, in default of agreement, in the First Half;
5.3.     during each Long Summer Holiday Period:
5.3.1   commencing in 2019, and each alternate year thereafter, from 2:00 PM on 26 December until 2:00 PM on the middle day between 1 January and the last day of the Long Summer Holiday Period (and, in the event that there are two middle days, on the earlier of those two days); and
5.3.2   commencing in 2020, and each alternate year thereafter:
5.3.2.1 from the commencement of the Long Summer Holiday Period until 2:00 PM on 26 December; and
5.3.2.2 from 2:00 PM on 1 January until 2:00 PM on the middle day between 1 January and the last day of the Long Summer Holiday Period (and, in the event that there are two middle days, on the earlier of those two days); and
5.4.     at any such other time as is agreed between the father and the mother in writing.
Father’s and Mother’s Days
6.        The Children spend time with the father from 10:00 AM until 5:00 PM on Father’s Day.
7.        The Children spend time with the mother from 10:00 AM until 5:00 PM on Mother’s Day.
Changeovers
8.        All changeovers at the commencement or conclusion of school occur at school, and all other changeovers occur at the mother’s residence.
Psychological Counselling for Children
9.        The father and mother each do all such acts, and sign all such documents, as are required to cause each of the Children, at the father’s sole expense, to attend upon one of:
9.1.     Mr E;
9.2.     Dr F; and
9.3.     Dr G,
(“Child Psychologist”) for therapeutic counselling to:
9.4.     explain to the Children the parental responsibility, live-with, and spend-time, provisions in these Orders;
9.5.     support the Children in accepting these Orders;
9.6.     assist the Children generally with relationship with each of the father and mother; and
9.7.     provide such other support to the Children as recommended by the Child Psychologist,
such counselling to continue with respect to each of the Children for as long as is recommended by the Child Psychologist.
Psychiatric Counselling for Mother
10.      The mother do all such acts, and sign all such documents, as are required to engage in psychiatric counselling, therapy and/or treatment, with such consultant psychiatrist as is recommended by her treating general medical practitioner, to assist the mother to:
10.1.   support the Children;
10.2.   support the Children’s relationship with the father; and
10.3.   comply with these Orders,
such counselling to continue for as long as is recommended by the Psychiatrist.
Mother Restrained from Exposing Children to Adult Matters
11.      The mother, by herself or her agents, be restrained from:
11.1.   using the Children, or either of them, to communicate with the father;
11.2.   abusing, insulting, belittling, rebuking or otherwise denigrating the father to, or in the presence of, or within earshot of, the Children, and allowing Children to remain in the presence of, or within earshot of, any third party engaging in such behaviour;
11.3.   discussing the family law proceedings with, or in the presence of, or within earshot of, the Children, and allowing the Children to remain in the presence of, or within earshot of, any third party engaging in such behaviour;
11.4.   showing to, or leaving accessible to, the Children any document connected with these proceedings; and
11.5.   showing to, or leaving accessible to, the Children messages, emails or other written communication, between the parties.
Miscellaneous
12.      Each party:
12.1.   be at liberty to obtain school reports, school notices, school newsletters, school photographs, and the like, for the Children;
12.2.   be at liberty to attend separate parent-teacher interviews for the Children;
12.3.   be at liberty to attend all school activities and functions;
12.4.   keep the other advised via email, at all times, of his / her current residential address, email address, landline telephone number (if applicable) and mobile telephone number, and notify the other within seven (7) days of changes to any of these;
12.5.   keep the other advised via telephone, at all times, and as soon as practicable, of any medical emergency, illness or injury requiring treatment of, or consultation with, a medical practitioner or health professional, suffered by the Children (or either of them) while in his / her care;
12.6.   keep the other advised, via telephone, at all times, and as soon as practicable, if the Children (or either of them) do not attend school (whether for the whole or part of a school day);
12.7.   keep the other advised via text message or email, at all times, of any medications prescribed for, or administered to, the Children (or either of them);
12.8.   keep the other advised via text message or email, at all times, of the names and contact details of all medical practitioners and health professionals treating, or consulting, the Children (or either of them).

Documents relied upon by the father

The father relied upon the following documents;
i)Amended Initiating Application filed 12 March 2019;
ii)Trial Affidavit filed 21 June 2019;
iii)Updated Trial Affidavit filed 30 September 2019;
iv)psychiatric assessment of Mr H (psychiatrist) dated 26 September 2019;
v)affidavit of Ms J (family report) filed 30 April 2019;
vi)affidavit of Mr L (family report) filed 15 January 2018
vii)affidavit of Mr K (psychiatrist) filed 20 December 2017;
viii)documents tendered by Counsel, including documents produced pursuant to subpoenae.

The father’s witnesses

The father gave evidence and was cross-examined by the mother.
The father impressed me as a truthful witness who had a detailed recollection of past events and was keen to answer questions with as much particularity and explanation as possible.
However, he also sought to minimise, downplay and express remorse for his aggressive conduct towards the professionals involved in Y’s care.
He impressed me as methodical, insightful and somewhat incredulous about the allegations which had been levelled against him. His explanations of Y sharing a bed with him were candid and truthful, and in a functioning family, would be entirely unremarkable.
Where the evidence of the father differs from the mother, I generally prefer the father’s evidence.
I also accept that he is greatly concerned about his son’s conduct and will do all things necessary and obtain all treatment possible to assist Y with his psychiatric and substance abuse problems.

The mother’s proposal

The orders which the mother seeks from the Court are set out in her Amended Minute of Proposed Orders. They are as follows:
i)the mother have sole parental responsibility for the children;
ii)X be removed from all court all orders (sic);
iii)Y live with the mother;
iv)Y’s time with the father be in accordance with his wishes;
v)all changeovers occur at the commencement and conclusion of school;
vi)psychological counselling for the children, in accordance with the father’s proposal;
vii)the mother continue psychological counselling with Dr M;
viii)the father undertake psychiatric counselling as recommended by Professor O in 2014, to assist the father with threatening behaviour, temper management, aggression and lack of self-control;
ix)both parties be restrained from exposing the children to adult matters, in the same terms as the father’s proposal;
x)miscellaneous orders, in accordance with the father’s proposal.

Documents relied upon by the mother:

The mother relied on the following documents:
i)affidavits of the mother filed 18 March 2019; 5 July 2019 and 15 January 2018;
ii)affidavit of Ms P sworn 15 January 2018;
iii)affidavit of Dr Q (paediatrician) filed 15 January 2017;
iv)affidavit of Ms R (father’s aunt) filed 15 January 2018.
Additionally, the mother sought to rely on a letter from Ms S which was emailed to the court, and various documents produced pursuant to subpoenae addressed to T School, the U Hospital, Ms V (psychologist) and Ms W (psychologist).
The mother was advised that she could tender documents produced pursuant to subpoenae and that is what occurred. I refer to the table of tendered documents later in these reasons.

The mother’s witnesses

The mother gave evidence and was cross-examined by Queen’s Counsel for the father. Neither Ms P, nor Ms R were required for cross-examination. Dr Q did not attend and was unable to be cross-examined by Queen’s Counsel for the father.
The mother impressed me as a witness who had very fixed and myopic opinions about the father and events. She was combative, argumentative and at times disrespectful.
She had an unwavering view that:
a)the father had sexually abused Y;
b)Y had obtained drugs from the father and that had contributed to, or caused Y’s fascination with drugs;
c)both children were fearful of the father;
d)the father was an aggressive and threatening person.
She was not open to considering there may be an alternative explanation for Y’s sexualised behaviour, his drug use or his relationship with his father. Such a hypothesis was simply inconceivable to her rigid views.
Although her evidence was limited and constrained by the prism of her entrenched and unwavering view, she endeavoured mostly to tell the truth, as she saw it. There were two issues, where I do not accept the veracity of her evidence.
Firstly, her professed inability to recall her statements to the police, following Y’s interview with the police on 2 November 2017. Generally, the mother had a very precise and exact recall of events, dates, times and personnel even during periods of distressing times with Y. Queen’s Counsel for the father put to her the statements attributed to her in the notes of Officer Z, (Exhibit H-6) that she stated the father was a maniac, needed to be charged, she was very dissatisfied and would be speaking to the media about the lack of intervention.
I do not accept:
i)her evidence that she was unable to recall making such a statement to the police; and
ii)the submissions of counsel for the Independent Children’s Lawyer that her inability to remember was in the context of a very stressful time and was consistent with her then levels of anxiety.
I consider the alleged inability to recall to be a disingenuous answer to attempt to deflect any adverse consequences of a finding that she engaged in such conduct.
Secondly, I do not accept her evidence that she does not discuss with the boys the father’s lack of parental capacity and coercive behaviour.
Exhibit H-4 are the discharge summaries dated 22 November 2017 of Y from AA Medical Centre. Under the heading ‘Formulation’, the notes state as follows:
Y reports that his mother talks to him about his father going to jail, which increases his stress and negatively impacts on his sleep.
After observing her forthright and combative manner in the witness box, I do not accept she is able to refrain from discussing her fixated and long-standing views with the children. I also accept that Y was telling the truth about his mother’s conduct, which is referred to in the previous paragraph.

The proposal of the Independent Children’s Lawyer

The orders which the Independent Children’s Lawyer seeks are set out in the Case Summary filed 14 October 2019. They are as follows:
1.        All previous parenting orders be discharged.
Parental Responsibility
2.The father have sole parental responsibility for the children X born in 2002 (“X”) and Y born in 2004 (“Y”).
3.In the event the father makes any major long-term decision which involves exercising parental responsibility in relation to the children (or either child), the father shall notify the mother via email within 48 hours of such decision being made.
4.The mother is at liberty to consult with any treating practitioner involved with the children (or either of them) and any educational institution at which the children (or either of them) are currently enrolled, with any such communication to occur not more than once per fortnight NOTING THAT nothing in this order requires any of the professionals involved with the children to act upon any information or instructions given by the mother.
X
5.X live, spend time with and communicate with each parent in accordance with X’s wishes.
6.Each parent be restrained from attempting to influence X in relation to his living arrangements and/or the time X spends with the other parent.
Y
7.        Y live with the father.
8.        Y spend time and communicate with the mother as follows:
a.each alternate week, from the conclusion of school on Wednesday to the commencement of school on the Monday, or Tuesday if Monday is a public holiday or curriculum day;
b.each alternate Wednesday evening from the conclusion of school until the commencement of school Thursday.
c.        from 10:00 am to 5:00 pm on Mother’s Day;
d.from 2.00 pm on Christmas Day until 2.00 pm on Boxing Day in 2019 and each odd numbered year thereafter;
e.from 2.00 pm on Christmas Eve until 2.00 pm on Christmas Day in 2020 and each even numbered year thereafter;
f.for half of all term school holiday periods as agreed between the parties in writing and failing agreement, for the first half of the holidays from the conclusion of school on the last day of term until 2.00 pm on the middle Saturday; and
g.         at any times agreed between the parties in writing.
9.        That the Mother’s time with Y be suspended as follows:
a.         from 10:00 am to 5:00 pm on Father’s Day;
b.from 2.00pm on Christmas Eve until 2.00pm on Christmas Day in 2019 and
c.from 2.00pm on Christmas Day until 2.00pm on Boxing Day in 2020 and each even numbered year thereafter; each odd numbered year thereafter.
10.Each parent shall facilitate any reasonable request by Y to communicate with the other parent.
11.Each parent is at liberty to communicate with Y while he is in the other parent’s care by telephone at any time such communication is initiated by Y.
12.That the parties be at liberty to contact the children via telephone between 7.00pm and 7.30pm on any Monday, Wednesday or Friday that the children are in the other party’s care.
13.Both parents do all things necessary to enable Y to continue attending upon his treating psychiatrist, Dr CC.
14.Both parents be permitted to attend all school events, functions, concerts and the like that parents are usually invited to attend.
15.Both parents be at liberty to arrange and attend separate parent-teacher interviews for the children (or either of them).
16.Each parent take the children to all appointments set to occur during their time with the children.
17.The parties follow all care recommendations and administer all medications prescribed by the children’s treating medical practitioner according to the directions set out by that practitioner.
18.The parties ensure that all prescription medication is kept in a locked storage unit.
19.Each parent be restrained from denigrating, or making any critical or adverse comment about the other parent, or any member of the other parent’s family or friends, in writing or orally, to, or in the presence or hearing of the children, or either of them.
20.      The ICL is permitted to provide a copy of these Orders to:
a.Any current school or educational institution attended by the children or either of them;
b.        Dr CC.
21.The father is permitted to provide a copy of these Orders to any educational institution attended by the children (or either of them) in the future.
22.      The appointment of the ICL be discharged.

Documents relied upon by the Independent Children’s Lawyer

The Independent Children’s Lawyer relied on the following documents:
i)affidavit of Ms J sworn 17 April 2019 (family report);
ii)psychiatric assessments undertaken by Mr H dated 26 September 2019.

The Independent Children’s Lawyer’s witnesses

Both Ms. Ms J and Mr H gave evidence and were cross-examined by the mother. Both witnesses were cross-examined via the telephone, with the consent of all parties. At the commencement of the trial the mother advised the court that she wished to cross-examine both witnesses, however she lacked the funds to pay for their attendance at court for cross-examination. Queen’s Counsel for the husband advised the court that the father was prepared to meet the costs of both witnesses being cross-examined.
Counsel for the Independent Children’s Lawyer asked Ms J some questions, by way of clarification. Neither witness was cross-examined by Queen’s Counsel for the father.
Ms J is an experienced family report writer. Her family report dated 29 March 2019 is annexure Ms J-1 to her affidavit. I do not intend to summarise the contents of the family report. She gave evidence in a professional and truthful manner. She answered questions directly in response to the cross-examination of the mother and made appropriate concessions when the mother cross-examined her about factual mistakes in the family report. I accept her as professional and a witness of truth. The mother’s cross-examination did not undermine her professional opinion in any manner.
Counsel for the Independent Children’s Lawyer, at the conclusion of the mother’s cross-examination asked Ms J whether her opinion and recommendations had changed as a result of cross-examination by the mother. She confirmed it had not.
Dr BB was cross-examined by the mother. The focus of her cross-examination was primarily what she perceived as factual inaccuracies in the report. Dr BB is an experienced forensic psychiatrist who prepared psychiatric assessments of both parties. His assessment dated 26 September 2019 was adopted by him prior to cross-examination. He was a professional, impressive and responsive witness. He also readily conceded factual mistakes and inaccuracies which were put to him by the mother. The mother’s cross-examination did not challenge in any significant manner the professional opinion of Dr BB. I accept Dr BB’s assessment of the parties as accurate, subject to the factual mistakes which he was prepared to admit.
The following documents were tendered by the parties and received into evidence:

EXHIBIT NUMBER	DESCRIPTION
EXHIBIT NUMBER	H-1	Email of X to the Independent Children’ Lawyer.
H-2	Y’s school report – year 9, semester 1.
H-3	Husband’s affidavit exhibits of 19 June 2019 and 3 September 2019 (bundle of exhibits).
H-4	Records of AA Medical Centre relating to Y as tagged (discharge summary).
H-5	Notes from Dr CC (psychiatrist) of phone conversation with the mother, dated 1 November 2017.
H-6	Documents produced by Victoria Police pursuant to subpoena dated 23 July 2019 filed by the Independent Children’ Lawyer.
H-7	DHHS documents produced pursuant to s 69ZW, cover letter dated 13 October 2017.
H-8	Handwritten notes of Dr CC dated 24 November 2017; 28 November 2017; and 3 November 2017.

EXHIBIT NUMBER	DESCRIPTION
EXHIBIT NUMBER	W-1	Affidavit of wife of 19 March 2019, including annexures.
W-2	Notes of Ms V (paediatrician). Notes of consultation dated 17 May 2017.
W-3	Emails between Ms DD and Mr EE of T School dated 29 January 2015.
W-4	Notes of Ms FF (undated) of meeting on 13 April 2014

EXHIBIT

NUMBER

DESCRIPTION

ICL-1

Emails between the Independent Children’ Lawyer and X from 22 June 2019 to 13 October 2019.

Preliminary matters

At the commencement of the trial, as the mother was self-represented, I advised her that she may wish to consult a duty lawyer to obtain advice, however she declined to do so. I also advised the mother of the requisite matters, in accordance with the guidelines referred to in Re F: Litigants in Person Guidelines (2001) FLC 93-072, and provided her with a copy of the relevant provisions of the Family Law Act 1975.
During the course of the proceedings, with the consent of all other Counsel, I permitted the mother’s various friends, to sit with her at the bar table to provide emotional support.

The Applicable Law

Evidence

The standard of proof in this case is the balance of probabilities (s.140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
The father and mother relied upon their respective affidavits. I have examined that evidence and do not propose to repeat it in these reasons.
In Bell & Nahos [2016] FamCAFC 244, Strickland J addressed the obligations of a trial judge in that regard as follows at [28]-[29]:
[28] … [I]t is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
a) In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
[29] I can see no error here in her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to reach her decision.

Statutory Pathway

Part VII of the Family Law Act 1975 (Cth.) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Section 60CC(2) of the Act provides that:
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

In McCall & Clark [2009] FamCAFC 92 (“McCall & Clark”) at [109], the Full Court said:
The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”.
At [117] of McCall & Clark, the Full Court said:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child [sic].
The Full Court said there were differing possible approaches to s.60CC(2)(a) of the Act. The Court preferred the “prospective approach”, although the “present relationship approach” may also be relevant.
At [118] of McCall & Clark, the Full Court defined both the “present relationship approach” and “prospective approach” as follows:
…
(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
…
(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”). In this dispute I prefer the prospective approach.

In Mazorski v Albright [2007] FamCA 520, Brown J at paragraph [26], described a meaningful relationship as one “which is important, significant and valuable to the child” and the word meaningful is “a qualitative adjective, not strictly a quantitative one”.
The father’s case is predicated upon him having an excellent relationship with both X and Y. Furthermore, he acknowledges that both boys have an excellent relationship with their mother and that it is in their best interest for that relationship to continue.
The observation session described at paragraph 84 of the family report confirms the nature of the boys relationship with their father:
Observation of the boys with their father was unremarkable; unremarkable in the important sense that it was what one might expect when the children have a close and supportive relationship with that parent. There was an observed familiarity. The father – sons interactions seemed natural and genuine. It was evident that Mr McMurphy enjoys his time with the boys, and, in turn, X and Y seemed sufficiently confident and secure in their relationship to tease their father. It was readily evident Mr McMurphy has a bond with his sons and they have an attachment to him.
Prior to recording her observations of the children and their mother, Ms J, in the family report, at paragraph 89, refers to some unusual behaviour by Y towards his mother. Notwithstanding those concerns, which are referred to as information for treating professionals, at paragraph 91, she records the observations of the children and their mother as follows:
As with their father, both boys were familiar with their mother. They were relaxed and at ease in her presence; as she was with them. The observed interaction was again unremarkable in the sense that it was what one might expect when the children have a close relationship with that parent.
Both boys identify differences in their respective parents’ households, with their mother being more nurturing and permissive, and their father being more structured, imposing boundaries and adhering to a solid routine.
On the other hand, the mother asserts that the children have an excellent relationship with her, however their relationship with their father is based on a sense of fear, bullying and intimidation by him. She fervently believes that the children report to professionals what their father expects them to say, for fear of reprisal, if they report anything adverse about their father.
In support of her hypothesis, she cites X’s email of 22 May 2019, sent at 11:23 PM to the Independent Children’s Lawyer, which is exhibit ICL-1, as an expression of X’s fear and him being subjected to bullying and threats by his father. This email is further discussed later in these reasons. She was unable to reconcile that email with X’s email to the Independent Children’s Lawyer dated 13 October 2019 sent at 5:57 PM, is Exhibit H-1, where X, states as follows:
I would like to emphasise that I do not take either of my parents (sic) sides, but only what is best for myself. I love my parents equally and feel blessed to have them in my life. There is nothing that the courts or authorities can do to change my new arrangement. Could you please communicate this to the courts?
It is apparent that X’s view of his relationship with his father is completely different to his mother’s view.
I have no hesitation in finding that:
i)both boys have a significant and meaningful relationship with both parents;
ii)it is advantageous for both children that such a relationship continue;
iii)the father’s proposal will ensure that the children’s relationship with both parents will be maintained;
iv)the mother’s formal proposal does not reflect her actual views, as her real preference is that the children should spend no time with their father;[1]
v)the mother’s real views could jeopardise the children’s relationship with their father.

The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse

[1] Family Report, at [165].

The mother asserts that the father poses an unacceptable risk to the children. She alleges that the father:
i)has sexually abused Y;
ii)is or has been addicted to various drugs, including opioids;
iii)has driven the boys whilst under the influence of drugs;
iv)has been financially abusive, including threatening to stop paying her rent, which the father paid voluntarily;
v)has been intimidating, controlling and verbally abusive to her and the children and to professionals involved in Y’s care.
The mother’s formal position was that there should not be orders pertaining to X and that Y should live with her and spend time with his father in accordance with his wishes. During cross-examination it was apparent that her preferred position was that neither child should spend any time with their father and that she had ameliorated her preferred position because that would be advantageous to her in the proceeding.
The father asserts that the mother is unable to facilitate and encourage a relationship between the children and himself. He does not allege that she poses an unacceptable risk to the children, which is consistent with his orders sought, that X spend week about with each parent and Y spend five nights a fortnight with his mother.
The father submits that exposure to the mother’s persistently negative views of the father amounts to a risk of harm to the children, however, that is not an unacceptable risk so as to require their time with her to be supervised or limited. However, to ameliorate any risk from her views, the father’s proposal that the children remain primarily in his care should prevail.
I agree with the submission that the mother does not pose an unacceptable risk of harm to the children.
The High Court in M v M (1988) 166 CLR 69 at [76] stated that the Family Court is not required to “resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would if it were trying a party for a criminal offence”.
The High Court, also stated, that in appropriate cases the court can and should make such findings.
At [23] – [25] the High Court said:
[23] No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless [...]
[24] In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. […]
[25] […]In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
The concept of “unacceptable risk” referred to in M v M was in the context of resolving “the wider issue” of what is in the best interests of the child.
In Stott & Holgar & Anor [2017] FamCAFC 152, the Full Court of the Family Court has recently succinctly considered the law with respect to unacceptable risk.
At [35] – [38] the Full Court stated:
[35] The “unacceptable risk” test applies also to other forms of risk, including risks to children associated with exposure to family violence: A v A (1998) FLC 92-800 at 3.15 and 3.25; Amador v Amador [2009] FamCAFC 196;(2009) 43 Fam LR 268 at [89].
[36] In B and B (1993) FLC 92-357 at 79,778, the Full Court described the test as:
the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs possible benefits to them from that access.
I will address each of the allegations of the mother.

Allegations that the father has sexually abused Y

The mother fervently believes that the father has sexually abused Y. The genesis of the abuse is that Y shared a bed with the father at his Town GG holiday home on a number of occasions, prior to Y displaying acute sexualised behaviour. She told Ms J, at paragraph 60 of the family report that she considers the sexual abuse stopped “probably in the September 2017 holidays”. She is of the view that Y only gets into trouble after time with his father.
During cross-examination, the father’s evidence about sharing a bed with Y was that in the early stages of his relationship with his now wife, Ms HH, he did not want the boys to be aware that he was sharing a bed with her. On a number of occasions at the Town GG holiday home, Ms HH was allocated a bedroom to herself and the father and Y shared a bed in another bedroom.
According to the father, on 30 May 2017, he received a phone call from Mr JJ, head of Year Seven at T School, about inappropriate sexual behaviour of Y and his friend, including discussing a masturbation competition. The school requested the father to speak to Y about his conduct, which he subsequently did on 1 June 2017.
The mother alleges that during that telephone conversation, the father was aggressive and demeaning towards Y. She unilaterally suspended the father’s time with the children, which was due to start on 6 June 2017, prior to applying for and obtaining an ex parte Interim Intervention Order on 7 June 2017. The father’s alleged conduct during the telephone call was the justification for the reinstatement of the mother’s application for an intervention order.
An examination of the DHHS Response to a s.69ZW order made by Senior Registrar Fitzgibbon on 28 August 2017, which is Exhibit H-7, indicates that there was an intake and assessment in relation to Y between 5 July 2017 and 17 July 2017, alleging that he had been exposed to sexual abuse by his father.
The allegations were:
i)that Mr McMurphy was abused as a child; and
ii)that he had allowed Y to sleep in his bed when his girlfriend was visiting because he did not want the children to know they were sleeping together.
The s.69ZW Report dated 13 October 2017, refers to an intake and assessment on 27 July 2017 and a further one between 28 August 2017 and 29 August 2017.
At paragraph 59 of the father’s Trial Affidavit, he deposes to receiving a telephone call from Y on 12 September 2017, from school at 2:00PM.
On the same day, around 3:00PM, he received a telephone call from Child Protection wanting to speak to him about the allegations of sexual abuse which had been alleged by the mother. He was advised that Y had been interviewed about the allegations and that he had denied being sexually abused by his father.
Under the heading ‘Current situation’ in the s.69ZW report, the following is stated:
… The reporter made a comment that Y may have been sexually abused by Mr McMurphy however this had not been disclosed and it was speculation from the reporter based on Y’s sexualised behaviour. … The reporter explained that the children have not shared any issues in their father’s care however the change in behaviour and attitude was raising concerns that something was ongoing.
…
Ms McMurphy raised concerns regarding Y being abused when having contact with Mr McMurphy although she acknowledged that the boys did not make any disclosures about being abused. Ms McMurphy stated that she had a “gut feeling” that something was “not right” and that the children would not disclose if they were abused because they are terrified by Mr McMurphy who is “a very powerful man” and is paying for her home and the children’s school.
Y stated that he enjoys having contact with Mr McMurphy and that he was never scared, worried or abused while in Mr McMurphy’s care. Y stated that he did not suffer any sexual abuse while in the in his (sic) Mr McMurphy’s care.
Y raised concerns regarding Ms McMurphy exposing him to negative discussions and interrogations about Mr McMurphy and expressed his wish that Ms McMurphy would stop believing things that did not happened (sic) (referring to him being harmed while in Mr McMurphy’s care).
X advised that he and Y have not been abused by Mr McMurphy and that Ms McMurphy would “jump to conclusions” without evidence and often thinks of the worst case scenario. X presented torn between his parents saying that he did not want to take sides, but acknowledged the negative impact that the conflict between his parents had on him and on Y.
X stated that Ms McMurphy often self-diagnosis (sic) by searching on Google and she does not have any reason to be worried about him and Y while in Mr McMurphy’ care (sic), however she does not want to believe him and thinks that he is lying.
The s.69ZW Report concludes that there was no evidence to support substantiation of the reported concerns and that child protection would not have any further involvement.
Exhibit H-6 is a copy of documents produced pursuant to a subpoena addressed to Victoria Police, dated 23 July 2019. The documents produced include an investigation report about the alleged sexual abuse of Y.
The notes of Officer Z state:
i)on 2 November 2017, the mother attended at the Suburb B police station with Y, as a “walk in” prior to intake being received from child protection;
ii)she requested to speak to SOCIT investigators and refused to provide any information other than she believed her son was being abused by her ex-husband;
iii)a disclosure interview was conducted with Y, however he did not disclose any sexual abuse by his father;
iv)the mother was not happy and believed that Y had told her that his father had sexually abused him;
v)she was advised that the comments made to her by Y in no way constituted a disclosure of sexual abuse;
vi)the mother stated that McMurphy (father) was a maniac and that he needed to be charged;
vii)the mother was a very dissatisfied and that she would be speaking to media about the lack of intervention.
The notes of Detective Sargent KK state:
i)the connection was made between DHHS intake report notification and the “walk in”;
ii)a review of the intake identified sexualised behaviour of a 13-year-old male that was age-appropriate, although location of masturbating at school was not appropriate, yet previously dealt with;
iii)the notification did not disclose any criminality;
iv)Officer LL and Officer MM confirmed the child was clear that his father had not sexually offended against him and that his mother was pushing to say he had;
v)satisfied that the behaviour of the child with his peers at school and a clear denial of any sexually inappropriate conduct by his father, does not constitute any criminality or require any further police investigation;
vi)the response by the mother when told that no offending had been disclosed, indicates her agenda and motivation for reporting to both DHHS and the police is to have direct effect on her ex-husband.
Y’s discharge summary from AA Medical Centre, Exhibit H-4, also confirmed that Y has not corroborated the allegations of sexual abuse and indeed presented as frustrated towards his mother and asked her to stop blaming his father.
At paragraph 98 of the family report, X recalled to the report writer that he hadn’t been initially angry about his mother’s allegations that the father had sexually abused Y and thought that they were ‘a bit unfair’. Ms J opines that it is evident that X clearly dismisses his mother’s allegations.
After considering the evidence referred to in the preceding paragraphs, I find:
i)the mother has a fervent and unwavering belief that the father has sexually abused Y;
ii)that belief is not based on any objective or independent evidence;
iii)Y has consistently failed to corroborate the allegations of the mother and has repeatedly stated that he has not been sexually abused by his father;
iv)X also dismisses the allegations of sexual abuse levelled against his father;
v)the DHHS and the police do not consider there is any evidentiary basis for the allegations;
vi)there is no rational causal connection between the father and Y sharing a bed and the mother’s beliefs;
vii)the father has not sexually abused Y in any manner whatsoever.

The mother’s allegations about the father’s drug addiction

Both parents agree that Y has considerable issues with drugs. Indeed, this has been described throughout the proceedings as Y’s fascination with drugs.
The mother has somehow sought to implicate the father in Y’s fascination with drugs by alleging the father:
i)has or had prescription drug addiction issues;
ii)has been reckless in allowing Y to access his prescription pad or prescription medication in the father’s household.
In June 2017, the father alleges that the mother made an anonymous notification to a regulation agency and to the father’s employer alleging that he was drug addicted. She also contacted various friends and relatives of the father about those allegations. According to the father, the regulation agency investigated the notifications and advised him that it would take no further action. On 14 November 2017, the regulation agency advised him that a further anonymous notification had been received, but that it would take no action.[2]
[2] Father's Trial Affidavit, at [27] - [28].
The mother cross-examined the father about his alleged drug use in the context of Y being obsessed with pain medication.
The father’s evidence during cross-examination in this regard may be summarised as follows:
i)his safe contained non-prescription medications, except for prescription medication for Y ,which had been prescribed by Dr CC;
ii)he agreed that Y had given drugs to other children;
iii)on the second last occasion Y got into trouble for drugs he had a Viagra tablet;
iv)he was unable to say where Y may have obtained the Viagra tablet;
v)he agreed Y had forged a prescription for Seroquel;
vi)he agreed that Y had an obsession with pain medication;
vii)when Y was expelled from T School there was an allegation that the shredded paper was laced with LSD, however he did not pursue an analysis at a drug laboratory, so it was destroyed by Mr EE, the school principal.
During the course of the proceedings the husband provided hair follicle drug testing with negative results.
During cross-examination by Queens Counsel for the father, the mother was unequivocal in her evidence that the husband had interfered with the drug testing and that the urine or hair provided by him was provided by another person. She was fervent that the father would commit an act of fraud and would pollute hair and urine samples to actively deceive. She stated that the father would go to any lengths, say and do anything, to achieve his aims. That view is consistent with the mother’s “overvalued beliefs”, as identified by Dr BB in his psychiatric assessment.

Both parents seek an order for sole parental responsibility for the children. The Independent Children’s Lawyer seeks an order that the father have sole parental responsibility for the children, subject to notifying the mother of any major long-term decision he has made in relation to the children, within 48 hours of such decision being made.
The orders sought by the Independent Children’s Lawyer are in accordance with the existing interim order for parental responsibility for health and education, except that the father is required to consult with the mother prior to making any such decisions.
The father’s submissions in support of an order for sole parental responsibility may be summarised as follows:[7]
i)the mother is incapable of co-parenting with the father and has undermined his exercise of limited sole parental responsibility;
ii)she lacks insight into the children’s needs and her parental capacity is impacted by her fixed beliefs/delusions regarding the father;
iii)the extant interim orders are hybrid arrangement with respect to parental responsibility, requiring the father to consult with the mother before exercising sole parental responsibility with respect to health and education;
iv)whilst the father has complied with the interim orders, there is little evidence that the mother has exercised the option to provide input into decisions;
[7]Father’s Summary of Argument, at [78] to [83].
The mother did not specifically address the reasons why an order for sole parental responsibility should be vested in her. It is however apparent from the manner in which she presented her case and her evidence that she considers the father to pose an unacceptable risk to the children, and that her real view is that there should be no contact between the children and their father. In that context, she seeks an order that she have sole parental responsibility for the children.
The Independent Children’s Lawyer submitted that it is not in the children’s best interests for the parents to have equal shared parental responsibility for the following reasons:
i)the conflict between the parents has been ongoing for a number of years;
ii)the relationship between the parents is currently poor;
iii)despite engaging in non-reportable therapy the relationship between the parents has not improved;
iv)the parents cannot can communicate in relation to the children;
v)the parents are unable to agree in relation to various issues relating to the children;
vi)an order for equal shared parental responsibility is likely to result in ongoing conflict between the parents;
vii)the father’s appears more able to make considered decisions in relation to major long-term issues for the children.
I agree with the submissions for the father and the Independent Children’s Lawyer. Given the mother’s entrenched and strident views about the father, it would be impossible for any cooperation between the parents about major long-term issues. An example of the intractable differences of opinion between them is the diagnosis of Y’s behavioural issues. There is still no agreement with them as to the genesis of his behavioural problems. Such disagreement will no doubt impact upon potential decisions about treatment and assistance for Y in the future. Involving both parents in such decision-making will inevitably lead to further conflict, which will further adversely impact upon Y.
There was no evidence presented by the mother that any long-term decisions taken by the father subsequent to the interim orders, have had any adverse impact on X or Y. In my view the father has demonstrated that he has been able to make considered decisions in relation to Y’s schooling and education and the management of his behavioural problems. There does not seem to have been any controversy of much focus on decision-making in relation to X, for evident reasons.
Whilst I understand it is a significant step to deprive a parent of parental responsibility, in the context of Y’s very specific, multiple and entrenched behavioural problems I can only reach the conclusion that it is appropriate for the parent with whom he will primarily be living, the father, to exercise sole parental responsibility for Y. I intend to make an order for the father to have sole parental responsibility for Y, subject to him notifying the mother of decisions that he may make, which is in accordance with the proposal of the Independent Children’s Lawyer. Such an order is in the children’s best interests.

I certify that the preceding two-hundred and forty-seven (247) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Williams delivered on 11 December 2019.

Associate:

Date: 11 December 2019

[2019] FamCA 947

11 December 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Appeal

Remedies