Michel & Stathis
[2021] FamCA 215
•20 April 2021
FAMILY COURT OF AUSTRALIA
Michel & Stathis [2021] FamCA 215
File number(s): SYC 7024 of 2019 Judgment of: HARPER J Date of judgment: 20 April 2021 Catchwords: FAMILY LAW – CHILDREN – Where final hearing adjourned by reason of father propounding new case – Where court time used for interim parenting hearing – Where children live with the father and spend day time with the mother – Where interim orders sought by mother to increased and overnight time with children – Allegations of alienation by the father and risk of harm to the children – Where children should begin spending overnight time with the mother – Where parents must engage in family therapy prior to final hearing – Where orders are to be explained by the Independent Children’s Lawyer Legislation: Family Law Act1975 (Cth) ss 10G, 60CA, 60CC, 61DA, 61DA(2), 61DA(3), 61DA(4), 65D(1), 65DAA, 65DAA(1), 65DAB, 65DAC, 79(4)(e) Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bant & Clayton (2019) FLC 93-924; [2019] FamCAFC 198;
Champness & Hanson (2009) FLC 93-407
Cowling & Cowling (1998) FLC 92-801
Cox v Pedrana (2013) 48 Fam LR 651
Crouper & Mitchell [2014] FAMCAFC 246
Damiani & Damiani (No 2) [2009] FamCAFC 215
Eaby & Speelman (2015) FLC 93-654
Goode & Goode (2006) FLC 93-286
In the Marriage of A (1998) FLC 92-800
Jollie & Dysart [2014] FamCAFC 140
Lovett & McGregor (2019) FLC 93-935
M v M (1988) 166 CLR 69
Maldera & Orbel (2014) 52 Fam LR 24
Marvel & Marvel [2010] 43 Fam LR 348
Marzoski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461
Napier & Hepburn (2006) FLC ¶93-303
Sahrawi & Hadrami [2018] FamCAFC 170
Salah & Salah (2016) FLC 93-713
Sigley & Evor (2011) 44 Fam LR 439
SS v AH [2010] FamCAFC 13
Stott & Holgar [2017] FamCAFC 152
Tibb & Sheehan (2018) 58 Fam LR 351
Number of paragraphs: 130 Date of hearing: 24 November 2020 – 25 November 2020 Place: Sydney Counsel for the Applicant: Mr Johnston Solicitor for the Applicant: Santone Lawyers Counsel for the Respondent: Mr Hodgson Solicitor for the Respondent: Mills Oakley Counsel for the Independent Children's Lawyer: Mr Ladopoulos Solicitor for the Applicant: Sarah Bevan Family Lawyers ORDERS
SYC 7024 of 2019 BETWEEN: MR MICHEL
ApplicantAND: MS STATHIS
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
20 APRIL 2021
IT IS ORDERED:
(1)That orders of 20 November 2019 be discharged.
(2)That the children live with the father.
(3)That the children spend time with the mother as follows:
(a)During school terms, and commencing on the second weekend after the date of these orders:
(i)Each alternate weekend from after school on Friday until 5.00 pm on Sunday, and
(ii)Each Wednesday from after school until 7.00 pm.
(b)During school holiday periods:
(i)Each alternate weekend from 3.00 pm on Thursday until 7.00 pm on the following Monday, and
(ii)Each Wednesday from 3.00 pm until 7.00 pm; and
(c)If Christmas Day does not fall on a weekend that the children are to spend time with the mother, from 10.00 am until 4.00 pm on Christmas Eve;
(d)If Mother’s Day does not fall on a weekend that the children are to spend time with the mother, on the Mother’s Day weekend, from 6.00 pm on Saturday until 6.00 pm on Sunday.
(4)In the event that Father’s Day fall on a weekend that the children are to spend time with the mother, on that weekend that time with the mother shall end at 6:00 pm on the Saturday.
(5)That for the purposes of these Orders, unless otherwise agreed between the father and the mother, changeovers shall occur:
(a)At the children’s school(s) if the changeover occurs on a school day; or
(b)For changeovers that occur at other times:
(i)The father shall deliver the children to the mother’s home at the commencement of the time they are to spend with the mother; and
(ii)The mother shall deliver the children to the father’s home at the end of the time they are spending with her.
(6)That the mother and the father shall:
a) Be restrained from:
(i)Discussing these proceedings in the hearing of or presence of the children;
(ii)Speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children.
(b)Take all reasonable steps to prevent any other person:
(i)Discussing these proceedings in the hearing of or presence of the children;
(ii)Speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children.
(7)That the mother and the father forthwith do all things necessary:
(a)To engage and participate in family therapy with the first available therapist at B Services (“the therapist”), including ensuring the attendance of the children for family therapy at such times and locations as requested by the therapist.
(b)To receive and accept guidance and recommendations from the therapist as to how to best implement Order 3 above, including any recommendations as to whether there needs to be a graduated progression to the children’s spending time with the mother and the stages of such progression.
(8)The parties may agree in writing at any time to vary the terms of Order 3 for the purpose of the children spending time with the mother in accordance with any recommendations of the therapist, noting that in the absence of agreement the parties must comply with these orders.
(9)Within 7 days of the date of these orders, the Independent Children’s Lawyer take all necessary steps to explain these orders to the children, including explaining that family therapy is to happen to help them feel more comfortable with the orders and spending time with both their parents.
(10)That leave be given to the Independent Children’s Lawyer to provide the therapist with a copy of:
(a)These Orders; and
(b)The report of Dr C dated 19 May 2020.
(11)That the proceedings are provisionally listed for final hearing on 9 November 2021 with allocated hearing time of three days.
(12)That the proceedings be listed for a Case Management Hearing at 11.30 am on 19 July 2021.
(13)That leave be granted to the Independent Children’s Lawyer to apply to relist the proceedings on five (5) days’ notice.
(14)The process to be used for resolving disputes about the interpretation, implementation or enforcement of these Orders shall be as follows:
(a)The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth) (“the Act”) or as agreed in writing between the parties; or
(b)The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.
(15)Before an application is made to a court for a variation of these Orders to take account of the changing needs or circumstances of the child or of the mother or the father:
(a)The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Act or by the Commonwealth Attorney General; or
(b)The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.
(16)That the Application in a Case filed by the mother on 25 September 2020, as superseded by the Application in a Case handed up in Court on 24 November 2021, be dismissed.
IT IS NOTED THAT:
(a)The child Y appears to have been resistant to spending time with the mother for several months and has not done so, the cause of such resistance being unclear and seemingly in dispute between the parties;
(b)There are some signs that the child X may also be developing some reluctance to spending time with the mother, the cause of such reluctance, again, being unclear and seemingly in dispute between the parties; and
(c)The purpose of the family therapy provided for in Orders 7 and 8, above, is to explore the extent and causes of any resistance and/or reluctance of the children to spending time with the mother and to assist the parties and the children so that the children are able to spend time with the mother as provided for in these Orders.
(d)On 19 July 2021:
(i)the Court expects the parties to advise the Court of the progress of family therapy and the time spent by the children with the mother;
(ii)the Court will give consideration to confirming the provisional final hearing dates and making directions for final hearing as appropriate.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Michel & Stathis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION
These are parenting proceedings between Mr Michel (“the father”) and Ms Stathis (“the mother”).There is also an Independent Children’s Lawyer (“ICL”).
There are two children of the relationship; Y, born in 2007 (now 13 years old), and X, born in 2012 (now 8 years old) (“the children”).
The children currently live with the father and spend time with the mother.
Parenting orders were made by consent by Deputy Registrar McNamara (as she then was) on 20 November 2019. These orders, which remain operative at present, provide for the children to spend unsupervised time with the mother each Monday, Tuesday, Wednesday and Friday from the conclusion of school until 6.00 pm. The mother returns the children to the father’s residence after such time.
Notwithstanding the orders, there was no dispute that only X spends time with the mother at present, although this has not been without difficulty, as explained later in these reasons. Y has been resistant to spending any time with her.
This matter was listed for a final hearing on Tuesday, 24 November 2020 to determine both parenting and property issues. However, the father provided a minute of orders on the first day of trial which substantially altered the nature of his final parenting proposal, including seeking supervision of the children’s time with the mother. In response, the mother contended she could not deal with the father’s case on a final basis in those circumstances. It was also clear that resolution of the financial issues would be dependent upon the parenting orders, as they would have a substantial bearing on the assessment of the matters required by s 79(4)(e) of the Family Law Act 1975 (Cth) (“the Act”). After hearing debate between the parties, and counsel for the ICL expressing the view that the proceedings could not be completed in the allocated 3 days, I acceded to an adjournment of the final hearing.
However, rather than simply adjourn the proceedings, following a helpful suggestion by counsel for the mother, I formed the view that the allocated time could be utilised as an interim hearing to determine whether the present parenting orders should be varied on an interim basis. The parties agreed with this approach.
I note here that Dr C prepared a Single Expert report on 19 May 2020. He made recommendations for the allocation of equal shared parental responsibility to the parents, as well as substantial and significant time with each parent. He also recommended that the parties engage in a parenting after separation course. However, there was no dispute that after Dr C’s report was issued, Y has continued manifesting resistance to spending time with the mother. There is also evidence that X has exhibited distress on days when he is supposed to go to the mother. I discuss this further later in these reasons. Even as the trial commenced, and the issue of adjournment was raised, this resistant behaviour by the children, and the undisputed high conflict between the parents, were some indication that the parties and the children would benefit from further family therapy, as well an updated assessment from Dr C. As the parties developed their submissions concerning the fate of the final hearing by reference to the evidence, this perception was reinforced and I formed the clear view that this would certainly be in the best interests of the children, and probably essential, before any final determination by this Court of competing parenting proposals, which included a proposal to relocate to the United Kingdom.
Ultimately, the mother became the applicant for interim orders because she sought a variation of the orders of 20 November 2019. She prepared, served and filed a revised proposed Minute of Interim Orders Sought, which became “Exhibit B”. I deemed this to be an interim application filed on 24 November 2020, effectively superseding her earlier Application in a Case filed 25 September 2020. As set out later in these reasons, the ICL also proposed a change to the existing interim orders.
I note here that the father, as part of his final proposal, sought the Court’s permission to relocate to the United Kingdom with the children. He did not press for any relocation on an interim basis. Consequently, the central interim parenting question was whether the current orders should be varied to provide for the children to spend more, and overnight, time with their mother.
BRIEF HISTORY
The father was born in 1976, and presently works as a professional at G Company.
The mother was born in 1979, and presently works as an educator at Suburb M.
The parties met overseas and commenced a long-distance relationship in December 2004 when the mother was living in Country F and the father in the United Kingdom. The mother relocated in July 2005 to the United Kingdom.
The parties commenced cohabitation in the United Kingdom in mid-2005, and married in 2007. They relocated from the United Kingdom to Australia in August 2017 and separated on 20 June 2019 under the same roof.
The parties ceased living together on 26 July 2019 when the father vacated the former matrimonial home with the children.
The wife continued to live in the matrimonial home in Suburb L until 11 November 2019.
The parties were divorced in 2020.
The father commenced property proceedings in the Family Court of Australia on 18 October 2019.
On 1 November 2019, the father was served with an Application for an Apprehended Violence Order (“AVO”) against him for the protection of the mother. This was ultimately withdrawn by the police and dismissed.
On 4 November 2019, the father filed an Amended Initiating Application and an Application in a Case seeking parenting orders, including an order that he be permitted to return with the children to the United Kingdom.
On 20 November 2019, the matter was listed for a Case Assessment Conference before Deputy Registrar McNamara (as she then was). Orders were made by consent for the children to live with the father and spend time with the mother during four afternoons each week. As described above, these are the current parenting orders in place.
On 19 March 2020 the matter was listed for an interim hearing before Senior Registrar Campbell (as he then was). The Court did not vary the interim parenting orders. A notation was made recording that the parties intended to seek expedition of the matter following the release of Dr C’s Single Expert Report.
On 18 June 2020, Justice Henderson granted expedition of the proceedings.
COMPETING PROPOSALS AND ISSUES
On 24 November 2020, the father simply sought an order that the Wife’s interim parenting application filed on 24 November 2020 be dismissed. While his order initially referred to the mother’s Application in a Case filed on 25 September 2020, it was agreed the reference should be to 24 November 2020. The consequence would be that the existing orders would continue until final hearing, with the children spending unsupervised time with their mother four nights each week after school until 6.00 pm.
It should be noted here that the father’s proposed final parenting orders, which in part prompted the adjournment of the final hearing, sought, inter alia, that the children’s time spent with the mother be supervised. Supervision does not form part of the orders made on 20 November 2019, which the father seeks to continue on an interim basis.
Pursuant to the mother’s Minute of Interim Orders Sought dated 24 November 2020 and emailed to my Chambers in accordance with my orders on the same day, the mother seeks the following (Exhibit B):
LIVE WITH:
(1)That Y (born in 2007) and X (born in 2012) (the children) live with the parents, as agreed, but failing agreement:
(a)During school term and school holidays as follows:
(i)With the mother, in week one, from after school or 3pm Friday until 3pm Friday 7 days thereafter;
(ii)With the father, in week two, from after school or 3pm Friday until 3pm Friday 7 days thereafter.
(2)That order 1 be suspended on Special Occasions and the children shall spend time with the parents as follows:
(a)On Father's Day each year, from 9:00am to 6:00pm with the Father;
(b)On Mother’s Day each year, from 9:00am to 6:00pm with the Mother;
(c)In the event that Easter does not fall during a school holiday period:
(i)With the mother, from 3pm or the conclusion of school on the Thursday prior to the Good Friday until 6pm Saturday, in odd numbered years and from 6pm Saturday until 9am or before school Tuesday in even numbered years;
(ii)With the father, from 3pm or the conclusion of school on the Thursday prior to the Good Friday until 6pm Saturday in even numbered years and from 6pm Saturday until 9am or before school Tuesday in odd numbered years;
(d)On the children’s Birthdays, with the parent who is not spending time with the children pursuant to order 2 above:
(i)from 3pm to 6pm if a school day; or
(ii)from 10am to 2pm if not a school day;
(e)On Christmas Day:
(i)With the mother, in even numbered years, from 10am Christmas Eve to 2pm Christmas Day and in odd numbered years, from 2pm Christmas Day until 7pm Boxing Day;
(ii)With the father, in odd numbered years, from 10am Christmas Eve to 2pm Christmas Day and in even numbered years, from 2pm Christmas Day until 7pm Boxing Day;
COMMUNICATION
(3)That on days when the children are not spending time with the father, the mother will facilitate telephone/facetime/Skype between the children and the father, to commence from between 5:00pm and 6:00pm on Tuesday and Thursday.
(4)That on days when the children are not spending time with the mother, the father will facilitate telephone/facetime/Skype between the children and the mother, to commence from between 5:00pm and 6:00pm on Tuesday and Thursday.
(5)That the parents shall communicate by email, except in the case of urgency or emergency, wherein communication shall occur via text message.
CHANGEOVERS
(6)That during school term, all changeovers shall occur at the children's school, and at other times, unless otherwise agreed, changeovers shall occur at the McDonalds Suburb N car park.
(7)That the parties shall facilitate the children taking their personal belongings to each parent’s household.
NON-DENIGRATION
(8)That each parent shall:
(a)be restrained from denigrating the other parent or saying anything that is damaging and/or detrimental to the other party’s relationship with the children;
(b)use their best endeavours to ensure that third parties do not denigrate the other parent or saying [sic] anything that is damaging and/or detrimental to the other party’s relationship with the children;
(c)be restrained from discussing these proceedings within the presence or hearing of the children and/or showing the children documents from these proceedings; and
(d)use their best endeavours to ensure that third parties do not discuss these proceedings within the presence or hearing of the children and/or show the children documents from these proceedings.
RESTRAINTS
(9)Pending further order the husband is hereby restrained from dealing with any property whatsoever including attempting to sell, selling, drawing down on facilities, encumbering or otherwise dealing with any property in his sole name or possession.
(10)Pending further order, the husband be restrained from instructing his solicitors Mills Oakley to release any monies in their Trust Account.
FURTHER DISCLOSURE
(11)That the father shall within 7 days provide to the mother’s lawyers the following:
(a)a copy of his current and past passport;
(b)a copy of his contract of employment with G Company, together with all documents concerning his remuneration;
(c)G Company’s policies regarding relocation and workplace flexibility;
(d)the actual “letter” referred to at paragraph 29 (f) of the letter from Mills Oakley’s letter dated 17 November 2020 regarding the father’s workplace flexibility with G Company;
(e)documents evidencing current professional roles available with G Company in the United Kingdom.
The Independent Children’s Lawyer tendered in Court an Interim Parenting Orders Proposed, which was marked as Exhibit ICL 1.
The Independent Children’s Lawyer proposed the following orders:
(1)That orders of 20 November 2019 be discharged.
(2)That the children live with the father.
(3)That the children spend time with the mother as follows:
(a)during school terms:
(i)each alternate weekend from after school on Friday until before school on the following Monday, and
(ii)each Wednesday from after school until 7.00 pm.
(b)during school holiday periods:
(i)each alternate weekend from 3.00 pm on Thursday until 7.00 pm on the following Monday, and
(c)each Wednesday from 3.00 pm until 7.00 pm; and
(d)if Christmas Day does not fall on a weekend that the children are to spend time with the mother, from 10.00 am until 4.00 pm on Christmas Eve;
(e)if Mother’s Day does not fall on a weekend that the children are to spend time with the mother, on the Mother’s Day weekend, from 6.00 pm on Saturday until 6.00 pm on Sunday.
(4)In the event that Father’s Day fall [sic] on a weekend that the children are to spend time with the mother, the children’s time with the mother on that weekend shall end at 6:00 pm on the Saturday.
(5)That for the purposes of these Orders, unless otherwise agreed between the Father and the Mother, changeovers shall occur:
(a)At the children’s school(s) if the changeover occurs on a school day; or
(b)For changeovers that occur at other times:
(i)the father shall deliver the children to mother’s home at the commencement of the time they are to spend with a mother; and
(ii)the mother shall deliver the children to father’s home at the end of the time they are spending with her.
(6)That the Mother and the Father shall:
(a)be restrained from:
(i)discussing these proceedings in the hearing of or presence of the children;
(ii)speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children;
(b)take all reasonable steps to prevent any other person:
(i)discussing these proceedings in the hearing of or presence of the children;
(ii)speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children.
(7)That the mother and the father do all things necessary to engage and participate in family therapy with the first available therapist at B Services (“the therapist”), including ensuring the attendance of the children for family therapy as requested by the therapist.
(8)That the mother and the father be guided by the recommendations of the therapist as to how to best implement Order 3 above, including any recommendations. [sic] as to whether there needs to be a graduated build up to the children’s spending time with the mother and the pace of such build up.
(9)That leave be given to the Independent Children’s Lawyer to provide the therapist with a copy of:
(a)these Orders; and
(b)the report of Dr C dated 25 May 2020.
NOTATIONS:
A.The Court notes that:
(a)the child Y appears to have been resistant to spending time with the mother for several months and has not done so, the cause of such resistance being unclear and seemingly in dispute between the parties;
(b)there are some signs that the child X may also be developing some reluctance to spending time with the mother, the cause of such reluctance, again, being unclear and seemingly in dispute between the parties; and
(c)the purpose of the family therapy provided for in Orders 7 and 8 above is to explore the extent and causes of any resistance and/or reluctance of the children to spending time with the mother and to assist the parties and the children so that the children are able to spend time with the mother as provided for in these Orders.
The mother consented to Order 9 proposed by the ICL.
MATERIAL RELIED UPON
The mother relied upon the documents listed in her document titled: “Mother’s Material Relied on for Interim Hearing” which included:
•The mother’s affidavit of 6 September 2020, filed 7 September 2020;
•The mother’s Tender Bundle to the affidavit filed 7 September 2020;
•The mother’s Tender Bundle to the affidavit filed 25 September 2020; and
•The mother’s trial Tender Bundle.
The mother also relied upon the report of Dr C.
The father relied upon the documents listed in his document titled: “Documents relied upon by the Applicant Husband at the Interim Hearing Listed on 24 November 2020” which included:
•The Child Inclusive Conference Memorandum filed 10 February 2020;
•The husband’s affidavit sworn on 12 September 2020 filed 12 September 2020; and
•The husband’s Tender Bundle filed 18 November 2020.
The following documents were received into evidence;
Exhibit Label Document Tendered by A Tender Bundle emailed 16.11 20 Applicant/Mother B Mother’s Amended Minute of Orders Sought for Hearing Applicant/Mother 1 Minute of Orders sought emailed 24.11.20 Respondent/Father ICL 1 Minute of Orders Proposed dated 25.11.20 Independent Children’s Lawyer
THE LAW
It is convenient here to set out the principles regarding interim hearings. The Court’s decision is based only on affidavits read, documents tendered and submissions of the parties. The scope of the enquiry and factual determinations is “significantly cutailed”: Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346 (“Goode”) at [68]; Cowling & Cowling (1998) FLC 92-801; 22 Fam LR 778 at [18]. Evidence is usually not tested in cross-examination. A conservative approach is adopted, and any findings made at an interim hearing should be “couched with great circumspection”: Marvel & Marvel [2010] 43 Fam LR 348 (“Marvel & Marvel”) at [120] and [122]. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. Merely because the facts are in dispute that does not mean the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts: SS v AH [2010] FamCAFC 13 at [100]; Marvel & Marvel at [123]; Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104 at [18]; Salah & Salah (2016) FLC 93-713; (2016) 56 Fam LR 299; [2016] FamCAFC 100 at [39] – [42].
Legislative framework and case law
The Court must follow the legislative pathway in Part VII of the Act.
Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s 61DA and s 65DAB of the Act.[1] The best interests of a child are the paramount consideration: s 60CA of the Act.
[1] There is no relevant parenting plan so s 65DAB of the Act does not apply.
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that is in the best interests of a child for a child’s parents to have equal shared parental responsibility for the child. The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s 61DA(2) of the Act), or in the case of an interim hearing, the Court considers it inappropriate (s 61DA(3) of the Act). The presumption may be applied but be rebutted by evidence which satisfied the Court that it would not be in the best interests of the child for his or her parents to have such equal shared parental responsibility (s 61DA(4) of the Act).
The application of the presumption has significant consequences. Full Court authority suggests that if the presumption is applied, the Court is required to make an order for equal shared parental responsibility: Damiani & Damiani (No 2) [2009] FamCAFC 215 at [133] and [134]. Where the presumption applies, it conditions the Court’s power to make parenting orders, including enlivening s 65DAA: MRR v GR (2010) 240 CLR 461 (“MRR v GR”) at [20]; Cox v Pedrana (2013) 48 Fam LR 651 (“Cox v Pedrana”) at [16]-[17].
Therefore, as the Full Court pointed in Cox v Pedrana at [19] (following MRR v GR at [7]), if the presumption is not to apply or is rebutted, the relevant findings need to be made by reference to ss 61DA(2) or (4). Such findings will ordinarily be made in the course of, or informed by, conclusions as to the best interests of the children, reached by an assessment of the considerations set out in s 60CC(2) and (3). In the case of an interim order, the question is whether application of the presumption is “appropriate” in the circumstances. Section 61DA(3) is not to be applied in a broad exclusionary manner (Goode), but again findings as to appropriateness will ordinarily be made in the course of, or at least informed by, an assessment of the considerations set forth in s 60CC(2) and (3). I turn then to consider those subsections.
Section 60CC and the best interests of the children
The best interests of a child are to be determined by an examination of the considerations set out in section 60CC of the Act, weighed and applied within the ambit of the objects and their underlying principles set out in section 60B of the Act. In considering the role to be played by these objects and principles in the determination of parenting orders I follow what the Full Court of the Family Court of Australia said in Maldera & Orbel (2014) 52 Fam LR 24; [2014] FamCAFC 135 at [74]-[75].
Since I am determining an interim hearing, what is required is a consideration of the matters relevant to s 60CC which the case presents: Crouper & Mitchell [2014] FAMCAFC 246 at [23]. The Full Court has confirmed that the use of the verb “consider” in s 60CC(1) imposes an obligation to give proper, genuine and realistic consideration to the matters in s 60CC(2) and s 60CC(3) of the Act: Lovett & McGregor (2019) FLC 93-935; [2019] FamCAFC 253 at [72]. The Full Court has also made clear that although consideration of each statutory factor in s 60CC is mandatory, express discussion is not: Jollie & Dysart [2014] FamCAFC 140 at [49]; Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 at [48]; Tibb & Sheehan (2018) 58 Fam LR 351; [2018] FamCAFC 142 (“Tibb & Sheehan”) at [84]. The proposals of the parties, their evidence, and the manner in which they have run their case will largely determine what is discussed: Tibb & Sheehan at [87].
Therefore, I approach the task of assessing the primary and additional considerations in s 60CC, guided by what was said by the Full Court in Banks & Banks [2015] FamCAFC 36 at [48] –[50].
[48] It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child require determination prior to a proper determination at a trial…
[49]…there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees…
[50] When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations…
Adopting this approach, and noting I have given consideration to each of the statutory matters set forth in s 60CC, I turn to the relevant primary and additional considerations as raised by the parties in their evidence and the way they presented their cases.
SECTION 60CC CONSIDERATIONS
Primary Considerations
The Court must first have regard to the "primary considerations" set out in s 60CC(2) of the Act:
(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.
In applying the considerations set out in s 60CC(2), the Court is to give greater weight to the consideration in paragraph (b).
Section 60CC(2)(a), the benefit to the child of having a meaningful relationship with both of the child’s parents
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child: McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 (“McCall & Clark”). A “prospective” enquiry is preferred which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child: Marzoski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520 at [26]; McCall & Clark at [117]-[120]; Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22 (“Sigley v Evor”) at [132]-[133]. The legislation aspires to promote a ‘meaningful relationship’; it is a legal construct, not a physiological one, and it is for the Court to determine what constitutes a ‘meaningful relationship’: Sigley & Evor at [135]-[136].
In seeking to achieve a child’s best interests, ss 60CC(2)(a) directs the Court to consider “the benefit of the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors: Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96 at [103].
There was no dispute that the children would benefit from a meaningful relationship with each parent. They have a meaningful relationship with both parents, but the mother seeks to enhance the children’s relationship with her by spending overnight time. The problem is that it appears Y’s relationship with the mother in particular, but X’s relationship as well, is compromised at present. There is resistance to spending time with the mother. The mother contends this is a result of a deliberate strategy by the father, to render the children’s relationship with her less meaningful. I discuss this further below under s 60CC(3)(a). The entrenched and clearly bitter conflict between the parents is also a factor which currently impinges on both parents’ relationship with the children, but especially that with the mother.
Section 60CC(2)(b), the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Between the primary considerations, the Court is required to give greater weight to risk of harm to the children.
There are definitions of “abuse” and “family violence” in the Act. It unnecessary to set them out for the purposes of this judgment. I have taken them into account.
A Court will not make orders placing a child in the care of a parent if to do so would expose the child to an unacceptable risk of abuse: M v M (1988) 166 CLR 69. It has long been held that the “test” of “unacceptable risk” requires assessments of risk of future physical and emotional harm: In the Marriage of A (1998) FLC 92-800; (1998) 22 Fam LR 756. In Napier & Hepburn (2006) FLC ¶93-303; (2006) 36 Fam LR 395; [2006] FamCA 1316, the Full Court confirmed at [84] and [91] that the obligation on the trial judge is to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. It was further confirmed that “[t]his is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper”.
Where an unacceptable risk is alleged, the Court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm: Stott & Holgar [2017] FamCAFC 152 at [38], Sahrawi & Hadrami [2018] FamCAFC 170 at [52].
More recently in Bant & Clayton (2019) FLC 93-924; [2019] FamCAFC 198; (“Bant”) the Full Court succinctly said at [40]:
[40] The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:
151. ...Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order.
The father argued that the mother poses a risk of psychological harm to the children. He claims she has a history of mental health issues, alcohol abuse, addiction to video gaming, has had an online relationship with another man, and used sex toys while in online conversations. He claims the mother involves the children in the proceedings, in conflict between him and the mother, and tries to alienate them from him. The father contends these features are deficits in the mother’s parenting capacity and pose a risk to the children.
The mother claims the father was violent towards her during the marriage, and forced her into degrading sex acts, that he has behaved in an aggressive and hostile way towards her since separation, and in front of X in particular. She also claims the father has psychologically damaged the children by going out of his way to alienate them from her, and by involving them inappropriately in adult matters and the issues in the proceedings.
Both parents have been diagnosed with ADHD. Both parties showed they have sought psychological intervention in the last several years. Both have expressed suffering psychological stress as a result of their separation and divorce.
On 29 October 2019, while X was with the mother, the father attended at her home and tried to take X back to his house. This resulted in an AVO being taken out by police against the father. However, there was no dispute that at the date of the hearing there were no extant AVOs.
The father relied upon clinical notes of Dr H. It appears Dr H is a clinical psychologist who has been treating the children and the father. It appears the mother was for a time included in this therapy, but withdrew after she formed the view Dr H was biased towards the father. Counsel for the mother argued that for the purposes of the interim hearing little weight should be placed upon any evidence originating from Dr H, and drew my attention to aspects of her notes which suggested alignment to the father.
Nonetheless, I do note that on 4 November 2020, Dr H wrote expressing concern to the mother’s GP that she had expressed some suicidal ideation to X. The mother claims the father also expressed a suicidal ideation during the relationship. Each denies the allegation of the other.
For the purpose of an interim hearing, I am unable to resolve factual conflicts and the competing allegations between the parties. I do not rest my decision upon the material originating from Dr H. The mother has put reliability of this evidence in issue and it cannot be tested. The range of allegations made by each parent against the other demonstrates the depth and bitterness of their conflict. I consider it likely both parents have some element of mental health problems. Their depth and severity is hard to gauge at an interim hearing.
On the other hand, I also consider it likely that both parents have inappropriately involved the children in their ongoing conflict, in aspects of the proceedings, and adult matters from which the children should be shielded. For her part, the mother acknowledges the parental conflict poses the most significant risk to the children. On an interim basis, I am satisfied that these factors have lead to Y wishing to avoid conflict by not engaging with his mother, while X has developed some distress for the same reasons, which I discuss later in these reasons.
Based on their conduct, I am satisfied that both children have become alienated to some extent from the mother. I am unable, at an interim stage, to determine why this has happened. I cannot conclude at this interim stage that alienation from the mother would not be adverse to the children.
I am not persuaded that either parent otherwise poses a direct risk to the children in their care. I am not persuaded the mother poses a risk to the children which would preclude them from spending overnight time with her. While the father seeks supervision on a final basis, he clearly has no present concern about the children spending unsupervised time with the mother, which they have done, or have been able to do, since 20 November 2019.
I am however persuaded the ongoing parental conflict poses a risk of psychological harm to the children.
These conclusions however must be weighed together with all other relevant factors.
ADDITIONAL CONSIDERATIONS
The Court must have regard to each of the “additional considerations” set out under s 60CC(3) of the Act separately to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child’s best interests. I will deal with these considerations seriatim.
(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;
There was evidence of conduct and messaging from which the children’s views can be inferred on an interim basis.
The father gave evidence that since the orders of 20 November 2019, Y has refused to go to his mother’s house. This was not disputed by the mother. The mother claimed Y behaved this way because the father had brought about Y’s alienation from her.
The mother pointed to text messages between her and Y between September and November 2020. An example of such exchanges is as follows (Exhibit A, pp 267 - 271). These text messages show the mother trying to engage Y in communication on 7 September 2020. He declined to talk to her because he said he was “[o]n bus”. The mother asked to meet him at the barber. Y declined to go. On 18 September 2020, Y asked to call the mother at a later time. When the mother messaged “I miss you”, Y replied “[s]o do I”. On 23 September 2020, when the mother asked “[a]m I going to see you today?”, Y replied “No thanks”. On 28 September 2020, Y messaged “I didn’t want to talk to you”. On 3 October 2020, the mother messaged “[l]ove you” to which Y responded “[l]ove you more”. But later in the same exchange, Y appears to accuse his mother of speaking to the mother of his friend W, as a result of which a sleep over with W was cancelled. On 12 October 2020, it appears Y tried to call the mother but she did not answer. On 20 October and 9 November 2020, Y failed to respond at all to her messages.
There were also copies of exchanges between the mother and X between May and November 2020. For example, on 3 July 2020:
Mother: Love you.
X: I love you too, Mum. I love you so much I will poo my pants for you, but I love you so much, mum love you too.
X then messaged the mother through the day seeking to talk with the mother, who did not respond until late in the afternoon because she was at work. X then messages “I love you forever, Mumma” to which the mother responded “[m]e too”. At paragraph 82 of his report Dr C noted :
82. [Y] told me that he trusted his Dad with his stuff and that there were more positives with his Dad. When asked about this, he responded that it was "the opposite of a negative''. It was "a much happier environment, a bit more fun, because, with Mum, a lot of arguments happen. Mum gets angry with the tiniest thing. With Mum there are just arguments everywhere."
At paragraph 85, Dr C records the following from Y:
85. Y went on to explain that they had started to stay with Dad in October 2019. They had been spending half the time with each of their parents. Y discussed this experience, "It was very weird. With Dad, it was nice and relaxed. With Mum, there would be arguments. We made new friends with Z. Mum was acting like Dad was with her before the divorce, even though that didn't make any sense because we only met her later. Mum has a thing about Z. She said that she knows everything about her. She knew her second name. I don't know where Mum lives right now because she'd moved out and I'm not sure if she's moved in somewhere. Recently, Mum tried to drop us off something even though we already had a fever. Mum will try to get X to cry often. Mum tried to drop off a gas mask for Corona that she made. Mum keeps claiming that she's poor and homeless even though she's in a house. Mum tries to make us believe those lies and tries to make us cry. X gets upset. I'm really confused by Mum's objective. My Dad's paying for his lawyers and her lawyers. I'm really confused that she keeps telling me more lies. I tried to tell X that it's not true but he keeps on believing her. Mum would come to pick us up every afternoon. Most of the time I refused but I'd let X go. It's his choice."
At paragraph 117, Dr C observed:
117. When the mother was observed in her interactions in the courtyard, a comfortable and loving rapport was observed between her and the children. X playfully cuddled up to her. He hopped on her back and tickled her as she asked him to stop. Y lay on his mother's lap as they chatted and played.
In respect of X, Dr C observed at paragraph 118:
118. X was then interviewed separately. He spoke about his recent interactions with his dog. He spoke about Y being annoying. He told me that things with Dad and Mum were good. When asked if he had spent time with Mum, he shrugged. When asked if he would like to see his mum more, he agreed. He told me that he would like to sleepover with his mum.
At paragraph 122 to 124 Dr C observed:
122. The children's positive engagement with their mother continued throughout the observed interaction. Loving and enthusiastic interactions were observed.
123. Prior to the conclusion of the assessment, Y was asked about his refusal to attend contact visits. He spoke of his boredom watching X play at the park. He preferred to stay at home on his laptop and with the dog and skateboard on the balcony. Although X could scooter in the park, the terrain was not suitable for his skateboard.
124. When asked if, when Mum had a place to stay, whether he would sleep over, Y responded, "Probably." When asked if there was any reason not to, Y responded, “Right now I'm working on a new game so I'm putting all my time into it." That said, his father would tell him that he should go. It was his view that it would depend on why he was going. He didn't understand why he should go if they would just go to McDonalds, sit and talk and go to the park. Although X would say that the visits were fun, he did not find it interesting. That said, he added that he would enjoy watching Netflix together and that he did like going to McDonald's.
For the purposes of an interim hearing I am satisfied that Y holds residual love for his mother. In May 2020, when he saw Dr C, he clearly felt some resistance to spending limited after school time with his mother in accordance with the present orders, because he felt it was boring. I infer that he prefers to engage in activities which he feels are more appropriate to his age rather than play with his brother in a park, for example. However, since May 2020, he has continued to feel hesitation about spending time with her, even though she has a more permanent two bedroom residence at Suburb K. There seems little doubt he has been brought into the middle of the parental conflict, but he finds time with the father less stressful, and he finds his mother to be a source of anger and friction.
The evidence satisfies me that X is more attached to his mother than Y. Although X seems to be clearer in his desire to spend time with the mother, the evidence also suggests a degree of inner conflict. In an email dated 4 November 2020, the Assistant Principal of J School recording the fact X was extremely upset and resistant to going to his mother’s house (Father’s Tender Bundle filed 18 November 2020, p. 26). The reason was unexplained. The email said X’s behaviour was out of character, and he was otherwise well settled at school and learning (Father’s Tender Bundle filed 18 November 2020, p. 26). I infer from this evidence that since July 2020 X began to feel some distress or greater distress at the thought of spending time with the mother.
The evidence satisfies me that both children love their mother, and wish to spend time with her. However, this positive attitude has become markedly attenuated in the case of Y, and also X to a lesser extent. It may be that the father has contributed to this situation by attempting to alienate the children from their mother. It may also be the result of the mother’s own conduct, presenting as angry and argumentative to the children. I am unable to resolve this at an interim hearing.
(b) The nature of the relationship of the child with:
(i)Each of the child’s parents; and
The discussion of the evidence above under s 60CC(3)(a) also demonstrates that the children have a loving relationship with each parent. However, the relationship of each child has been seriously affected by the parents’ conflict. The generally more favourable views which the children seem to hold towards their father is also a measure of the reticence they feel about their mother, and diminishes their relationship with her.
I also take account of the views of Dr C at paragraph 157:
157. A loving and connected relationship was observed between the children and each of their parents. That said, their relationships differed given the significant difference in their parents' personality and parenting styles. The mother had played the primary parenting role prior to the parental separation. It was of great concern that the father had discounted the importance of this relationship and had supported Y's dismissal of his relationship with his mother. That said, he had provided a stable, loving and connected environment for the boys post-separation. The mother had understandably felt marginalised by the father's position and Y's alignment with his father. The negative statements attributed to the mother by Y and his father had may have been magnified. It is likely that concerning comments were not representative of her lack of care and concern for her sons.
I give weight to this consideration
(ii)Other persons (including any grandparent or other relative of the child)
The father gave evidence that the children are cared for by the paternal grandmother. I infer they have a warm relationship with her.
I give weight to this consideration
(c) The extent to which each of the child’s parents 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;
The evidence satisfies me at an interim stage that both parents have endeavoured to participate in making decisions about major long-term issues in relation to the children and have spent time and communicated with them. Their efforts in this regard have been undermined by the parental conflict.
I give weight to this consideration.
(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
The children have been living with the father and should be spending time with the mother, but not overnight. As noted, Y has not been spending time with his mother. I emphasise this is his decision, not the result of the mother failing to take the opportunity for time with Y. The father argues this should not change on an interim basis. The children are settled at school and generally progressing well, with a stable routine. The mother’s proposal would see the children suddenly spending each alternate week living with her. She contends that this would help rehabilitate their relationship with her, and counteract the father’s efforts at alienation.
But it would be a major change in their circumstances. I am unable to form a clear view about how such a change would affect their psychological state or more practically their routine. In light of the clear tension Y feels about going to his mother’s home, shared to some extent by X, I could not conclude such an interim change would not have a destabilising effect on the children. I could not conclude it would not be adverse.
It is also relevant to emphasise here that X suffers from problems with speech development. Dr C observed, at paragraph 74, “[i]t was immediately apparent that X had significant articulation and expressive language difficulties”. The father has taken steps to manage this with speech therapy. I take account of the need to avoid a change of circumstances leading to a regression in X’s speech development.
The ICL proposed a more modest introduction of overnight time for the children with their mother. Again this may have some destabilising effect, but since it would be limited to every second weekend, I could not conclude the boys would not cope. On one hand, such additional time with the mother may go some distance to improving their relationship with her. On the other hand it would likely increase their tension about spending time with the mother. Bearing in mind his age, there can be no guarantee that Y would comply with any Court order for him to spend overnight time with his mother.
I give weight to this consideration.
(ii)Or any other child, or other person (including any grandparent or other relative).
On an interim basis, I am satisfied the children enjoy a positive relationship with each other. The parenting order made so far require the children to move between parents together. No one suggested they should do so separately on an interim basis.
I give weight to this consideration.
(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 children live with the father. He lives in Suburb M. The mother lives in Suburb K. Y is at school in Suburb M. X is at school in Suburb L. There appear to be no issues of practical difficulty with the children spending time with the mother. Neither party raised any issues.
I give weight to this consideration.
(f) the capacity of:
(i)Each of the child’s parents; to provide for the needs of the child, including emotional and intellectual needs
According to Dr C both parents have been diagnosed with ADHD.
The father has had a history of depression in 2004, 2018 and 2019. He told Dr C that, due to his work-related problems, he had required treatment with antidepressant medication. Most recently he had been treated with Valdoxan 25mg nocte, which had assisted with sleep. He experienced suicidal ideation in 2019 when the mother had admitted to having an affair (Family Report dated 19 May 2020, paragraph 9).
The father gave evidence of long term problems of the mother with alcohol consumption, from at least 2005 when Y was born. He evidenced that the mother had a family history of mental illness, and from about 2008 an obsessive pattern of behaviour playing video games. He claims the mother has borderline personality disorder.
The father claimed in his evidence that from 2008 he began taking responsibility for the majority of the children’s care, such as washing them, supervising their play, taking them to and from school and their extra-curricular activities and assisting them with their homework (Father’s affidavit filed 12 September 2020, paragraph 50). The father claims the mother did not assist, ignored domestic duties and showed little interest in the children (Father’s affidavit filed 12 September 2020, paragraph 51). He said the mother emotionally abused the children by raging at them.
He gave evidence that the mother had three car accidents between 2010 and 2015, and continued to drink to excess.
The parties relocated to Australia from the United Kingdom in 2017. The mother had two more car accidents in 2017 and 2018. The father claims the mother’s addiction to video games continued through 2019. The father claims the mother had sexually explicit chats with her “boyfriend” late at night and used sex toys while online. He expressed concern that the children might witness these activities, which the mother dismissed.
The father also gave evidence of violent behaviour by the mother at the point of separation in May 2019. He claims she threw a suitcase and a book at him (Father’s affidavit filed 12 September 2020, paragraph 75).
In July 2019, the father left the former matrimonial home with the children and relocated to his current address in Suburb M. Since separation, he says he has worked from home and reduced his work from full-time to part-time, in order to be able to look after the children on a full-time basis. He says he has chosen to be a “professional rather than work in a managerial role at G Company to allow him to have a flexible work arrangement that allows him to continue to look after the kids and have no work related pressure at home” (Father’s affidavit filed 12 September 2020, paragraph 84). He also gave evidence that “[a]t the times [he] ha[s] to travel for work [he] ha[s] arranged for [his] mother to care for the children. [His] mother has a close relationship with the children and they feel comfortable in her care” (Father’s affidavit filed 12 September 2020, paragraph 83).
According to the father, between 28 and 30 October 2019, X expressed a strong desire to return to the father’s home, and the mother physically restrained him leaving her home in the presence of the father. X was thus placed in the middle of and witnessed parental conflict.
At paragraph 46 of his report, Dr C noted:
46. Ms Stathis denied problems with emotional regulation or mood. She stated that she had always been in tune with her feelings and had a higher level of emotional intelligence than Mr Michel. She, however, had not been good at setting boundaries and felt guilty about saying no. People would take advantage of this resulting in her "blowing up". She felt that she needed to learn how to say no without feeling guilty. This had caused problems in her relationships. People would not listen to her because she was always there to help rather than enforcing boundaries. She would avoid conflict and argument. By contrast, Mr Michel would have an argument about there not being cheese on the table. Her friends viewed her as a doormat in her relationships.
At paragraph 70, Dr C recorded after a mental health examination of the mother:
70. Ms Stathis was compliant with the process of assessment. She established a good rapport and engaged in a respectful and organised account of her circumstances when interviewed via Zoom video link. She was a clear and articulate historian. Her account was consistent with her Affidavit material. She was currently euthymic (normal mood). Her affect was reactive to the issues explored. She assertively denied having emotional dysregulation, dissociation or self harm, as alleged. She identified longstanding symptoms of Attention Deficit Disorder. This had been effectively managed with Vyvanse 70mg daily. No abnormalities of thought form or content were identified. She was seen to be reflectful and insightful into her circumstances. There were no signs of mental illness or Personality Disorder exhibited during the assessment.
At paragraph 146, Dr C opined in relation to the mental health of both parents:
146. Both parties were compliant with the process of assessment. Neither were identified to have significant abnormalities on current mental state examination. They were each articulate in the expression of their concerns which were consistent with their Affidavit material. Both parents had been diagnosed and treated for Attention Deficit Hyperactivity Disorder. Both were being treated with Vyvanse (lisdexamphetamine) 70mg tablets, one daily. The use of psychostimulant medication had been an appropriate, effective and well tolerated treatment for ADHD. It should be noted that ADHD is a highly heritable condition commonly resulting in the diagnosis of multiple family members.
Ultimately, Dr C expressed the following view about the parents’ capacity, at paragraph 164:
164. Both parents were identified to have the capacity to attend to the children's emotional and intellectual needs. That said, they were identified to have different strengths. The mother was more emotionally engaged with the children; however, when stressed, she experienced emotional dysregulation herself. The father had intellectual strengths related to computer programming and engineering. This, however, had resulted in lack of boundaries around computer time. The mother was understandably concerned by Y's excessive computer related activities, to the detriment of a more balanced lifestyle.
I am satisfied that both parents have a reasonably sound capacity to parent the children. However, in the case of the father, this general conclusion is tempered by Dr C’s view that the father lacks the capacity to promote the children’s relationship with the mother (Family Report dated 19 May 2020, paragraph 159).
I give weight to this consideration.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I am satisfied that it is likely the father has been more assiduous than the mother in discharging the responsibilities of parenthood. However, both parents seem to have an engaged attitude to those responsibilities.
I give weight to this consideration.
(j) any family violence involving the child or a member of the child’s family;
I have nothing to add under this heading.
(k) if a family violence applies, or has applied, (be it final, interim, contested or consented to) to the child or a member of the child’s family-any relevant inferences that can be drawn from the order;
I have nothing add here beyond the discussion under s 60CC(2)(b).
(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 child.
Since this is an interim judgment and the parties will have a further final hearing as soon as possible, this is not a relevant consideration.
I give weight to this consideration.
Parental Responsibility
I have already referred to the presumption of equal shared parental responsibility. An order for equal shared parental responsibility would enliven s 65DAA(1) of the Act, requiring the Court to consider equal or substantial and significant time with each parent, and the statutory obligations in s 65DAC of the Act for the parties to make decisions jointly about major long-term issues in relation to the children, consult and make a genuine effort to come to a joint decision.
Neither party, nor the ICL, proposed an interim order for equal shared parental responsibility. The entrenched parental conflict, the unresolved issues of alienation, and the resistance of Y and X to spending time with the mother are factors which satisfy me that it is inappropriate to apply the presumption at an interim stage. No interim order for equal shared parental responsibility will be made.
Consequently, s 65DAA(1) of the Act does not apply. I note that even if there is no order made providing for equal shared parental responsibility, the decision in Goode makes clear that the concepts of “equal time” or “substantial and significant time”, in the best interests of the child, remain relevant.
LIVE WITH THE FATHER
As already noted, there was no dispute that the children should continue to live with the father.
TIME WITH THE MOTHER
I have given consideration to both “equal time” or “substantial and significant time” with the mother, in the best interests of the children.
In light of the resistance of Y to, and the more recent distress shown by X towards, spending time with the mother, as well as the perception of the children that the mother presents as angry and creates tension, I am not satisfied that orders should be made for equal time with the mother. There is an obvious risk that Y will simply refuse to live with his mother in a week about arrangement. A week about arrangement has a risk of disrupting the present routine of the children. Substantial time carries the same risk but there is a reasonable prospect the risk will be mitigated by Y feeling comfortable that he has a primary residence with the father.
I am, however, satisfied orders should be made for the time the children spend with the mother to include overnight time. I am satisfied both children love their mother and would likely benefit from an enhanced meaningful relationship with her. The children should be spending about nine to ten hours with the mother over four evenings each week with the mother under the present orders. In reality, this is not happening. I am satisfied overnight time on alternate weekends would help improve their relationship with the mother and give the children more hours with her each fortnight. Their time with her should be introduced on a limited basis pending final hearing, in tandem with family therapy, as the ICL proposes. The ICL proposed each alternate weekend from Friday to Monday morning. I understand that it would be preferable for changeovers to take place at school to avoid the parents coming into contact. On the other hand, the children’s primary residence is with the father. During term time, if the children return to their father on Sunday evenings, this will enable them to prepare for school on Mondays more easily, with access to necessary clothing, school books, devices, and sporting gear, amongst other things.
I have taken account of the mother’s arguments that the father has alienated the children. However, at an interim stage, I am unable to resolve the competing contentions concerning alienation. In any event, increased and overnight time with the mother is likely to have some ameliorating impact on problems of alienation between the mother and the children.
The evidence did not satisfy me that supervision of the mother’s time was indicated, and in any event the father does not seek supervision on an interim basis.
The ICL proposes family therapy. I consider this is very important. The parents must take steps to learn how to navigate their conflict not only to shield the children from it, but to work out how to remove it from their interactions. In light of the resistance shown by both children to spending time with the mother, the parents must engage with a therapist to receive guidance about how to navigate the children’s time with their mother. The ICL proposed an order for the parties adopt any recommendations of a family therapist about how to implement to the orders for time with the mother. While this is sensible and important, it is not a substitute for the orders of the Court. The Court makes its orders and the parties must comply with them. However, the orders will provide scope for the parties vary the terms by agreement in writing to take account of recommendations of the family therapist. In light of the conflict between the parents there may seem little realistic possibility that they can accomplish this. However, in the best interests of their children, both parents must try harder to achieve some practical and functional level of co-parenting, despite their feelings towards each other. This includes co-operating to overcome the resistance shown by either child to spending time with the mother.
The mother argued any such therapy should be at the father’s cost. I am not persuaded this is appropriate. Both parents should commit to a course of therapy in the best interests of their children. They should cement their commitment by jointly bearing the costs.
After the parents and the children have engaged in further family therapy there may be scope for increasing the children’s time with the mother. However, at present the Court will proceed cautiously, especially in light of the awful parental conflict.
I believe it would assist the children if the orders of the Court are explained to them by the ICL.
CONCLUSION
Having considered the matters referred to above, and having given such matters the weight referred to and for the reasons set out herein, I am of the view that the orders are set out at the commencement of these reasons are in the best interests of the children and accordingly, will so order.
In attempt to streamline these proceedings, I will also dismissed the mother’s Application in a Case filed 25 September 2020, which was superseded by the Application in a Case submitted for the purposes of this judgment on 24 November 2020, and which relate to the same subject matter.
I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 20 April 2021
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