Millson and Halbert (No. 2)
[2019] FamCA 869
•27 November 2019
FAMILY COURT OF AUSTRALIA
| MILLSON & HALBERT (NO. 2) | [2019] FamCA 869 |
| FAMILY LAW – PARENTING – where the parties both seek an order for sole parental responsibility – where the mother alleges the father sexually assaulted her in front of one of the children – where the mother alleges the children disclosed the father physically abused the children – where the mother has taken the children to the police to make allegations against their father – where the father alleges the mother alienates the children from him – where the father alleges the mother abuses illicit substances – where the Court finds that the mother is an unacceptable risk to the children – change of residence – period of no time – gradual increase of time to commence with supervised time – therapeutic intervention required for the mother – family therapy ordered. |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65D, 65DAA, 65DAB, 65DAC Evidence Act 1995 (Cth) s 140 |
| Adamson & Adamson (2014) 51 FamLR 626 Jollie & Dysart [2014] FamCAFC 149 M v M (1988) 166 CLR 69 R & C [1993] FCA (Unreported, Fogarty, Baker and Lindenmayer JJ, 25 June 1993) R & R (Children’s Wishes) (2002) FLC 93-108 Re Andrew (1996) 20 Fam LR 538 Sigley & Evor (2011) 44 Fam LR 439 Tibb & Sheean (2018) 58 FamLR 351 |
| APPLICANT: | Mr Millson |
| RESPONDENT: | Ms Halbert |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 6260 | of | 2007 |
| DATE DELIVERED: | 27 November 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Harper J |
| HEARING DATE: | 1-3 July 2019 & 8-9 August 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Blackah |
| SOLICITOR FOR THE APPLICANT: | G & D Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Gould |
| SOLICITOR FOR THE RESPONDENT: | The Law Society of NSW |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Ladopoulos |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Sydney Central Family Law |
Orders
All previous parenting orders in relation to the children Y born in 2006 (13 years of age) and X born in 2011 (7 years of age) be (“the children”) discharged.
Parental Responsibility
The father have sole parental responsibility for major long term issues relating to the children.
Prior to the father making decisions concerning major long term issues relating to the children, including but not limited to their health and education, the father shall notify the mother in writing, such writing to include SMS or email communication, of his proposal and seek her response in writing within 21 days and take into account the mother’s response, provided such response is received within the stated period, and notify the mother of his ultimate decision.
Residence
The children live with the father.
Children to attend upon therapist
The father as soon as practicable make an appointment for the children to attend upon Ms N or if Ms N is unavailable, a children’s therapist with similar qualifications as Ms N (“the children’s therapist”) for the purposes of therapeutic counselling and the children shall continue to attend on such children’s therapist on such occasions as recommended by the children’s therapist and for such period as recommended by the children’s therapist.
The mother and father shall cooperate with all reasonable requests made by the children’s therapist for involvement by either or both of them in providing information to or in attending upon the children’s therapist.
Leave is granted to the Independent Children’s Lawyer to provide to the children’s therapist a copy of the Single Expert Report of Ms B dated 11 June 2018, a sealed copy of the orders dated 27 November 2019, and the Reasons for Judgment of the Court dated 5 July 2019 and 27 November 2019 (“the Reasons for Judgment”) to the children’s therapist.
Mother to obtain psychiatric assistance
The mother shall:
(a)Attend upon her General Medical Practitioner within 14 days of the date of these Orders and obtain a referral to a suitably qualified psychiatrist (“the psychiatrist”);
(b)Make an appointment to attend upon the psychiatrist at the earliest available date, such appointment to be made within 7 days of having obtained the referral;
(c)Advise the Independent Children's Lawyer and the father of the details of the psychiatrist and the scheduled appointment within 48 hours of having made the appointment;
(d) Attend upon the appointment with the psychiatrist.
(e) The mother follow all recommendations of the psychiatrist.
Leave is granted to the Independent Children's Lawyer to provide to any of the mother’s treating health care professionals, including the mother’s General Medical Practitioner, Dr C, and the nominated psychiatrist a copy of the Single Expert Report prepared by Ms B dated 11 June 2018, a sealed copy of the orders dated 27 November 2019, and a copy of the Reasons for Judgment.
Family Therapy
The mother and father take all necessary steps to make appointments and engage with a family therapist (“family therapist”) as nominated by the Independent Children’s Lawyer within 14 days of request by the Independent Children’s Lawyer to do so and follow the recommendations of the family therapist.
Leave is granted to the Independent Children's Lawyer to provide to the nominated family therapist a copy of the Single Expert Report prepared by Ms B dated 11 June 2018, a sealed copy of the orders dated 27 November 2019, and a copy of the Reasons for Judgment.
The father be responsible for the costs of his sessions and the children’s session with the family therapist and the mother be responsible for the costs of her sessions with the family therapist.
The mother’s time with the children
The mother spend no time with the children for a period of three months and otherwise in accordance with these orders.
Upon the expiration of three months after the date of these orders, the mother is to provide to the father and Independent Children’s Lawyer a report from her treating psychiatrist with such report to address the mother’s compliance with the psychiatrist’s recommendations.
Supervised Time
The father shall, as soon as practicable, after the date of these orders:
(a) nominate a supervised contact service, offering free or subsidised places;
or
(b)if no such service is available within one month, a contact service requiring payment;
and
(c)the mother and father shall complete all necessary documentation and attend all appointments for the purpose of facilitation of time with the children as outlined in the Orders below.
If the report referred to in Order 14 indicates that the mother has been compliant with the recommendations of her treating psychiatrist, the father shall take all necessary steps to arrange for the children to spend time with the mother for a period of three months, each fortnight for two hours supervised by the nominated supervision service and to be paid for by the father, until such time as a free or subsidised service is available.
If the report referred to in Order 14 indicates that the mother has not been compliant with the recommendations of her treating psychiatrist:
(a) The mother’s time with the children will continue to be suspended;
(b)The mother shall continue psychiatric treatment in accordance with orders 8(a) and (e);
(c)After a further three months from the date specified in Order 14 for the provision of a report, the mother shall provide a further report from her treating psychiatrist to address her compliance with the recommendations of the psychiatrist;
(d)If the report indicates that the mother has been compliant with the recommendations of her treating psychiatrist, the father shall take all necessary steps to arrange for the children to spend time with the mother for a period of three months, each fortnight for two hours supervised by the nominated supervision service and to be paid for by the father, until such time as a free or subsidised service is available.
Unsupervised Time
At the expiration of three months of supervised time the mother shall provide to the father and the Independent Children’s Lawyer a fresh report from her treating psychiatrist with such report to address the mother’s compliance with the psychiatrist’s recommendations.
If the report referred to in Order 18 indicates that the mother has not been compliant with the recommendations of her treating psychiatrist, the mother’s time with the children will continue to be supervised.
If the report referred to in Order 18 indicates that the mother has been compliant with the recommendations of her treating psychiatrist, the father shall arrange for the children to spend unsupervised time with the mother as follows:
(a)For three occasions of unsupervised time from 10am until 12pm each alternate Sunday;
(b)Thereafter, for a period of three months each alternate Sunday from 10am to 2pm;
(c)Thereafter, for a period of three months each alternate Sunday from 10am to 6pm;
(d)Thereafter, for a period of six months each alternate weekend from 10am Saturday to 6pm Sunday;
(e)Thereafter, for a period of six months each alternate weekend from after school Friday or 3pm if it is a non-school day until 6pm Sunday;
(f)Unless otherwise agreed in writing, thereafter, during the school term, each alternate weekend from after school Friday or 3pm if it is a non-school day to the commencement of school Monday or 9am if it is a non-school day.
School Holidays
Unless otherwise agreed in writing and upon the mother spending unsupervised time with the children, the children shall spend time with the mother during school holidays as follows:
(a) For the school holiday periods at the end of Term 1, 2 and 3 as follows:
(i)From 9 am on the first Saturday of the school holidays until 5 pm on the following Saturday;
(b) For the school holiday period at the end of Term 4 as follows:
(i)From 10 am on 26 December to 5 pm on 1 January in each odd numbered year;
(ii)From 10 am on 1 January to 5 pm on 8 January in each even numbered year;
(iii)From 9 am on the second last Saturday of the school holidays to 5 pm on the last Saturday of the school holidays.
Special Occasions
Unless otherwise agreed in writing and upon the mother spending unsupervised time with the children, the children shall spend time with the parties on the following occasions of special significance:
(a) Each Christmas as follows:
(i)The children shall spend time with the father:
A.From 9.30am on 24 December to 9.30am on 25 December in each even numbered year
B.From 10.00am on 25 December to 10.00am on 26 December in each odd numbered year
(ii)The children shall spend time with the mother:
A.From 9.30am on 24 December to 9.30am on 25 December in each odd numbered year
B.From 10.00am on 25 December to 10.00am on 26 December in each even numbered year
(b) Each Easter as follows
(i)The children shall spend time with the father:
A.From 9 am on Easter Sunday to 6 pm on Easter Monday in each even numbered year
B.From 9 am on Good Friday to 9 am on Easter Sunday in each odd numbered year
(ii)The children shall spend time with the mother:
A.From 9 am on Good Friday to 9 am on Easter Sunday in each even numbered year
B.From 9 am on Easter Sunday to 6 pm on Easter Monday in each odd numbered year
(c) On the children’s birthdays as follows:
(i)The children shall spend time with the father from 3.00pm to 7.00pm if the children are not already spending time with the father on that day pursuant to these Orders
(ii)The children shall spend time with the mother from 3.00pm to 7.00pm if the children are not already spending time with the mother on that day pursuant to these Orders
(d)In the event that the children are not already spending time with the father pursuant to these Orders, the children shall spend time with the father on his birthday, notwithstanding any other order herein as follows:
(i)If the father's birthday is on a weekday from 3.00pm to 7.00pm
(ii)If the father's birthday is on a weekend from 10.00am to 6.00pm
(e)In the event that the children are not already spending time with the mother pursuant to these Orders, the children shall spend time with the mother on her birthday, notwithstanding any other Order herein as follows:
(i)If the mother's birthday is on a weekday from 3.00pm to 7.00pm
(ii)If the mother's birthday is on a weekend from 1 0.00am to 6.00pm
(f)Notwithstanding any other order herein the children shall spend time with the father from 10.00am to 6.00pm each Father's Day
(g)Notwithstanding any other order herein the children shall spend time with the mother from 10.00am to 6.00pm each Mother's Day.
Changeover
Unless otherwise provided, and upon the mother commencing unsupervised time with the children, changeovers for the children to spend time with the mother which do not occur at school will take place with the father or his nominee delivering the child to the mother’s nominated residence and the mother or her nominee returning the child to the father’s nominated residence unless otherwise agreed between the parties in writing, such writing to include SMS or email communication.
That each party is to notify the other in writing 28 days prior of his or her intention to change their residence.
Communication
The mother shall not communicate with the children by any means except as provided for in these Orders prior to the commencement of the children spending unsupervised time with her in accordance with these Orders.
Until the mother commences spending unsupervised time with the children, the mother be and is hereby restrained from attending within 100 m of the children’s school when the children are in attendance.
Upon the mother commencing unsupervised time with the children, the mother may attend events at the children’s school to which parents are normally invited including parent teacher interviews.
The mother be at liberty to communicate with the children’s school and treating health practitioners and for such purposes, and the father shall do all things necessary to authorise such information to be made available to the mother as she may reasonably request.
The mother and father shall notify each other of any serious illness or injury suffered by the children when they are in their respective care with such notification to include the name and location of any treating medical professional and an authority for the treating professional to provide to the other party information on the child’s treatment and prognosis.
That each party provide to the other their email address within 7 days of the date of these orders and notify the other party within 48 hours of any change to their email address.
That each party shall provide the other with their current mobile telephone number and in the event, they change that number, they shall within 48 hours notify the other of their new mobile number.
These Orders are authority for the school that the children attends to provide to the mother copies of all school reports, newsletters, notices of events to which parents are invited and copies of correspondence relating to the children’s education.
Both parties shall not denigrate or cause any third party to denigrate the other parent or members of the extended family in the presence or hearing of the children.
That each party be restrained from using corporal punishment as a means of disciplining the children.
Travel
That each party will give no less than 14 days’ notice in writing to the other party of their intention to travel with the children outside of NSW, and shall provide contact details for the relevant period.
Liberty to Re-list
Should either child run away from their father’s home and return to the mother’s home, the mother shall forthwith take all necessary steps to notify the father and to cause the child or children to be returned to the father’s home as soon as possible.
In the event the children or a child refuses to return to the father’s home, the father or the Independent Children’s Lawyer has liberty to restore this matter on 24 hours’ notice.
The Independent Children’s Lawyer’s appointment will continue for a period of 12 months unless earlier discharged by the Court.
Both parties and the Independent Children’s Lawyer have liberty to otherwise relist this matter in respect of any application which relates to the implementation of these orders on seven days’ notice. Any such application is to be listed before Justice Harper if he is reasonably available.
Application of these orders
Upon delivery of Judgment, the Independent Children’s Lawyer is to notify the children’s school of the effect of the orders made on 27 November 2019, including that the mother is retrained from approaching the children’s school in accordance with Order 26.
The Independent Children’s Lawyer is to provide the children’s school with a sealed copy of the orders made on 27 November 2019 as soon as practicable.
The father is to take all necessary steps to bring the children to the Child Dispute Section of the Family Court, located on Level 2 of the Court, at 10:00am on Thursday, 28 November 2019 for the purpose of having these Orders explained to them by the Independent Children’s Lawyer and a Senior Family Consultant of this Registry.
Costs
If any party seeks an order for costs, an appropriate application to the Court may be made within 28 days of today’s date (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my Chambers. If no such application is made within the time period specified, no order will be made as to costs.
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 Millson & Halbert 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 SYDNEY |
FILE NUMBER: SYC6260/2007
| Mr Millson |
Applicant
And
| Ms Halbert |
Respondent
And
| The Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
This is a parenting matter between the applicant father, Mr Millson (“the father”) and the respondent mother, Ms Halbert (“the mother”) in relation to the children of the relationship, Y (“Y”) born in 2006, presently 13 years old, and X (“X”) born in 2011, presently eight years of age (“the children”).
The father has two adult children from a previous relationship, Ms M, born in 1993, presently 26 years old and Mr K, born in 1998, presently 21 years old. The father has re-partnered with Ms P. The mother does not presently have a partner, although there is a factual dispute as to whether the mother re-partnered for a time after separation with a person called Mr Q. This will be discussed in detail later in these reasons.
The children presently live with the mother and spend time with the father. The father has proposed orders for the reversal of the current living arrangements. This would bring about a major change in the circumstances of the children. The mother has been the primary carer of the children at all times up to the trial. Y, in particular, has just entered her teenage years.
The parties have made serious allegations against each other. The father claimed the mother has been alienating the children from him. He impugned the mother’s capacity to care for the children. He perceived there was urgency in the children being placed in his primary care because the mother posed an unacceptable risk to them. It was uncontested that the mother had withheld the children from time from the father in the face of Court orders, because she asserted, inter alia, the father had physically abused her and the children, and they were scared of him. As will become apparent, the mother’s evidence and some of her conduct raise serious concerns. I have been left in no doubt that the mother is a person in a fragile emotional condition who, despite generally trying her best as a parent according to her own understanding of the parental role, suffers considerable emotional dysregulation and poses an unacceptable risk to the children, which requires a period of no contact followed by a gradual reintroduction of the children to time with the mother. Despite the dramatic change this will bring about in their lives, I am not persuaded that the children should be left in their mother’s primary care.
Background
The parties met in 2005, and commenced cohabitation in 2005. The parties separated in February 2007.
The father commenced parenting proceedings in the Federal Magistrates Court on 5 September 2007. Final parenting orders were made by consent (“the Consent Orders”) in relation to Y on 31 March 2009, and were varied on 25 April 2009. It is unnecessary to set out the terms of those orders.
Both parties agree that in or around late 2010 or early 2011 they began a casual sexual relationship. Prior to the birth of X, the mother contends that she and the father started to become “serious again”. The father characterised the relationship in a more casual way. He gave evidence that after the Consent Orders in 2009 the parties started “to get along” and “We reconciled to the extent that I was also seeing Ms Halbert some of these times. We occasionally had sex.” By 2011 the mother was pregnant with X, which the father found to be “a huge shock” and “I did not handle it well” although ultimately the father was present at the birth of X.
The mother asserts that the parties separated “for good” in September 2011. As I understood his evidence, the father maintains that the parties were not in a relationship at that time, from which either could separate. It is unnecessary to resolve this difference.
It was within this context that X was born in 2011. In respect of time with X, on 7 November 2011, the parties entered into a parenting agreement (“the agreement”) which stipulated that the father would spend time with X according to the same arrangement he was to spend time with Y pursuant to the Consent Orders.
Up until about December 2016, it seemed as though the parents had a reasonably functional co-parenting relationship. Thereafter that relationship deteriorated markedly. In her 2017 Affidavit, the mother alleged “From December 2016 Mr Millson made the children, and my, life miserable.”
The father asserts he spent time with children in accordance with the orders and agreement until about November 2017. The mother asserts that from approximately August 2017, X stopped spending any time with the father, and from September/October 2017, Y stopped spending time with the father.
Both parties agree that there was a period of time in 2017 where the father did not spend time with Y in accordance with the Consent Orders, or with X, in accordance with the Agreement. In response to this, on 6 September 2017, the father recommenced proceedings in the Federal Circuit Court of Australia.
On 15 December 2017, the matter was transferred to the Family Court of Australia and an Independent Children’s Lawyer was appointed. After an interim hearing on 28 September 2018, Senior Registrar Campbell made orders in respect of the father’s time with the children. These orders reflect the current parenting regime between the parties. The children live with the mother and spend time with the father:
a)each alternate week from after school Friday and if not a school day from 3pm until the commencement of school on Monday or if not a school day 9am; and
b)each Wednesday from after school or 3pm if not a school day to the start of school on Thursday or 9am if not a school day.
On 16 November 2018, her Honour Justice Stevenson made orders expediting the matter.
On 5 April 2019, the mother and father entered into further interim consent orders (“Interim Consent Orders”), which were made by Registrar Mordaunt. These orders provided for the father to spend time with the children during the 2019 school holidays, relevantly, as follows:
1. The children shall spend time with the Father as follows:
a.In the school holidays in 2019 as follows:
i.From Saturday 13 April 2019 at 9:30am to Saturday 20 April 2019 at 5:30pm;
ii.From Saturday 6 July 2019 at 9:30am to Saturday 13 July 2019 at 5:30pm;
iii.From Saturday 28 September 2019 at 9:30am to Saturday 5 October 2019 at 5:30pm.
On 8 April 2019 the matter was transferred to my docket. On 23 April 2019, I listed the matter for hearing commencing on 1 July 2019 for an estimate of three days.
Prior to its commencement on 1 July 2019, the mother made two applications to adjourn the final hearing. The first application was made on 11 June 2019. On that occasion, the application to adjourn was refused, however, the Court extended the time required to comply with certain trial directions. Additionally, the matter was listed on 20 June 2019 for a further compliance check.
On 18 June 2019, the father filed an Affidavit indicating that the mother had not allowed the children to spend time with him, pursuant to the orders made by Senior Registrar Campbell on 28 September 2018. The father also filed an Amended Initiating Application on 18 June 2019, seeking an order for sole parental responsibility in his favour, instead of equal shared parental responsibility, and he changed from seeking a week about arrangement to seeking orders that the children spend no time with the mother. In her evidence, the mother had conceded that she prevented the children from seeing the father, but had alleged that the father had physically abused the children. She stated that these allegations were based on disclosures made by the children. I will return to these allegations later in these reasons.
On 20 June 2019, the mother informed the Court that she had been accepted into the Law Society pro bono scheme, however, she made another adjournment application on the basis there would be insufficient time for her to prepare for the hearing. This adjournment application was also refused.
The Father’s interim application
The trial commenced on 1 July 2019. The mother was represented by solicitor and counsel, as was the father, and the ICL.
The trial was not completed within the allocated time. The father made an oral interim application on the third and final day of trial, 3 July 2019. On 5 July 2019, I delivered reasons in respect of that application: Millson & Halbert [2019] FamCA 429 (anonymised). The events leading to the father’s oral application and the reasons for judgment are relevant to the final determination of these proceedings, and the judgement of 5 July 2019 should be read with these reasons.
For ease of reference, I incorporate paragraph [6] – [11] of Millson & Halbert [2019] FamCA 429 which set out the background to the father’s interim application on 3 July 2019:
[6] The father was cross-examined on the first day of the trial. The mother was also cross-examined on 1 July 2019 but her cross-examination was incomplete when the Court adjourned. Cross-examination of the mother continued to 2 July 2019 and was incomplete when the Court adjourned on that day.
[7] On the morning of 3 July 2019, whilst the mother was still under cross-examination, the Court was informed that she had been taken to hospital. The proceedings were unable to resume in her absence and the matter was stood down until 11:30 AM and then 2:15 PM to enable Counsel to obtain further information in relation to the mother’s condition.
[8] At 2:15 PM, Counsel for the mother tendered a Discharge Summary from D Hospital which became Exhibit 1. The Discharge Summary demonstrated that the mother had been taken to hospital because of rectal bleeding. Medical examinations demonstrated she was suffering from a haemorrhoid. The mother discharged herself from hospital at about 1:00 PM. The Discharge Summary indicates this was contrary to medical advice. It also records that the mother “advised that she did not wish to stay in hospital due to current court proceedings which she need (sic) to attend”.
[9] However, the mother did not at any point return to the precincts of the Court or the Courtroom on 3 July 2019. I was told from the Bar Table that the mother attended at the H School in order to collect X from school.
[10] Her Counsel was not given any explanation or instruction by the mother as to why she was unable to return to the courtroom, despite deeming herself able to be discharged from hospital.
The father sought interim orders for the children to be placed in his care, and for the mother to undertake drug testing. I refused the father’s application to change the children’s care arrangement at an interim stage, for the reason set out in my earlier judgment. However, orders for hair strand testing of the mother, under supervision and chain of custody procedures of “The Drug Detection Agency”, were made by consent. The hearing was adjourned part-heard to 8 and 9 August 2019.
When the hearing re-commenced on 8 August 2019, the mother’s cross-examination continued. Under cross-examination, the mother confirmed that she had discharged herself from hospital on 3 July 2019 contrary to medical advice, and that she had informed hospital staff that she needed to be discharged to attend Court. Despite this, the mother conceded that instead of attending Court she went home to rest and then went to collect the children from school. When Counsel for the father put to her that she had done so to ensure that the father would not collect the children, she agreed.
Further, the mother had not undergone hair strand testing and attended Court with her hair cut extremely short. I will return to this later in these reasons.
Issues in dispute
Given the divergent proposals and the allegations made by each party, there were a number of issues that needed judicial determination. The issues to be determined are:
a)Whether either party poses an unacceptable risk to the children;
b)Parental Responsibility;
c)With whom the children should live with;
d)How much time with children should spend with the non-resident parent and whether that time should be supervised.
I note here that there was agreement orders should be made for the children and the parents to attend family therapy.
Proposals
In summary, as set out in his Further Amended Initiating Application filed 18 June 2019, the father proposed that he have sole parental responsibility for the children and that the children live with him. In respect of the mother’s time with the children, the father sought an immediate period of 6 months with no time, followed by a gradual reintroduction of the mother to the children, commencing with supervised time.
The exact form of the orders sought is as follows:
1.That the father have sole parental responsibility for the children, Y born in 2006 and X born in 2011 and will make a genuine effort to come to a joint decision about:
(a)The child's education.
(b)The child's health.
(c)Changes to the child's living arrangements in the event that they impact upon one parent's ability to spend time with the child.
2.That the children live with the father.
3.That from the date of these Orders for a period of 6 months, the mother’s time with the children is suspended. Thereafter commencing 6 months from the date of these Orders, the mother shall spend supervised time with the children for 2 hours per fortnight at a supervised Contact Centre for a period of 12 months.
4.Unless otherwise agreed in writing and after 18 months from the date of these Orders the children shall spend time with the mother during the school term as follows
(a)In week 1 from after school on Friday to the start of school on Monday and on Wednesday overnight from after school that day to the start of school on Thursday.
(b)In week 2 on Wednesday overnight from after school that day to the start of school on Thursday.
5.Unless otherwise agreed in writing and after 18 months from the date of these Orders the children shall spend time with the mother during school holidays as follows:
(a)For the school holiday periods at the end of Term 1, 2 and 3 as follows:
(i)From 9 am on the first Saturday of the school holidays until 5 pm on the following Saturday;
(b)For the school holiday period at the end of Term 4 as follows:
(i)From 10 am on 26 December to 5 pm on 1 January in each odd numbered year;
(ii)From 10 am on 1 January to 5 pm on 8 January in each even numbered year;
(iii)From 9 am on the second last Saturday of the school holidays to 5 pm on the last Saturday of the school holidays.
6.In addition to the time in order 3, and 5 and after 18 months from the date of these Orders the children shall spend time with the parties on the following occasions of special significance:
(a)Each Christmas as follows:
(i)The children shall spend time with the father:
(A) From 9.30am on 24 December to 9.30am on 25 December in each even numbered year
(B) From 10.00am on 25 December to 10.00am on 26 December in each odd numbered year
(ii)The children shall spend time with the mother:
(A) From 9.30am on 24 December to 9.30am on 25 December in each odd numbered year
(B) From 10.00am on 25 December to 10.00am on 26 December in each even numbered year
(b)Each Easter as follows
(i)The children shall spend time with the father:
(A) From 9 am on Easter Sunday to 6 pm on Easter Monday in each even numbered year
(B) From 9 am on Good Friday to 9 am on Easter Sunday in each odd numbered year
(ii)The children shall spend time with the mother:
(A) From 9 am on Good Friday to 9 am on Easter Sunday in each even numbered year
(B) From 9 am on Easter Sunday to 6 pm on Easter Monday in each odd numbered year
(c)On the children’s birthdays as follows:
(i)The children shall spend time with the father from 3.00pm to 7.00pm if the children are not already spending time with the father on that day pursuant to these Orders
(ii)The children shall spend time with the mother from 3.00pm to 7.00pm if the children are not already spending time with the mother on that day pursuant to these Orders
(d)In the event that the children are not already spending time with the father pursuant to these Orders, the children shall spend time with the father on his birthday, notwithstanding any other order herein as follows:
(i)If the father's birthday is on a weekday from 3.00pm to 7.00pm
(ii)If the father's birthday is on a weekend from 1 0.00am to 6.00pm
(e)In the event that the children are not already spending time with the mother pursuant to these Orders, the children shall spend time with the mother on her birthday, notwithstanding any other Order herein as follows:
(i)If the mother's birthday is on a weekday from 3.00pm to 7.00pm
(ii)If the mother's birthday is on a weekend from 1 0.00am to 6.00pm
(f)Notwithstanding any other order herein the children shall spend time with the father from 10.00am to 6.00pm each Father's Day
(g)Notwithstanding any other order herein the children shall spend time with the mother from 10.00am to 6.00pm each Mother's Day.
7.For the purpose of changeover it will be from school at the start that parents time and to school at the end at the end of that parents time. In the event the children are not at school it will by the parent who is to spend time with the children at the start of their time and by the other parent from that parents' residence at the end of the time.
8.That each party is to notify the other in writing 28 days prior of his or her intention to change their residence.
9.That each party be restrained from denigrating the other parent in the presence or hearing of the children and each party shall use their best endeavours to ensure that other persons do not denigrate the other parent in the children's presence or hearing.
10.That each party be restrained from using corporal punishment as a means of disciplining the children.
11.That each party provide to the other their email address within 7 days of the date of these orders and notify the other party within 48 hours of any change to their email address.
12.That each party shall provide the other with their current mobile telephone number and in the event, they change that number, they shall within 48 hours notify the other of their new mobile number.
13.That each party will give no less than 14 days’ notice in writing to the other party of their intention to travel with the children outside of NSW and shall provide contact details for the relevant period.
14.That the parties shall do all acts and things and sign all documents necessary to facilitate and arrange for the children to continue family therapy.
By way of her Response to Further Amended Initiating Application filed 27 June 2019, the mother agreed to paragraphs 8-12 and 14 of the orders sought by the father and additionally sought orders as follows:
1.That the mother have sole parental responsibility for the children, Y born in 2006 and X born in 2011.
2.That the children live with the mother.
3.That the father spend supervised time with the children as follows:
3.1. Every second Saturday and Sunday from 10am to 2pm.
3.2. At other times as agreed between the parties.
4.That the time the father spends with the children be supervised by either the paternal grandmother or the paternal uncle.
5.Changeovers are to occur at the paternal grandmother's house at Suburb GG, NSW.
As set out in Exhibit “ICL 3” the ICL’s proposal is as follows:
1.All previous parenting orders in relation to the children Y born in 2006 (13 years of age) and X born in 2011 (7 years of age) be discharged.
2.The father have sole parental responsibility for major long term issues relating to the children.
3.Prior to the father making decisions relating to major long term issues as to the children including but not limited to their health and education, the father shall notify the mother in writing, such writing to include SMS or email communication, of his proposal and seek her response in writing within 21 days and take into account the mother’s response provided such response is received within the stated period and notify the mother of his ultimate decision.
4.The children live with the father.
5.The father as soon as practicable make an appointment for the children to attend upon Ms N (“the children’s therapist”) for the purposes of therapeutic counselling and the children shall continue to attend on such children’s therapist on such occasions as recommended by the children’s therapist and for such period as recommended by the children’s therapist.
6.The mother and father shall cooperate with all reasonable requests made by the children’s therapist for involvement by either or both of them in providing information to or in attending upon the children’s therapist.
7.Leave is granted to the Independent Children’s Lawyer to provide a copy of the Single Expert Report of Ms B dated 11 June 2018 and the Reasons for Judgment prepared by the Court to the therapist.
8.The mother shall:
a. Attend upon her General Medical Practitioner within 14 days of the date of these Orders and obtain a referral to a suitably qualified psychiatrist (“the psychiatrist”);
b. Make an appointment to attend upon the psychiatrist at the earliest available date, such appointment to be made within 7 days of having obtained the referral;
c. Advise the Independent Children's Lawyer and the father of the details of the psychiatrist and the scheduled appointment within 48 hours of having made the appointment;
d. Attend upon the appointment with the psychiatrist.
9.The mother follow all recommendations of the psychiatrist.
10.Leave is granted to the Independent Children's Lawyer to provide to the nominated psychiatrist a copy of the Part 15.5 Single Expert Report prepared by Ms B dated 11 June 2018 and a copy of the Reasons for Judgment.
11.The mother and father take all necessary steps to make appointments and engage with a family therapist (“family therapist”) as nominated by the Independent Children’s Lawyer within 14 days of request by the Independent Children’s Lawyer to do so and follow the recommendations of the family therapist.
12.Leave is granted to the Independent Children's Lawyer to provide to the nominated family therapist a copy of the Part 15.5 Single Expert Report prepared by Ms B dated 11 June 2018 and a copy of the Reasons for Judgment.
13.The father be responsible for the costs of his sessions and the children’s session with the family therapist and the mother be responsible for the costs of her sessions with the family therapist.
14.The father shall, as soon as practicable, after the date of these orders, nominate a supervised contact service and the mother and father shall complete all necessary documentation and attend all appointments for the purpose of facilitation of time as outlined in the Orders below.
15.Upon the expiration of three months after the date of these orders the mother is to provide to the father and Independent Children’s Lawyer a report from her treating psychiatrist with such report to address the mother’s compliance with the psychiatrist’s recommendations.
16.If the report referred to in Order 15 indicates that the mother has been compliant with the recommendations of her treating psychiatrist, the father shall arrange for the children to spend time with the mother in accordance with the following orders:
a.For a period of three months, each fortnight for two hours supervised by the nominated supervision service and to be paid for by the father;
b.Thereafter, subject to the requirements in Orders 17 and 18 below having been met, for three occasions of unsupervised time from 10am until 12pm each alternate Sunday;
c.Thereafter, for a period of three months each alternate Sunday from 10am to 2pm;
d.Thereafter, for a period of three months each alternate Sunday from 10am to 6pm;
e.Thereafter, for a period of six months each alternate weekend from 10am Saturday to 6pm Sunday;
f.Thereafter, for a period of six months each alternate weekend from after school Friday until 6pm Sunday;
g.Thereafter until the commencement of the school year in 2022, each alternate weekend from after school Friday to the commencement of school Monday.
h.From the commencement of the school year in 2022:
i.Each alternate weekend during school term from after school Friday to the commencement of school Monday with such time in each new school term to commence on the first weekend after school resumes;
ii.For one week in each mid-year term school holiday period commencing the first week from after school on the day term ends to 6pm on the mid-point Saturday in odd-numbered years and the second week commencing at 6pm on the mid-point Saturday to 6pm on the day before school resumes in even-numbered years;
iii.For two weeks in the Christmas school holiday period as agreed between the parties and in default of agreement from 9am on the first Saturday in January to 6pm on the second Saturday thereafter.
i.Such other times as the mother and father agree to in writing.
17. At the expiration of three months of supervised time the mother shall provide to the father and the Independent Children’s Lawyer a fresh report from her treating psychiatrist with such report to address the mother’s compliance with the psychiatrist’s recommendations.
18. If the report referred to in Order 17 indicates that the mother has been compliant with the recommendations of her treating psychiatrist, the father shall arrange for the children to spend unsupervised time with the mother in accordance with Order 16 above.
19. Unless otherwise provided changeovers for the children to spend time with the mother which do not occur at school will take place with the father or his nominee delivering the child to the mother’s nominated residence and the mother or her nominee returning the child to the father’s nominated residence unless otherwise agreed between the parties in writing, such writing to include SMS or email communication.
20. The mother shall not communicate with the children by any means except as provided for in these Orders prior to the commencement of the children spending unsupervised time with her in accordance with these Orders.
21. For a period of six months from the date of these Orders, the mother be and is hereby restrained from attending within 100 m of the children’s school when the children are in attendance.
22. As and from the expiration of a period of six months from the date of these Orders the mother may attend events at the children’s school to which parents are normally invited including parent teacher interviews.
23. The mother be at liberty to communicate with the children’s school and treating health practitioners and for such purposes the father shall do all things necessary to authorise such information to be made available to the mother as she may reasonably request.
24. The mother and father shall notify each other of any serious illness or injury suffered by the children when they are in their respective care with such notification to include the name and location of any treating medical professional and an authority for the treating professional to provide to the other party information on the child’s treatment and prognosis.
25. These Orders are authority for the school that the children attends to provide to the mother copies of all school reports, newsletters, notices of events to which parents are invited and copies of correspondence relating to the children’s education.
26. Should either child run away from their father’s home and return to the mother’s home, the mother shall forthwith take all necessary steps to cause the child or children to be returned to the father’s home as soon as possible.
27. In the event the children or a child refuses to return to the father’s home, the father or the Independent Children’s Lawyer has liberty to restore this matter on 24 hours’ notice.
28. The Independent Children’s Lawyer’s appointment will continue for a period of 12 months unless earlier discharged by the court.
29. Both parties and the Independent Children’s Lawyer have liberty to otherwise relist this matter in respect of any application which relates to the implementation of these orders on seven days’ notice. Any such application is to be listed before Justice Harper if he is reasonably available.
30. Both parties shall not denigrate or cause any third party to denigrate the other parent or members of the extended family in the presence or hearing of the children.
31. The parties take all necessary steps for the children to have these Orders explained to them by a Senior Family Consultant of this Registry including arranging for their attendance at the Registry if requested.
32. Within 28 days, the Father pay to Legal Aid NSW the amount of $8,056.10 in full payment of his share of the Independent Children’s Lawyers costs.
All parties made submissions about various of the orders proposed by the ICL. It is not necessary to set out those submissions in detail. I will refer to them as required later in these reasons.
Evidence
The father relied on the following documents:
a)His Case Outline dated 21 June 2019;
b)His Further Amended Initiating Application filed 18 June 2019;
c)His Affidavit affirmed 6 June 2019 and filed 7 June 2019;
d)Affidavit of Mr K affirmed 6 June 2017 and filed 7 June 2019;
e)Affidavit of Ms P sworn 6 June 2019 and filed 7 June 2019;
f)Affidavit of Ms L sworn on 6 June 2019 and filed 7 June 2019;
g)His Affidavit affirmed and filed 18 June 2019;
h)Expert report of Ms B dated 22 June 2018.
On 7 August 2019, the father filed a further Affidavit affirmed on that date. With leave, this Affidavit was read.
The father was cross-examined.
The mother relied on the following documents:
a)Her case Outline undated;
b)Response to Further Amended Initiating Application filed 27 June 2019;
c)Her Affidavit dated 26 June 2019 and filed 27 June 2019;
d)Her Affidavit affirmed and filed 14 December 2017;
e)Affidavit of Ms R filed 27 June 2019;
f)Child Dispute Conference Memorandum by Ms O dated 13 December 2017; and
g)Expert report of Ms B dated 22 June 2018.
The mother and Ms R were cross-examined.
The ICL relied on the following documents:
a)Case Outline undated;
b)Final Minute of Order proposed by the ICL undated (Exhibit “ICL 3”); and
c)Expert report of Ms B dated 22 June 2018.
The following documents were received into evidence:
Exhibit Label
Document
Tendered by
Court 1
Expert report of Ms B dated 22 June 2018
Court
Court 2
Child Dispute Memorandum to Court prepared by Ms O dated 13 December 2017
Court
A
Exhibit Bundle to Father’s Affidavit affirmed 6 June 2019 and filed 7 June 2019 and Affidavit of Ms P sworn 6 June 2019 and filed 7 June 2019
Father
B
Exhibit Bundle to Father’s Affidavit affirmed and filed 18 June 2019
Father
C
2x Bank Statements of the father in relation to:
· NAB Bank account ending in 1 for period 14 May 2019 - 13 June 2019; and
· American Express Card for period 20 May 2019 - 19 June 2019
Father
D
Email from the mother to the father dated 5 February 2017 with subject titled “Video Recordings”
Father
E
Folder containing Court orders in the proceedings
Father
F
P. 21 of Transcript of proceedings before the Honourable Justice Loughnan dated 23 April 2018
Father
G
Statement of Detective Senior Constable Mr S, Suburb T dated 10 November 2018
Father
H
Material produced under subpoena by Ms U, Trauma Therapist marked “AF6”
Father
I
P.25 of Transcript of proceedings in the matter of Police v Millson before her Honour Jacqueline Trad dated 18 September 2018
Father
J
Exhibit Bundle to father’s Affidavit affirmed and filed 7 August 2019.
Father
K
Region V Local Health District document in relation to the mother marked “F4”
Father
L
NSW Ambulance Inpatient Health Record in relation to the mother dated 24 May 2014 and marked “F3”
Father
M
COPS system material produced under subpoena by NSW Police Force marked “C1” being report in relation to the mother dated 21 November 2017
Father
N
Material produced under subpoena by HH P/L being progress notes dated 17 January 2019, tabbed “AF4”
Father
O
Material produced under subpoena by the NSW Police Force tabbed:
· “AF4” being entry dated 15 July 2019, Narrative 10 of 11;
· “AF6” being entry dated 15 July 2019, Narrative 11 of 11;
· “AF9” being entry dated 5 November 2018, Narrative 1 of 2; and
· “AF10” being entry dated 10 November 2018, Narrative 2 of 2 welfare checks
Father
1
3 Medical Certificates by Dr W dated 1 August 2019 in relation to Ms Halbert, Miss X and Miss Y for period 26 July 2019 - 2 August 2019
Mother
2
Medical Certificate by Dr C in relation to Miss Y dated 25 July 2019
Mother
ICL1
Agreed Tender Bundle relied upon by the ICL
ICL
ICL 2
Material produced under subpoena by Z School in relation to Y
ICL
ICL 3
Final Minute of Order proposed by the Independent Children’s Lawyer
ICL
Expert Evidence
An Expert Report was prepared in this matter by Ms B on 11 June 2018 and as noted above, was marked Exhibit “Court 1”. The Expert Report was based on the interviews and material as set out at pages 2-3 of Ms B’s report.
I will refer to the contents of the report as necessary during the course of these reasons.
Ms B was cross-examined. I note here that Ms B gave oral evidence on 3 July 2019 in support on the father’s interim application for transfer of the children’s care to him. The parties agreed at the resumption of the final hearing on 8 August 2019 that Ms B’s oral evidence on 3 July 2019 should also be evidence in the final hearing.
A Child Dispute Memorandum was also prepared in this matter by Ms O dated 13 December 2017, being Exhibit “Court 2”. I have taken this memorandum into account.
The father’s evidence
The father is the applicant. The mother submitted his credit was adversely affected by an unwillingness to concede he had a low opinion of the mother and had made derogatory remarks about her or had used pejorative terms like “bitch”. I accept it is likely that, in light of the events since 2016, described in detail later in these reasons, the father has formed a dim view of the mother. However, overall I found the father to be a satisfactory witness. I do not accept his view of the mother adversely affected his credit. He answered questions directly by and large, and, as the mother agreed in submissions, made appropriate concessions.
The mother’s evidence
The mother did not impress me as a reliable witness. Counsel for the mother submitted the mother was a witness of credit. He submitted the mother had shown a good memory of dates and events when cross-examined in the July hearings dates. That was true to some extent. But her evidence was marked by numerous implausible allegations about the father, many of which I discuss later in these reasons. I am unable to accept the truth of assertions of violent physical and sexual behaviour on the part of the father, discussed at length later in these reasons. Although at times the mother could be articulate, she presented as highly defensive and often argumentative under questioning. The evidence, discussed later in these reasons, of the mother’s entrenched disposition to convey to the children a relentlessly negative narrative about the father satisfies me that the trustworthiness her evidence was generally weakened by an often irrational need to characterise the father as a dark and malign figure.
I discuss problems with the mother’s evidence throughout these reasons. Here I point to one area of evidence by way of example. Her evidence was undermined by major inconsistencies concerning her relationship with Mr Q. There was clear documentary evidence that she had described Mr Q as her “partner” to a number of different people over several years. For example, a letter dated 7 November 2013 from her treating psychiatrist, Dr AA to her referring GP refers to her “current partner Mr Q” (discussed further below at [101]. Ms B’s report at paragraph 137 records that Dr AA’s notes refer to Mr Q as the mother’s boyfriend. “Exhibit O”, being documents produced by NSW Police, contained a COPS entry dated 24 March 2019. The entry lists the mother as a victim and Mr Q as a Person of Interest. The entry stated “The victim and accused have been in an intimate relationship for the past six years”. “ICL Exhibit 1” contained evidence produced by the Department of Family and Community Services, and part of the documents include a “Request for information from the Police dated 3 April 2019. The document clearly states that “Mr Q (2/5/1972) and Ms Halbert have been in a relationship for six years…Recently, Mr Q has been residing with Ms Halbert and her daughters at Street BB, Suburb T.”
There is evidence that the interactions between the mother and Mr Q were at times marked by violence and alcohol consumption.
The police attended the mother’s home on 1 October 2016. The police described the scene as follows:
Police received a job in relation to a domestic at …… Police attended a short time later and spoke with the P/R who informed Police that nothing serious had happened and did not wish to waste Police time. The P/R informed police that no assault occurred and this was quickly established as no visible signs of injury were seen. When asked what the argument was over, the P/R replied “Oh, nothing, it’s fine, I’m sorry for wasting your time. I am just drunk”. Police were able to ascertain that the P/R and P/N had a verbal argument, which then led to the P/N grabbing the P/R keys out of the front for. The P/N then threw the keys onto the front laws and led. Due to the P/R level of intoxication, she became very side tracked whilst Police were attempting to obtain any relevant details.
When this was put to her in cross-examination the mother conceded that the “PR” was her and when asked if the “PN” was Mr Q, the mother replied “it must have been”.
It became clear in her oral evidence that a violent altercation took place between the mother and Mr Q on 20 March 2019. She eventually agreed a “small fight” took place between them at a vet clinic, after saying for example “It didn’t happen, so it was dismissed”. According to COPS records in “Exhibit O” the mother “punched and scratched” Mr Q, and on 20 March 2019, she was charged with Assault Occasioning Actual Bodily Harm. An ADVO was made against the mother.
Despite the consistent references to Mr Q’s status as her partner or boyfriend, who resides with the mother and the children, the mother makes no mention of him in her Affidavit. In cross-examination she contended that he was no more than “a friend who had left some stuff at my house” and never her partner or boyfriend. I do not accept this evidence. On any view of the evidence he was more than a friend “who left some stuff” at her house. The mother held him out to health professionals and police as her partner. Her relationship with him was sufficiently intense to evoke several violent confrontations between them. I am satisfied that it is likely the mother and Mr Q were for a number of years in a relationship, and she regarded him as her partner. I am satisfied also that it is likely Mr Q was present in the home of the mother at times when the children were in her care.
It is difficult to say whether the mother was generally mendacious. Her evidence about Mr Q suggested she may have been quite deliberate in her attempts to minimise his role in her life because she believed it would assist her case. My conclusions about her allegations against the father, discussed at length under s 60CC(2)(b), also suggest she may have indulged in fabrication at times. I am satisfied that much of her evidence relating to the father was either simply untrue or undermined by exaggeration. I accept the opinion of the Ms B that the mother is emotionally dysregulated and uncontained. I am also satisfied that her inability to separate her own significant fears and anxieties from the best interests of the children, as well as her need to cling to the children and her own perceptions of her role as a parent, caused her at times to be unable to separate fact from fiction.
It is not necessary to express a final view that the mother was knowingly untruthful. Such a finding is not necessarily helpful, and disposition of the case can be achieved otherwise, as will be shown in the balance of these reasons: Carlson & Fluvium [2012] FamCA 32 at [165] - [169]; Adamson & Adamson (2014) 51 FamLR 626 at [90].
However, to be clear, I am satisfied the mother’s evidence was generally unreliable, and I approach it with considerable caution. Unless otherwise stated, I generally accept the evidence of the father where his evidence conflicts with that of the mother.
The Children
Y has this year turned 13. The evidence shows she has missed a considerable number of days of school and her academic performance is poor.
Ms B interviewed Y on two separate occasions. She described her observations of Y as follows:
On the first day, she presented as a shy young girl, with quiet and reserved manner. She seemed anxious and uncertain of herself at the beginning of the interview but she appeared to relax slightly as the session went on and she became more engaged and lively.
On the second occasion, Y was markedly more anxious. Her body language was concerning: she was closed in on herself, hunched away from the report writer and rarely making eye contact expect if the topic was an absolutely neutral one. Y was noticeably careful about her answers, far more so than on the first occasion.
Ms B also recorded at paragraph 95:
The report writer commented that people at her school had noticed (last year) that Y always seemed happy to leave with her father, as she was seen holding his hand and laughing and joking with him. Y looked wide-eyed and alarmed by this and shook her head emphatically saying that, “we never joked together” but not verbally denying the other things. Y was asked how she would feel if someone (other than her mother) said that she had to see her father again. She wrung her hands and looked away before saying in a small voice “I don’t know.” The report writer asked if she would be scared? She said, “Not really.”
X has also missed many days of school in 2019. Her school records, which formed part of “ICL Exhibit 1”, indicated that in 2018, being when X was in the first grade, she missed 56 whole days of school.
Ms B spoke to Ms CC, the principal of H Public School, where the girls attend. Ms CC told Ms B in about June 2018 that the school had been quite concerned for some time about the school attendance of both girls, who had two days absent each week so far in 2018. The school was also worried about X’s eating habits.
It should be noted here that X also suffers from a speech impediment and is required to attend upon speech therapy.
Ms B said of X in her first session:
X presented as significantly more bright and bubbly than her sister. She engaged well with the report writer, but in a largely superficial fashion. Her speech was functional and mostly intelligible. X’s receptive language appeared to be age appropriate.
Relevant Law
Legislative framework
Part VII of the Act governs the making of parenting orders. The best interests of a child are the paramount consideration (s 60CA Family Law Act 1975 (Cth) (“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]
[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 it is in the best interests of a child for a child’s parents to have equal shared parental responsibility for the child.
The application of the presumption has significant consequences. If the presumption is applied, a trial judge will generally make an order for equal shared parental responsibility: Damiani & Damiani (No. 2) [2009] FamCAFC 215 at [133], [134]; Marvel & Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348; 240 FLR 367 at [104]; Heath & Hemming (No 2) [2011] FamCA 749 at [89]. Its application conditions the Court’s power to make parenting orders, including enlivening s 65DAA of the Act, which requires consideration of equal or substantial and significant time with each parent : MRR v GR (2010) 240 CLR 461 at [20]; Cox & Pedrana (2013) 48 FamLR 651 at [16], [17].
If an order for equal shared parental responsibility, or any shared parental responsibility, is made, the obligations imposed by s 65DAC of the Act become applicable. In summary, these obligations require decisions about major long term issues to be made jointly by the persons subject to the order, by them consulting each other and making a genuine effort to come to a joint decision. “Major long term issues” are defined in s 4 of the Act to mean issues about the “care, welfare and development of a child” and include education, health and a child’s living arrangements.
The presumption 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). The presumption may be applied but be rebutted by evidence which satisfies 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).
In this case all parties accepted that the presumption should not apply because evidence about abuse and family violence or should be rebutted in the best interests of the children. Both parents sought an order for the allocation of sole parental responsibility to themselves. I will return this question later in these reasons.
Best interests of the children
I consider the statutory factors underlying conclusions about the best interests of the children at this point. The s 60CC considerations have an important role to play in relation to the presumption. The Full Court pointed in Cox v Pedrana (supra) at [19] (following MRR 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 forth in s 60CC(2) and (3). As the decision in Goode & Goode [2006] FamCA 1346 makes clear, even if the presumption is not applied or is rebutted, then the Court makes such orders as it deems are in the best interests of the child, as a result of consideration of one or more of the factors set out in s 60CC of the Act.
Section 60CC prescribes a number of primary and additional considerations to determine the best interests of a child. They are to be considered, and weighed against the facts of each case
When considering the factors in s 60CC, the objects as set out in s 60B of the Act, and their underlying principles, are also to be born in mind. It is unnecessary to set these objects and principles out in full. No party made reference to them in submissions. I note that the underlying objects include ensuring that children have “the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child” and that “parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children”.
The principles include the right of children “to know and be cared for by both their parents, regardless of whether their parents are married [or] separated”, “to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development”, and “parents should agree about the future parenting of their children.”
In considering the role to be played by these objects and principles in the determination of parenting orders the Full Court has held in Maldera & Orbel [2014] FamCAFC 135; 52 FamLR 24 at [74]-[75], that s 60B of the Act does no more than provide context, indicate the legislative intention or purpose of Part VII and otherwise operates as an aid to construction of Part VII and the Act. It cannot be used to change the ordinary and clear meaning of s 60CC nor where the s 60CC deliberations do not enable the court to determine whether or not a parenting order is in a child’s best interests, will s 60B be decisive.
When it comes to the separate primary and additional considerations prescribed in s 60CC of the Act, the requirement to “consider” does not carry with it a requirement to “discuss” expressly each consideration: Jollie & Dysart [2014] FamCAFC 149 at [49]; Tibb & Sheean [2018] FAMCAFC 142; (2018) 58 FamLR 353 at [68].
Primary considerations
In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s 60CC(2) of the Act which 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.
In applying these considerations the Court is to give greater weight to the consideration in paragraph 2(b) (see s 60CC(2A) of the Act).
Section 60CC(2)(a), “meaningful relationship”
A “meaningful relationship” is one which is “important, significant and valuable to the child”: (citing Mazorski & Albright [2007] FamCA 520 and McCall & Clark (2009) FLC 93-405). A “prospective approach” is the preferred approach to s 60CC(2)(a) requiring the Court to “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”: McCall (supra) at [118]-[119]
The Act aspires to promote a meaningful relationship, not an optimal relationship, (M & S (2007) FLC 93-313 per Dessau J; Godfrey & Sanders (2007) FamCA 102 per Kay J and Champness & Hanson [2009] FamCAFC 96; (2009) FLC 93-407 per the Full Court). A “meaningful relationship” is a legal construct, not a psychological one, and it is for the Court, not an expert, to determine what constitutes a meaningful relationship: Champness (supra) at [191]. The Full Court in Sigley & Evor (2011) 44 Fam LR 439 endorsed these earlier judicial interpretations of “meaningful relationship”.
The authorities make clear that the “meaningful relationship” consideration in s 60CC(2)(a) of the Act supports the position that as much time as possible with both parents is in the children’s best interests.
As I understood the submissions, both parties argued that the children would benefit from a meaningful relationship with each of their parents, if the other parent did not pose an unacceptable risk to the children. But at present there are a range of obstacles to a meaningful relationship with both parents. The children’s relationship with their father has faltered in the last two years. The father argues this is because of a deliberate strategy by the mother to alienate the children from him. The mother argues that this has arisen because she has been compelled to withhold the children from the father, despite Court order requiring time with him, because they are unsafe in his care, and they are scared of the father.
As will become clear later in these reasons, I do not accept the mother’s arguments about the father. The mother’s emotional dysregulation, and her parenting deficits at present have undermined the relationship between the children and the father, and will make difficult maintaining as meaningful prospectively her own relationship with the children, in the absence of some therapeutic intervention.
Section 60CC(2)(b), “abuse” and “family violence”
Both parties sought to make a case that the children were at unacceptable risk in the care of the other. The father alleges the mother is causing the children emotional and psychological harm. The mother alleges the father is violent towards the children, and has caused them serious psychological harm. The father denies the mother’s allegations and contends she is a principal source of harm to the children.
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. The “test” of “unacceptable risk” requires assessments of risk of future physical and emotional harm (In the Marriage of A (1998) FLC 92-800 at [3.24].
There are relevant statutory definitions of “abuse” and “family violence” in the Act as follows:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
…
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence which include but are not limited to, relevantly, an assault or sexual assault.
A child is exposed to family violence if the child sees or hears family violence or is otherwise experiences family violence (see s 4AB(3)).
Section 60CG requires the Court to consider the question of “unacceptable risk of family violence” and appropriate safeguards where any family violence order is in place.
Different evidentiary considerations may apply in relation to determining an allegation of unacceptable risk as opposed to determining whether a serious abusive, violent or criminal act has occurred (Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”) or s 140 of the Evidence Act 1995 (Cth). Thus findings about the occurrence of violence or abuse may need proof to a higher standard than findings about the existence of an unacceptable risk, although the two may be interrelated: M v M (supra) at [76]; Amador & Amador (2009) 43 Fam LR 268 at [94] - [96]. So the evidentiary standards for a finding that abuse took place and a finding about future risk are different in the sense that where a positive finding of abuse cannot be made, this does not preclude a finding of unacceptable risk of future harm: Morse & Duarte (2017) 58 Fam LR 131 at [540].
The High Court has held making parenting orders involves assumptions about the future which are not susceptible of scientific demonstration or proof and perceptions, predictions and even intuition and guesswork can all play a part in making an order: CDJ v VAJ (1998) 197 CLR 172 at 151.
As will become apparent, the most convenient way to set out and evaluate the competing allegations is to examine the mother’s allegations concerning the father, since the father’s allegations of risk against the mother arise largely from the way she has made allegations against him, and from the manner in which he asserts the mother has damaged the children by alienating them from him. It is unnecessary to rehearse all the evidence. I set out below the evidence sufficient to support my conclusions about unacceptable risk.
In summary, I have concluded that the mother’s allegations against the father are not credible. They in truth support Ms B’s opinion of emotional dysregulation on the part of the mother. I am not persuaded the father poses a risk to the children. On the other hand, the evidence discussed in the following paragraphs satisfies me the mother has become a destructive figure in the lives of the children and generally poses a real and unacceptable risk of emotional and psychological harm to them.
Unacceptable Risk
Allegations made between 2011 to 2016
In her evidence the mother made allegations of historical physical and emotional abuse by the father. She alleged that when the parties first moved in together in 2005 the father became angry and controlling. She gave evidence that at Christmas 2006 the father threw her into the bedroom and she cut her forehead. In her 2017 Affidavit she said “This was the first time that Mr Millson physically assaulted me”. She said she chose not to press charges, because she wanted to save the relationship. Although the father did not give Affidavit evidence about this incident, he told Ms B that the mother had been drinking heavily with her sister and had begun punching him in the car and again in the house and he had thrown the mother on the bed in response, as a result of which she cut her face on the bedside drawers.
The mother also alleged that in February 2007 the father told her he had smacked Y because she would not stop crying. It was at this point the mother says she decided to leave the relationship.
It was undisputed that at about this time the mother denied the father contact with Y. The father commenced proceedings in the then Federal Magistrates Court. As noted above, the parties then in 2009 agreed for the father to spend unsupervised time with Y under the Consent Orders.
As already noted above, after 2009, there is no dispute that the parties had a sexual relationship which resulted in the birth of X in 2011.
I am unable to conclude that the alleged assaults in 2006 and 2007, including the smacking of Y, took place. The father denied them. My view of the mother’s evidence generally leads me to treat her account of such alleged assaults as unreliable.
In her 2017 Affidavit, the mother alleges that during 2015, the father regularly sexually assaulted her. There is other evidence, referred to elsewhere in these reasons, that the mother alleged the father perpetrated these assaults continuously since 2011 and some of them were witnessed by X. The mother gave the following evidence in paragraphs 70 and 71, 75 and 77 of her 2017 Affidavit:
[70] He would force himself onto me, sexually assaulting me. Sometimes these assaults would be witnessed by X. I thought at first if I stayed in the lounge room that he wouldn’t do it in front of her. He wouldn’t care. She would be crying saying the words “Daddy stop hurting Mummy. Get off Mummy. I would try and limit what they saw, begging her to go away. Sometimes he would force me into the bedroom. Sometime I thought that if I just let him do what he wanted it would end quicker, just so she wouldn’t see it.
[71] I tried any excuse to stop him even entering the foyer of the apartment building but he rarely took no for an answer. He would come in the door and start forcing me towards the bedroom, and start taking off my clothes, usually in front of X.
…
[75] The only way I could see I could avoid this constant abuse was to organise X’s to pick up and drop offs at Y’s school. This made the drop offs more peaceful and I was happy the girls were no longer exposed to the violence.
…
[77] In October 2016 I was relocated to a house in Suburb T as the unit I was living in was being demolished. When I moved to the new house Mr Millson’s sexual advances started again.
At paragraph 104 of her 2017 Affidavit the mother states:
[104] It is very difficult to explain all the abuse Mr Millson has perpetrated on me over the years. He has raped me, emailed me incessantly, he is now trying to control every decision for the children, and by far the hardest to bear, and he has hurt my children. I have tried to keep myself together for the children, it all go too much for me.
At paragraphs 136 and 137 of her 2017 Affidavit the mother states:
[136] I believe they are suffering from anxiety as a result of Mr Millson’s physical and psychological abuse. Not only has Mr Millson perpetrated this abuse on the children, they have also been witness to the abuse that Mr Millson has inflicted on me.
[137] X in particular was exposed and witness [sic] the sexual assaults that Mr Millson inflicted upon me when he would return her to me. This has had a severely damaging effect on her development.
According to the Family Report, the mother made the following assertions to Ms B (paragraph 60):
[60] Ms Halbert said that while it may appear on the surface that she and Mr Millson were co-parenting amicably from the time of the final separation in late 2011 until the beginning of 2017, “it really wasn’t going that well, because of his sexual abuse of me. He thought that whenever he dropped X home, he had the right to me. He would demand sex from me. In front of X. She was so traumatized. She would yell at him, stop hurting Mummy! But he warned me not to tell a soul, and he had that power over me. So I had to isolate myself from the world.” Ms Halbert said that the sex was never consensual, although she “gave in” on several occasions so as to spare X from witnessing what would happen if she resisted. She said that she even tried to send Mr Millson “coded messages’ about not wanting to have sex with him “so that his girlfriends wouldn’t know” but this didn’t deter Mr Millson.
The mother gave evidence that the only person she told about the sexual abuse, before December 2017, was her psychiatrist Dr AA. Some correspondence, relevantly between November 2013 to November 2015, between Dr AA and Dr C formed part of Exhibit ICL 1. Dr C has been the GP for the mother for some years, and had referred the mother to Dr AA. One letter confirms the mother was being treated for anxiety and depression in that period. They mention paralysing anxiety suffered by the mother, trust issues arising from her relationship “with a man who disappointed her while she was pregnant and had an affair with someone else” and “her current partner Mr Q tends to drink alcohol excessively and not be able to be committed also.” In another Dr AA states “I am helping her with cognitive therapy to assist to deal with some of the stresses in her life, such as navigating the exit of one relationship and starting another.” As at 15 November 2015, Dr AA wrote: “She still has some understandable anxieties such as her fairly precarious financial situation, as well as a very difficult relationship with a former partner, whom she describes as very narcissistic and controlling.” Throughout this period the mother was prescribed medications such as Aropax, Avanza and mirtazapine to control her anxiety and depression.
At paragraph 74 of her 2017 Affidavit the mother states she downplayed the events to Dr AA because she was embarrassed and even though Dr AA told her to go to the police she was “too scared”, although the basis of this fear was not explained.
Ms B recorded at paragraph 138 of her report:
[138] Ms Halbert appears to have attended Dr AA most regularly in 2015 and 2014. In October 2015 she said that “Mr Millson is being aggressive and narcisstic [sic] and he went on a rampage at Christmas, he was bullying, told me I am disgraceful and a liar”. In September 2015 she said that her anxiety had increased “because Mr Millson is consistently on my back” and she reported “feeling depressed when the girls go to their father.”
Although the mother says she told Dr AA about the father’s sexual assaults, none of the letters of Dr AA, or any of the other material from this period considered by Ms B, refer to sexual abuse or rape of the mother. This seems to be a remarkable omission if, as the mother asserts in her evidence, she was being routinely raped and abused by the father between 2011 and 2016 and told Dr AA. Apart from assertions, without any particularisation, about fear of the father, the mother gives no convincing explanation why she did not take some step, such as calling the police, to cause the father to cease his alleged sexual abuse, if it was actually taking place.
The mother’s evidence about the occurrence of sexual abuse by the father and X’s exposure to it is not convincing. Ms B observed at paragraphs 148 and 149 of her report:
Ms Halbert’s version of events since 2011 that she has given to a range of professionals (including the report writer) are inconsistent and markedly contradictory. She stated initially in her report interviews that the relationship between her and Mr Millson only deteriorated in 2016, when he allegedly began sexually assaulting her. Later on in the day, when the report writer probed about the timeline of events, Ms Halbert changed her mind and said that things had never been positive between her and Mr Millson and that he had always been abusive towards her, although her recollection of abusive events was limited. Ms Halbert also gave contradictory accounts of the girls’ relationship with their father and she appeared befuddled when the report writer questioned why, if the girls were at such risk in their father’s care for so many years, nothing was reported until mid-2017. Ms Halbert eventually resorted to saying that she was too scared of Mr Millson to report anything.
While there is nothing implausible about the idea that a parent might be too fearful and intimidated of the other party to report long-standing concerns, Ms Halbert actions in 2017 in firstly suspending X’s time with her father and then subsequently suspending Y’s time with her father, were decisive and confident in that she contacted NSW police on a number of occasions; she took X to be assessed by a crisis mental health team; she took herself and X for follow-up counselling; and she changed the girls’ schools, unilaterally. It is unclear therefore, why these actions were possible in 2017 but not before, for example, when Mr Millson was allegedly abusing her in 2016 and X was allegedly witnessing these assaults.
On balance I am unable to find either that the father perpetrated continuous sexual or physical abuse of the mother after 2011 until 2016, or that X was ever exposed to such abuse. Ms B expressed the view that the allegations of sexual abuse by the father was connected to the mother’s desire to control parenting outcomes. At paragraph 152 of her report Ms B commented:
Ms Halbert’s account of sex with Mr Millson always being forced and coercive, does not necessarily ring true in light of her behaviour in 2016 and how markedly different it was in 2017 after she perceived Mr Millson to be challenging her authority over the girls.
Allegations made in 2017
The mother made a number of further allegations in her 2017 Affidavit as follows. On 3 April 2017 Y came home in tears after spending time with the father because his girlfriend was “mean”. X disclosed to her the father “has been hitting me in my bedroom where no one can see” while the children holidayed with him between 8 and 17 April 2017 because X would not finish her cereal. On 2 May 2017 both children did not want to spend time with their father. On 30 June 2017 X disclosed the father “has been hitting me every week for not eating my fruit at school. He hurts me so much he makes me cry. He told me never to tell anyone at school or you or he will hurt me even more. Then he leaves me to cry myself to sleep”.
The mother says she reported this abuse to Suburb T police who spoke with X, and then the father, who denied hitting X. On 30 April 2017 the mother sent an email to X’s school teachers, informing them that the police had been called about the father punishing X. She urged the teachers “If you notice bruising or hand marks on X around bottom/top of legs please report this to the authorities immediately.” The COPS entry for 30 June 2017 records that the mother did report smacking to the police. They spoke to Y who told them she “never” gets smacked and could not remember X getting smacked. I note this response was repeated by Y on 25 January 2018 and recorded in a FACS Risk Assessment dated 5 March 2018. X told the police the father smacks her “in her room on her bottom”. The report records the father’s denial. The mother also alleged X had a small bruise on her leg on 27 June 2017 which she believed the father caused. The father pointed out to police that he did not have X on that date and had no explanation for any bruise. The police identified no offence, treating any smacking as lawful chastisement.
Otherwise, there was no evidence of any external marking on X which could be consistent with the repeated smacking alleged by the mother.
It appears from that an unidentified person contacted FACS on 3 July 2017. The contact report records that the reporter stated the following:
a)“[they understand] there is an extensive history of domestic violence” and is aware of “an incident in which the mother was hospitalised as a result of injuries sustained through domestic violence”.
b)“until a couple of years ago, the father used to smack Y “really hard” on a regular basis using an open hand on the buttock/upper thigh area. Now Y is older and goes home and tells the mother, he is instead doing the same thing to X.”
c)“every time X goes to the father’s home he will find an excuse to punish her.”
d)“the father regularly sends harassing, threatening and intimidating emails to the mother who is scared of him.”
The emails sent by the children are of particular concern. Ms B commented on the one dated 30 August 2017. In that email, if actually composed by Y, she makes no mention of smacking. It speaks of the father being “mean to mummy all the time…You have changed this year and I hate it. Stop blaming mummy for everything”. The wording suggests the mother was putting her own words and concerns in the mouth of Y.
Ms B did not accord great weight to the children’s views. Her evidence orally was to the effect that she did not need to interview the children again, or even Y alone, because whatever the views of the children now, in the circumstances, they would not alter her opinion that a change primary residence should take place. The mother argued that Ms B gave the children’s views no weight, and this opinion was not soundly based. She submitted that Ms B’s failure to interview Y at least undermined her conclusions about the weight to be attached to Y’s views. I do not accept this submission. Ms B’s views are amply supported by the evidence generally and particularly by the evidence discussed under s 60CC(2)(b) and s 60CC(3)(i) below.
The conduct of the mother in denying time with the father, discussed in more detail under s 60CC(3)(d), may well have coloured the views of the children.
(b) the nature of the relationship of the child with:
(i) each of the child's parents;
The mother has been the children’s primary attachment figure. The children’s relationship with her, although close, is marred by the numerous complexities evident from my discussion under s 60CC(2)(b) of the Act. Although the children’s relationship with their mother is warm, it is also very unhealthy emotionally in my view.
I accept the children’s relationship with the father is basically warm at present but compromised rendered very difficult by the mother’s influence on the emotional health of the children, and in particular by her consistent negative narrative about him reinforced by her repeated decisions to withhold the children from seeing him.
(ii) and other persons (including any grandparent or other relative of the child);
I am satisfied, as explained above that the children have a warm and positive relationship with Ms P.
(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;
I am satisfied both parents have generally taken opportunities to spend time and communicate with the children. However, in the circumstances of this case, the way the mother has taken those opportunities have conversely undermined the ability of the father to take the equivalent opportunities, although the father gives evidence that he takes the children to their extra-curricular activities.
I am satisfied the mother has made decisions about major long term issues affecting the children, such as X’s speech therapy and changing schools, but again in so doing has intentionally excluded the father from involvement. I am also satisfied the father has attempted to engage in long-term decision making but by reason of the mother’s allegations and her decisions to withhold the children from contact with him, he has not been afforded a proper opportunity to do so.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The mother had the primary care of the children. I accept she provides day to day maintenance for them when in her care. I accept the father does so also.
The mother says she maintains the children as best she can, with no financial support from the father. This seems to be an exaggeration. At paragraph 26 & 27 of his 6 June 2019 Affidavit the father gives evidence that he pays child support in the sum of $856.84 per month, he pays for extra-curricular activities and X’s speech therapy. I accept this evidence.
(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;
If orders are made as sought by the father or the ICL the circumstances of the children will be significantly affected. There will be a period of separation from the mother.
In her oral evidence, Ms B acknowledged that any reversal of the care arrangements would be extremely unsettling for the children initially. She was clear however that in her view they would settle over time.
The mother, in questioning Ms B, focused attention on the impact on Y especially. At paragraph [31] of my earlier judgment I recorded her evidence as follows:
[31] Under questioning by Counsel for the mother, Ms B agreed that the father’s interim proposal [reversal of care] would constitute a very radical change for Y, who is now 13 years old, and about to enter teenage years. Ms B however pointed out that Y had been in a highly distressed state when she was interviewed by her for the June 2018 report.
In submissions, Counsel for the mother again drew attention to the impact on Y, and the need for her to have support from her mother as she matured to adulthood. I have taken account of this, but my conclusions about the mother’s parenting capacity generally, set out below under s 60CC(3)(f) satisfy me that at present the mother’s capacity to provide constructive and healthy support for either child is severely limited.
(ii) or any other child, or other person (including any grandparent or other relative.
There was no dispute that the children should remain together, whichever parent they lived with primarily.
(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;
Neither party pointed to any practical difficulties.
(f) the capacity of:
(i) each of the child's parents; to provide for the needs of the child, including emotional and intellectual needs
Each parent called in to question the capacity of the other parent.
I have already discussed the mother’s allegations about the father. Her allegations about his parenting and the alleged fears of the children are not made out. Overall, I am satisfied the father has shown a satisfactory capacity to provide for the needs, including emotional and intellectual needs. I have rejected the mother’s allegations about his parenting capacity. His ability to express his parenting capacity has been frequently restricted by the mother’s decisions to withhold the children from time with him, and her consistent allegations against him.
The parenting capacity of the mother is a central issue in this case. The mother has consistently involved the children in a strongly negative but unjustified narrative about their father. She has repeatedly taken the children to police, and has involved them numerous allegations about the father to FACS and health professionals.
In addition to the evidence already discussed under s 60CC(2)(b), a further example is that the mother gave evidence in cross-examination that she took Y to Local Court proceedings against the father because Y was ordered to be a witness. This much may be true, but it was clear Y’s involvement came about at all because of allegations made by the mother to police. It appeared that ultimately Y did not give evidence on that occasion because of a procedural issue. Nonetheless I am satisfied, as Ms B suggested, that this shows a concerning tendency of the mother to drag the children inappropriately into formal legal adult situations for her own purposes in trying to subvert the father’s contact with the children.
The evidence satisfies me generally that the children have not thrived in their mother’s primary care. Their school attendance rate has been poor in 2019. The children have had absences from school which the mother herself conceded in cross-examination were unacceptable.
The mother sought to explain these away as all the result of illness supported by medical certificates. There is some truth in this but they serve to demonstrate that the children appear stuck in a cycle of illness and poor performance in their mother’s care.
The mother seems presently incapable of promoting a positive relationship between the father and the children. My conclusions about unacceptable risk, and the mother’s adverse impact upon the children show her parenting capacity is sufficiently compromised to warrant a change in care arrangements in the best interests of the children.
The consequences for the mother’s parenting capacity, and the children, of a reversal of care arrangements must be considered. I have taken account of orders with may affect the mother’s mental wellbeing, and adversely impact on parenting capacity: In the marriage of A (1998) 22 Fam LR 756, referring extensively to R & C [1993] FCA (Unreported, Fogarty, Baker and Lindenmayer JJ, 25 June 1993; Re Andrew [1996] FamCA 43; (1996) FLC 92-692; 20 Fam LR 538.
Ms B in her oral evidence acknowledged the profound effect upon the mother of a reversal of care arrangements. In my earlier judgment at [29] and [30] I recorded this evidence as follows:
[29] Ms B also agreed a reversal of care would have a devastating impact upon the mother and her parenting capacity. She expressed the view that if the children began to live with the father, the mother would need a period of some months to adjust, and during that time she should engage in psychiatric therapeutic intervention to help her come to terms with the situation. Ms B suggested that a period of up to 2 months of no contact would be necessary followed by a further period of months during which the mother had supervised time with the children.
[30] During questioning by Counsel for the father, Ms B expressed the view that the mother needed therapy aimed at managing her relationships in a less emotionally dysregulated manner. In particular, Ms B pointed out that the mother had to learn to separate the best interests of the children from her own interests.
At paragraph [31] of my earlier judgment I pointed out that Ms B gave the further following evidence:
[31] Ms B did agree that the mother has been the primary carer and also accepted that she was somewhat altering her view expressed in her June 2018 report about residence on a crisis basis. However Ms B pointed out that in her mind the change of residence was not a radical departure because she had already adverted to the possibility at paragraph 167 of her report.
I am satisfied that even though a reversal of care arrangements, which resulted in a period of separation of the children from the mother and orders that they live with their father, would initially seriously disrupt their lives emotional equilibrium, and affect the emotional state of the mother, which is already fragile, both children and mother will more than likely recover and such a change will bring long term benefits for the children, and the mother, which outweigh any initial difficulties. As Ms B herself pointed out, the possibility of a reversal of care arrangements was raised by her in June 2018. If the mother ceases to be the primary caregiver, the impact of her emotional state upon the children will be ameliorated or lessened in any event.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
In my view the father has demonstrated a satisfactory attitude to the responsibilities of parenthood. He has taken reasonable steps to remain in the children’s lives, despite constant hindrance by the mother, and even promote a positive relationship between the children and their mother.
I cannot reach the same conclusion about the mother. While I accept the mother has shown a responsible attitude to her responsibilities as a parent in some respects, and has undertaken care of the children according to her capacity, her inability to promote the children’s relationship with the father, and her determination to undermine it, stand as significant deficits in her attitudes to responsibilities of parenting. I will not repeat what has already been said earlier in these reasons, particularly under s 60CC(2)(b), which I take account of under this consideration as well. But, as already stated above, the mother has made it more difficult for the children to spend time with the father, has established a pattern of withholding the children, and has demonstrated a pattern of making untrue allegations of abuse concerning him. For these reasons and on the basis of the further evidence set out below under this consideration, I am left in no doubt that the mother is unable to promote a meaningful relationship between the children and the father.
The evidence of events before, during and after the trial on 1 to 3 July 2019 also supports these conclusions. A further brief narrative will demonstrate this.
Period from 5 June 2019 – 22 July 2019
The Father alleges that other than spending time with X on 24 July 2019, he has not spent time with the children since 5 June 2019
The mother alleges that on 5 June 2019, the children were collected from school by the father and slept overnight at his unit in Suburb JJ for one night. The mother states that on the day after, X said that the father “was so mean” to her and Y last night, and that Y had indicated that she was “so scared and that the children both indicated that they did not want to see him again”
12 June 2019
The father states that he was due to spend time with the children from after school in accordance with Order 2(c) of Orders dated 28 September 2018
On 12 June 2019 at 11:53am the mother advised that the children were sick and she suspected they had whooping cough (see medical certificates for the children for 11 – 12 June 2019).
On 13 June 2019, the mother states that she reported the incident of 5 June 2019 to FACS and reported the incident to Suburb F Police Station, Senior Constable Ms FF .
On Friday, 14 June 2019, the father states that he contacted KK Medical Centre and was advised that the children tested negative for whooping cough and contacted the mother’s solicitor in relation to spending time with the children. On 14 June 2019 at 12:28pm the mother advised that the children were not going to spend time with him and that she had contacted the police and FACS.
3 July 2019 (3rd day of Final Hearing)
As recorded in my earlier judgment, the mother advised the Court that she was in D Hospital due to rectal bleeding and that the children were in school. There was no dispute the mother left hospital to collect the children from school to prevent the father from doing so. The mother gave the impression of a degree of irrational desperation in ensuring the children were not collected by the father, even though she had been in hospital and had medical advice to stay there overnight.
23 July 2019
The father states that on 23 July 2019, at 3:37pm the solicitor for the mother advised him that the children were available to spend time with him from the end of school at 3:00pm, 24 July 2019 until the start of school on 25 July 2019, and over the weekend from the end of school on 26 July 2019 to the start of school on 29 July 2019.
The father on 23 July 2019 at 4:12pm instructed his solicitors to agree with the proposal.
The father states that he did not spend time with Y on 24 July 2019 because she had left early from school due to vomiting, but that he collected X from school and spent time with her and dropped her off at school in the morning
The father states he did not spend time with the children over the weekend as he received an email on 26 July 2019 at 3:00pm from the mother stating that Y and X were not well enough to stay with him over the weekend.
31 July 2019
The father states that on 31 July 2019 at 1:21pm he received a text from Y stating that she and X were sick with the flu and were unable to come to him that night.
This short history between 12 June and 31 July 2019 satisfies me that the mother was indeed repeating a pattern of taking steps to ensure the father did not spend time with the children. The children may have been ill on some of the occasions as alleged by the mother, but the further emails from Y, and the more general history of the mother’s conduct make it more probable than not that the children were put into a considerable state of anxiety by the dysregulated emotional state and behaviour of their mother and the conflict she has caused them by using them in her dealings with the father.
The mother’s oral evidence about her pattern of withholding the children reinforced the concerns raised by the objective facts set out above. Under questioning by counsel for the ICL, she agreed she withheld the children from the father “to protect them from harm”, and “every time, the same reason.” She agreed this was the reason for withholding the children before the 2009 Consent Orders. When it was pointed out those consent orders provided for the children to spend time with the father, she said, “I’ve always tried to make it work.” This was an obscure and unhelpful response if she truly believed the children were at risk from their father. When it was suggested to her she must have formed a subsequent view that the children were at risk again, she responded “Because it keeps occurring”. At [151], [152], [155] above, I have already referred to the fact that the mother made attempts to convince investigating bodies that the children were at risk of abuse at the hands of the father in June 2019, then, somewhat inconsistently, was prepared to let them spend time with the father. This cannot be explained simply on the basis that there were in operation Court Orders requiring her to do so, since the mother had acted on many other occasions in the past contrary to Court Orders by denying contact between the children and the father. It bespeaks a somewhat changeable state of mind, and suggests the mother’s expressed concerns about the children were not as strongly held as she has asserted.
The mother’s evidence about her perception of the relationship between the father and children also reflected poorly on her attitude to the responsibilities of parenthood, as well as her credibility. Ms B in her report at paragraph 80 records that the mother said she did not value the children’s relationship with their father. In fact, the mother said the father treats the girls “like objects that he could use to play with my mind. Because he has God syndrome.” This evidence reveals quite clearly that the mother found it difficult to separate the position of the children from her interactions with the father, persistently conflating the two.
At paragraph 81 of the report, the mother expressed to Ms B the emphatic view that the girls loved their father not being part of their life and they hated seeing him. She agreed in cross-examination that she told Ms B these things.
However, in cross-examination before being confronted with the content of Ms B’s report, she stated she believed the children loved their father and that had “always” been her view. She agreed it was important for the children to have a relationship with their father, saying “Very much so”, and this also had always been her view.
When paragraphs 80 and 81 of Ms B’s report were put to the mother, she had no explanation for the obvious inconsistency in her evidence. Counsel for the ICL put to her directly that she had changed her position because she believed it would help her case, to which she gave the unresponsive and questionable answer: “I never have changed my position. I just want us to work together as a team.”
Behaviour of the mother observed by the principal of H Public School, Ms CC, and recorded by Ms B at paragraph 115 of her report, supports a conclusion the mother actively sought to undermine the father’s relationship with the children. Ms B stated:
Ms CC said that on the occasions when Mr Millson did attend the school, Ms Halbert would take Y’s hand and run with her as if they were fleeing in terror. Ms CC said that she observed that Mr Millson never did anything to elicit this type of response, and he would stand quietly and calmly near the classroom. She said that he did not make an effort to approach Y nor did he follow Ms Halbert and Y when they were leaving.
At paragraph 116 of her report Ms B further noted:
Ms CC said that it is very obvious that Y is torn between her parents and in the brief time when the school witnessed Y with her father there was nothing to indicate she was scared of him, or that she didn’t want to go with him. Ms CC said she observed Y on a number of occasions in 2017 leaving the school grounds with her father. Ms CC said at these times, Y appear happy and she was laughing and affectionate with her father usually walking hand-in-hand with him.
I am satisfied this evidence (paragraphs [226] to [231] above) shows the mother has been at times capable of saying whatever she thinks may assist her in her ongoing struggle, as she sees it, with the father for control of parenting outcomes. She has also shown a constant readiness to exercise control over the children’s contact with the father whenever she chose to do so, despite court orders. Her conduct observed by Ms CC at school, and referred to by Ms B, shows either a deliberateness or a disturbing degree of almost fixated behaviour in promoting fear of the father in Y. I am satisfied would have been disturbing to Y and would have reinforced the type of emotional harm discussed already above under s 60CC(2)(b). It also reflects the degree to which the mother has been mesmerised by her interactions with the father at the expense of a proper focus on the best interests of the children. I note here the same comments can be made in relation to the manner in which the mother has impressed upon X the continual assertion that the father has smacked her.
For these reasons, I am not satisfied the mother has displayed a satisfactory attitude to the responsibilities of parenthood.
(k) if a family violence order 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, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
I refer to my reasons under s 60CC(2)(b) of the Act. I have nothing to add here.
(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
The children are very young and it would clearly be preferable if they do not become the subject of litigation again.
I note here that the mother seeks an order for sole parental responsibility. This reflects her almost obsessive desire to cling to the children, at the expense of their emotional health and their relationship with the father. In my view orders which allow for this unhealthy dynamic to be broken and therapeutic intervention which will aid and support the mother to better emotional health, are clearly preferable and will be least likely to lead to further litigation.
The evidence discussed throughout these reasons and the opinions given by Ms B, satisfy me that orders should be made for the mother to continue with psychiatric intervention. Both parents and the children should also receive the assistance of therapeutic intervention and family therapy. The ICL proposed orders of that nature and I propose to make such orders. Neither party opposed them. I am satisfied that they will not only benefit the parties and the children, but will help minimise the possibility of future litigation.
Parental Responsibility
I return to the question of the allocation of parental responsibility. The determination of this question will have an important bearing on the question of primary residence. Both parties accepted in cross-examination that the parent with whom the children primarily reside should have sole parental responsibility, subject to an obligation to consult with the non-resident parent.
As discussed above at [65] if the presumption applies and is not rebutted, a trial judge should ordinarily make an order for equal shared parental responsibility, which means an order for all, not only some, aspects of parental responsibility, enlivening s 65DAA of the Act, and requiring the Court to consider whether it is in the best interests of, and reasonably practicable for, the children to spend equal or substantial and significant time with each parent (s 60DAA(1) and (2)). As the Full Court decision in Doherty & Doherty [2016] FamCAFC 182 makes clear, before an order allocating sole parental responsibility to one parent for any aspect of parental responsibility, it would be necessary to hold that the presumption either does not apply or has been rebutted.
Although the mother has been the primary carer of the children, my conclusions about unacceptable risk to the children, her parenting capacity and inability to promote a meaningful relationship between the children and their father, satisfy me that the presumption is rebutted in the best interests of the children. An order for equal shared parental responsibility should not be made. Nor should an order for sole parental responsibility be made in favour of the mother. In the circumstances of this case, I am satisfied an order for sole parental responsibility should be made in favour of the father.
Change of Primary Residence and Time with the Mother
The father and the ICL argued that the primary residence of the children should be changed from the mother to the father. The ICL accepted such orders would constitute an enormous change of circumstances.
The ICL argued that the children are not doing well in the mother’s care. Both children have missed significant amounts of school time, including during this year. They are not performing well at school.
I am persuaded a change of primary residence should be ordered. In reaching this view I rely upon my discussion above of the primary and additional considerations, including my conclusions of unacceptable risk in the mother’s care.
For the reasons already discussed at length above, I am satisfied that the children should have no contact with the mother for a period of three months, after which they should be reintroduced to her through supervised time followed by unsupervised time. I realise this will initially create upset for both children and I have considered carefully the mother’s arguments that Y in particular needs her mother as she moves through her teenage years. However, the negative narrative of fear and danger propagated by the mother about the father must be broken, and a far greater degree of normalcy must be allowed to suffuse the emotional lives of the children. I am left in no doubt that such an approach is in their best interests, and I propose to make orders designed to achieve this outcome.
I point out that the father submitted a six month period of no contact was appropriate. This was not supported by Ms B. As noted in my earlier judgment, Ms B suggested two to three months of no contact followed by supervised time. I have adopted periods of three months in the proposed orders.
Conclusion
The facts as found describe a melancholy and difficult situation for all involved, but especially the children. The facts create an impression of strong criticism of the mother. However, I make clear that I have taken account of the likelihood that she has found the burdens of parenthood onerous, and has made real efforts on behalf of the children within the limitations created by her own problems and inability to see the best interests of the children separately from her emotional responses to the father. I accept the mother has been debilitated by depression and anxiety for many years. However, it must not be forgotten that the best interests of the children are paramount and the orders made must reflect this. The mother regrettably has been unable to see the emotional and psychological damage she has inflicted upon her children. Whatever sympathy may be felt for the mother, and for that matter the father, one can only feel great sadness for the children.
The ICL submitted that it would be appropriate for the parties and the children to be required to be present when judgment is delivered, to facilitate the orders being explained to the children regardless of what the orders are. The father agreed with this approach. However, I am not convinced the parties need be present at the delivery of judgment if they choose not to be. However, I will make orders facilitating the explanation of the orders to the children by the ICL and a senior family consultant.
The ICL made application for costs. All questions of costs will be dealt with by way of written submissions.
I certify that the preceding two-hundred and forty-nine (249) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 27 November 2019.
Associate:
Date: 27 November 2019
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