MISSIAKOS & MISSIAKOS

FAMILY COURT OF AUSTRALIA

MISSIAKOS & MISSIAKOS

[2015] FamCA 1187

FAMILY LAW – CHILDREN – Final parenting order – with whom a child spends time – parental capacity – father with acquired brain injury – mother with undiagnosed cognition problems – children’s views – gradual increase of time.

APPLICANT:

Mr Missiakos

RESPONDENT:

Ms Missiakos

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER:

(P)MLC

8072

2011

DATE DELIVERED:

23 December 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:	5, 6 and 7 October 2015
DATE OF LAST SUBMISSIONS	23 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Marchetti

SOLICITOR FOR THE APPLICANT:

Moores Legal Pty Ltd

COUNSEL FOR THE RESPONDENT:

Ms O'Connell

SOLICITOR FOR THE RESPONDENT:

Stuthridge Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

it is ordered that:

That all previous parenting orders in relation to time spent and communication be discharged.
Paragraph 18 of the Order made by the Honourable Justice Hogan on 1 October 2013 (as amended) continue in full force and effect so that the mother continue to have sole parental responsibility for the children L born … 2000, J born … 2002 and P born … 2006.
Except in the event of an emergency, the mother consult with the father about decisions in the exercise of her sole parental responsibility and do so as follows:
(a)                 The mother, no less than 28 days prior to the final date by which any decision must be made, inform the father in writing about the issue about which a decision needs to be made, the decision she proposes to make in respect of such issue and the reasons (if any) for that proposed decision; and
(b)                The father respond within 14 days, in writing, stating his position in respect of the matters contained in paragraph 3(a) above; and
(c)                In the event that the father responds in writing, the mother consider the father’s views and response when coming to her decision; and
(d)                The mother inform the father in writing of the final decision she has made with respect to the issue as soon as practicable after such decision has been made and, if at all practicable, prior to advising the children (or any of them) of her decision.
The children live with the mother.
The father be entitled to spend face-to-face time and communicate with the children as follows:
(a) From Friday at 2.00 pm until 5.00 pm Saturday on the weekends of 8 January 2016 and 22 January 2016;
(b) During school term periods, commencing in Term 1 of 2016, from Friday after school until 5.00 pm Sunday each alternate weekend commencing from the first weekend of the school term;
(c) During school term holidays in 2016 from 2.00 pm on the first Saturday of the holidays until 5.00 pm the following Wednesday;
(d) Commencing in 2017 and in following year, for school term holidays from 2.00 pm on the first Saturday of the holidays until 5.00 pm the following Friday;
(e) In the long Christmas holidays commencing in 2016/2017 in the second and fourth weeks from 5.00 pm Friday until 5.00 pm the following Thursday;
(f) From 10.00 am 23 December until 2.00 pm Christmas Eve in 2016 and each alternate year thereafter;
(g) From 10.00 am Boxing Day until 2.00 pm 27 December in 2015 and each alternate year thereafter;
(h) By telephone each Wednesday between 6.30 pm and 7.00 pm and the mother do all things reasonably necessary to ensure that the children are available to receive the telephone call and shall afford them privacy in their communications with the father;
(i) By telephone on each of the children and the father’s birthdays between 6.30 pm and 7.00 pm and the mother do all things reasonably necessary to ensure that the children are available to receive the telephone call and shall afford them privacy in their communications with the father;
(j) As otherwise may be agreed.
In the event that Father’s Day falls on a weekend during which the father is not entitled to spend time with the children, the father spend time with the children on the weekend of Father’s Day, for the times specified in 5(b) hereof but forgo the next alternate weekend period of time to which he would otherwise be entitled.
In the event that Mother’s Day falls on a weekend during which the father is entitled to spend time with the children, the father not spend time with the children on the weekend of Mother’s Day, but spend time on the weekend following Mother’s Day for the times specified in 5(b) hereof.
That the father’s time with the children pursuant to Order 5(b) shall be suspended as follows:
(a) During school term holidays commencing in 2016 and the long Christmas holidays commencing in 2016/2017 and the father’s weekend time shall recommence on the first weekend of school term; and
(b) From the conclusion of school in 2015 until 7 January 2016 save for the time provided for in paragraph 5(g) herein.
That unless otherwise agreed by the parties in writing, the father collect the children at the commencement of the time they are to spend with him pursuant to these Orders and:
(a) Shall do so either from school at the conclusion of school that day or from the McDonald’s restaurant closest to the mother’s residence at the nominated time; and
(b) Shall notify the mother, no less than 24 hours prior to the collection time, of his intention to collect the children either from school or at McDonalds.
That unless otherwise agreed by the parties in writing, the mother collect the children at the conclusion of the time they are to spend with the father pursuant to these Orders and:
(a) do so at either from the train station closest to the father’s residence or from the McDonalds Restaurant closest to the father’s residence;
(b) notify the father, no less than 24 hours prior to the collection time, of her intention to collect the children either from the train station or from McDonalds
That for the purposes of transporting the children to and from changeover in Town O, or any journey over 40 km, the father have a support person as nominated by the TAC or any other person as agreed between the parties in writing.
For the avoidance of doubt, the father is permitted to send letters, cards and gifts to the children and the mother facilitate the timely receipt by the children (or any of them) of such articles.
The mother forthwith authorise the proper officer of any school attended by any child to provide to the father copies of all school reports, notices, photographs, newsletters from the children’s school and do all things necessary to enable the father to contact the children’s school or attend school functions and parent/teacher interviews, AND copy of these Orders shall serve as evidence of the mother’s authority.
The parties use a communication book to communicate messages about the children.
That each parent keep the other informed of their residential address and residential and mobile telephone numbers and provide the other with not less than 28 days’ notice of any change thereto.
That neither parent take the children outside the State of Victoria without the prior written permission of the other party.
That each party keep the other informed of his or her respective medical condition and advise the other in the event there is any significant change in or to his or her respective medical conditions.
The mother continue to attend upon Dr C or such other medical practitioner as he may recommend and follow all reasonable recommendations that he or such other medical practitioner he recommends make.
The father continue to attend upon his treating medical practitioners or such other medical practitioner as they may recommend at all such times as they reasonably recommend and follow all reasonable recommendations that they or such other medical practitioner they recommends make.
Each party refrain from denigrating or making critical or derogatory remarks about the other party and/or any member of that party’s family to the children (or any of them) or in the presence or within the hearing of the children (or any of them).
Each party shall do all things reasonably necessary to remove the children (or any of them) from the presence of any other person who makes any denigrating, critical or derogatory remarks about the other party or members of another party’s family to the child or in the presence or within the hearing of the children.
The parties be restrained and an injunction be granted restraining the parties from discussing any Court proceedings in the presence or hearing of the children save and except for explaining the operation of this Order to the children (or any of them).
The parties be restrained by injunction from causing, permitting or suffering the use of physical discipline on the children at any time they are in that party’s care.
The appointment of the Independent Children’s Lawyer be discharged.
Section 65DA(2) and Section 62B apply.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: (P)MLC 8072 of 2011

Mr Missiakos

Applicant

And

Ms Missiakos

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern the children L, born in 2000, J born in 2002, and P born in 2006.
The father, who has an acquired brain injury, seeks to vary parenting arrangements ordered by Hogan J in proceedings for which the evidence was concluded in January 2013[1]. He seeks to spend more time with J and P (“the boys”) and to see them on overnight basis each alternate weekend and on special occasions such as Christmas, Father’s Day and for extended periods during school holidays and vacations. He also seeks to dispense with the need for a support worker to be present during the boys’ time with him which, if granted, requires a discharge of the following Order made by Hogan J on 1 October 2013 and amended 20 December 2013:
(9) That the Applicant have a support worker present at all times during any time the children spend with him, with such worker to be provided by the Transport Accident Commission.
[1][2013] FamCA 1023
The mother opposes any increase in the father’s time or any relaxation of the conditions for supervision or facilitation of time spent. The mother maintains that she and the children were subjected to family violence by the father during the marriage. The mother’s mind is closed to any possibility that the father has improved in relation to his propensity for violent behaviour, of the type that Hogan J was satisfied had occurred, and that the father is now more capable of looking after the needs of the child during their time with him than he may previously have been.
The father’s relationship with the boys is good. This is in spite of the mother not being able to support that relationship over and above her preparedness to comply with orders of the court for the father to spend time with the boys and to communicate with them by telephone.
The father’s relationship with the child L is fractured. The extent of their interaction is that L accompanies the mother to observe changeovers but does not get out of the car or converse with the father. I will make orders which include L but make compliance with them subject to her wishes.
Pursuant to an order made on 28 September 2011 in the Federal Magistrates’ Court, Daniel Piekarski of Victoria Legal Aid, was appointed as the independent children’s lawyer for the children within the meaning of Division 10 of Part VII of the Act. His role is to form an independent view, based on available evidence, of what is in the best interests of the children and then act in these proceedings in what he believes those best interests to be.[2] Mr Piekarski is not a legal representative retained by the children and he is not bound by any instructions from them.[3] The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the children are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for each of the children the trauma associated with proceedings[4] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.[5]
[2] Family Law Act 1975 (Cth) s 68LA(2).
[3] Family Law Act 1975 (Cth) s 68LA(4).
[4] Family Law Act 1975 (Cth) s 68LA(5)(d).
[5] Family Law Act 1975 (Cth) s 68LA(5)(e).
The independent children’s lawyer has not met with the children, which is unusual. Nonetheless, I am satisfied that their interests were ably represented by Mr Piekarski and by Ms Boymal, of counsel, retained to appear on his behalf.
Given the father’s medical condition there was a great deal of expert evidence from the health professionals who have treated and assessed the father over the last 20 or so years. They provide expert assessment of the father’s functioning both historically and currently. The court also had the benefit of the sound social science assessment of Mr Z who is a clinical psychologist retained and who, likewise, has a longitudinal perspective on the family.
There was some evidence in relation to the mother’s medical condition. She has been assessed as having cognitive difficulties. The apprehension is that she may be suffering from early symptoms of undiagnosed Huntington’s Disease which is neurodegenerative genetic disorder that affects muscle coordination and leads to mental decline and behavioral symptoms. The disease is hereditary. It is not curable and leads to a lessened life expectancy and requires a high level of patient care. It appears to be common ground that the mother’s father died from pneumonia and there is more than a suggestion that the pneumonia was a complication associated with Huntington’s Disease. Symptoms of the disease vary between individuals and affected members of the same family, but usually progress predictably and irreversibly. Genetic testing for the disease is a very sensitive issue which will only be conducted after thorough counselling. The earliest symptoms are often subtle problems with mood or cognition similar to those which were detected by a neuro-psychologist who assessed the mother in January 2012. There is a significant possibility that the mother may be a person affected by Huntington’s Disease but in this proceeding her condition remains uncertain and unconfirmed. There is no suggestion that the mother ought to be compelled, as part of this proceeding or otherwise, to ascertain whether she carries the gene. If she has the gene, it would give rise to a fifty per cent chance of the mother developing Huntington’s Disease.
The expert evidence concerning the father provides strong support for the outcome sought by him which is also adopted by the independent children’s lawyer as being appropriate in the circumstances of this case. The outcome for which the mother contends, that is no increase in time or relaxation of supervision, is not supported by the expert evidence.
Having taken all of the evidence into account and having applied the legal principles, I have determined that the father’s application should be allowed.
The father and the independent children’s lawyer sought much the same outcome save for minor differences as to Christmas and Mother’s Day and Father’s Day. To the extent of the differences, I prefer the father’s proposals. However, having reserved this decision for nearly three months, the end of the school year is now upon us and the opportunity to implement the first graduated increase to overnight time, proposed by the father and the independent children’s lawyer, has passed. This is significant in terms of an eventual increase to two overnight stays each alternate weekend but also for the boys’ readiness to spend consecutive nights with the father over the current long summer school vacation. As I did not raise this scenario with counsel prior to reserving my decision, I felt impelled to call the parties back and I invited further submissions on appropriate face-to-face time between the father and the boys commencing during this long summer school vacation. I have taken those submissions into account in formulating the final order which appears at the commencement of these reasons.

Conduct of the Proceedings

These parenting applications are proceedings to which the Less Adversarial Trial provisions of Division 12A of Part VII of the Family Law Act1975 (Cth) (“the Act”) apply.
The principles for conducting child related proceeding, which I observed, are as follows:[6]
(a)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
(b)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
(c)The third principle is that the proceedings are to be conducted in a way that will safeguard the child concerned against family violence, child abuse and child neglect and the parties to the proceedings against family violence.
(d)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
(e)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
[6] Family Law Act 1975 (Cth) s 69ZN.
The order sought by the mother is found at the Outline of Case Filed on Behalf of the Respondent, dated 1 October 2015.
The order sought by the independent children’s lawyer is found at Chronology and Orders Sought, filed on behalf of the Independent Children’s Lawyer on 1 October 2015.
I am satisfied that the trial was conducted in such a way as to promote an outcome which would be in the children’s best interests.

Evidence

Section 69ZT operates to exclude various divisions and chapters of the Evidence Act1995 (Cth) which deal with general rules about giving evidence,[7] cross examination,[8] documents, hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character. However, neither s 55 nor s 135 of the Evidence Act are excluded. Therefore it remains the case that:
a)Only relevant evidence is admissible. Section 55 provides that relevant evidence is evidence which if it were accepted, could rationally affect (either directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings; and
b)The court may exclude or limit the use of evidence which is relevant and thus admissible if the court is satisfied that the probative value of the evidence is substantially outweighed by the danger that the evidence might:
i)          be unfairly prejudicial to a party;[9] or
ii)        be misleading or confusing;[10] or
iii)       cause or result in undue waste of time.[11]
[7] With the exception of ss 26, 30, 36 (s 69ZT(1)(a) of the Act refers).
[8] With the exception of s 41 relating to improper questions.
[9] Evidence Act1995 (Cth) s 135(a).
[10] Evidence Act1995 (Cth) s 135(b).
[11] Evidence Act1995 (Cth) s 135(c).
The general duties[12] and the general duties and powers relating to evidence[13] expand the court’s role in the regulation of child related proceedings.
[12] Family Law Act 1975 (Cth) s 69ZQ.
[13] Family Law Act 1975 (Cth) s 69ZX.

It has not been possible to include all aspects on which I heard, or on which there was, evidence. Nonetheless I have taken the totality of the evidence into account. Just because I have not mentioned something in these reasons, it does not follow that I did not have regard it.
There were no significant objections taken to the admissibility or fairness of the evidence relied upon.
At the trial the applicant father relied upon the following evidence:
a)His initiating application filed 6 October 2014 and signed 30 September 2014;
b)His trial affidavit sworn 23 September 2015;
c)Affidavit of Dr G (father’s treating neuro-psychologist) sworn 23 April 2015;
d)Affidavit of Ms E (father’s treating occupational therapist) sworn 10 April 2015;
e)Affidavit of Dr L (father’s treating general medical practitioner) sworn 24 April 2015;
f)Affidavit of Dr U (father’s treating psychiatrist) sworn 17 May 2015;
g)Affidavit of Ms X (social worker carer) sworn 15 May 2015;
h)Affidavit of Mr Z (court appointed clinical psychologist) sworn 6 August 2015;
i)Report of Mr Z (clinical psychologist) dated 14 September 2015.
At the trial the respondent mother relied upon the following evidence:
a)Her affidavit sworn 7 November 2014;
b)Her response to initiating application filed 7 November 2014.
The materials and evidence arranged and put into evidence by the independent children’s lawyer were as follows:-
a)Family Report of Mr Z dated 29 June 2015 (“June Family Report”);
b)Letter from Mr Z dated 14 September 2015;
c)Assessment report of the mother by Ms B (neuro-psychologist) dated 22 January 2012;
d)Report of Dr N (court appointed psychiatrist) as to the of the mother and the father, dated 26 March 2012;
e)Family Report of Mr Z dated 30 April 2012.

Proof and findings of fact

Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.
A statement of fact is a finding of fact.

Credit & impression of witnesses

The father was an agreeable witness. He gave evidence in a deliberate and considered manner. He was able to respond calmly to questions with an appropriate degree of emotion. He demonstrated patience and forbearance. He did not acknowledge the incidence or severity of the physical discipline perpetrated by him on the children of which Hogan J was satisfied in earlier proceedings.[14] I did not form the view that the father was being dishonest in not recalling the violence but his evidence in this regard is, more likely than not, not accurate. He gave evidence, which I accept, of the mother having been domineering and physically and emotionally abusive of him prior to separation consistent with the findings of Hogan J in 2013.[15]
[14] Op cit [37]-[38]
[15] Op cit [39]
The father has a social worker carer, Ms X who helps him three times a week. She was engaged as the father’s personal care assistant in 2000, approximately 15 years ago. I accept the father’s evidence that Ms X assists him with some executive type tasks such as planning ahead but that he is able to care for himself and the children on a day to day basis.
The mother was an inflexible personality and appeared to be slow to process concepts. In his June Family Report, Mr Z described the mother’s presentation as “conspicuous by the same elements noticed previously [in 2012]. She speaks in a highly circutaneous manner, her speech is highly repetitive and lacks meaningful content, and she communicates in this monotone manner that lacks inflection”. Mr Z’s observations of the mother accord with my own.
The mother’s demeanour in the witness box was unemotional and wooden. Her flat presentation belies the great sense of responsibility which I am satisfied she feels to keep the children safe from the father. I agree with the assessment of the counsel for the independent children’s lawyer that the mother’s perception of the father is negative, frozen in time and not amenable to change. I am satisfied that she genuinely, but unreasonably, believes that the father represents a danger to the children unless their time with him is supervised and restricted. It was abundantly clear from the mother’s evidence and her demeanour in the witness box that she believes that a more meaningful or extensive relationship between the father and the children would not benefit any of the children. However, I accept her evidence that she will abide orders of the court.
Where an expert witness was cross examined (and most were), his or her evidence was not impugned. All of the father’s treating clinicians gave evidence credibly. They evinced a long term familiarity with the father but gave evidence objectively.
Ms E, occupational therapist, was cross examined on the second day of the trial and her evidence about the positive gains made by the father was not shaken. She maintains her recommendation, to Transport Accident Commission (“TAC”) for a continuation of attendant care assistance to share the driving when the father travels to and from Town O as the father becomes fatigued. Ms E reported that the father cooks lunch and dinner independently and did not require assistance with the care of the boys during daytime or overnight.
Dr G, neuro-psychologist, has treated the father since 2001. His reports dated 20 September 2011 and 19 December 2011 are before the court. By letter dated 25 March 2015, he offers the following opinion of the father’s condition:
I am confident in [the father’s] capacity to care for the children independently. He does not need assistance from an attendant carer to meet his responsibilities as a parent, particularly when the children have overnight stays at his new residence … In fact, he had extensive involvement in the care of all three children … since their birth. This included time where he had sole care of the children during his marriage, when his former wife … was at work, and/or undertaking study.[16]
[16] Annexure C, Progress Report, 25 March 2015, in Affidavit of Dr G, sworn 23 April 2015.
Dr G was cross examined for about 20 minutes on the second day of the trail. His opinions were not successfully challenged and I accept his evidence.
Dr L, general practitioner for the family until separation and, thereafter, for the father. He prepared brief reports in 2012, 2013 and in 2015. In the last report, dated 17 March 2015, Dr L stated that the father “remains adherent to his medications and lifestyle recommendations”. Furthermore, that there “has been a steady improvement since (December 2012) , and we remain very happy with [the father’s] current clinical status.
Dr U, consultant psychiatrist prepared brief reports in September 2011, December 2012 and 15 April 2015. He expressed the view that the father’s condition continues to improve. That assessment was not altered in cross examination.
There is general agreement between the health professionals treating the father that there having been “significant and consistent gains and improvement in [the father’s] functioning”.[17] I accept the favourable evidence which the experts gave, by affidavit or as tendered, in relation to the father’s functioning, condition and prognosis.
[17] Family Report, Mr Z, dated 29 June 2015 (“June Family Report”).
Ms X is the father’s personal care assistant and has acted in that capacity for the last 15 years. She is employed by TAC. She deposed to having seen a steady improvement in the father’s capabilities over the last 15 years including well prior to the mother and father separating. She was cross examined. She was a forthright witness. She gave evidence about the boys riding bicycles with the father which was inconsistent with the father’s evidence on that point. I prefer the father’s evidence. I accept that she was mistaken rather than trying to mislead the court.
Ms X was cross examined on remarks which she made at changeover in late February 2015. She denied the comments attributed to her by the mother. I accept her version of events which included her being critical of L for being rude and abrupt to her.
Mr Z was cross examined as the final witness. I accept his evidence.

Background

The father is 56 years old having been born in Greece in 1959. The mother is 47 years old having been born in Australia in 1968.
The parents met in 1990.
In 1996 the father sustained an acquired brain injury as a result of a transport and work accident. He developed a severe frontal lobe injury, with associated motor deficits. The father was diagnosed with a post traumatic seizure disorder and has problems with memory, epilepsy and fatigue.
The parents married in 1997.
The parents separated in 2011. The mother and children obtained accommodation in Town O. The children have been living solely with the mother since 20 June 2011.
On 8 June 2011 the mother obtained an Intervention Order against the father but there is no current order.
Between June and (approximately) September 2011 the father had no contact with the children. I am satisfied that the father was not able to see the children because of his then physical condition and the mother’s refusal to facilitate the children visiting him.
In August 2011 the father suffered a mild stroke.
From approximately September 2011 until March 2012 L had no contact with the father.
In January 2012 the mother is assessed by a neuro-psychologist, Ms B, who described a number of cognitive deficits. She states[18]:
[The mother’s] Perceptual Reasoning abilities were below the mean but her Working Memory and Processing Speed were marked deficits, lying in the Borderline range. In our daily dealings with people, verbal communication is usually the first point of judgement about a person’s cognitive abilities. Her relatively good verbal abilities would give the impression that [the mother] is more cognitively able than is in fact the case. It is not surprising that partners, both with frontal deficits, were having difficulties in control of emotions and behaviour, because each of them would require a structured environment for optimum functioning.
With regard to cognitive domains, [the mother] showed disturbances of attention, higher order verbal skills, planning and organising. She also showed an impairment of registration of new verbal information. This pattern conforms to the neuropsychological criteria for a diagnosis of Dementia as set out in the Diagnostic and Statistical Manual of Mental Disorders (DSM IV). The pattern could be accounted for by a number of reasons, dependant [sic] upon medical investigations. Whist [sic] the pattern is consistent with that seen in HD [Huntington’s Disease], a diagnosis of HD cannot be made by neuropsychology and is usually done by a specialist such as a Neurologist, Geriatrician, or Physician, with the aid of genetic investigation.
[18] Assessment report of the mother by Ms B (neuro-psychologist) dated 22 January 2012 in Affidavit of Ms B sworn 22 February 2012.
In February 2012 the mother filed an application in the Federal Magistrates’ Court (as it was then known). The father responded and the proceedings were transferred to this court 3 April 2012. Final property and financial orders were made, by consent, on 21 May 2012 but the issue of the children’s time with the father remained unresolved.
In July 2012 the mother attended Huntington’s Disease Predictive Gene Testing Clinic and was seen by Dr C, neurologist. In his report dated 1 October 2012 Dr C opines[19]:
She came to see me there against her wishes to consider whether or not she should have predictive gene testing for Huntington’s Disease. Her father, who is now deceased and who I have never met, apparently died of this condition. As such [the mother] is at 50% risk of inheriting her father’s abnormal gene. It should be appreciated that being gene positive for Huntington’s Disease is not the same as having Huntington’s Disease. Individuals who are born with the specific mutation that causes Huntington’s Disease, usually do not become symptomatic until well into adulthood.
… the international standards of care and ethical conduct which govern predictive gene testing preclude testing if there is any compulsion or ambivalence on the part of effected individual. It was clearly a case that [the mother] was very ambivalent about gene testing and as such it was not undertaken.
[19] Annexure “A” to affidavit of Dr C sworn 10 January 2013.
The final hearing of the competing parenting applications was listed before Hogan J, in Melbourne, on 14 to 17 January 2013 (inclusive). A letter by Dr C dated 8 January 2013,[20] and filed on behalf of the mother, read as follows:-
I write to recommend that the case scheduled for 14^th– 16^th January 2013 be delayed. My reason for doing so is that I do not think I can give the Court or any of the parties concerned a definitive opinion until [the mother] has been further investigated.
At my instigation [the mother] has been referred for repeat neuropsychological testing and also for a second opinion from a psychiatrist with an expertise in Huntington’s disease. These are both scheduled for 25^th February 2013.
My reason for making these referrals relates to the question as to whether or not she has symptomatic Huntington’s disease. As I have previously advised you, she does not satisfy current diagnostic criteria for symptomatic Huntington’s disease, but these criteria do not take fully into account neuropsychiatric disease or cognitive impairment. When I saw [the mother] the second time there had been a radical improvement in her mental state and cognition in comparison to the first time, but her mood was also much better because of an apparent improvement in her domestic circumstances. Subsequently I received formal neuropsychological assessment which raised concerns about significant cognitive impairment. This assessment is difficult to interpret given the striking improvement in cognitive function from the two assessments which I made and would raise the possibility that her apparent deficits were secondary to a mood disorder rather than neurodegenerative disease.
On the basis of the above, I feel it is impossible for me to offer the Court the best possible opinion unless there is further neuropsychological assessment and unless I get an appropriate expert psychiatric opinion.
I would respectively (sic) request that the Court might consider delaying this case until after these opinions can be provided. I would anticipate that this will be possible in the first week of March 2013.
[20] Annexure “B” to affidavit of Dr C sworn 10 January 2013.
The trial was not adjourned. At the conclusion of the evidence and submissions, her Honour reserved her decision. Her Honour pronounced final orders on 1 October 2013 and published reasons for decision subsequently on 20 December 2013.
It is common ground that the mother did not undergo the investigative procedures which Dr C proposed occur on 25 February 2013. Furthermore, since 2013, the mother has not undergone any further neurological assessment.
Her Honour ordered that the mother have sole parental responsibility, the children live with her. Subject to TAC providing a support worker to be present at all times, the father’s time with the children was to graduate from six hours on each alternate Saturday to each alternate weekend from 5.00 p.m. on Friday to 4.00 p.m. on Sunday. There was to be overnight holiday time and, in 2015, times as long as a seven consecutive days. If there was no support worker, the father’s time was to be suspended. There was a raft of consequential and complementary orders about notifications of address, consultation about major long term decision making, changeovers, a communication book and mutual injunctions directed at poor parental behaviour such as denigration of one another and hitting the children. I have replicated many of these provisions because the parents wanted me to do so and I appreciate that they have become accustomed to that framework.
A reassessment by TAC and a consequent contraction in TAC funding effectively prevented the father being able to see the children for a prolonged period. This was from 17 March 2014 to 8 November 2014 during which time the father had only telephone communication with the boys each Wednesday between 6.30 pm and 7.00 pm. Ironically, TAC had assessed the father as not requiring professional assistance or a carer when he spent time with the children. I am satisfied that the mother informed the children, both then and since, that the father did not want to see them during this time and that she did so inaccurately and very unfairly.
The father instituted proceedings for a variation of parenting arrangements and a contravention application against the wife on 6 October 2014. Orders were made by Senior Registrar FitzGibbon on 20 October 2014, in which Ms X was nominated as the support worker to be present at all times when the children are in the father’s care. Time during the day was reinstated but the gradual increments upon which Hogan J’s order was based had been significantly interrupted. To my knowledge, the father did not proceed with the contravention application.
The parents were divorced with effect from 25 March 2015.
The boys currently spend time with their father regularly, in supervised conditions every alternate Saturday from 10.00am to 5.00pm. This is in accordance with the interim order of the Senior Registrar in October 2014. Although L accompanies her mother to the drop off points, she refuses to speak with her father, acknowledge him or get out of the car.
These proceedings were listed before me in October 2015 which coincided with the commencement of the last school term of 2015. I had hoped to be able to pronounce my decision and deliver these reasons during the last school term but that did not occur.

Relevant law – parenting issues

These proceedings are brought under Part VII of the Act. Pursuant to s 60CA, in deciding to make any parenting order in relation to the children, I must regard the children’s best interests as the paramount consideration.
Section 60B provides that the core values of the of Part VII is to ‘ensure that the best interests of the children are met’ by:
(a)      ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)      protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)      ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)      ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the child’s best interests:
(a)      children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)      children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)      parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)      parents should agree about the future parenting of their children; and
(e)      children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60B(4) provides that an additional object is to give effect to the Convention on the Rights of the Child to which Australia became a signatory on 22 August 1990. Amongst other things, the Convention seeks to ensure that signatory states implement laws so that laws and actions affecting children put their best interests first and benefit children in the best possible way, that authorities in each state party protect children and help ensure their full development — physically, spiritually, morally and socially — and that children have a right to have their say in decisions that affect them and to have their opinions taken into account.

I do not perceive there to be any conflict between children’s rights as articulated in the Convention on the Rights of the Child and the application of Part VII of the Act to the determination of this matter. The court may inform itself of views expressed by children by having regard to anything contained in a report given to the Court by a family consultant[21] or other expert or appropriately qualified person retained by the parties or through the independent children’s lawyer[22]. Mr Z is a very experienced clinical psychologist who has interviewed the mother, father and children on a number of occasions since April 2012. In proceedings of this nature, it is not uncommon for the views of children to be conveyed through the evidence of one or both parents or family members. However, in this case, both parents have perceptual and behavioural deficits which leads me to conclude that their ability to interpret the views of their children is somewhat compromised. Neither relied on the evidence of family members. As I have mentioned, the independent children’s lawyer did not meet the children.
[21] Family Law Act 1975 (Cth) ss 60CD(2)(a), 62G(2) and 62G(3A), the last provision of which generally requires the person giving the report to ascertain the child’s views and include them in the report.
[22] Family Law Act 1975 (Cth) ss 60CD(2)(b), 62G(2) and 68LA(5)(b), the last provision of which requires an independent children’s lawyer to ensure that the child’s views are put before the court.
Subject to an associated provision to which I will come later in these reasons,[23] the court can make such parenting order as it thinks proper.[24]
[23] [132]
[24] S.65D

Determining the child’s best interests

In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration. In determining the best interests of each child in this case, I have regard to two primary considerations and several additional considerations.[25]
[25] S.60CC
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents. This requires a prospective assessment of whether a meaningful relationship with each parent will be beneficial to each child; 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. Family violence is extensively defined.[26] This requires as assessment of the risk of physical or psychological harm and, if such harm is identified, the formulation of whatever protective measures are necessary to insulate the child from harm.
[26] S.4AB
Both primary considerations are relevant to my determination of this case but I am mandated to accord greater weight to the need to protect child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence than to the children’s right to know and experience their father.[27]
[27] Family Law Act 1975 (Cth) s 60CC(2)(b).
It is formally conceded by the mother that a meaningful relationship with the father will be beneficial to the children. However I am satisfied that this is a concession made on behalf of the mother for the expeditious running of her case rather than reflecting any genuine conviction in that regard. The mother is not willing to encourage or facilitate the children’s relationship with their father over and above complying with orders of the court. This is a less than ideal attitude for the mother to the father but it does provide a valuable context for regulating the parents’ behaviour.
The father appears to be willing and able to encourage the children’s relationship with their mother but says that his relationship with the boys now requires that the boys’ time with him be increased and no longer subject to supervision.
The dispute to which most of the evidence is directed and which has dominated the case is what (if any) physical or emotional harm the father poses to the children and what is necessary to ensure that the children are kept safe from harm. The father submits that the children have not and will not be exposed to abuse neglect or family violence in his care. The mother remains anxious and concerned about the implications father’s acquired brain injury. She does not trust him, is concerned and anxious that he is volatile and that he may explode at any time thereby putting the children at risk.[28]
[28] June Family Report [6].
On balance, I assess the mother’s concerns as being genuinely, but unreasonably, held. Significantly, it is not part of the mother’s case nor manifest by evidence that the mother’s concerns render her incapacitated or compromise her ability to parent the children.
Professional reports about the father, his ability to attend to day to day chores, function normally and propensity to anger simply do not support the mother’s concerns. The experts who are involved in the father’s treatment and ongoing support describe the father as able to self-manage and contain negative emotions. They recognise that he had outbursts historically but expressed the view that for over four years the father has not suffered any incidents of explosiveness or volatility. [29]
[29] June Family Report [6]
In the June 2015 Family Report, Mr Z offers a plausible explanation for the mother’s perception of the father:
[10] … it is very likely that [the mother] has been traumatized by having to deal with her husband and the volatility related to his acquired brain injury; I think it also likely that [the father’s] volatility was also exacerbated by his emotional state and the unhappy nature of the relationship with [the mother] at the time.
The father’s treating General Practitioner, Dr L has attended the family since soon after the father’s work related head injury in 1996 and has had extensive contact not only with the father but also with the mother and the children until they moved to Town O in 2012. He notes in his report of 12 October 2011, which is attached to his affidavit sworn 24 April 2015:
In my experience, there has never been any suspicion whatsoever of any physical or psychological abuse of their children. I have reviewed the medical records of the children and consulted my colleagues at [V] Clinic who have also treated the family and this is a consensus opinion.
The mother did not require Dr L for cross examination so I treat his evidence as unchallenged.
I accept that the daughter, L, has memories of violent behaviour by the father and appears to harbor genuine fear that the father might behave in this manner again.
In interview with Mr Z, both boys separately, and together, talked about their father’s violence, and referred to issues of domestic violence, how bad it was and how their father was responsible for having perpetrated domestic violence upon their mother. Mr Z notes that “in reality, they didn’t actually know what this meant [and] … neither could recall the conflict, violence or abuse”.[30] They used the term domestic violence as a reason for only seeing their father for a limited time and in the circumstances in which they did. I am satisfied that the boys’ comments about family violence are not authentic and that neither is apprehensive about the father.
[30] June Family Report [8].

Treatment of the additional considerations

The additional considerations listed in s 60CC(3) of the Act are numerous but not exhaustive I have regard to the relevant additional considerations in the context of evaluating the primary considerations, namely, securing for the children what benefit that may flow from having a meaningful relationship with both parents and deciding what is necessary to ensure that each child is protected from harm.
Finally s 60CC(3)(m) of the Act requires me to take into account ‘any other fact or circumstance that the court thinks is relevant’. This ensures that the infinite variety of individual children’s circumstances can be addressed.[31]

The children’s views[32] and the nature of the children’s relationships[33]

[31] B and B: Family Law Reform Act (1997) FLC 92-755.

[32] Family Law Act 1975 (Cth) s 60CC(3)(a).

[33] Family Law Act 1975 (Cth) s 60CC(3)(b).

In determining what is in the child’s best interests the Court must consider, amongst other factors, any views expressed by the child and any other factors that the Court thinks are relevant to the weight to be accorded to the child’s views.
The requirement to focus on the child’s views, as opposed to wishes, means that I have regard to the child’s perceptions and inclinations without requiring the family consultant or independent children’s lawyer to make specific enquiries or elicit the child’s ultimate preference or wish. This is consistent with the explanation from the government of the day[34] that consideration of the children’s views will:
allow for a decision to be made in consultation with the child without the child having to make a decision or express a ‘wish’ as to which parent he or she is to live or spend time with.[35]
Then again, consideration of a child’s views does not exclude consideration of a child’s wishes.
[34] Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth).
[35] Ibid [56].
I consider each child’s view in the context of the case and such of the other considerations relevant to the child's welfare. This process is described by the Full Court in R v R (in relation to children’s wishes) as follows:
42. … the court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant. That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view.
54. … There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.
Mr Z has been able to assess the children’s views over the last three and a half years. He first saw the children in April 2012 when L was 11 years old, J was 10 years old and P was just six years old.
In Mr Z’s first family report, dated 30 April 2012, he noted:
[27]. According to [L], her father was always swearing and yelling, and that he had been like that since she could remember and she didn’t want to see him. [L] explained that she chooses to not see her father because she is protecting herself, that it is her wish to “not have to face that all again”, and she cautioned that if she was to see her father that he would smack her and cause her more bruising. [L] was adamant that she would not be forced to see her father because of all the years of maltreatment she endured, and whilst she acknowledged that her brothers see him and appear to have a good time, that it was not her intention to do so.
…
[36]. [J] settled relatively comfortably into my office, he developed good rapport, but I noted that he struggled with open ended questions. He told me that he thought that the reason for our meeting was to talk about his father, who “has sometimes been mean and sometimes been nice”. He told me that his parents separated because they were fighting, and by this he meant fighting with words, that the conflict was frightening, that his father was “sometimes mean” and his mother was “always kind”.
…
[39]. [J] spoke about the history of his parents’ conflict. He however, was not able to elaborate in much detail other than he didn’t like his parents fighting and that he hoped that they would one day possibly get back together. At the end of the interview, [J] left my office and saw his father in the waiting room. He immediately went to him and gave him a long and lingering hug, he greeted his father warmly and enjoyed the attention. This observation is all the more significant given when in the company of his mother, sister and his mother’s friend, [J] was paralyzed, uncertain, told me he didn’t want to see his father and that he didn’t like him. As will be elaborated upon, when he went into my office, he was initially guarded, but then warmed and engaged easily and effortlessly with his father.
…
[42]. [P] described both parents in unequivocally positive terms. He described his mother as loving and caring, his father as kind and generous. When asked about his parents, he said there was nothing he would change about either, and in response to my question he told me that his father was not an angry dad, was never an angry dad and was always a happy dad. He told me he was never frightened of his father … He too harbors the wish that his parents might reconcile and that the family could be together. He identifies his father as a source of care and nurturance, trust and security.
I have considered the nature of the children’s relationship with each of the parents and other persons.
The mother is the primary carer of the children. The children have a nice feel for their mother and are dependent and reliant on her. Mr Z reported in June 2015, “Both [the boys] described their mother unequivocally positively and as the source of their dependency needs being met”.[36]
[36] June Family Report [8].
The boys have a loving relationship with the father. At interview with Mr Z, the boys spoke positively about their father and that they had fun when with him. Mr z reported that both boys were “acutely aware of their mother’s apprehension and anxiety in relation to them spending time with [their father]”.[37]
[37] June Family Report [8].
Having seen the boys in their father’s company, Mr Z reports that
both boys were extremely excited, ran into their father’s arms, enthusiastically settled with him, played a number of board games, laughing, smiling and affectionate throughout. They showed no reluctance or hesitation with regards to their father, they were physically affectionate, they greeted their father with a hug and a kiss, and happily reciprocated his hug goodbye. [The father] told his sons that he loved them and they responded that they loved him, and that he looked forward to seeing them, and them him.[38]
He goes on to conclude that
[the boys] clearly get on well with their father, and significantly better than their mother is aware, accepts or believes. Given the strength of her feelings, it would not be surprising if neither of the children shared with her the extent of their enthusiasm and enjoyment of the time spent with their father, but rather presented to her a muted and subdued presentation at points of transition.[39]
[38] June Family Report [9].
[39] June Family Report [14].
I accept Mr Z’s assessment of the boys’ relationship with the father as positive and supportive of the father’s application.
The daughter, L, on the other hand remains “staunchly aligned to [her] mother and refuses to have anything to do with her father”.[40] Mr Z noted that her demeanour is a “complex interaction of her recollection of behaviour that left her traumatised and her awareness of her mother’s anxiety”. I consider that Mr Z’s observation about L having to support her mother’s version of reality, for the mother’s sake, is astute. The mother’s presentation in the witness box is, in my view, likely to inspire L to feel protective of, and responsible for, her mother in contradistinction to feeling protected by her.
[40] June Family Report [7].
Mr Z notes that “even though [she] does not wish to see her father, she acknowledged and smiled at him; … and she seemed to have acquiesced to the fact that she accompanies her mother regularly to collect her brothers”.[41] My impression is that L has left the door slightly ajar as far as her father is concerned but that any satisfactory outcome is a long way off. Forbearance is the father’s best tactic at this stage.
[41] June Family Report [7].
I am satisfied that L should not be forced to attend the time with her brothers and that, for the time being, her resolve not to interact with the father should be given significant weight. However, I am not prepared to simply omit her from the operation of the new spending time arrangements lest she misinterpret that as a lack of interest on the part of the father or, worse still, a rejection of her by the father. As Mr Z opined in his June 2015 report[42] “… the impact on her of not having a relationship with [the father] and resolving that in some manner, is likely to have some longer term residual effects.”
[42] June Family Report [11]
I conclude that an acceptable balance, between respecting L’s consistently expressed view and not permitting her to dictate the outcome in order to comfort the mother, is to include L in all arrangements for spending time and communication with the father but to make compliance conditional upon her wish to participate.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child[43] and the extent to which each of the parents have fulfilled or failed to fulfil his/her obligations to maintain the child[44]

[43] Family Law Act 1975 (Cth) s 60CC(3)(c).

[44] Family Law Act 1975 (Cth) s 60CC(ca).

The parents are unable to communicate in any relaxed way about the children let alone about major long terms issues. Pursuant to Hogan J’s order of 2013, the mother has sole parental responsibility with the result that the father has not had an opportunity to participate in that decision making. I am satisfied that if he could have he would have done so.
The father has availed himself of all opportunities to spend time and communicate with the children. The assertion by the mother that there have been periods of up to six months during which “the father didn’t want to see his children”, is incorrect.
It appears that the father has contributed to the financial support of the mother’s household consistently with his statutory obligation to do so. That may involve no direct payment of child support. My understanding that an adjustment may have occurred to pensions or benefits.

The likely effect of any changes in the children’s circumstances[45]

[45] Family Law Act 1975 (Cth) s 60CC(3)(d).

In determining what is in the best interests of the child I am required to consider the likely effect of any change in the children’s circumstances particularly in relation to separation from their parents, other children, wider family including grandparents and other persons with whom the children have a relationship.
The order which I make will not significantly alter parenting arrangements. The boys will be absent from the mother’s home, and their sister, for slightly longer periods but will still reside primarily with the mother.

Practical difficulty and expense associated with face-to-face time and/or communication with the other parent[46]

[46] Family Law Act 1975 (Cth) s 60CC(3)(e).

I consider the practical difficulty and expense of the children spending time with and communicating with the parent with whom the child will not be living and whether this will affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The requirement for supervision or facilitation of the boys’ time with the father has been imposed by this court but is dependent for its implementation on funding provided by TAC. TAC have assessed the father as not requiring personal care support at the time he has the children in his care. That assessment is not binding on me but the observations of the assessors (who give evidence) are relevant and I accept what they say about the father being able to cope with day-to-day care of the children without assistance and save for the driving of long distances.

I will dispense with the need for a carer to be present during time spent other than for the purpose of changeovers which involve extended driving.

Capacity of the parents to meet the children’s needs[47]

[47] Family Law Act 1975 (Cth) s 60CC(3)(f).

In determining what is in the best interests of the children, I need to consider the capacity of the parent or of any other person to provide for the needs of the children, including emotional and intellectual needs.
The evidence from the father’s practitioners and allied health professionals is encouraging. The same cannot be said of the mother’s functioning. Whereas the mother appears for the time being capable in her care of the children, if the mother’s cognitive faculties deteriorate further, her capacity to parent the children could be significantly and unacceptably diminished. If this occurs, the boys may well be able to transition smoothly to the father’s home for more or most of the time. However, the same will not apply to L.

The father

The mother asserts that the father’s frontal lobe injury renders him “incapable of emotional support, [that he] is prone to angry outbursts and tires easily which will inhibit his ability to provide emotional and intellectual needs for the children”.[48]
[48]
It is necessary to determine the father’s capacity to care for the boys without the support of a carer present. The evidence provided by the father’s treating medical experts supports that he has capacity to provide for the needs of the children. These experts further support the father’s capacity to care for the needs of the children without the need for a support worker to be present at all times.
Mr Z in his June Family Report reports:
[12] The general professional opinion is that [the father] is doing significantly better, that he continues to make gains, that his reliance on assistance and supervision is decreasing significantly; I note the professional opinion in relation to his capacity to care for his children without the support of his worker or indeed supervision. Significant weight should, in my opinion, be placed on this professional opinion.
[13] [The mother] has a view of [the father] that is fixed in time. Whilst it might be completely reasonable for her to harbor ongoing anxiety and apprehension, and even the amplified nature thereof might make sense in the circumstances, her concerns appear not to match the reality of [the father] and his functioning.
…
[15] On the basis of the information available, it appears that [the father] has continued to make gains. The reports from his occupational therapist, doctor, clinical neuropsychologist, and psychiatrist are all unequivocally positive; the apprehension described by [the boys] seemed to reflect more about what they had been told, rather than their direct memory or experience of their father.
Mr Z’s report dated 14 September 2014 states that “[i]f all things are equal, and if the only concern is the boys’ level of discomfort, then I reiterate, that the provision of supervision conveys the need for supervision and risk, and I would not encourage this approach.[49]
[49] Annexure B, Letter from Mr Z 14 September 2015, 3 in Affidavit of Mr Z, sworn 29 September 2015.
In about 2001, the father was referred to Dr G to assist in the management of his angry outbursts and anxiety. The father has consistently attended “neuropsychology sessions on a monthly basis to discuss current concerns, receive advice on management strategies, and to assist in his adjustment to the sequelae of his brain injury”.[50]
[50] Annexure C, Progress Report, 25 March 2015, in Affidavit of Dr G, sworn 23 April 2015.
The father has been seeing consultant psychiatrist, Dr U for over 20 years initially treating him for a work related depression and from 1996 following his motor vehicle accident. The father attended treatment initially weekly and with improvements to his condition once every three weeks. In 2011, Dr U reported, that “the father’s condition has generally been stable although naturally he became grief stricken when his wife left with his children without warning nearly three months ago. His condition is now again stable despite not seeing his children over this period, and living on his own with no source of income from anywhere”.[51] In 2015, Dr U reported an “improvement in his condition despite limited access to his children which remains his major life stress”.[52]
[51] Report, Dr U, 7 September 2011 in Affidavit of Dr U sworn 17 May 2015.
[52] Progress Report, Dr U, 15 April 2015 in Affidavit of Dr U sworn 17 May 2015.

The mother

The father submits concerns about the mother’s health and aspects of her behaviour and care of the children.
A neurological assessment was conducted by Ms B in January 2012 which identified a significant cognitive decline in the mother.
This Neuro-Psychological Assessment Report dated 22 January 2012 (“B Report”) notes the mother’s “poor verbal memory, her disorganised thinking patterns and her lack of insight would all contribute to her giving distorted or disorganised accounts of past events”.[53] Further Ms B notes that the mother “not only has impairment of memory function but in my opinion her pattern of neuropsychological functioning conforms to a diagnosis of Dementia”.[54]
[53] Neuro-psychological Assessment Report by Ms B, dated 22 January 2012 in Affidavit of Ms B sworn 22 February 2012, 13.
[54] Neuro-psychological Assessment Report by Ms B, dated 22 January 2012 in Affidavit of Ms B sworn 22 February 2012, 13.
The cause of the decline was not determined. It has been reported by the mother’s siblings that the mother’s father had Huntington’s Disease.
The mother has not consented to genetic testing to investigate whether she has Huntington’s Disease. In this respect, Dr G reported in 2011:
That it would ‘be beneficial for future planning if genetic testing of [the mother] could be undertaken to confirm, or disconfirm, one possible cause of her cognitive decline for which she is at risk. Huntington’s Disease is inherited in a dominant fashion. There is a 50% chance of a person having this disease if a parent had the disease.[55]
[55] Annexure B, Progress Report, 19 December 2011, in Affidavit of Dr G sworn 23 April 2015.
This is further supported by Ms B’s Report which notes:
[The mother’s] cognitive compromise across all cognitive domains raise marked concerns with regard to the care of the children. Her disorganised thinking and lack of insight are of more concern than her memory impairment. If her condition is progressive, there is also considerable concern with regard to her increasing difficulties in the future.[56]
[56] Neuro-psychological Assessment Report by Ms B, dated 22 January 2012 in Affidavit of Ms B sworn 22 February 2012, 13.
Dr G, the father’s neuro-psychologist wrote in 2011:[57]
Irrespective of the specific underlying neurological cause of [the mother’s] cognitive decline, I am concerned about the welfare of the three children, who are currently solely in her care. It is highly likely that much of the actual direct care of the two younger boys is being provided by their older sister, who is 12 years old.
Hence I consider that the decision facing the court is a complex one with respect to the future care of the children. Should the children be in the care of their father, who had a very severe traumatic brain injury 16 years ago (1996) but has shown substantial recovery and was actively involved in the children’s care since their births in 2000, 2002 and 2006 until the separation in June 2011? Alternatively, should the children be in the care of their mother, who has some form of dementia, mindful that this effectively means that the two boys are substantially in the care of their 12 year old sister, [L], and that [L], is lacking the care of a competent adult.
[57] Annexure “B” Progress Report, 19 December 2011in Affidavit of Dr G sworn 23 April 2014
In his medical report dated 2 April 2015, Dr C states he does “not believe that she has symptomatic Huntington’s Disease at present”.[58] Hopefully, the mother does not have Huntington’s Disease. However, there is a cloud over her cognitive functioning as set out in the expert evidence upon which she relies and consistently with her presentation in the witness box during this hearing. I cannot exclude the possibility of the mother’s condition deteriorating to a point where she is unable to care for the children.

The children’s maturity, sex, background and other characteristics[59]

[58] Annexure AC-1, Report, 2 April 2015 in Dr C Affidavit sworn 12 June 2015.

[59] Family Law Act 1975(Cth) s 60CC(3)(g).

I consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and the parents.
The child L is an unworldly, unsophisticated, respectful girl. Mr Z assesses her as young for her chronological age. I suspect that this may be a consequence of lack of stimulation at home.
The boys are young and immature. I note that Mr Z is satisfied that they both repeat words without understanding the true content of what they say.

The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents[60]

[60] Family Law Act 1975 (Cth) s 60CC(3)(i).

This is a complex case in which each parent is challenged.
Both parents love the children. I am satisfied that each tries as hard as they can to parent the children.

Any family violence involving the children or any member of the children’s family and family violence orders[61]

[61] Family Law Act (Cth) ss 60CC(3)(j) and (k).

As noted above, the definition of family violence provided in s 4 of the Act is broad and may include threatened or actual violence toward a person, members of their family or their property.
There are no extant family violence orders.

Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children[62]

[62] Family Law Act (Cth) s 60CC(3)(l).

Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes. However, litigation is costly in emotional and financial terms and may have the effect of standing in the way of parties parenting children effectively. Parents and children are readily distracted by litigation. Ideally courts should make parenting orders that minimise the prospects of future litigation.
Parents are at liberty to modify court orders by subsequently entering into parenting plans, which have the effect of varying existing orders.

Parental Responsibility

Section 61DA provides that when making a parenting order,[63] I must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility for the child.
[63] Family Law Act (Cth) s 64B(2)-(4A) defines “a parenting order” and what a parenting order may provide.
Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[64] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:
…issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
a)        the child’s education (both current and future); and
b)        the child’s religious and cultural upbringing; and
c)        the child’s health; and
d)        the child’s name; and
e)        changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents.
[64] Family Law Act 1975 (Cth) s 61B.
Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[65] The concept of shared parental responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[66] and to ‘make a genuine effort to come to a joint decision about that issue’.[67] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared.
[65] Family Law Act 1975 (Cth) s 65DAC(2).
[66] Family Law Act 1975 (Cth) s 65DAC(3)(a).
[67] Family Law Act 1975 (Cth) s 65DAC(3)(b).
The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:
f)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[68] or abuse of the child or another child who is a member of the parent’s family;[69]
g)If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[70] or;
h)Where evidence is adduced, upon which the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[71]
[68] Family Law Act 1975 (Cth) s 61DA(2)(b).
[69] Family Law Act 1975 (Cth) s 61DA(2)(a).
[70] Family Law Act 1975 (Cth) s 61DA(3).
[71] Family Law Act 1975 (Cth) s 61DA(4).
Neither parent nor the independent children’s lawyer contend for any alteration to Hogan J’s order that the mother have sole parental responsibility so I will provide for a continuation of that order. However, if the mother’s cognition difficulties increase it may be necessary for parental responsibility to be revisited.

Consideration of equal time or substantial and significant time with both parents

By virtue of neither party seeking to disturb the mother’s sole responsibility for long tem decision making, it is not necessary for me to consider whether it is in the best interest of the child or reasonably practicable for the children to spend equal or substantial and significant time with each of the parents. That said, I am of the view that it is in the best interests of the children to spend time with the father which includes weekdays, weekends, holidays and non-holidays[72] and involvement of the father in aspects of the children’s daily routine[73] and occasions of significance to both parents and children.[74]
[72] Family Law Act 1975 (Cth) s 65DAA(3)(a).
[73] Family Law Act 1975 (Cth) s 65DAA(3)(b)(i).
[74] Family Law Act 1975 (Cth) ss 65DAA(3)(b)(ii) and 65DAA(3)(c).

Conclusion

I am satisfied that the order set out at the commencement of these reasons are consistent with the children’s best interests.

I certify that the preceding one hundred and thirty six (136) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Legal Associate:

Date: 23 December 2015

[2015] FamCA 1187

23 December 2015

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