Mulroney & Mulroney
[2023] FedCFamC2F 490
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mulroney & Mulroney [2023] FedCFamC2F 490
File number(s): NCC 1111 of 2019 Judgment of: JUDGE CARTY Date of judgment: 28 April 2023 Catchwords: FAMILY LAW – PARENTING – Consideration of parenting arrangements for two children aged 12 years and 8 years-Older child diagnosed with Autism Spectrum Disorder and other conditions – Younger child diagnosed with Autism Spectrum disorder and other conditions – Father primary carer for children since 2017 – Both children require significant levels of support to meet their special and unique needs –Consideration of each parent’s capacity top provided for the children’s needs- Children’s characteristics and needs dictate the options which are available to facilitate their relationships with each parent-Practical difficulty and expense – Allocation of parental responsibility children- Passports and international travel Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65Y, Pt VII Cases cited: Re F: Litigants in person guidelines (2001) FLC 93-072; [2001] FamCA 348 Division: Division 2 Family Law Number of paragraphs: 188 Date of last submission/s: 2 December 2022 Date of hearing: 30 November 2022 – 1, 2 December 2022 Place: Newcastle Counsel for the Applicant: Mr Duane Solicitor for the Applicant: Meares Law The Respondent: Self-represented Counsel for the Independent Children’s Lawyer Mr Turnbull Solicitor for the Independent Children’s Lawyer NLS Law ORDERS
NCC 1111 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MULRONEY
Applicant
AND: MS MULRONEY
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
JUDGE CARTY
DATE OF ORDER:
28 APRIL 2023
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The father have sole parental responsibility for the children:
(i)X, born in 2010 (“X”); and
(ii)Y, born in 2014 (“Y”)
(“the children”).
3.The father will inform the mother within 7 days of any decision that he makes about a major long term issue in relation to the children, or either child.
4.The children live with the father.
5.The children spend time with the mother for up to four (4) hours each Sunday, at such times as may be agreed between the parents, and failing agreement:
(i)Y from 11.00 am until 1.00 pm; and
(ii)X from 12.00 noon until 3.00 pm;
6.The time that the children spend with the mother will occur at one of following locations, unless otherwise agreed between the parents:
(i)A public location in the Region B area;
(ii)If the mother resides in the Region C area ( “the Region D area”), and provides to the Father proof that her residential address is in the Region D area, at the mother’s home;
(iii)If the mother remains living in Sydney, then on one Sunday each alternate month the children spend time with the mother at her home in Sydney, provided that the mother nominates to the father, not less than one week ahead of such time, that she proposes to spend time with the children in Sydney.
7.Unless otherwise agreed between the parents, the children spend time with the mother:
(i)On each child’s birthday for a period of not less than two (2) hours at a public location in the Region B area and at the time agreed between the parents, and failing agreement from 3.10 pm until 5.10 pm;
(ii)On the mother’s birthday for a period of not less than two (2) hours at a public location in the Region B area and at the time agreed between the parents, and failing agreement from 3.10 pm until 5.10 pm;
(iii)On Christmas Day from 2.00 pm until 5.00 pm in the Region B area;
(iv)At all such other times and at such locations as are agreed between the parents.
8.Not less than 48 hours prior to each occasion of time the children may spend with the mother pursuant to Orders 5 and 7 hereto, the mother will confirm with the father, by SMS text message, that she intends to spend time with the children, and she will nominate the location that she proposes to spend time with the children, and if the mother does not provide such confirmation then the children’s time with her is suspended for that week, unless otherwise agreed between the parents.
9.The mother is restrained by injunction from bringing any other person to the time that the children spend with her, unless with the written consent of the father.
10.Unless otherwise agreed between the parents, the children will have telephone or video call communication with the mother each Monday and Friday between 7.00 pm and 7.30 pm, and the father will do all things necessary to facilitate such communication for the children with the mother.
11.Each parent is at liberty to attend any school event or extra-curricular activity that parents are normally invited to attend, and any appointment or interview relating to each child’s health and education.
12.The father will notify the mother of any appointment made with the children’s treating medical practitioners, educators, or NDIS caseworker, as soon as reasonably practicable, but no less than 7 days prior to the appointment and the mother is at liberty to communicate with, and receive reports from, any treating professional, educators or NDIS caseworker involved with the children.
13.These orders constitute an authority for the mother and father to each:
(i)Receive a copy of each child’s school report, and notices, newsletters and applications for school photos relating to each child;
(ii)Attend school events to which parents are ordinarily invited;
(iii)Attend parent/teacher interviews by arrangement with and at the convenience each child’s teacher; and
(iv)Communicate with each child’s school about the child’s progress.
14.Each parent will notify the other, as soon as reasonably practicable, in the event of a medical emergency or accident affecting either child.
15.Each parent will notify the other of any change in their contact details or place of residence, within 24 hours of such a change.
16.The mother and the father are each hereby restrained by injunction from denigrating the other parent or any member of their family in the presence of the children, and shall remove the children from the presence of any other person who is denigrating the other parent or member of their family in the presence of the children.
17.The parents are each hereby restrained from discussing these court proceedings with either child, and from showing either child any document connected with these proceedings.
18.Each parent is restrained from passing information or messages through the children to the other parent.
19.The mother shall be and is hereby restrained from recording by video or audio means the father or the paternal grandparents, or the children during changeovers, or any nominee of the father who delivers or collects the children at changeover.
20.The father is authorised to apply for a passport for X born in 2010 and Y born in 2014 notwithstanding that the consent of the mother has not been obtained.
21.Pursuant to s.65Y (1) (c) (ii) Family Law Act 1975 (Cth) the father is permitted to travel internationally with the children X born in 2010 and Y born in 2014 notwithstanding that the consent of the mother has not been obtained.
22.The mother is restrained from taking or sending the children to a place outside of Australia unless the prior consent of the father in writing has been obtained.
23.In the event that either parent travels internationally with the children then the travelling parent will provide the other parent with the following information:
(i)The date of proposed departure from and return to Australia;
(ii)A copy of the return travel ticket for each child;
(iii)A copy of the proposed itinerary for the intended travel;
(iv)A mobile or other telephone contact number where the children can be contacted while outside of Australia;
(v)A contact schedule for video calls for the children with the non-travelling parent on at least one occasion a week during the period of the proposed travel.
24.The parents will communicate with each other by SMS message or email, unless any other means of communication is agreed in writing between the parents.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Mulroney & Mulroney has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE CARTY
INTRODUCTION
The applicant father and the respondent mother are unable to agree about the parenting arrangements for their two children, X currently 12 years old and Y currently 8 years old. Each child has special and unique needs, requiring a range of paediatric medical and allied health interventions, special educational arrangements, and a stable and predictable daily routine with highly attuned and skilled caregivers.
In late 2017, after the parents separated, the father moved from Country E to Australia with the children. The children have since lived with the father, and the father has provided for the children’s needs, with the assistance of the paternal grandparents. The children’s home is at Town F, on the Region D of New South Wales. The children have spent limited time with the mother, who moved from Country E and has lived in Sydney since early 2019.
The father and the Independent Children’s Lawyer seek a continuation of the current arrangement whereby the children live with the father, and spend time with the mother for a few hours on one day each weekend, at a location near the children’s home on the Region D. The father and the Independent Children’s Lawyer submit that the children’s needs must dictate the options available to facilitate their relationships with both parents.
The mother seeks orders for the children to live in an equal time arrangement with each parent, for part of each week with her in Sydney and for the other part of each week with the father on the Region D.
For the reasons provided herein, the court considers that it is in the best interests of each child that they continue to live with the father. The father has demonstrated his capacity to provide for each child’s special and unique needs. The children benefit from having a meaningful relationship with both parents. Spending regular weekly time with the mother, and time with her on special occasions, mainly in close proximity to the children’s home on the Region D, is the only practical arrangement, taking into consideration each child’s characteristics and special needs, and the capacity of the mother to provide for the children’s needs.
BACKGROUND
The father was born in Australia in 1975. He works full time, mainly from home, as a professional for Employer G. The father is an Australian citizen.
The mother was born in Country E in 1981. She works 36-40 hours each week, sometimes up to 55 hours each week, as a carer in Sydney. The mother is an Australian citizen, and a Country E National.
The parents met and commenced cohabitation in City H, Country E in 2007. They married in City J in 2007. In 2008 the parents moved from Country E to Sydney, Australia. They separated finally on 13 September 2017, and were divorced on 19 March 2019.
There are two children of the marriage, X born in 2010 (“X”) and Y born in 2014 (“Y”). Both children were born in Sydney, Australia.
In mid-2015 the family moved to City K, Country L. The mother began seeing a therapist for her panic attacks, which she experienced since the birth of Y in 2014. In mid-2016 the family returned to live in Sydney.
In 2017 the mother travelled to Country M, to support the maternal grandmother following the death of her partner in 2016. The father cared for the children while the mother was away.
In February 2017 Y was assessed and diagnosed with Autism Spectrum Disorder in terms of his social interaction and social communication difficulties, and Autism Spectrum Disorder in terms of his restrictive and repetitive interests, activities and behaviours.[1] Y commenced occupational therapy[2]. He was already engaged in speech therapy and was noted to be non-verbal. The occupational therapy assessment demonstrated that Y has Sensory Processing Disorder.
[1] Father’s affidavit Annexure G
[2] Father’s affidavit Exhibit G
In 2017 the family moved from Sydney to City J, where the mother commenced to study at University. The father took unpaid leave to care for the children, with the assistance of nannies.
In September 2017 the mother travelled to Country M to visit the maternal grandmother, returning to Country E in 2017. The children remained in City J with the father.
The parents were having relationship difficulties around this time. The mother was struggling with her mental health and concedes sending the father a message which read “I hate myself and starting to hate the boys too”. The mother sent a message to the father informing him that she had a new boyfriend and would be going to the Region N.
Although the parents disagree about the precise date of their separation, it is clear that by mid October 2017, when the father flew from Country E to Sydney with the children, the parents considered that their marriage had broken down. They remain in dispute as to whether the father had the mother’s permission to relocate the children from Country E to Australia, which is addressed further in these reasons.
There is no dispute that the children have been in the primary care of the father since October 2017, and that they have spent limited time with the mother.
The father arranged and paid for the mother to visit Australia between 17 January 2018 and 27 January 2018, and the children spent limited time with her, before she returned to Country E and obtained work as a carer at Employer O.
In 2018 X was diagnosed with sensory processing disorder and commenced occupational therapy. In 2018 X was assessed and diagnosed with a Mild Expressive Language Disorder, and commenced speech therapy.
The father arranged and paid for the mother to travel to Australia in July 2018, and the children spent some limited time with the mother during that period.
In July 2018 X was diagnosed with Autism and Separation Anxiety Disorder.[3]
[3] Father’s affidavit filed 2 November 2022 Annexure G
In September 2018 the mother travelled to Sydney, returning to Country E in November 2018. The children spent some limited time with the mother during this period.
On 17 September 2018 the mother sent emails to X, which are discussed further in these reasons.
At the end of January 2019 the mother rented a two bedroom unit in Suburb P. In February 2019 she went back to City J for a month, returning in early March 2019. Between January 2019 and July 2019 the father took the children to see the mother at her home in Suburb P about once each week.
On 19 March 2019 the parents were divorced.
On 10 April 2019 the father commenced the current proceedings.
On 21 May 2019 an order was made restraining the parents, their servants and agents, from removing or attempting to remove the children from the Commonwealth of Australia, for a period of 12 months. The court requested that the Australian Federal Police place the names of the children on the Family Law Watchlist in force at all points of arrival and departure in Australia and maintain the children's names on the Watchlist for the said period, or until the Court orders its removal. Pursuant to section 11F of the Family Law Act 1975 (“the Act”) the parties were ordered to attend a child dispute conference with a family consultant on 24 July 2019.
On 24 July 2019 Family Consultant Ms Q prepared a Child Dispute Conference Memorandum.[4]
[4] Exhibit E
On 12 August 2019 the court made interim parenting orders including that the children live with father, and an order permitting the father to travel internationally with the children from December 2019 until January 2020, including to the Country L. The court further ordered that each parent contact the Children’s Contact Centre within 7 days and arrange an appointment for assessment for suitability for supervision of the children’s time with the mother, as well as ancillary orders to facilitate supervised time each Saturday for two (2) hours at times nominated by the Contact Centre, and in the event the Contact Centre was prepared to provide a service beyond the two hour period then any additional hours of up to 4 hours will be paid for by the mother. An Independent Children’s Lawyer was appointed for the children. The court ordered that the father inform the mother of all appointments that the children may have with their treating paediatrician and any other general practitioner no later than 3 days prior to any appointment, and that within 7 days the father provide to the mother details of any current treating medical practitioner together with any detail of extracurricular activities the children are engaged and in notify the mother within 7 days of change to such details.
In about mid-October 2019 the children commenced to spend time with the mother supervised by R Contact Service children’s contact service. Due to the pandemic, R Contact Service was unable to facilitate any visits between 22 February 2020 and 9 May 2020, and the father facilitated regular phone and video chats for the children with the mother throughout that period.
On 5 June 2020 an interim hearing was held and it was ordered, pending further order, that the mother spend time with the children for Y’s birthday for up to two hours supervised by R Contact Service, and if the supervisor is unavailable then FaceTime for the children with the mother in 2020.
On 30 June 2020 interim parenting orders were made, including that:
(a)The children live with the father;
(b)The children spend time with the mother every Saturday, commencing 4 July 2020, for a period of up to 3 hours at a public location in the Region B area at a venue and at times nominated by the mother, and
(c)every second Sunday, commencing 12 July 2020, for a period of up to 3 hours at a public location in the Region B area at a venue and at times nominated by the mother;
(d)The children spend time with the mother on each child’s birthday and on Christmas day, and at other times as agreed between the mother and father;
(e)The mother restrained by injunction from bringing any other person to the time she spends with the children unless it is approved by the father:
(f)The father will facilitate the children communicating with the mother by FaceTime or other agreed video call, between 7.00pm and 7.30pm each Monday and Friday;
(g)Each parent is at liberty to attend any school events or extra-curricular activities that parents are normally invited to attend, and any appointments or interviews relating to each child’s health and education;
(h)The father will notify the mother of any appointments made with the children’s treating medical practitioners, educators, or NDIS caseworker, as soon as reasonably practicable, but no less than 7 days prior to the appointment and the mother is at liberty to communicate and receive reports from any of the treating professionals, educators or NDIS about the children;
(i)The orders constitute an authority for the mother and father to each:
(i)Receive copies of school reports, notices, newsletters and applications for school photos;
(ii)Attend school events to which all parents are invited;
(iii)Attend parent/teacher interviews subject to the convenience of the children’s teacher; and
(iv)Communicate with the children’s schools about the children’s progress.
(j)Each parent will notify the other, as soon as reasonably practical, in the event of a medical emergency or accident relating to either of the children.
On 23 September 2020 the court ordered that the parties and the children attend upon a family consultant for the purposes of the preparation of a Family Report.
On 27 May 2021 the family report prepared by Dr S was released[5].
[5] Exhibit D
On 27 January 2022 the current interim parenting orders were made by consent and provide that:
(a)When the mother is residing in Australia the children spend time with her as agreed between the parties in writing and failing agreement:
(i)The first, second and third Sunday of each month with X from 12.30 pm until 2.30 pm and with Y from 2.30pm until 4.30pm at a location within 1 hour travel time each way from the Father's residence.
(ii)With both X and Y, the fourth Sunday of the month at the mother’s residence in Sydney between 11am and 2pm.
(iii)On Christmas Day for 3 hours between 2pm and 5pm at a location within 1 hour travel time each way from the father's residence.
(iv)On each of the children’s birthdays for 2 hours at a location agreed within 1 hour travel time each way from the father's residence or for 3 hours in the event that the birthday falls on a weekend and the children are not otherwise spending time with the mother.
(v)On the mother’s birthday for 2 hours at a location agreed between the parties or for 3 hours in the event that the birthday falls on a weekend and the children are not otherwise spending time with the mother.
(vi)At any other time agreed between the mother and the father.
The court noted that in the event that the mother relocates to the Region D, the parties agree to attend further dispute resolution to discuss arrangements in relation to the time the mother spends with the children. To date the mother has not relocated her residence to the Region D.
The children continue to live with the father at Town F on the Region D of NSW. The paternal grandparents, Mr T and Ms U, share the home and assist the father with the day to day care of the children.
The children attend V School at Suburb W NSW and, at the date of the trial, it was anticipated that X would attend the V School in 2023. It is common ground that the V School provides specialised education for children with Autism.
The mother resides at Suburb Z in Sydney, NSW. She has re- partnered and, at the date of trial, has been in the relationship with her current partner for three and a half years.
Both parents report that the current spend time arrangement for the children with the mother are often cut short at the request of the mother, and that the children frequently spend less time with the mother than the three hours provided in the orders.
LEGAL PRINCIPLES IN PARENTING PROCEEDINGS
Parenting orders are made under the provisions of Part VII of the Act. Section 60B of the Act sets out the objects of Part VII and the principles underlying the objects.
When making a parenting order the court must regard the best interests of the child as the paramount consideration.[6] In determining a child’s best interests, the court must consider the matters set out in s 60CC.
[6] Section 60CA
The two primary considerations[7] which the court must consider 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.
[7] Section 60CC(2)
When applying the primary considerations the court must give greater weight to the need to protect the children from physical or psychological harm, than to the benefit of having a meaningful relationship with both parents.[8] The court must ensure that any parenting order it makes does not expose a person to an unacceptable risk of family violence.[9]
[8] Section 60CC(2A)
[9] Section 60CG(1)(b)
The court must also consider a number of additional considerations, when they are relevant to the particular circumstances of each case.[10]
[10] Section 60CC (3)
When making a parenting order the court must consider whether to apply the presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility for the child, or whether the presumption has been rebutted.[11]
[11] Section 61DA
Depending on what order, if any, that the court makes in relation to parental responsibility for a child, the court may be required to consider whether it is in the best interests of the child and reasonably practicable, for the child to spend equal time or substantial and significant time with each parent.[12]
[12] Section 65DAA
CONDUCT OF THE HEARING
The final hearing proceeded over the course of three days on 30 November 2022, and 1 and 2 December 2022.
Mr Duane of Learned Counsel appeared for the applicant father, instructed by Meares Law.
The respondent mother appeared in person and was not legally represented. She was accompanied by her support person Ms AB. The mother was assisted throughout the trial by Mr AC, who is an interpreter arranged by the Court to interpret for the mother everything said in the courtroom in English to Country E, and the evidence given by the mother from Country E to English.
The mother did not file her trial material in compliance with the time frame provided in the Orders made on 18 February 2022. The court permitted the mother to rely upon her Outline of Case Document[13] and her Affidavit filed on 28 November 2022. The mother tendered into evidence a number of documents which became exhibits in the proceedings, and which are referred to as necessary in these reasons.
[13] Exhibit A
Mindful of the court’s obligations when conducting a trial involving a litigant in person[14], prior to the commencement of the hearing the court provided the mother with information about the trial process.
[14] Re F: Litigants in person guidelines (2001) FLC 93-072; [2001] FamCA 348
Mr Turnbull of Learned Counsel appeared for the Independent Children’s Lawyer, instructed by NLS Law.
PROPOSALS OF THE PARTIES
The father’s proposal
The father sought final parenting orders which are set out in his Amended Initiating Application filed 26 October 2022, in summary that:
(a)The father have sole parental responsibility for the children, subject to him informing the mother about any decision he has made for the children, and providing the mother with all relevant information and documents pertaining to the decision;
(b)The children live with the father;
(c)The children spend time with the mother in the Region B area for up to four hours each Sunday, and on special occasions;
(d)The mother be restrained from bringing any other person to the spend time with occasions with the children, unless with the approval of the father;
(e)That he be permitted to obtain a passport for each child without the consent of the mother and travel internationally with the children without the mother’s consent.
The father also sought a number of additional orders which were the subject of broad agreement between all parties, which are discussed further below.
The mother’s proposal
The mother’s sought final parenting orders which are contained in her typewritten Minute tendered into evidence on the first day of the hearing.[15] In summary the mother proposes that the parents have equal shared parental responsibility for the children and that the children live with equally with both parents, that is with the mother in Sydney each week from Thursday to Sunday and with the father on the Region D each week from Sunday to Thursday.
[15] Exhibit B
The mother also sought a number of additional orders which were the subject of broad agreement between all parties, which are discussed further below.
The proposal of the Independent Children’s Lawyer
The Independent Children’s Lawyer sought final parenting orders which are set out in a Minute tendered to the Court on the final day of the hearing[16], in summary that:
[16] Exhibit C
(a)The father have sole parental responsibility for the children and advise the mother within 7 days of any major long term decision that he makes in relation to the children;
(b)The children live with father;
(c)The mother is at liberty to spend time with the children commencing on the first Sunday of each month and each Sunday thereafter, with Y to spend time from 11.00 am to 1.00 pm and X to spend time from 12.00 pm to 2.00 pm, and any other time as agreed by the father;
(d)The children’s time with the mother occur at a public location in the Region B area, and if the mother remains living in Sydney then one Sunday every second month will be spent at her home in Sydney;
(e)If the mother resides in the Region C/Region B area and provides proof of her residence, then the children’s time will occur at the mother’s home;
(f)The mother provide the father with 48 hours’ notice by SMS that she will be attending the time with the children and the location, and if unavailable due to illness then the mother’s time to occur at another time during that month as nominated by the father;
(g)The children spend time with the mother on each child’s birthday, the mother’s birthday, Christmas Day and other times as agreed by the father;
(h)Telephone or video call contact twice a week;
(i)Each parent at liberty to attend school events or extra-curricular activities and any appointments or interviews relating to each child’s health and education and authorised to receive school records, attend school events, attend parent/teacher interviews, communicate with the children’s schools;;
(j)The father notify the mother of any appointments with medical practitioners, educators or NDIS caseworkers;
(k)The parents notify each other of any emergency or accident affecting the children;
(l)The parents notify each other of any change in their contact details;
(m)The mother be restrained from bringing any other person to spend with time with the children without approval of father;
(n)Mutual non-denigration order;
(o)Mutual restraint from physical abuse or verbal abuse of the children;
(p)Mutual restraint on the parents discussing court proceedings or showing documents to the children;
(q)Mutual restraint on the parents passing messages via the children to the other parent;
(r)Mutual restraint on the parents recording each other and children at changeover;
(s)Father permitted to apply for passports and travel internationally with the children without the consent of the mother;
(t)Mother restrained from travelling internationally with the children without the written consent of the father;
(u)Parents to provide other parent with details of proposed travel;
(v)Parents communicate via SMS or telephone call or any other mechanism as agreed;
(w)Parents arrange family dispute resolution before commencing further parenting proceedings commencing.
Orders which can be made with the agreement of all parties
The parties were broadly in agreement about matters which are set out in the following subparagraphs. As the evidence satisfies the court that it is in the best interests of the children for orders to be made in terms of the matters agreed, the court will made orders which provide that:
(a)The children will spend time with each of their parents on special occasions;
(b)Both parents are at liberty to attend any school events or extra-curricular activities to which parents are normally invited, and any appointments or interviews relating to each child’s health and education;
(c)Both parents be notified of any appointments made with the children’s treating medical practitioners, educators, or NDIS caseworker, as soon as reasonably practicable and not less than 7 days prior to any appointment;
(d)Both parents be entitled to communicate with and receive reports from the children’s treating medical practitioners. Educators, and NDIS providers;
(e)Each parent will notify the other , as soon as reasonably practicable, in the event of a medical emergency or accident relating to either of the children;
(f)Each parent will notify the other of any change in their contact details or residential address;
(g)The parents will not discuss the court proceedings with the children or show either child any document connected with the proceedings (noting that the mother sought an order that “Each parent discuss with this proceeding with the children with professional counsellor only”(sic)).
ISSUES THAT REQUIRE CONSIDERATION
The family consultant Dr S, who prepared a Family Report on 27 May 2021[17] identified the following particular issues of concern[18], which the court accepts are relevant to the consideration of what parenting orders are in the best interests of the children:
[17] Exhibit D
[18] Exhibit D paragraph 47
“
•The confirmed diagnosis of Autism Spectrum Disorder for the two children and how this diagnosis impacts upon the capacity of the children in live with and spend time arrangements;
•The greater severity of Autism Spectrum Disorder for [Y] and the implications of this with respect to parenting arrangements;
•The suggestion that the mother has been spending weekend time with the subject children in the car, has stopped the time with the children early and has spent some of the time with only one of the children, which if true, raise concerns about the capacity of the mother to cope with the conjoint needs of the subject children;
•The mother’s current housing conditions and her current lack of practical housing for the subject children, despite her proposal for the subject children to live in her primary care;
•The mother’s lack of family or partner support with respect to caring for the subject children;
•There is a significant distance between the parties which does not support a shared care arrangement;
•Whether the individual and differing needs of the children are able to be managed by single care giver;
•Whether sole parental responsibility may be appropriate, given the ongoing health, psychological and educational needs of the children.”
ISSUES FOR DETERMINATION BY THE COURT
The issues for the court to determine are:
(a)Whether the children will live in an equal time arrangement with both parents or whether the children will continue to live with the father;
(b)If the children continue to live with the father, the spend time arrangements for the children with the mother;
(c)Whether the mother will be restrained from bringing any other person to the time she spends with the children, unless with the prior approval of the father;
(d)The allocation of parental responsibility for the children;
(e)Passport and international travel for the children;
(f)Whether the parents will be restrained from recording each other and the children or their nominee who collects and returns the children at changeover.
PRIMARY CONSIDERATIONS
Section 60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
There is no dispute that there is a benefit to X and Y of having a meaningful relationship with both parents. Both parents are loving, devoted and committed parents, and each parent exhibits a genuine desire to be involved with both children to the maximum extent possible.
The father has demonstrated that he is capable of meeting the needs of the children. He has provided the children with a stable and loving home, a regular and consistent routine with access to essential treatment providers, and a supportive educational environment. The father has demonstrated his commitment to supporting and facilitating each child to realise their full potential in every aspect. The children are benefitting from having a meaningful relationship with the father.
The father plainly recognises the benefit to the children of having a meaningful relationship with the mother. He has consistently acknowledged the children’s love for the mother, her strengths, and the positive aspect of the children’s relationships with her[19]. The father agrees with the mother that, prior to separation, she undertook a primary parenting role for the children[20]. He identified, when he spoke with family consultant Ms Q in July 2019, that X had missed the mother and had settled considerably since the arrangement of time with the mother was regular and predictable[21].
[19] Refer Exhibit D paragraph 74, 91
[20] Exhibit E
[21] Exhibit E
The father has demonstrated his commitment to the children’s relationships with the mother by: encouraging, arranging and paying for her to visit the children in Australia, when she was living in Country E; facilitating regular video chat calls for the children with the mother, often daily, including when the mother was in Country E and during the Covid19 lockdowns in Australia in 2020; facilitating the children’s regular contact with the mother, prior to and following the making of interim parenting orders. I am satisfied also that the father has provided the mother with information relating to the various services involved with the children, and the children’s education which supports the children to have a meaningful relationship with the mother.
I consider that the mother genuinely love and cares about the children, and that she wants to play an important role in their lives. The mother wants to spend regular time with the children and be involved in their daily routines, and share special occasions and events of significance with the children. The mother wants the children to know that she loves them and cares about them.
The children will benefit from having a meaningful relationship with the mother. The children’s special needs, and the mother’s capacity to provide for the children’s needs, must dictate the arrangements that are put into place to facilitate the children’s relationships with the mother.
Section 60CC(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect of family violence
The mother asserted that there was a need to protect the children from harm from being exposed to the paternal grandfather’s “temper”. In support of her assertion, she tendered into evidence material stored on a USB stick, being one video recording taken by her in January 2019, four video recordings taken by her on 18 May 2019 and three undated photographs of the mother’s arm, each from a different angle, depicting light pink or purple marks[22]. There was also a text document containing the mother’s “lodgement notes” relating to the video recordings and photographs. The material stored on the USB stick became Exhibit R in the proceedings.
[22] Exhibit R
The mother asserted that the paternal grandfather has yelled at her so many times that she has lost count. She says that he shouts loudly at the children and that she has observed him yelling at other people when he is frustrated. The mother says that the children have become distressed during occasions when they have been exposed to conflict.
One of the videos recordings in Exhibit R dated January 2019 depicts the mother leaning into the back seat of the car where one of the children is strapped into a child restraint. The child is making constant noises, while the mother says “He’s my boy, give me my boy” and “Come on, come on, come with me.” It appears that the paternal grandfather is in the driver’s seat and the paternal grandmother is in the front passenger seat. The paternal grandmother calmly asks the mother to leave and shut the door. The paternal grandfather raises his voice and says “Mr Mulroney can’t handle it…you’ll go up and annoy him he’s trying to do work…” The paternal grandmother says to the mother “Will you just let us go please”. Although the paternal grandfather’s voice is raised, I do not consider that he was shouting at the mother.
A video recording dated 18 May 2019 shows the father being followed and filmed while walking behind the children and an adult woman on the street, and the father asking the mother not to record him. The mother follows and gets into the back of a car where the children are by then seated. She says “ No, not by-bye, I have the right to spend time with you…I am your Ma.” The father asks the mother to “hop out of the car or stop recording” The father informs the mother that he is going to call the police. The younger child screams, appears distressed and is clapping his hands together. The older child says “Wait, so what’s happening?” The mother says “Show’s the way life is people”. Somebody grabs the mother’s phone and the recording ends.
A further recording on the same day (Part 2) shows the father standing outside the car, calling the police. Mother is leaning over the backseat saying “pull me, he just pull me.” Part 3 on the same day shows both parents standing outside the car. The mother records the father and then the children in the back of the car. The mother says “OK, people, I have to stop because my boy. This is why I, I never done this. This is why I never because I protect this”. The mother records the father again and says “This is Mr Mulroney. He always like this, people, He’s always like this.”
The father remains calm throughout the course of the mother’s filming and recording.
The lodgement notes submitted by the mother describe “Supporting video and Photographic Evidence of Family violence and Child Abduction in the case of MULRONEY & MULRONEY….Videos contains shouting forcefull action and child distress.” (sic) I infer that the mother filmed the events in order to gather evidence to support her case. The videos demonstrate that the mother, by her own actions, has involved the children in parental conflict, exposed them to adult issues, and that she has struggled to manage her own emotional distress in the presence of the children. The children have become distressed as a result of the mother’s actions. The mother has prioritised her own needs over the children’s needs, and has demonstrated little insight into the children’s needs on the relevant occasions.
The mother’s allegation that the children are at risk of harm in the household of the father does not sit logically with her proposal that the children will continue to live with the father for at least half the time, and notwithstanding that the paternal grandfather also lives in the father’s home.
On 22 February 2022 the father discussed with his Psychologist, Dr AD, an incident with the paternal grandfather and the youngest child, where the paternal grandfather reportedly became frustrated with him.[23] The notes produced by Dr AD at AE Psychology record the father reported “how he finds the difference in parenting styles challenging and struggles in communication with his father”. It is also recorded “Mr Mulroney’s mother has traditionally been the person to moderate these interactions. We considered Mr Mulroney’s values in relation to parenting. He will continue to work ahead of the next session.”
[23] Exhibit U
At another session on 31 May 2019 it is recorded that “We discussed impact of current situation on parent’s ad (sic) Mr Mulroney’s relationship with Dad. His Dad is struggling to understand how best to respond to boys diagnosed with autism.”
Having carefully read and considered the notes produced by the father’s psychologist, I consider that the father has acted protectively towards the children in discussing his concerns and some of the challenges he faces in raising the children. The discussions evidence the father’s awareness of the issues and his preparedness to explore his feelings, concerns and values to assist him in managing the children’s needs, including their relationships with the paternal grandfather in his household.
I am not satisfied that the children are at risk of harm in the household of the father due to the presence of the paternal grandfather, or for any other reason. I find that the paternal grandparents are a valuable source of support for the father because they assist him to manage the demands of parenting two very high needs children while also working to provide for the children’s financial support.
RELEVANT ADDITIONAL CONSIDERATIONS
Section 60CC(3)(a): any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The family consultant reports
“[X] expressed a strong and firm wish to continue living with the father and the paternal grandparents. He regards this as his home. [X] reported he did not want to spend overnight time with the mother…He expressed apprehension about changing the current routine and expressed reservations about an unknown situation, which seems consistent with his current diagnosis. [X] was asked about spending an occasional night with the mother, given that this has occurred in the past, and [X] stated that he did not want this to occur…[X] wanted the Judge to know that he wants to keep everything the same as it is now”.[24]
[24] Exhibit D paragraphs 131 and 132
X’s reported views are entirely consistent with the father’s evidence as to X’s experiences and needs, and are inconsistent with the mother’s position.
Y is non-verbal. Due to his extremely limited communication capacity Y was not interviewed by the family consultant. This is consistent with the father’s evidence, which I accept, that Y’s needs are more appropriately assessed by observing his actions given his very limited verbal skills. The family consultant observed Y throughout the day, and I accept her unchallenged evidence as to her observations.
Section 60CC(3)(b): the nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparents or other relative of the child)
Each of the parents, and the paternal grandparents from time to time, provided care for each of the children, until the parents separated in late 2017. Until about mid 2017 the mother undertook a primary parenting role for the children, with significant assistance from the father.
It is beyond doubt that since about mid-2017 the father has been the children’s primary carer, with significant support from the paternal grandparents, and in particular the paternal grandmother Ms U (“the paternal grandmother”).
The observations, made by the family consultant, of the children with the father raised no concerns, and it is abundantly clear on the evidence that the father has, since 2017, provided for the needs of the children, with the support of the paternal grandmother in particular, with no concerns raised about his capacity to meet the special and unique needs of each child, including obtaining appropriate medical, psychological and educational interventions.
I accept the father’s evidence that both children are very reliant upon him, and that he is the person who is able to soothe the children when they are upset or distressed. Both children are vulnerable, Y particularly so, and entirely dependent on their caregivers.
The paternal grandmother swore an affidavit in support of the orders sought by the father, and was cross examined at the trial.
The paternal grandparents have been married for 50 years, and share the five bedroom home at Town F with the father and the children. The paternal grandmother lived and volunteered for seven years in Country E, from 2003 until 2009. With the paternal grandfather, the paternal grandmother organised teams from Australia and Country L to assist building projects in Country E. She was exposed to Country E culture and professes “a little” understanding of the culture. X calls her “Grandmother”, which is a Country E appellation for grandmother.
The paternal grandparents are retired and in good health. They are willing and able to assist the father in caring for the children. The father reciprocates by helping around the home and financially with bills. X loves to help with housework, including outdoors. The paternal grandmother and the father undertake the children’s bedtime routines together. Y needs constant supervision and help with toileting.
The paternal grandmother confirms that Y remains non-verbal. She has undertaken courses and has completed two courses with V School to learn more about children with Autism.
I accept the evidence of the paternal grandmother that when the family lived with the paternal grandparents in Sydney, for about 12 months in 2012/2013, the paternal grandparents assisted the parents to care for the children, and that the paternal grandmother did the majority of cooking and cleaning. After the family moved into independent accommodation in 2014, and following Y’s birth, the paternal grandmother assisted the parents to care for the children, including staying overnight in their home.
The paternal grandmother flew to City AE, Country L and spent 2 or 3 weeks there, between May and June 2016, assisting the parents to pack and move back to Australia, including assisting with the care of both children, and she helped the family to move into their apartment upon returning to Australia.
I am satisfied that the children have a close relationship with each of the paternal grandparents, and in particular with the paternal grandmother, who has been a loving, consistent and supportive presence in their lives.
The family consultant observed the children with the mother and concluded that the children love the mother and that she loves them and that the children and the mother appear to have a close relationship with each other[25]. She considered that the children’s close relationships with the mother lends support to the mother’s claim that when the children were younger she was the primary parent.[26] X calls the mother “Mother”, which is a Country E appellation for mother.
[25] Exhibit D paragraph 191
[26] Exhibit D paragraph 191
I accept the evidence of the family consultant that, due to the special needs of the children, “The relationship between the children and the mother needs to be set at the level of the …children, not the level of the mother”[27].
Section 60CC(3)(c): 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; and to spend time with the child; and to communicate with the child
[27] Exhibit D paragraph 192
The father contends that, since the parents separated, the mother has not taken every opportunity to spend time with and communicate with the children[28]. When the mother visited Australia in January 2018 the father says that she “spent a large percentage of her visit … catching up with friends instead of with the children”. The father says that the mother delayed her next visit to Australia until July 2018, when that visit had been planned to occur in April 2018. The father says that during the school holidays in July 2018 X had been excited because the mother was expected to stay in Australia for three weeks, and that X was disappointed when the mother cut short her visit and stayed for only one week.
[28] Father’s Affidavit paragraph 32,
The mother says “I cut my trip short so I could return to City J, pack my belongings and return to live in Sydney”[29] The mother next travelled to Sydney in September 2018 and she says that X spent one overnight with the mother in a hotel in Sydney[30]. The father says that the overnight spent with X in a hotel room in Sydney occurred in 2018[31]. The mother admits that she did not provide X with his medication[32]. The father says that he had to collect X from the mother as X could not sleep and that thereafter X did not want to stay overnight with the mother[33]. The mother returned to Country E in 2018, and eventually moved to live in Australia in January 2019.
[29] Mother’s affidavit paragraph 43
[30] Mother’s affidavit paragraph 47-48
[31] Father’s affidavit paragraph
[32] Mother’s affidavit paragraph 48
[33] Father’s affidavit paragraph 36
The mother says that she
“went straight from the airport to [Mr Mulroney’s] parents’ home in [City AF]. When I arrived only [Mr T] was home. I was still wearing my wedding ring and informed [Mr T] that I wanted to see my boys and restore my marriage. [Mr T] shouted at me and told me to go away. [Mr Mulroney] did not let me stay there. He said ‘Once you get a place of your won you can spend more time with the children.’ I then arranged accommodation at a nearby hotel.”[34]
[34] Mother’s affidavit paragraph
The mother says that at the end of January 2019 she secured a two bedroom home in Suburb P and that from January 2019 until July 2019 the father came to her unit once a week with the children, most weeks, and that the paternal grandmother was always there.[35]
[35] Mother’s affidavit paragraph s 56-57
The father says that the mother delayed in completing the paperwork required for R Contact Service to commence supervision of the children’s visits with her, and that she has frequently cut short the children’s visits, and requested that the father collect one or both children early.
The mother concedes that she has frequently asked the father to come and pick up one or both children early, from supervised and unsupervised visits.
She says, and I accept, that the reason that she has done so is not because she does not want to spend time with the children, but “because I try to follow their needs”[36] The mother says, and I accept, that
“If they are tired or we are at a venue that they don’t want to be (and I can’t take them elsewhere) and I think it is best for them to go home and rest, I let them do so. They are sensitive to light and noise and given that I have to meet them in a public place they are often impacted by this.”
Appropriately, no party sought to criticise the mother for cutting short the children’s visits with her in order to meet the needs of the children.
[36] Mother’s affidavit paragraph 65
Clearly there have been significant challenges for the mother in spending time with the children under supervision and, more recently, at parks and in shopping centres on the Region D. The mother has struggled to manage the needs of both children simultaneously in both supervised and unsupervised settings.
On 20 February 2020 Y ran away during a supervised visit at a park, and the mother had to chase him and bring him back. The contact supervisor texted the father asking him to return and take the children to Location AG instead for the visit.
On each of 9 May 2020 and 15 May 2020 the mother requested halfway through the scheduled supervised visit that the father collect Y so that she could spend one on one time with X.
Since 30 June 2020 the children have spent unsupervised time with the mother and right up until the date of trial, the mother has cut short the visits or expressed her inability to cope with the children together for the full amount of time.[37]
[37] Father’s affidavit paragraph 53, 54 and Annexure C
On Boxing Day 2021 and on 8 January 2022, at the mother’s request, the father took the children to her residence in Sydney to trial how they would cope with spending time with the mother at her home. Y wanted to leave after about 30 minutes and X expressed that he wanted to leave after 90 minutes. The father says, and I accept, that he tried to keep the children engaged and spending time with the mother.[38]
[38] Father’s affidavit paragraph 56
Some of the difficulties which have arisen when the children are spending time with the mother are undoubtedly due to the children’s capacities to tolerate disruption to their routine, and to them spending time in locations other than their own home or other familiar environments. While it may appear more ideal if the mother is able to provide a comfortable home base for the children, closer to the father’s home, this of itself may not eventuate in an increase in the children’s capacity to tolerate separation from the father, who is their primary carer.
Furthermore, the father has the assistance of his parents in the home, whereas even if the mother relocates from Sydney to a residence on the Region D, she still may not have the support of another adult to assist her to manage the challenges of caring for the two children together and catering to each child’s individual and profound needs. It appears more likely than not that the mother will continue to find it a struggle to manage the needs of each child simultaneously, particularly given the high needs of each child and their different interests, and in circumstances where the mother has no home base on the Region D to take the children when they are with her.
X enjoys indoor activities with the mother, in shopping centres and cafes, whereas Y prefers outdoor activities and meeting the mother in a park, so it is difficult for the mother on her own to manage the different needs of two children with autism and other issues.
The mother ought not to be criticised for calling the father and asking him to collect the children early. I accept the father’s evidence that he is not critical of the mother for asking him to collect the children from her early, but he finds it frustrating that he is not able to make arrangements while the children are spending time with the mother, because it is more likely than not that the mother will call him to collect one of the children early. I accept that the father has felt disappointed for the children that the mother has not been able to spend all the available time with them.
Section 60CC(3)(ca): the extent to which each of the child’s parents have fulfilled, or failed to fulfil, the parent’s obligation to maintain the child
It appears that the father has been, and remains currently, solely responsible for the children’s financial support.[39]
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the child’s parents; or any other child or other person (including any grandparent or other relative of the child), with whom he or she has been living
[39] Father’s Affidavit paragraph 81
The father was clear to say that the children are disrupted if their routine is changed, or parts of their routine are taken away. He described in detail in his affidavit the children’s routines and the equipment they require in his home, and what happens for the children when their routines are disrupted or they become upset. I accept the father’s evidence that it is difficult to settle each child when the child is upset. The father was a calm, considerate, child focussed and patient witness, and I found his evidence to be thoughtful and reliable.
I consider that if the mother’s proposal was implemented it would involve a very significant change to the circumstances of each child, and that the likely effect of separation from the father would be severe disruption to the children’s routines, and result in a significant deterioration in their overall level of functioning, including each child’s capacity for emotional regulation, and a deterioration in their capacity to engage in their schooling and education. The children would very likely miss the father and the paternal grandparents. I am satisfied that the mother would find it extraordinarily difficult to cope with the children’s responses to the severe disruption to their routines and the grief and loss reactions the children would experience as a result of being separated from the father who is now their primary attachment figure and primary caregiver.
Further the children would be required to manage the travel each week necessary to facilitate the arrangement which the mother proposes. The mother provides no evidence as to how the children’s education would be managed, given that it would be entirely impractical for them to travel between Sydney and V School each Thursday and Friday when in her household.
The father readily agreed with the mother that the children’s needs are changing as they grow and mature and, by way of example, he said that the boys have moved on from needing him to be in the same bedroom as them to sleep and now have their own rooms and their own beds. The father has demonstrated his capacity to respond appropriately to the changing needs of each child. I accept the father’s evidence that if X expressed that he wanted to spend more time with the mother then the father would work with X to make that happen for him.
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The family consultant noted that the distance between the residences of the parents is of significance. I agree with that assessment, particularly in view of each child’s special and unique needs, which require their regular attendance on their treatment providers and attendance at the V School on the Region D.
The geographical distance between the parental homes, and the impact of travel on the children, requires careful consideration in light of the other significant relevant considerations in this matter.
As the family consultant identified in her report, it will be very hard for the mother to move to the Region D. She has a good job, a house, and a supportive partner in Sydney, who sat quietly in court throughout the trial.
Section 60CC(3)(f): the capacity of each of the child’s parents and any other person to provide for the needs of the child including emotional and intellectual needs
As noted already, the children have special and unique needs which are detailed further in these reasons, and the needs of each child must be kept firmly in mind when considering the capacity of each of the child’s parents to provide for the needs of the child.
The mother’s proposal for the children has changed throughout the course of the parenting proceedings. In her interview with the family consultant in May 2021 the mother proposed that ultimately the children would live with her in Sydney for a two week block period, and with the father on the Region D for a two week block period.[40] The mother expressed her belief that the children have the capacity to live with each parent in a two week block period.[41]
[40] Exhibit D at paragraph 32
[41] Exhibit D paragraph 33
Consistent with the evidence the mother gave when cross examined during the trial, she told the family consultant that “it was her right to have the children live in her care”[42] . She also told the family consultant that she viewed the fact that she was un-represented “as the best for her because as a mother she knows what is best for her children, whereas lawyers do not.”[43]
[42] Exhibit D paragraph 46
[43] Exhibit D paragraph 51
The family consultant reported that “The mother appeared focussed on her rights as a mother…and seem self-focussed, as opposed to child focussed, for the duration of the interview”.[44] Such self-focus included that the mother did not seem to consider that the children may miss the father, given the length of time that they have lived with him, which the family consultant noted would be an expected and normal response for the children, and the mother appeared not to have considered whether Y’s needs were different from X’s needs, and she attributed Y not spending as much time with her to the father not wanting Y to have a positive relationship with her.
[44] Exhibit D paragraph 51
The family consultant expressed her concern about the mother’s inability to recognise that her proposal is not focussed on the children’s needs. The family consultant assessed that the children appeared not to have the capacity to move from household to household in a two week block period given their respective diagnoses.[45]
[45] Exhibit D paragraph
Having had the opportunity to observe the mother over the course of the three days of hearing, and having heard her evidence, I share the concern of the family consultant, and find that the mother demonstrated a self-focus, as opposed to a child focus, during the hearing, and in her proposal for final parenting orders.
In his Notice of Risk[46] the father alleged that the children were at risk of harm due to the mother suffering from mental ill health which resulted in a serious parental incapacity. He referred to her “erratic and inappropriate behaviour” and the vulnerable state of the children, including their special needs. The father is very concerned about the mother’s “erratic behaviour” disrupting the children’s structured schedules, and very concerned about her capacity to care for the boys and keep them safe, without the assistance of the father or the paternal grandmother. The evidence overall satisfies the court that the father’s concerns are well founded.
[46] Filed 10 April 2019
Dr AH has been the mother’s primary treating GP since September 2019. Prior to that time the mother had been seeing one of Dr AH’s colleagues, Dr AJ, in the same medical practice, since early 2016. Exhibit Q in the proceedings is a letter from Dr AH at AK Medical Centre dated 27 November 2019 concerning the mother and addressed to “Lawyer”. The purpose of the letter is expressed to be to provide some background context to the application in respect of which the mother was seeking support from the lawyer. The doctor’s letter confirms that the boys were independently diagnosed with Autism at ages 5-6 years old and 3 year old respectively, and says that:
“This was not easy for [Ms Mulroney] to accept, having very little understanding of [Autism] and what it meant, and she had periods of extreme lows and distress whilst coming to terms of understanding the implications of this for herself and her sons.”
Relevantly the mother’s doctor records that:
·In October 2017 the father brought the boys home to Sydney, “ostensibly for a visit”.
·In January 2018 Ms Mulroney realised they were not going to return … Ms Mulroney herself freely admits to having episodes of acute distress, suicidal thinking and “mental breakdown” in response to the prospect of losing any contact with her sons and her family disintegrating.
·She is currently seeing Ms AL, psychologist and I have also suggested one of the psychiatrists at AM Consulting rooms, either Dr AN or Dr AO who both perform forensic assessments and repots and then her medical history is recorded as depression and post-traumatic stress disorder. Current medications are various anti-depressant medications.
A record produced by NSW Police dated 8 October 2018[47] records that the mother was conveyed to hospital that day, pursuant to Section 22 of the Mental Health Act, following her sending an email to her solicitor which stated “I am going to end my life now. End everything now.” The law firm then alerted police to the threats of self-harm contained in the email. When police located the mother she stated that she is in some sort of custody battle with her ex and this has caused her to become upset. She agreed that she sent the email, she said “I want to kill myself but I am feeling ok now”. Due to the admissions of threatening self-harm the police transported the mother to Suburb AP Hospital.
[47] Exhibit L
I consider that the mother’s anxiety and depression worsened after the family relocated to City K Country L in mid-2015, and that she was experiencing panic attacks after the birth of the youngest child in 2014. The father deposes that while the family were living in City E Country L the mother attempted to jump from a moving vehicle when the boys were in the car.[48] As a result of his concerns for the children in the care of the mother when she was unwell the father arranged for the family to return to Australia.
[48] Father’s affidavit filed 2 November 2022 at paragraph 14
The mother concedes that she has expressed suicidal thoughts in the past, including in those expressed in correspondence addressed to X on 17 September 2018. In the subject line appear the words: “Goodbye forever”. The message reads “Mother is very sick I need to go back to Country E soon Look after your brother”[49]. In a further message to X on 18 September 2018, the mother wrote “X, I’m in Sydney You tell Father, Mother is in danger….Please come pick up Mother in Sydney” and “Please help me my son. Only you and Father can help me out from this room.” “Father” is a name that the children use to refer to the father.
[49] Father’s affidavit filed 2 November 2022 Annexure E
The paternal grandmother deposes that the mother asked X, in September 2018, who he would choose to live with, and that the mother told her “ I have reported you to the Australian police and they are on their way to pick up the boys and place them in a foster home until they could be handed over me. Maybe this is a good way for X to get to know the police”[50].
[50] Affidavit of paternal grandmother filed 2 November 2022 paragraph 53, 64
In early 2021 X returned from spending time with the mother unusually quiet and seemingly upset and, a few days later he reported that “Mother said Grandfather and Grandmother are old and going to die soon, then you boys, Father and I will all live together in a big house on the Region AQ”. Father is the name by which X refers to the father.
The father deposes to observing the mother say inappropriate things to X during his video calls with her and to her involving X in adult issues and in the parenting dispute[51]. The father deposes to the adverse impacts on X of the mother’s conduct including X becoming upset and shutting down, having a meltdown and refusing to speak with the mother. X’s interview with the family consultant confirms that he has been upset at times by things the mother has said to him[52].
[51] Father’s affidavit paragraphs 66, 69
[52] Exhibit D paragraphs 128-130
The mother contended at the trial that her mental health is currently stable and well managed.
The court is cognisant that the mother represented herself at the trial, which is a difficult journey for any parent, and particularly where English is not her first language and the mother is from a diverse cultural background. Taking into account the challenges she faced in representing herself, the mother nonetheless exhibited a very concerning level of distress throughout each day of the hearing. The mother became emotionally distressed at the very outset of her cross examination of the father. On a number occasions during the trial she sobbed and laid her head on the Bar Table, including during cross examination of the father by Counsel for the Independent Children’s Lawyer. On many occasions the mother clutched onto the arm of the interpreter and sobbed audibly. The matter was stood down on a number of occasions to allow the mother time to compose herself.
It appears that the mother has unresolved grief and loss issues which continue to impact her level of functioning. In her affidavit the mother states that she can understand how the father might feel concerned about her mental health and she says “I am not sure if he understands what it has been like to lose my children. They were my whole world and they were taken from my care. I have not always reacted well, feeling panicked and frightened about losing them. All I want is to be part of their lives and for them to know how much I love them”.[53] I accept the oral evidence of the family consultant that the supports which the mother has in place may not be effective for her if her grief and loss issues remain unresolved.
[53] Mother’s affidavit paragraph 79
The mother’s focus during the hearing was often on the past, including the extent to which she was the primary care of the children up until 2017, which the family consultant said, and I concur, is not of huge importance given that the father has been the children’s primary carer for the past five years at least. The mother also focussed on her allegation that the father “kidnapped” the children, a view which she has shared with X.[54]
[54] Exhibit D paragraphs 128-130
Although the mother reported no concerns about the children in the care of the father[55] she took every opportunity to criticise and blame him, in her affidavit and during her oral evidence. When directly asked in cross examination, the mother was unable to say anything positive about the father’s care of the children, except that he was good at maths and science.
[55] Exhibit D paragraph 62
Contrary to the mother’s criticisms of the father, I am satisfied that he has demonstrated his capacity to provide for the needs of the children, and has in fact done so in a thoughtful, child focussed and proactive manner, including in relation to their emotional need for a relationship with the mother.
I am not satisfied that the mother has demonstrated her capacity to provide for the complex needs of the children in either an equal time regime, or for any period in excess of a few hours at a time.
The father, during his oral evidence, explained that his plan for the children to spend time with the mother every Sunday for up to four hours takes account of the children’s needs in that:
·Y is always eager to get back home
·Four hours is already difficult to fit into children’s day, given the routines which are necessary for them;
·There is no evidence that the mother can manage the children for a period longer than four hours, she has struggled to manage the children for one or two hours
·X has recently been ready to stay longer and likes cafes and the indoors.
I am concerned that, even if the mother moves to the Region D, the children’s special needs, including their need to have a stable home, strict routines, and regular access to their medical, allied and educational supports, coupled with the mother’s unresolved grief and loss issues, her fragile emotional state, and the lack of family support in her household, militates against any order that requires the children spend equal time, or even substantial and significant time with the mother.
In light of the children’s unique characteristics and needs, and the mother’s lack of child focus, and her emotional issues, I consider it in the best interests of each child that the father first approve of any other person who the mother intends to bring along when the children spend time with the mother, and that the mother be restrained from bringing any other person with her when the children spend time with her , unless the father has provided his consent.
Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
The children’s health and their special needs is a critical matter which must be considered in assessing what orders are in the children’s best interests.
It is beyond doubt that X’s diagnosis of Autism Spectrum Disorder, Sensory Processing Disorder, and Mild Expressive Language Disorder affects his capacity to interact socially and functionally communicate his needs and wants[56]. I accept the evidence of the father that when X’s routine is disrupted, or if he becomes upset about something, he has “meltdowns” which involve him “yelling loudly and uncontrollably, not moving, making nonsensical noises and it is very difficult to settle him down”[57] . The father describes how X’s meltdowns have improved, due to the amount of care and support that X is provided within the household of the father and the paternal grandparents, as well as the assistance he derives from “his strict routine, stability and frequent specialist appointments.”[58]
[56] Exhibit N
[57] FA 74
[58] FA 74
X can be triggered by disruption to his routine and by noise and stress in his environment. If X is disrupted at home then his behaviour at school suffers, and this in turn impacts his education and his social relationships. The incident reports produced on subpoena by V School Region D for X record multiple occasions between February 2022 and 3 November 2022 when his teachers and other caregivers have been called upon to employ strategies to skilfully manage X’s meltdowns, and where the father has had to collect X and take him home. I accept the father’s evidence that when X has a meltdown he relies on the father “to bring him back to calm”
Y’s diagnoses of Autism Spectrum Disorder and his severe expressive language delay impacts on every aspect of his life. Y remains non-verbal and relies on physical prompts to communicate. He cries to communicate, and makes distinctly different sounds to communicate happiness and distress. He requires constant supervision and is not capable of independently organising his own belongings. Y experiences problems with sleeping and still does not sleep through the night. Y has problems with his digestion. The father deposes, and I accept, that Y has “very significant needs, is non-verbal and requires strict routines.”[59] The father describes that when Y’s routine is disrupted he cries, wants to be picked up and carried, does things he knows he is not allowed to do, cries or laughs uncontrollably and refuses to sleep, even when tired. Y is assisted by a type of therapy used commonly for autistic children called AR Programs, run through AS Centre. He has sensory tools and toys at home, and other appliances. Y also uses an assistive device to communicate.
[59] Father’s affidavit paragraph 76
The father deposes, and I accept, that night time is often a difficult time for the children. Y wakes often, and can remain awake for hours, which can wake X who also then requires assistance. The father is able to manage the night waking with the support of his mother, and both the father and paternal grandmother depose that, during the marriage, the mother functioned poorly when sleep deprived and the father was the parent who would attend to Y in the night.
The father gave detailed oral evidence about the strict and time consuming routines which are implemented in his household to enable Y to attend school and to get him ready for bed at night.
Both children see psychologists from AS Centre, together with a number of specialists to help them with their developmental needs.
The children’s detailed weekly schedule of therapy and activities is set out in the father’s affidavit.[60] The father also detailed Y’s daily routine during cross examination by Counsel for the Independent Children’s Lawyer. It is clear that the children each have different levels of needs, impairments and capacities and that that each child requires a high level of support which is very demanding for the primary care giver. I accept the assessment of the family consultant that the needs of both children “may overwhelm a single caregiver with limited family or partner support, and in the care of the mother, could overwhelm her psychological functioning.”[61]
[60] Father’s affidavit paragraph 89
[61] Exhibit D paragraph 186
I accept that the children’s current primary attachment figure is the father, and the assessment of the family consultant that “the father’s ability to understand and effectively meet the needs of the children is… high.”[62]
[62] Exhibit D paragraph 199
Each child needs a primary stable home and a regular and consistent routine, which provides stable schooling and regular access to treatment providers. I accept that it critical for the welfare of the children that their routines are maintained.
Section 60CC(3)(j) &(k): any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
I am required to consider any family violence involving the child or a member of the child’s family and, if a family violence order applies, or has applied, to the child or a member of the child’s family, and any relevant inferences that can be drawn from the order.
There is no evidence of any family violence order applicable at any time in relation to any relevant person in this case.
In her Notice of Risk on 28 June 2019 the mother alleged “The applicant father and his family have been verbally abusive to me and on one occasion the applicant inflicted injury to my arm.” Otherwise she did not allege that the children had been abused or were at risk of harm.
The mother says that the father has subjected her to family violence by displaying aggression towards her in front of the children, and by causing bruising to her arm on one occasion. The father conceded that he grabbed the mother on one occasion, which caused bruising, and that he may have caused the mother to feel fearful at times, when he has yelled.[63]
[63] Exhibit E
I do not consider that the children are at risk of being subjected to or exposed to family violence in the household of either parent.
Section 60CC(3)(m): any other factor or circumstance that the Court thinks is relevant
The mother alleges that the father took the children from City J to Sydney in October 2017 “ostensibly for a visit, while I was attending a class at university of City J and never returned the children to City J.”[64] The father denies that he took the children to Sydney for the purposes of a visit only.
[64] Mother’s affidavit filed 28 November 2022 paragraph 5
I accept the evidence of the father that, in the period leading up to and following separation, he and the mother spoke frequently about him moving to Sydney with the children and the mother agreed it would be best for everybody if that occurred.[65] The father annexes to his affidavit messages from the mother which confirm that she expressed her approval for the boys to live in Sydney, for example:
(a)On 3 July 2017: “School in Sydney help student with Autisms anyway” and “I won’t look after boys too. I’m tired. Yes Sydney is better than Country E”;
(b)On 4 July 2017: “Please I want to separate. But yes you come to City J.Enjoy City J and go back to Sydney with boys.”
(c)On 4 September 2017: “You can take the boys. Good education and medical over there. Can enrol them in a good public school that have special needs teacher. It more open about Autism and more support. Here bully and crazy culture I’m sorry Mr Mulroney” (sic)
[65] Father’s affidavit filed 2 November 2022 paragraph 24-26
There is Country E Police report[66] which records that the mother visited a Country E police station on 4 February 2020 at 7.03 pm to report that the father had taken the children to Australia without her consent and never returned to Country E. The record states “The informer wished to have custody of her children; therefore, she came to meet the inquiry official to make a report as evidence”.
[66] Exhibit O
I reject the mother’s assertion that the father “kidnapped the children, or that he took the children to live in Australia without the mother’s consent. I prefer the evidence of the father that the parents discussed and agreed that the medical and educational supports available for the children in Australia were more extensive.
Passports for the children and International travel for the children
The father seeks an order permitting him to apply for a passport for each of the children without the permission of the mother. The Independent Children’s Lawyer supports the father’s proposal.
The father was born in Australia, and he and the paternal grandparents have lived in Country E for periods of time. The parents and the children lived in the Country L in 2015. The two children have Country E heritage and at various times have lived in Country E with both parents.
The mother was born in Country E and the parents commenced their cohabitation there. The mother has extended family members in Country E.
The father opposes the mother travelling with the children without his consent. He considers her to be a flight risk and says that she has expressed her intention to take the children to Country E without his consent.
The father is a child focussed parent who has demonstrated that he places the needs of the children above his own needs. He acknowledges the benefit to the children of having a meaningful relationship with the mother and he facilitates that relationship. There is no evidence to suggest that, if permitted to travel with the children internationally, the father would retain them in a foreign country without the consent of the mother or deny the children the opportunity to have a meaningful relationship with her. The father has the capacity to prioritise the needs of the children and to provide for their needs, including during international travel.
I am not satisfied that the mother has the capacity, currently, to prioritise the children’s needs over her own, or to provide for the needs of the children for an extended period of time, such as during overseas travel. I also accept the evidence of the father that the mother has, perhaps in a moment of emotional pain, threatened to take the children to Country E without his consent.
Both parents were able to identify that the needs of the children will change and evolve, and I consider that the father has the capacity to determine if and when the children are ready for, and will benefit from, overseas travel with the mother.
I propose to make orders for travel and passports for the children which are broadly consistent with the orders proposed by the father.
The allocation of parental responsibility for the children
Section 61DA provides for a presumption of equal shared parental responsibility when a parenting order is made, save that the presumption does not apply when there are reasonable grounds to believe there has been abuse of the child or family violence. The presumption may also be rebutted if there is evidence to satisfy the Court 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. I consider, in this case, that the presumption is rebutted by such evidence.
I accept the evidence of the father to the effect that the parents have been unable to work together and that their communication has broken down to the point where they cannot talk well together, mainly because he cannot handle communicating with the mother when she is upset. He has had to implement boundaries with the mother, in order for him to be able to focus on meeting the needs of the children.
Having had the opportunity to observe the mother in court, including while giving her oral evidence, and having viewed the video recordings of some of her interactions with the paternal grandparents and the father, in the presence of the children[67] I am satisfied that she remains very upset that the children are not in her care, and that when she is upset she struggles to maintain her composure and can become emotionally dysregulate, and that at those times any capacity she has to be child focused is impaired.
[67] Exhibit R
I find that the mother has exposed the children to parental conflict, as is evident in her video and audio recordings, her emails to X, and X’s disclosures during his interview with the family consultant. I accept that it has never been the mother’s intention to cause the children harm or upset, it is more a case of her emotions getting the better of her.
The father has indicated his preparedness to keep the mother informed of the decisions he has made for the children in relation to major long term issues[68] and to supply her with relevant information relating to those decisions. I consider the father’s proposal is entirely appropriate and will assist the children by enabling and encouraging the mother to actively participate in meeting their medical and allied health needs.
[68] As defined in s. 4 of the Act
The parents have been using the AT messenger application to communicate with each other, by SMS text message. The father conceded during the mother’s cross examination of him that he had no objection to using email.
I am satisfied that it is not in the best interests of these children, in view of their ongoing health, psychological and educational needs, for them to be placed at further risk of exposure to parental conflict if the parents are required to consult with each other, in order to make decisions about major long term issues for the children and nor do I think it is appropriate for the father to be forced to communicate with the mother when she is upset or unable to regulate her emotions.
I consider that it is in the best interests of the children for the father to have sole parental responsibility for them. The father is willing to inform the mother about the major long term decisions that he makes in respect of the children and to provide her with relevant information about those decisions.
As the court will not make an order for equal shared parental responsibility there is no need to consider the matters in s.65DAA of the Act.
CONCLUSION
The children’s special needs are the determinative factor in these proceedings.
As noted previously, the mother sought final parenting orders for an equal time arrangement for the children, notwithstanding their undisputed profound special needs, their educational needs, the distance between the parental homes, and the lack of support in the mother’s household to manage the children’s needs, in light of her concession that she is not been able to manage the children together for the full duration of the time provided in the current interim parenting orders.[69]
[69] Exhibit D paragraph 54
I find that it is in the best interests of the children that they will continue to live with the father and spend time with the mother, in a location that is in close proximity to the children’s home. I consider that Y will benefit if part of the time that he spends with the mother is one on one time, and part of the time is spent in the company of X, in order for the children to have a shared experiences while with the mother, and the company of each other for some of the time they spend with her.
I consider that X has a greater capacity than Y to manage spending time with the mother, and also that the mother has been able to manage longer periods of time with X than with Y. X enjoys indoor activities with the mother, including meals, and the orders will permit the mother and X to enjoy time together over a meal, without the mother having to try and cope with the high needs of both children simultaneously.
The father and the Independent Children’s Lawyer each proposed orders that the parents be restrained by injunction from denigrating the other parent (and in the father’s case, any member of their family) in the presence of the children or permitting the children to be exposed to any other person denigrating the parent. There is evidence of the mother denigrating the father in the presence of the children and accordingly the court will make a non-denigration order because it is in the children’s best interests that they are not exposed to denigration of either of the parents, or any member of the children’s family.
Both children have been distressed by their exposure to conflict, which impacts the children in a negative way. I consider it appropriate for the children’s welfare that the mother be restrained by injunction from filming or recording the father, either of the paternal grandparents, either of the children at changeover, and any nominee of the father at changeover of the children. There is no evidence that the father has filmed the mother and I do not consider it necessary to extend the injunction to him.
The Independent Children’s Lawyer sought an order that the parents be restrained by injunction from directing any physical abuse or verbal abuse at the children. As there is no evidence which demonstrates that either parent, or any other person, has physically or verbally abused the children, I consider that the proposed injunction is not necessary for the welfare of the children and I decline to make that order.
The court accepts that the mother is likely to be disappointed with the court’s decision, as it is not the outcome she was hoping for. The court urges the mother to take up the opportunities, which the orders provide, to be involved in the children’s lives.
For the reasons provided herein I consider that the orders at the forefront of these Reasons are orders which are in the best interests of the children.
I certify that the preceding one hundred and eighty-eight (188) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carty. Associate:
Dated: 28 April 2023
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