MYERS & RICE

[2014] FamCA 457

FAMILY COURT OF AUSTRALIA

MYERS & RICE [2014] FamCA 457

FAMILY LAW – CHILDREN – Final Orders – with whom a child lives – where father seeks a change in the child’s primary residence to better facilitate school attendance – where mother concerned father is unable to adequately address child’s physical and psychological needs – best interests of the child – father’s proposal supported by family consultant and Independent Children’s Lawyer – child to live with father and spend substantial and significant time with the mother.

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DA, 65DAA, 69Zn, 69ZT

Maluka & Maluka (2011) FLC 93-464
MRR v GRR (2010) 240 CLR 461
Re F: Litigant in Person Guidelines (2001) FLC 93-072

APPLICANT: Mr Myers

RESPONDENT: Ms Rice

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 8737 of 2007

DATE DELIVERED: 27 June 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Melbourne

JUDGMENT OF: Berman J

HEARING DATE: 17 and 18 March 2014 and 12 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Marchetti

SOLICITOR FOR THE APPLICANT: Stephen Farmer & Associates

COUNSEL FOR THE RESPONDENT: Litigant In Person

SOLICITOR FOR THE RESPONDENT: Litigant In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Mansfield

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. That all previous orders be discharged.

2. That the parties shall have equal shared parental responsibility for the children B born … 1998 and L born … 2004.

3. That L live with the father.

4. That L spend time and communicate with the mother as follows:-

   (a)From after school Friday until the commencement of school on the following Tuesday each alternate weekend commencing the first weekend of Term 3 2014;

   (b)For one half of all school holidays at such times as shall be agreed between the parties;

   (c)From 3pm Christmas Day until 3pm on Boxing Day in 2014 and each alternate year thereafter;

   (d)From 3pm Christmas Eve until 3pm Christmas Day in 2015 and each alternate year thereafter;

   (e)From 9.30am on Mother’s Day until the commencement of school the following day when Mother’s Day falls on a weekend that the mother would otherwise not be spending with the child pursuant to these orders;

   (f)       At such further and other times as the parties may agree.

5. That whenever Father’s Day falls on a weekend in which L would otherwise be spending time with the mother pursuant to these orders, the mother’s time will be suspended as and from 9.30am on Father’s Day until the commencement of school the following day.

6. That in the event that handover for L does not occur at school THEN the mother shall collect the child from the father’s residence at the commencement of her time with L and the father shall collect L from the mother’s residence at the conclusion of his time with the mother.

7. That B shall spend time with and communicate with either of her parents in accordance with her wishes.

8. That as and from the start of Term 3 of 2014, L shall be enrolled at such school as the parties may agree, but in default of agreement at C School, but if such enrolment is not able to be accommodated THEN at D School PROVIDED THAT such school as may be agreed or nominated shall first indicate its preparedness to undertake an “Individual Education Plan” (IEP) to address L’s needs.

9. That the parties will do all such things necessary to provide to the agreed or nominated school a copy of the report of Dr A dated 4 March 2014, a copy of the report of Ms E dated 5 May 2014, any report as may arise from Order 10 herein and a copy of this Order.

10. That the parties will do all things necessary to ensure that L undergoes a full psycho-educational assessment to determine if he has dyslexia or other specific learning disability.

11. That both parents are authorised to obtain school reports for each of the said children and to attend parent/teacher interviews.

12. That both parents sign all documents as may be required to ensure that they are both listed as emergency contacts at the children’s school.

13. That both parents be restrained from:-

    (a)Denigrating the other parent to the children or any of them in the hearing or presence of the children; and

    (b)Discussing these proceedings with or within the hearing or presence of the children or any of them; and

    (c)Allowing any other person to denigrate and/or criticise the other parent in the hearing of or in the presence of any of the children.

14. That the appointment of the Independent Children’s Lawyer is hereby discharged.

15. That all matters be removed from the Active Pending List of Cases.

16. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: MLC 8737  of 2007

Mr Myers

Applicant

And

Ms Rice

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. By Amended Initiating Application filed in the Family Court of Australia on 22 November 2013, Mr Myers (“the father”) sought parenting orders in respect of the three children of the relationship namely F born in 1996, L born in 2004 and B born in 1998.  F is now aged 18 years of age and is no longer relevant to the proceedings.  B remains a part of the proceedings on the basis that the father seeks sole parental responsibility in respect of that child, whereas in respect of L the father seeks equal shared parental responsibility.

2. In all other respects the father seeks no other order in respect of B.

3. The mother filed a Response to the Initiating Application on 27 September 2012.  She seeks orders that the parties have equal shared parental responsibility in respect of B and L, that B shall live and spend time with each of the parties according to her wishes, but that L live with her and spend time with the father as may be recommended by the family consultant.

4. Accordingly, the predominant focus of the proceedings is on the time that L would spend with each of the parties.

5. The father sought orders that L would live with him and spend time with the mother during school terms from after school Friday until the commencement of school on Monday each alternate weekend namely, three days a fortnight and half school holidays.

6. The position adopted by the Independent Children’s Lawyer (“ICL”) is as set out in a minute of proposed final orders tendered by counsel, but in summary proposed that L spend time with his mother from after school Friday until the commencement of school Tuesday, namely four nights per fortnight.

7. In general terms the balance of the orders sought by the father and as proposed by the ICL were similar save that in respect of the child B, the parties should have equal shared parental responsibility.

8. At trial the mother conceded that L should live primarily with the father but that he should spend five nights a fortnight in her care.  To a significant degree, she was prepared to be guided by the recommendations of the family consultant.

9. There was therefore a relatively narrow range of outcomes for the Court to decide.

10. The central issue in the proceedings was the difficulty experienced by L in attending his school.  The mother conceded that such was the adverse behaviour of L in relation to his preparedness to attend school whilst in her care, the father was likely to be more successful in getting L to attend school.  That proper recognition by the mother was a significant factor in her initial decision that L should live with the father and spend time with her.

11. Presently L attends G School pursuant to an order made 17 January 2013. 

12. As part of the father’s application, he would seek the discharge of that order to enable L to be enrolled at C School which would be closer to the father’s home situate in Suburb H.  At present G School is closer to the mother’s home in Suburb I.  Geographically, the parties live a significant distance apart, with the travelling time between the homes exacerbated by each of them having to travel across the city of Melbourne.

13. In summary, the father argues that if L is to reside primarily in his care then it is sensible that he should attend a school relatively close to the father’s home, thereby removing a stressor namely, the need for the child to be in a motor vehicle for an extended period of time to and from school.

14. This also impacts on the extent to which L would spend time in the care of his mother during school term times.  Put simply, it is the father’s case that the mother has been unable to ensure L’s attendance at school in circumstances where G School is not far from the mother’s home.  If she has to travel across Melbourne to ensure that L will get to school and then be picked up, the problem of his attendance at school is likely to be exacerbated.

15. At the conclusion of the evidence and during the final submissions, the mother changed her position.  In effect she resiled from the concessions that she had made namely, that L would live with his father and spend time with the mother, but instead reverted to the orders sought in her Response.

16. Submissions were received as to whether this would create a difficulty for the father and the ICL, whether there would need to be any opportunity given to the mother and therefore the father and the ICL to adduce further evidence.

17. All parties agreed that the mother’s late application would cause no prejudice and that there was sufficient evidence available to enable the Court to make final orders.

18. The trial commenced before me on 17 March 2014 with evidence being taken on 17 and 18 March 2014 and on 12 May 2014.  The parties made final submissions and judgment was reserved.

19. The father relied upon the following documents:-

    (1)Amended Initiating Application filed 22 November 2013.

    (2)Trial Affidavit of father filed 22 November 2013.

    (3)Case Outline and Summary dated 14 March 2014.

20. The mother relied upon the following documents:-

    (1)Response to Initiating Application filed 27 September 2012.

    (2)Trial Affidavit of mother sworn 18 February 2014.

    (3)Affidavit of mother filed 27 September 2012.

    (4)Affidavit of Dr S filed 17 December 2012.

21. The ICL relied upon the following documents:-

    (1)Affidavit of Dr A filed 17 March 2014.

    (2)Affidavit of Dr J filed 12 December 2012.

    (3)Affidavit of Ms K filed 12 December 2012.

    (4)Report of Family Consultant dated 25 February 2014.

    (5)Outline of Case for the ICL together with Minute of proposed final orders filed 13 March 2014.

22. In addition, the Court heard evidence from Ms E, psychologist, in relation to whether L has a diagnosis of autism and if so, how that diagnosis should be brought to account in terms of parenting orders being sought by each of the parties and the ICL.  The parties agreed to the joint tender of a report from Ms E dated 5 May 2014 and before the Court as “Exhibit 5”.

23. At the commencement of the proceedings, I indicated to counsel that I had general regard to the provisions of Division 12A of the Act.  In particular, I brought to account the provisions of Section 69ZN.

24. In terms of the applicability of the provisions of the Evidence Act 1995 (Cth), I was not satisfied that the circumstances likely to be presented in the proceedings were exceptional and accordingly, considered that the provisions of Section 69ZT should apply.

25. The parties did not speak against such an approach and it was generally agreed that I would exercise my discretion as to the extent that I would consider or disregard evidence presented of the orders that each of the parties sought.  Even in circumstances where evidence is received but would in the ordinary course be otherwise inadmissible, it is a matter of the weight that I give to such evidence.

26. Following a detailed explanation to the mother of court procedure and conduct, I consider that she was afforded procedural fairness consistent with the guidelines discussed in Re F:Litigant in Person Guidelines (2001) FLC 93-072.

FAMILY VIOLENCE

1. In her affidavit, the mother alleges that both she and the children have been the subject of family violence.

2. At paragraph 12 the mother records:-

   During the incident at our home in … 2003 where a [police incident] occurred, police records state that [the father] “continually refused to surrender, threatening self-harm and destruction of the family home”.

   [The father] clearly became agitated…slashing and waving kitchen knives at police and finally threatening the use of firearms…

3. The mother further alleges that the father engaged in sexual, physical and emotional abuse, that he has a poor criminal history and has been incarcerated on at least three occasions.

4. The mother alleges that she has sustained injury as a result of the behaviour of the father.

5. To some extent, the father does not cavil with the allegation that he has a history of violent and aggressive behaviour.  The father admits a police incident in 2003 and notwithstanding his explanation that his behaviour was the result of his inability to cope with the breakdown of the relationship between he and the wife and him learning that she was having extra-marital affairs, nonetheless, he accepts his behaviour was unacceptable.

6. He also admits to an assault on New Year’s Eve in 2006 during which he says the mother was “hit unintentionally when she tried to intervene”.  The father ultimately pleaded guilty to an assault charge.

7. The father does not accept that there were other occasions when the mother was assaulted by him, but does accept that during this period his behaviour could be considered as hostile and aggressive.

8. It is the father’s case that once the stressor of the dysfunctional relationship between he and the mother came to an end, there have been no examples of aggressive or violent behaviour and he is certainly not in need of any psychiatric intervention.

9. Notwithstanding that there is a poor relationship between the parties, the mother does not seek to promote her allegation that the father demonstrated family violence as a significant issue in the proceedings.  She accepts that L is not at risk from the father and that their relationship is strong.

10. As will be seen, the father’s allegations in respect of the mother’s mental health is also tempered by his recognition that the child should spend significant and substantial time with her.

11. The mother’s case is not that because of family violence the father presents as an unacceptable risk of emotional and psychological damage to the child.  Family Violence therefore is not central to the mother’s case notwithstanding that it is properly raised and the subject of comment and response by the father.

12. I do not consider that the issues are similar to those faced by the Full Court in Maluka & Maluka (2011) FLC 93-464 where an order was sought to terminate the relationship between the father and the child.

13. The basic proposition that L should reside primarily in the care of the father is strongly supported by the ICL and initially conceded by the mother.

BACKGROUND.

1. The father was born in 1970 and he is aged 44 years.  He is a company director and is in full time employment.  The father has re-partnered and is married to Ms Myers.  The father and Ms Myers have a child M now aged 18 months.  The mother was born in 1974 and is aged 40 years.  She has re-partnered with Mr Rice and they have a child N now aged 5 years.  The mother is a qualified healthcare worker.

2. The parties commenced their relationship in 1995 and were married in December 1996.  They separated on 13 March 2007.  A Divorce Order was made in May 2008.

3. As set out, there are three children of the marriage namely F, B and L.  F is in her final year of secondary school and B is in Year 10.  As discussed, L is currently in Year 4 at G School.

4. Following separation, proceedings commenced in the Family Court on 3 August 2007.  The father sought orders that the three children live with him and spend regular time with the mother.

5. An order was made by consent on 22 August 2007 which provided for the children to live with the mother and spend regular time with the father.

6. Those orders regulated the arrangements for the parenting of the children until orders were made on 1 October 2012 which provided for the children to live with the father and spend limited time with the mother.  The father alleged that the mother had suffered three serious episodes of psychiatric disorder since July 2012.  The allegations should be seen against an assertion that the mother has suffered from bi-polar disorder present over a long period of time.

7. The circumstances were made more complex by the resistance of F and B to spending time with the mother.  The orders therefore focused on L.

8. The proceedings were adjourned to enable a family report to be prepared by Ms K and psychiatric reports in respect of each of the parties to be undertaken by Dr J.

9. By order made 27 November 2012 time spent between L and his mother was significantly increased subject to detailed conditions.

10. By consent, orders were made on 17 January 2013 which provided for the parties to have equal shared parental responsibility for the three children with F and B to live with the father.  L lives with each of the parties in alternate weeks (week about).

11. The order also provided that L remain enrolled at G School for the balance of his primary education.  It was intended that Order 3 (that the parties have equal shared parental responsibility) should be on an interim basis only.  The orders of 17 January 2013 have regulated the parenting arrangements in respect of the three children, but in particular L to the present date.

12. It is the father’s position that those orders are no longer in L’s best interests as exemplified by the mother’s inability to ensure the regular attendance of L at school.  For her part, the mother considers that the orders are also adverse to L’s interests in that the child suffers from various behavioural and physical disorders which on her case the father either refuses to accept or gives scant regard. B has had little or no communication with her mother for nearly two years.  F has a better relationship with the mother and has spent time with her at her discretion and by agreement with the mother.

13. Notwithstanding the orders of 17 January 2013, it is the father’s position that L has spent the majority of time with him.  By way of an example, he says at paragraph 41 of his affidavit filed 22 November 2013:-

    Although the orders made on 17 January 2013 stipulate that the wife and I are to share the care of [L] on a week about basis, the reality is that he has spent much more time living with me than with the wife.  The wife has regularly asked me to look after him for additional days or weeks to fit around her holidays and other things.  On other occasions she has agreed to him having extended stays with me at my request.  Usually the way this happens is that [L] hassles me to phone the wife and ask if he can stay longer with me.  Usually the wife agrees to those requests.  I have recorded on a calendar the nights that [L] has been with me since 1 March 2013.  Out of the 263 nights since then, he has been in my care for 182 nights.  Recently, he stayed with me for 40 out of the 43 days between 13 September and 25 October 2013.

14. The mother does not agree with the detail of the father’s allegation but generally agrees that “[L] has wanted to spend more time with his father and I have agreed to this without hesitation”.

1. The mother does not disagree with the father’s assessment of the child’s attendance record at G School as being “appalling”.

2. Whilst the father concedes that when L has been in his care there were occasions when the child was either late or missed school, it pales in comparison to the poor attendance record by L when in the mother’s care.  The father’s position is that the significant distance between his residence and the child’s school is a proper explanation for any tardiness on his part, but that the mother has no such excuse.

3. The mother agrees that when in her care L has refused to go to school and that she is unable to persuade him otherwise.

4. She does however accept that L has problems at school and these can be summarised as follows:-

   ·That he has very poor eyesight.

   ·That he is “faecally incontinent”.

   ·As a result of his faecal incontinence L has difficulties in socialising and is the subject of bullying.

   ·He has behavioural difficulties which are exacerbated by his faecal incontinence.

5. School at times is not a happy place for L and the mother opines that his reluctance to attend school should be seen in context.  Importantly, the mother concedes in her evidence that the father is likely to have more success in ensuring L’s attendance at school.

RELEVANT ISSUES

1. The father still considers that the mother’s ability to parent is significantly affected by ongoing mental health issues.  The mother denies that is the case and whilst she accepts that she has had a history of mental illness, it is her position that she is and has been treatment compliant and that her mental health has been stable for a considerable period of time.

2. L has expressed a preference to reside with the father and whilst historically that has been accepted by the mother, she raises a proper concern that the father has difficulty in accepting that there are medical and behavioural issues that impact upon L and that they cannot be ignored but rather, ongoing treatment is required.  In short, the mother says that she is the parent that better understands the medical and behavioural issues that impact on L and is better placed to coordinate his care.

3. Where L attends school remains a live issue.  If L’s primary care is with the father then it is his position that L should attend a school geographically close to his residence.  Whilst the mother concedes that L may well reside primarily with the father, she promotes G School as having the advantage of familiarity both in terms of course curriculum and socialisation.

4. The inter-relationship of the various factors affecting L are potentially relevant to the time that he should spend with each of the parties.

EVIDENCE OF THE PARTIES

1. The father was cross examined by the mother and then counsel for the ICL.  A focus of his evidence centred upon his assertion that as recently as 14 March 2014 the mother was still experiencing difficulties in having L attend his school.

2. He was steadfast in his assertion that he would have more success in this respect than the mother and proposed that L would attend a school closer to his residence namely, D School where there is a position available immediately, or preferably C School which is closer to the mother but at present no places are available.

3. The parties have not been able to agree on matters of education and accordingly the Court will need to decide where L will attend school.

4. The father denied that he and his family are generally negative towards the mother.  Whilst not determinative, I did not find the father’s denial credible and I find that there is either a negative environment in the father’s home in respect of the mother, or there is an absence of the father positively promoting the mother’s relationship with the children.

5. He was however confident that once the proceedings were concluded there would be some opportunity for the parties to improve their relationship and communication.  The focus of the mother’s cross examination was to challenge the assertion by the father that he is aware and responsive to the health issues that impact on L and that notwithstanding any view to the contrary he may have held, he recognises the need to follow medication and treatment plans as may be recommended by health professionals involved in the child’s care.  It is clear from the tenor of the mother’s cross examination that she does not accept the assurances given by the father.

6. The cross examination by counsel for the ICL was more revealing.  Examples were put to the father of his reluctance to pass on information to the mother in respect of L’s care.  In particular, when the father took the child for an X Ray following a referral from Dr A, the mother was not given any advice or information.  Of recent date, when L fell over at school grazing his knee, hip and shoulder, the mother was not told in a timely fashion.

7. The father was questioned generally as to the likelihood that he would be more successful than the mother in having L attend school.  The father gave a credible response acknowledging that L was manipulative and thought that if the child was free from the significant travel that currently is in place, this might provide a more conducive atmosphere.

8. It is a point of difference that the mother contends a significant issue for L is his faecal incontinence and the odium that the child experiences at school as a result.

9. In general, I considered that the mother has more insight into the complexities of the child’s medical presentation and its more general impact than the father.

10. The father did however impress that he will take on a much greater involvement in L’s schooling including the payment of all school fees and other expenses.

11. The mother was cross examined on her ability or otherwise to ensure L attends school whilst in her care.  Ultimately, the mother accepted that there were significant gaps in L not attending school when in her care.  The mother attempted to explain the child’s reluctance by reference to tantrums, ill health and poor behaviour generally.

12. Whilst I was not impressed with the mother’s evidence on this topic, I do not consider that she deliberately encourages his non-attendance at school but rather, lacks the forcefulness necessary to require L to go to school.  The mother did impress with her commitment to support L’s education generally.

13. It was put to the mother that even at G School L’s attendance record was poor. The mother agreed and considered that perhaps G School may not even be the appropriate school for L.

14. She raised an obvious difficulty with L attending either D School or C School namely, that whereas the father complained of the distance of G School from his home, the same would thereafter apply to the mother.

15. Ultimately the mother accepted that notwithstanding the current orders L had spent significantly more time with the father than in her care during the school term time but in particular during school holidays.  Under cross examination the mother admitted that she would be amenable to L spending four nights a fortnight with her, rather than the five nights that formed part of her opening.

16. The mother’s evidence focused upon L’s faecal incontinence and it is clear that she views this issue as overwhelming for the child.  The mother recognises that L has significant adverse behavioural issues, may well feature on the autism spectrum disorder and is school resistant.  I formed a favourable view of the mother’s insight in respect of the health and behavioural issues that impact on the child.

17. I did not find that either of the parties were attempting to be deceptive and both gave their evidence in a manner which conveyed their different but clearly genuinely held positions.

FAMILY CONSULTANT

1. With the consent of the parties, Family Consultant Mr O gave his evidence at the commencement of the proceedings.  Essentially his evidence focused on his family report dated 25 February 2014.

2. The family consultant was supportive of a change in the residential arrangements for L in that he should live primarily in the care of his father and spend time with his mother each alternate week from Friday after school until the following Tuesday.  Importantly, L should attend a school that is geographically close to the father’s home, except in circumstances where if his learning requirements require him to attend “a special school” then this should be a factor when the parties come to consider an appropriate school.

3. The family consultant records the current arrangements and notes that notwithstanding the current orders provide for L to live with each of his parents on a week about basis, of recent date he has spent significantly more time with his father than with the mother.  The mother has complied with L’s wishes and accordingly, the parties have come to their own arrangement in respect of L’s care rather than requiring strict compliance with the orders.

4. It is important to note that in the interview with the mother, her expressed wish was that L would spend nine nights with the father and five nights with her.  That presentation to the family consultant was consistent with the orders sought by the mother in her opening, but inconsistent with her changed position adopted at the conclusion of the evidence.  Accordingly, the focus of the family consultant was in respect of a difference between the parties of the father seeking that L spend three nights a fortnight with the mother and her position, that it should be five nights.

5. As anticipated, there remained a dispute in the parties’ presentation to the family consultant as to the state of the mother’s mental health.  The father considered that the mother presents as being “unstable” and that her moods were like “a roller coaster”.  The mother denied that she was currently experiencing adverse mental health, she said she was stable, had not been hospitalised for some significant time and was not abusing alcohol.

6. The family consultant recorded what was self-evident in the proceedings namely, a significant difference in the recognition and approach by each of the parties to the topics of L’s physical health and whether he has a learning disability.

7. When brought to his attention, the father did not accept the import and consequences of the child’s constipation.  It was only when he made his own subsequent medical enquiries that he was prepared to be medication compliant.  Not surprisingly, the mother asserts that the father was resistant to any suggestion, observation or advice that she might give as to L’s need for medical intervention.

8. Similarly, whilst the mother considered that L may be exhibiting “markers” consistent with autism and at the very least resulting in a demonstrable learning disability, the father “totally dismisses the view that [L] is either autistic or has any form of learning disability.  He pointed out that his ex-wife has a habit of making “diagnoses” when in fact there is nothing wrong”.

9. Fortunately the Court is assisted by evidence from health professionals involved in L’s ongoing care.

10. The family consultant records that there is “general agreement between the parents that [L] should be at a school that is close to where he resides the majority of the time”.  The parties however are not able to agree to a school and to some extent that issue may be determined as to whether L has special learning requirements.

11. Regrettably, the family consultant clearly observed the poor parental dynamic and that their relationship “continues to be characterised by a lack of effective communication, cooperation and trust.  This dynamic is unlikely to resolve towards a more positive aspect in the foreseeable future”.

12. The mother asserted to the family consultant that the more time that L remained in her care, the better opportunity would exist for her to properly manage his medical issues and his learning difficulties.  She was critical of the father in that historically he had played little part in L’s education but that his current presentation was largely disingenuous.

13. She did however concede that “I think he loves his kids, but part of it is going at me…his heart is in the right place.  He loves the children…he wants to have them but does not want to take on the hard things”.

14. A significant issue is the inter-relationship between the siblings.  F and B were interviewed separately by the family consultant and whilst it was recorded that F has largely reconciled her difference with her mother, B suggested that once the proceedings had concluded, she may well seek to establish a relationship with her mother.  As recorded, the family dynamics had significant impact upon the family consultant and he considered that the information provided by F and B was important and even persuasive.  He records that:-

    Their narrative was concise, unambiguous and extremely enlightening.

15. L was interviewed on his own.  The family consultant recorded that his level of engagement was cautious and the overall summary is that L considered he has a better relationship with his mother than his father.  He clearly wishes to spend more time in the father’s home but that there were occasions when he did miss time with his mother.

16. There were no adverse issues recorded by L other than his perception that he has more fun in his father’s home than in the home of his mother and that “sometimes she yells at me, and she smokes in the car, and I have asthma”.

17. As an example of L’s disturbed behaviour, he was asked about an incident in which it was alleged that he had pulled a knife on F.  L denied any knowledge of the matter, but it was confirmed and corroborated by each of the parties.

18. L was not able to be observed in interaction with the mother.  He refused to see the mother and ultimately he stated that his refusal was out of a fear that the mother would be angry with him.  L clearly understands that he can be manipulative in the care of his mother.  It seems that the mother is simply unable to deal with L when he is in full flight.  Whilst this behaviour may also be replicated whilst in the care of the father, it is likely that the father has more ability to impress upon L the consequences of his adverse behaviour and it may simply be that L perceives he is not able to manipulate his father as he can his mother.  Issues of physicality are likely to be relevant considerations.

19. The family consultant considers the central issue in the proceedings namely, whether the mother will be able to facilitate L attending school in general and whether this is exacerbated the more time that L spends in her care.  Put simply, on the mother’s stated case this would require her to take L to school on three days a fortnight and in the opinion of the family consultant, taking into account the “current pattern of absenteeism that has emerged” the prospects are not good.

MENTAL HEALTH OF THE MOTHER

1. The parties underwent psychiatric assessment by Dr J, with his reports forming annexures to his affidavit filed 12 December 2012.  It should be noted that a period of 15 months has elapsed since the reports.

2. Dr J was not called for cross examination and his reports are relied upon by the ICL.

3. A summary of his assessment of the psychiatric functioning of the mother relevant to these proceedings appears at page 9 of the report:-

   There does not appear to be an absolute contraindication to a gradually increasing amount of contact between [the mother] and her children, but it will be several months, if not a year before it may be more confidently observed that [the mother] has developed and maintained the necessary stability, insight, motivation and compliance to state that the course of both her bi-polar effective disorder and alcohol dependence has changed significantly.  Over this period, her new psychiatrist will become more familiar with her psychiatric conditions, and must be in a better position of evaluation.  Even with the best of scenarios, [the mother] is suffering from conditions which both have significant relapse rates.  Both conditions can trigger an episode of the other condition.  Further, there will be other life stressors ahead, by which both psychiatric conditions may be triggered.

4. That assessment is unchallenged by the parties, but it seems implicit from the manner in which the case was conducted that the father generally accepts there has been improvement in the mother’s mental health and therefore the extent of the impact that it has on the parenting issues.  The father’s case is not that the time that L spends with his mother should be significantly restricted or indeed subject to conditions but rather, the orders that he seeks are based upon the child’s wishes and the practicalities of L’s education.  A summary of the presentation of the father is to be found at page 7 of the report:-

   In summary, a Court will hear the totality of the evidence, and decide the issues involved.  Taking into account that this examiner can only accept the available history at face value, there is insufficient evidence to suggest that ongoing fulltime or part-time care by [the father] of his children is contraindicated for psychiatric reasons.  Psychiatric issues do not currently appear to be a significant factor with regard to his ability in being an appropriate caregiver.

DR A

1. The evidence of this witness was given with the consent of the parties by telephone link.  She is a consultant general and developmental paediatrician possessing qualifications and experience at the highest level.  There was no challenge to her qualifications and notwithstanding that her evidence was given remotely, I do not consider that the force and import of it suffered as a result.

2. The basis of the evidence of Dr A arises from a report dated 4 March 2014 being an annexure to her affidavit filed 17 March 2014. Dr A first examined the child on 20 May 2013 in respect of concerns centred on chronic constipation and encopresis (faecal soiling).

3. The parties continue to ensure L attends regularly upon Dr A.

4. Upon initial examination, Dr A considered that “the level of constipation exhibited by [L] was extreme”.  The mother reported that the faecal soiling was consistent across all activities undertaken by the child, but in particular had a devastating personal effect when it was apparent at school.

5. Whilst Dr A could not find any underlying cause of the constipation such as an obstruction or other relevant physiology, nonetheless there is no doubt that the symptoms are acute.

6. It was appropriate therefore that there be a therapeutic investigation as to whether there is a psychological overlay which may be exacerbating the condition.  Ultimately, L was referred to Ms E, psychologist, situate at Practice Q.  The basis of the referral was the concern of the doctor that L would need “ongoing support, behavioural strategies, but also because I was and remain concerned that [L] has a socialisation difficulty”.

7. The treatment regime involves the appropriate administering of laxative and enema based medication.

8. The doctor confirmed that L’s best interests would be served by both parties being integrally involved in his treatment and whilst I find that the evidence of this witness supports the contention that the mother is generally more attuned to the medical issues affecting L, the father nonetheless accepts the assessment of the doctor and is prepared to involve himself in the treatment program.

Ms E - PSYCHOLOGIST

1. Arising from the referral by Dr A, L was seen by Ms E, Psychologist “in order to obtain information regarding behavioural, emotional and learning difficulties”.  The following assessment was done as a differential diagnostic procedure regarding autism spectrum disorder, attention deficit/hyperactivity disorder and/or other regulatory disorders, and to examine L’s level of intellectual functioning.

2. The expertise of this witness was not challenged.  Her evidence arises from her report which comprises “Exhibit 5” in the proceedings.

3. Following a comprehensive assessment, it was the considered opinion of Ms E that L “does not meet criteria for an autistic spectrum disorder but does currently meet criteria for an attention deficit/hyperactivity disorder – inattentive type which impedes learning but does not result in externalising behaviour”.

1. This diagnosis and its sequelae have considerable implications for L.  The witness opines that deficiencies with respect of his memory and verbal skills “carry implications for learning and indicate that [L] will need accommodation in the classroom”.

2. Of greater currency however is the inter-parental conflict that exacerbates his current learning difficulties.  L is demonstrably anxious and much of his behaviour can be explained by the destabilising effect of the internecine dispute.

3. A further risk is that in the opinion of the witness “[L] is at risk for worsening mental health and regulatory difficulties, and he and his parents require significant and guidance in developing strategies for emotional regulation, limit setting and behaviour management”.

4. Importantly, the witness considered that L did not have an intellectual disability or disorder that would require his enrolment in “a special school”.  He will however require more one on one and intensive teacher student involvement and as such the focus in respect of the appropriate school should centre upon “how well a school can cater for [L’s] individual needs”.

5. Accordingly, L’s interests will be best served if the parties are able to work together and with L’s school to ensure that there is a cohesive and comprehensive strategy in place to meet the child’s refusal to attend school.

6. The witness has had dealings with each of the parties.  She makes no adverse comment in respect of their genuine interest and involvement with the child, but she considers that the father is likely to be more firm and his sheer physicality is such that L is more likely to attend school in the care of the father.  The witness describes L’s anxiety as “relational”.

7. At his current level of functioning, it is unlikely that L would keep up with Year 4 level work.  L needs an individual learning experience and this would be achieved by an “individual education program” designed to address the child’s needs and weaknesses.  A Grade 3-4 composite class may be of assistance.

8. L was found to be neither more or less comfortable in each household.

9. Accordingly, it is the opinion of the witness that a reduction in the inter-parental conflict together with a concerted approach to ensure that the child’s school refusal is minimised is most likely to be conducive to his proper development.

THE LAW

Issues and Considerations

1. The parties each seek an order that they have equal shared parental responsibility in respect of L.  The father seeks an order that he have sole parental responsibility in respect of his care of B. At the conclusion of the proceedings this was not strongly pressed.  It is common ground that F spends significant time with her mother but subject to her wishes. There was little evidence presented in respect of B save as was raised in the report and evidence of the family consultant.

2. On the basis therefore that I am being asked to make an order in the above terms, I propose to adopt the following approach namely:-

   (1)Give consideration to the proposals put forward by each of the parties as they were identified and presented to the Court.

   (2)Have regard to the objects expressed in Section 60B (1) and the underlying principles in Section 60B (2) having regard to the provisions of Section 60CC in order to determine what is in the child’s best interests.

   (3)Have regard to the primary considerations under Section 60CC (2) and (2A) namely, the benefits to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm.

3. The additional considerations as set out in Section 60CC (3):-

   (4)The evidence adduced by each of the parties in respect of the particular considerations pursuant to Section 60CC (2) and (3) are to be considered and if more weight is to be given to one or more of the matters then this must be the subject of delineation and comment.

   (5)Section 61DA requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having appropriate regard for the matters as set out in Section 61DA (2) which would rebut the presumption if a person or persons living with the child has engaged in:-

   (a)abuse of the child or another child, (who at the time was a member of the parents’ family), (or that the other person’s family); or

   (b)family violence.

   (6)Section 61DA (4) provides that the presumption may be rebutted by evidence that satisfies the Court 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.

4. Section 60CC is to be utilised in order to determine the question about best interests and the issue of whether an order for substantial and significant time would be reasonably practicable is to be determined by reference to the provisions of Section 65DA (5). There will of necessity be some overlap in terms of assessing whether a proposed order is reasonably practicable and in that regard the decision of MRR v GR (2010) 240 CLR 461 at 467 is of assistance:-

   Section 65DA (1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in Section 61DA (1) is not determinative of the questions arising under Section 65DAA (1). Section 65DAA (1) (b) requires a practical assessment of whether equal time parenting is feasible.

5. In the current circumstances there is little that has an adverse impact upon the practicality of each of the parties’ proposals.  L is familiar in each his parents’ households.  The evidence of Ms E is that L does not have a preference.  The implication however is that he is comfortable when with his mother and his father.

6. Whilst there has been some equivocation in the proposal by the mother, the practical effect is that he would spend more or less time with each of his parents.  The advantages as put forward by the father is that if L remains primarily resident in his household, the travelling time would be significantly reduced to and from school and that there would be a greater likelihood of L attending school.  The situation is not quite so certain on the mother’s proposal.  There is uncertainty as to whether L would continue to attend G School if he remained predominantly residing in his mother’s household.  There is uncertainty as to whether fanning her best of intentions, the mother is able to reliably resist the child’s refusal to attend school.  It may be the case that she will have even less success if she is required to transport L to and from school that is near the father’s residence.

7. Notwithstanding these considerations, it could not be said that either of the proposals of the parties are not reasonably practicable.

Considerations pursuant to Section 60CC (2) (a)

1. It is clearly important that L maintain a meaningful relationship with each of his parents.  It is not suggested, nor do I find that the proposals of either of the parties is likely to impact significantly on the relationship that L has with his parents.

2. Importantly, I am obliged to consider orders that in all the circumstances are in the best interests of the child and have as a primary focus (subject to Section 60CC (2) (b)) the opportunity to develop and foster a meaningful relationship between L and his parents.

Section 60CC (2) (b)

1. The mother alleges that the environment in the father’s home is not supportive of a relationship between the mother and L.  The mother contends that L’s oppositional behaviour in her home can be explained in part by the father’s inability and/or refusal to set parameters for the child which include appropriate behaviour in his mother’s home and adopting a respectful attitude towards her.

2. There is no doubt that there is a long history of inter-parental conflict.  I am not satisfied that these proceedings have necessarily caused the parties to change their attitude towards the other, but it seems that where their focus is required by matters affecting L, there is an ability to do that which is necessary to assist in his development.  The parties impressed both Dr A and Ms E with their desire to support L.

3. Notwithstanding the history of family violence as alleged by the mother, she did not seek to bring those matters to account and accordingly, I am not obliged to bring to account any consideration of the need to protect the child from physical or psychological harm.  This is not a case where there are any allegations that would be consistent with abuse, neglect or family violence.

Section 60CC (3) (a)

1. At times each of the parties assert that L has expressed a wish to reside with that party.  I am generally of the view that the evidence supports L wishing to live predominantly with his father.  Since the orders in 2013, it is common ground that L has spent more time in his father’s care.  This arises from L expressing a desire to do so and the mother being respectful of the child’s wishes.

2. The evidence of the family consultant would also support this contention.

3. The issue therefore is not whether there is a wish expressed by the child, but the weight that the Court should give to his views.

4. The family consultant records that L can demonstrate manipulative behaviour.  In particular, he considers that the ground is more fertile in his mother’s home and accordingly, there are more examples of the child pushing boundaries when in her care.

5. This would suggest a level of immaturity and as such a cautious approach should be adopted.  L does however give cogent and particular reasons for wanting to spend more time in his father’s home.  He considers that he is better stimulated with his father and that there are more activities than at his mother’s home.

6. The issue of the child’s wishes is therefore finely balanced.  What is important however is that if I accept the views expressed by L at face value, whilst this would suggest a preference for the father’s home, it is a point weakly pressed.

Section 60CC (3) (b) and (c)

1. Whilst the child has at times a difficult relationship with his mother, the evidence does not support a finding that the relationship is fractious or marked by high conflict.  L enjoys the time that he spends with his mother but has recognised his ability to manipulate the situation by understanding that his mother is less equipped to deal forcefully with his oppositional behaviour.

2. Each of the parties has significant affection and relationship with the child.  There is no doubt on the evidence of the family consultant that L loves each of his parents.  For the mother’s part, whatever criticism she has of the father she concedes that he loves and has a strong affection for the children.  The father does not suggest otherwise in respect of the mother.

3. There is however a demonstrable difficulty in the ability of the parties to work cooperatively or at all.  There is still significant mistrust and the willingness of the parties to communicate with each other remains troubled.

4. Fortunately, the evidence from the health professionals would suggest that when faced with the reality of the situation both parties are able to reach a proper accord.

5. Each of the parties alleges that the other is not supportive of a relationship between L and the other parent.  To some extent that consideration is tempered by the orders that each of the parties seek, which whilst directed towards L living primarily with one or the other, nonetheless a concession that the party with whom L does not live primarily should nonetheless retain significant and substantial time.

Section 60CC (3) (c) (a)

1. L is comfortable in the home of each of the parties.  They have fulfilled their respective obligations to maintain the child.  The child has a proper relationship with the new partners of each of the parties and there is no allegation of deprivation or privation by one party against the other.

2. The mother does of course allege that the father is not well skilled to be able to assist L in his homework and to support his academic development generally, whereas the father considers that L may be at risk in the event of a psychiatric episode or the mother resuming substantial consumption of alcohol.

Section 60CC (3) (d) and (e)

1. The significant difference between the parties in terms of their proposed arrangements for the children would again seem to focus on the single dominant issue namely, the ability of each of them to ensure L attends formal school education.  It is accepted by the mother (albeit for a variety of different reasons) that she has not met with much success in ensuring that L attends school.  This is the case notwithstanding that the school is of her choice and situate close to her residence.

2. The father asserts that he will have better success in ensuring L’s attendance at school, particularly if the child is living with him primarily and he attends a school that is close to his house.

3. There will be a change for L if he leaves the equal care of his mother’s home for the primary care of his father’s home.  L is however well received in each household and by the occupants of same.  Living with the father may well have the advantage of promoting a “new start” for L.  The residence of L in his father’s home is supported by the ICL and the family consultant. There is also the strong recommendation that if L resides primarily in his father’s care then there is every good reason that L should attend school close to his father’s home.

4. Accordingly, I do not find that there is a significant difference between the parties in respect of their respective arrangements and proposals for the child.

Section 60CC (3) (f)

1. The parties are each able to provide appropriately for the child.  The parties are respectful of the child’s needs and albeit with some reluctance the father now accepts that he must play an active and supportive role in dealing with the health and behavioural issues that currently impede L’s development.  Whilst I have found that the mother is generally more attuned to L’s needs and his developmental deficiencies, she must be careful that these matters are placed into context namely, that the clear explanation for a significant component of L’s distress and anxiety is the parental conflict that is clearly evident.

Section 60CC (3) (g) (h) (i) (j) and (k)

1. The application of these sections are irrelevant to the matters that I have to decide.

Section 60CC (3) (l) and (m)

1. Taking into account L’s age and circumstances, I consider that orders that would see L’s primary care being resident with the father would be the outcome least likely to lead to further proceedings being undertaken by the parties.

2. There are no other facts or circumstances that I consider should be brought to account.

PARENTAL RESPONSIBILITY

1. It is clearly in the best interests of the child that the parties have equal shared parental responsibility.  They each seek it and in doing so confirm an intention to adopt a more cooperative and consensual approach to major issues affecting the child’s development.

2. There are no grounds that would support either the presumption to be rebutted or would speak against the position that each of the parties urge upon the Court.

3. Consideration was given as to whether education and health should be left to one or other of the parties on the basis of an apparent inability or reluctance to communicate with each other.

4. On balance I do not consider such approach would be in the child’s best interests.  The parties have started the process of involving themselves in health considerations affecting L as evidenced by Dr A and Ms E.  That approach needs to continue and be fostered.

5. There is no reason why the mother should not be involved in matters of L’s education, nor any reason why the father should not be involved in matters affecting L’s health.

6. As a result of determining that I will fall in with the request of the parties for an order that each of them have equal shared parental responsibility for L (and B), I note that each of the respective proposals of the parties are both reasonably practicable.

CONCLUSION

1. I propose to make orders that would see the recommendations of the family consultant and the strong submissions of the ICL put in place.  Against an order of equal shared parental responsibility, I consider that it is in the child’s best interests that he live primarily with his father but spend significant and substantial time with his mother.  I do so acknowledging that this was the position adopted by the mother both in her interview with the family consultant and also at the commencement of these proceedings, but taking into account that in her final submissions she has reverted to the orders she seeks in her application.

2. I do not consider that L’s best interests would be served to live primarily with the mother.

3. If it were not for the issues surrounding the child’s refusal to attend school when predominantly in the care of the mother, consideration would have been given to the mother’s initial position namely, that L spend five nights a fortnight with her during school term time. That is not the case however.  The mother has a demonstrable inability to ensure that L attends school and there is evidence that L understands his ability to manipulate his mother.  There may be a number of underlying reasons but there is good sense in the recommendations of the family consultant and as supported by the ICL that L should attend a school within a reasonable distance from where he will primarily reside, in this case with his father.

4. The father’s proposal of three nights a fortnight is inadequate and would not allow the mother to remain involved in L’s school life.  Hitherto she has had an active involvement and that has been to the benefit of the child, not his detriment. That must be tempered with the child’s poor attendance record predominantly when in her care.

5. Given the distance between the homes of each of the parties, some weight needs to be given to the assertion of the father but supported by the family consultant that extended travelling time may have an adverse impact on the child and may be in part an explanation for his school refusal.

6. Accordingly, L will spend time with his mother from after school on Friday until the commencement of school on Tuesday of each alternate week together with one half of the school holidays and other times as may be agreed.

7. It is important that L be settled in a new school at the earliest opportunity but in time for the second half of the 2014 academic year.  I propose to allow the parties an opportunity to reach an agreement as to an appropriate school, but in default I will order that L will attend C School or D School as a default position providing that any school at which L attends shall have the ability to provide an Individual Education Plan (IEP) and an ability to provide “directed instruction and predictable and achievable learning”.

8. It shall be a requirement of any enrolment that the parties provide the school with a copy of the reports of Dr A and Ms E to ensure that any nominated school is able to provide a considered response to their ability or otherwise to cater for L’s needs.

9. Accordingly, I make orders as appear at the commencement of these reasons.

I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 27 June 2014.

Associate: 

Date:  27 June 2014.