Phillips & Francis
[2022] FedCFamC2F 1413
Federal Circuit and Family Court of Australia
(DIVISION 2)
Phillips & Francis [2022] FedCFamC2F 1413
File number(s): MLC 10260 of 2020 Judgment of: JUDGE BURT Date of judgment: 20 October 2022 Catchwords: FAMILY LAW – CHILDREN – RESIDENCE – child’s best interests – where there is a lack of parental cooperation and communication – where the child has been exposed to parental conflict – weight to be given to the views of the child – change of residence. Legislation: Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 65DAA
Cases cited: Beckham & Desprez (2015) 55 Fam LR 310; [2015] FamCAFC 247
Bondelmonte v Bondelmonte (2017) 259 CLR 662; (2017) 341 ALR 179; (2017) ALJR 402; [2017] HCA 8
Isles & Nelissen [2022] FedCFamC1A 97
Johnson and Page (2007) FLC 93-344; [2007] FamCA 1235
Jurchenko & Foster (2014) 51 Fam LR 588; (2014) FLC 93-598; [2014] FamCAFC 127
Masson v Parsons (2019) 266 CLR 554; (2019) 368 ALR 583; (2019) 59 Fam LR 503; [2019] HCA 21
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) 41 Fam LR 483; (2009) FLC 93-405; [2009] FamCAFC 92
MRR v GR [2010] 240 CLR 461; (2010) 263 ALR 368; (2010) 84 ALJR 220; (2010) 42 Fam LR 531; (2010) FLC 93-424; [2010] HCA 4
Potter & Potter (2007) 37 Fam LR 208; (2007) FLC 93-326; [2007] FamCA 350
R & R: Children’s Wishes (2000) FLC 93-000; [2000] FamCA 43
Waterford & Waterford [2013] FamCA 33
Division: Division 2 Family Law Number of paragraphs: 185 Date of hearing: 29 and 30 August and 1 September 2022 Place: Melbourne Counsel for the Applicant: Mr Byrne Solicitor for the Applicant: Pentana Stanton Lawyers Counsel for the Respondent: Ms Elleray Solicitor for the Respondent: MMH Lawyers Counsel for the Independent Children's Lawyer: Mr Allen Solicitor for the Independent Children's Lawyer: Melanie Wyatt Family Law ORDERS
MLC 10260 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PHILLIPS
Applicant
AND: MR FRANCIS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE BURT
DATE OF ORDER:
20 october 2022
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The parents have equal shared parental responsibility for the child, X born in 2012 (“X”).
3.X spend time with the father from 3pm on 20 October 2022 until 6pm on 23 October 2022.
4.From 6pm on 23 October 2022 until 20 December 2022:
(a)X live with the mother; and
(b)X spend time and communicate with the father:
(i)during school terms in a two week cycle:
A.in week one: from the conclusion of school on Friday, or 3.30pm if a non-school day, until 6pm on Sunday, or Monday if that Monday is a public holiday or a pupil free day; and
B.in week two: within 20 kilometres of X’s school, from the conclusion of school on Wednesday, or 3.30pm if a non-school day, until 7pm; and
(ii)by telephone or Teams Messenger each Monday and Wednesday (when X is not in his care) at 5.30pm, with the mother to facilitate the time by initiating the call, and X is at liberty to communicate with the father or the parental family at all reasonable times at her request.
5.From 21 December 2022 and thereafter, X live with the father.
6.From 21 December 2022 and thereafter, X spend time and communicate with the mother as follows:
(a)during the school term:
(i)each alternate weekend from the conclusion of school or 3.30pm on the Friday until 6pm on the Sunday and if the Friday and/or Monday is a pupil free day, time commence if a Friday at 10am and if a Monday time conclude at 5pm; and
(ii)subject to confirmation from the mother to the father in writing by 8pm the previous day, each alternate Wednesday from the conclusion of school or 3.30pm until 7pm with such time to take place within a 10 kilometre radius of the father’s home;
(b)during the term school holidays as agreed between the parents in writing and failing agreement from the conclusion of the last day of school until 6pm on the Saturday nearest the middle of the term holiday period;
(c)during the summer school holiday as agreed between the parents in writing and failing agreement from the conclusion of the last day of school until 6pm 21 days later;
(d)for Christmas in 2022 and each alternate year thereafter from 3pm Christmas Eve until 3pm Christmas Day;
(e)for Christmas in 2023 and each alternate year thereafter from 3pm on Christmas Day until 5pm Boxing Day;
(f)on Father's Day from 6pm on the Saturday before Father’s Day until 6pm on Father's Day;
(g)on X's birthday for three hours as agreed between the parents and failing agreement from the conclusion of school until 5.30pm if a school day or from 2pm until 6pm if on a weekend; and
(h)at other times as otherwise agreed between the parents in writing;
7.Each party will facilitate X communicating with the other parent by Kids Messenger and/or mobile telephone at any reasonable time as requested by X and will provide X with privacy for the purposes of that communication.
8.X’s time with the mother pursuant to orders 6(a)(i) and (ii) will be suspended during the Victorian term and summer school holidays and shall recommence on the first weekend after any school holiday period.
9.Changeovers at the start or end of the school day shall occur at the school attended by X and otherwise as agreed between the parties in writing and failing an agreement on Wednesdays in term-time at McDonald’s at V Street, Suburb K and otherwise at McDonald's on the corner of W Street, Suburb U.
the court orders by consent that:
10.The mother be restrained from consuming alcohol to excess (i.e. so as to result in a Blood Alcohol Concentration greater than .05%) when X is in her care.
11.The mother shall forthwith ensure that X and her older siblings have each other’s mobile telephone numbers and other internet based contact details and the parties shall actively encourage X and her older siblings to spend time and communicate with each other.
12.The parents shall continue to communicate via “Talking Parents” or such other parenting app as they may agree to use.
Medical
13.The mother and father shall advise the other parent immediately in the event X suffers any serious illness or injury.
14.The mother and father authorise any medical and/or allied medical practitioner attending upon X from time to time to communicate with the other in respect to X's medical and/or allied medical condition(s) and/or requirements and this order shall stand as authority for same.
15.The mother and father shall make available to the other party any medication prescribed for X for the other parent to administer as prescribed or required.
16.The mother and father forthwith do all acts and sign all documents to engage X with a trauma informed therapist as recommended by the independent children's lawyer and a copy of Dr Q's report dated 30 December 2021 be provided to the therapist.
17.The mother and father forthwith do all acts and sign all documents to engage X with a neuropsychologist as recommended by the independent children's lawyer and a copy of Dr Q' s report dated 30 December 2021 be provided to the neuropsychologist.
18.The mother and father equally share the costs of X’s attendance upon the trauma informed therapist and neuropsychologist, including the costs of obtaining any reports.
Education
19.Both parties do all things and sign all documents required to enrol X at T School, Suburb K (or such other school as may be agreed between the parents) to facilitate her attendance from the start of term one in 2023.
20.The parties shall authorise the principal of X’s school(s) to provide to the mother, at her expense, copies of all school reports, school newsletters, photograph order forms and any other documents or notices normally provided to parents.
21.Each parent is permitted to attend all parent/teacher interviews, sports carnivals and any other school activities which parents normally attend. In the event such activities require an allocation of tickets to families, each parent shall be permitted to have one ticket each and otherwise remaining tickets shall be distributed equally between the parents.
22.Each party be at liberty to provide a copy of these orders to any school or medical professional attended by X.
Restraints
23.The parents are and hereby restrained by themselves, their servants or agents from:
(a)denigrating the other parent and/or allowing their partners or extended family members to denigrate the other parent in the presence of or hearing of X or allowing any third person to engage in such a conduct in the presence of or hearing of X;
(b)allowing X to become aware of the content of any documents prepared in relation to these proceedings or in proceedings in any other court; and
(c)discussing with X any of the evidence given under oath in these proceedings or submissions made in these proceedings;
24.If the parents are unable to reach agreement in relation to X concerning the implementation of these orders or more generally as to the parenting of X the parents shall, at their shared expense, attend upon a family dispute resolution service agreed between the parents in an effort to resolve the dispute.
25.The mother and father shall forthwith undertake and complete:
(a)a Post Separation Parenting Course;
(b)a Tuning into Teens or similar Course; and
(c)any other courses or programs recommended by the coordinators of the, above courses
the court orders that:
26.The appointment of the Independent Children's Lawyer be discharged.
27.All extant parenting applications be otherwise dismissed.
and the court notes that:
A.When the parents or their nominees interact at changeover, the parents shall behave in a courteous manner and not involve X in any dispute or disagreement they may have.
B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
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 Phillips & Francis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURT:
Introduction
The Court is required to determine the parenting arrangements for X, born in 2012, and now aged almost ten. Her parents are unable to agree whether during the school terms she should live primarily with her mother, as at present, or with her father.
There is a long history of conflict between the parents which has had significant and damaging impact on X. Neither parent was able during the trial before me to take responsibility for the effect of their behaviour on X, preferring instead to concentrate on the failings of the other parent. Both parents are to blame for failing on occasions to prioritise her needs above their own.
Both parents focused in their evidence and submissions on allegations of risk in the other household. For the most part, those allegations related to historical matters, such as the mother’s use of alcohol, and family violence said to have been perpetrated by the father towards the mother. Those allegations were the focus of the parents during the trial in spite of their agreement that they should share equal parental responsibility for X, and that her school holidays should be divided equally between their homes. My view is consistent with that expressed by the family report writer in her viva voce evidence, namely that those historical allegations are a “side issue” when compared with X’s current wishes and feelings.
This case is finely balanced. For the reasons set out herein, my view is that it is in X’s best interests to live primarily with her father during term time. My orders provide for her to complete the 2022 school year in the care of her mother and for her to start term one in 2023 living in her father’s home. Her weekends, school holidays and special days will continue to be shared between her parents’ homes as they are at present.
Background and procedural history
The applicant mother is aged 47. She lives in rented accommodation in Suburb B with her husband, Mr C. She works as an educator . X currently lives primarily with her mother and Mr Phillips and attends D School.
The mother has two children from her first marriage, namely Mr E (born in 2004 and now 18 years old) and Ms F (born in 2006 and now 15 years old). Both Mr E and Ms F live with their father, Mr G, in the Suburb H area.
The respondent father is aged 44. He works as a professional in the Employer J. He lives in Suburb K, which is about 80 kilometres and approximately one hour and twenty minutes’ drive from the mother’s home. He has re-partnered with Ms L but they do not live together. Ms L has two teenage children.
The mother’s pregnancy with X was not planned. The parents decided to pursue their relationship only after the mother became pregnant, and for the sake of the child they were expecting.
The parties moved in together in 2012, about a week before X was born. Mr E and Ms F also lived with the parties at that time. Perhaps unsurprisingly, the relationship was unhappy and volatile from the start. The mother says that the father perpetrated family violence towards her and to Mr E and Ms F. The father denies doing so and blames the conflict on the mother’s excessive drinking. There does not appear ever to have been a period of stability or contentment which X would have experienced when her parents were together.
The mother says that the parents separated under one roof in about February 2016.
The parents agree that date of final separation was in May 2016 following an incident involving Mr E. There are differing accounts of that incident which I will discuss later in these reasons. After that incident, the father remained in the former family home and the mother and X moved out together with Mr E and Ms F. X was then aged about three and a half.
The mother concedes that X did not spend time with the father for about three months after the May 2016 incident. X then spent alternate weekends from Friday to Monday with the father.
In May 2019 the mother and X moved to Suburb D to live in the same rental accommodation as Mr Phillips. X was then aged six and a half. She changed schools at that time and started attending D School. Mr E and Ms F were both by that time living with Mr G.
At the time of the mother’s move to Suburb D, the father was living in Town E, in a caravan adjacent to the house in which with his partner and her two children were living. The drive between the parents’ homes was about one hour and 40 minutes. At that time, X’s time with her father was reduced so that her weekend time ended on Sunday evening rather than Monday morning. The father alleges that from this time onwards the mother frequently cancelled X’s time with him.
In January 2020, there was an altercation between the parents at the mother’s home on a date when X was due to spend time with the father. That incident is discussed later in these reasons. Afterwards, the mother applied for and obtained an interim intervention order naming her and X as protected persons. The father also applied for an intervention order which expired on 5 July 2021.
In 2020 the mother married Mr Phillips.
In August 2020, the father overheld X for period of five weeks. I will discuss that period further in these reasons.
On 21 September 2020, the mother issued proceedings in this court seeking that X be returned to her care on an urgent basis, as well as final parenting orders.
On 28 September 2020, Judge Carter (as her Honour then was) made an order authorising the Australian Federal Police to recover X and return her to the mother’s care. The father was ordered to return the child to the mother at Town E Police station. He complied with that order.
On 2 October 2020, Judge Carter made interim parenting orders by consent, which provided for the father to communicate with X each Monday afternoon between 5.30pm and 6.30pm by Microsoft Teams. The mother was ordered to ensure X was available to speak with the father but was able to listen to such conversation and terminate the link in the event the content of the conversation became inappropriate. The preparation of a family report was also ordered.
On 4 November 2020, Judge Carter made further interim parenting orders by consent, which provided, inter alia, for X to:
(a)live with the mother; and
(b)spend time with the father on an incrementally increasing basis, so she spends half of the long summer school holidays with him.
Additionally, each parent was restrained from changing X’s school enrolment, the father was ordered to complete the 20-week Men’s Behaviour Change program through F Counsellors, the mother was ordered to undertake hair follicle testing and each parent was restrained from consuming alcohol to excess within 24 hours prior to, and during all the time X spent with them. Both parents were ordered to instruct and attend upon psychologist Mr G for psychological assessment. The mother was also ordered to facilitate X obtaining a mental health plan for play based therapy.
On 1 October 2021, Judge Howe made an order confirming that s.102NA of the Family Law Act 1975 applies to both of the parties. The parties were also ordered to engage a psychologist nominated by the independent children’s lawyer and obtain an assessment for X. Further, an order was made for the preparation of a s.69ZW response.
The trial proceeded before me on 29 and 30 August 2022 and was adjourned part-heard to 1 September 2022 for an additional day.
material relied upon
In her outline of case filed on 22 August 2022, the wife said that she relied upon:
(a)her amended initiating application filed on 19 August 2022
(b)her affidavit filed on 19 August 2022;
(c)the affidavit of Ms H, family consultant, filed on 26 October 2020, annexing the family report dated 4 November 2020;
(d)the affidavit of Mr G, psychologist, filed on 21 August 2021, annexing the psychological assessment of the mother dated 12 August 2021 and of the father dated 16 August 2021;
(e)the affidavit of Ms J filed on 27 September 2021, annexing the family report dated 27 September 2021;
(f)the affidavit of Ms J filed on 20 August 2022, annexing the updated family report dated 10 August 2022; and
(g)the affidavit of Dr Q, psychiatrist, filed on 26 January 2022, annexing the independent child psychiatric report dated 30 December 2021.
In his outline of case filed on 24 August 2022, the husband said that he relied upon:
(a)his further amended response filed on 22 August 2022;
(b)his affidavit filed on 22 August 2022; and
(c)the affidavits and annexed reports as referred to at [24 (c) to (g)] above.
In her outline of case filed on 24 August 2022, the independent children’s lawyer said that she relied upon:
(a)the response prepared by the Department of Health and Human Services (as the Department then was) dated 29 October 2020;
(b)the response prepared by the Department of Families, Fairness and Housing (“the Department”) dated 15 February 2022; and
(c)the affidavits and annexed reports as referred to at [24(c) to (g)] above.
THE PARTIES’ POSITIONs
The parents agree that they should have equal shared responsibility for X and that her school holidays should be shared equally between their respective homes. They agree that X should be able to telephone or video call either parent at any reasonable time.
The parties agree also as to the gist, if not the wording, of orders requiring both of them to authorise any school to provide copies of the usual information to both parents, and that both parents should be able to attend school events. They agree as to the sharing of medical information about X, communication via “Talking Parents” (a phone app) and non-denigration orders.
The mother
The wife proposed final orders in her case outline filed on 22 August 2022 providing that X should live with her and spend time with the father each alternate weekend from after school on Friday until 6pm on Sunday, as well as alternate Wednesdays from the end of school until 7pm.
The mother proposes that X spend time with the father on alternate Christmas Days (from 6pm on Christmas Eve until 6 pm on Christmas Day in odd-numbered years), on Father’s Day and on the afternoon of his birthday. She proposes that changeover take place either at X’s school or at McDonald’s in Suburb L.
The mother seeks orders preventing either parent from making appointments or arrangements during X’s time with the other parent without that parent’s consent, and that the other parent be given first refusal if the parent in whose care X is becomes unable to care for her. The mother also seeks orders permitting interstate and overseas travel and for her to hold X’s passport.
The father
The husband proposed final orders in his further amended response filed on 22 August 2022 for X to live with him during the school terms and spend alternate weekends from Friday to 6pm on Sunday with the mother as well as alternate Wednesdays from the end of school until 7pm. He seeks slightly different orders in relation to Easter as well as Christmas which do however, provide for the sharing of those special days in alternate years. He suggests changeover take place either at X’s school, or on Wednesday evenings at Suburb K Police Station, or otherwise at Suburb M Police Station.
The father proposes that the independent children’s lawyer nominate a psychologist, social worker or counsellor (“the therapist”) for X and that the parties facilitate X’s attendance upon the therapist.
The independent children’s lawyer
At the end of the trial, the independent children’s lawyer provided a minute proposing that X live with the mother and spend two out of three weekends with the father, as well as alternate Wednesday afternoons after school. The independent children’s lawyer was in agreement with the orders which were agreed between the parties.
The independent children’s lawyer proposed that changeover take place at school and as agreed, and otherwise at McDonald's on N Street, Suburb O and on Wednesday evenings at McDonald’s at P Street, Suburb D.
THE EVIDENCE
It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
The mother remained impassive whilst being cross-examined. Her answers were brief and at times defensive. I was left with the impression that her first recourse when faced with questions about difficult issues was to deny that the difficulty existed. In relation to some issues, such as her use of alcohol, she denied that there had been any difficulty when first put to her but was then able to accept the existence of problems at a later stage in her evidence. She often resorted to superficial descriptions such as that X presented as a happy girl, and displayed a significant reluctance to delve beneath the surface into more difficult emotional territory.
The father presented as much more emotional than the mother. He was in tears for much of the hearing. Whilst undergoing cross-examination, he too resorted at times to defensive or disingenuous responses. There were however, fewer inconsistencies in his viva voce evidence, both when compared with his affidavit evidence and when compared with extraneous material.
Email of 7 April 2020
The father was cross-examined about how he obtained an email sent by Mr Phillips to the mother on 7 April 2020, which the father had annexed to an earlier affidavit filed on 5 October 2020. In that email, Mr Phillips expresses concern about what he describes as a “disturbing trend” in relation to the mother’s drinking. He asks the mother to seek professional advice in relation to her drinking and that there be no alcohol in the house.
The father had told the Department workers about this email during his interview on 6 October 2020 but when asked by them how he obtained it, said that he could not recall. In cross-examination, he accepted that answer had been untruthful and that he had not wanted to disclose how he obtained the email. He said that the mother had given him her email password during the relationship, and that he considered it reasonable to access her email account after separation because she had not changed her password.
It was wholly inappropriate for the father to access the mother’s emails after separation when he must have known that she would not have consented to him doing so. In doing so, he showed complete disregard for her right to privacy.
There was no application on behalf of the mother to exclude this email. In fact, it was tendered on her behalf. Her Counsel did not suggest that it was not genuine. I can on that basis infer that it was sent by Mr Phillips to the mother and that as at April 2020, Mr Phillips was concerned about the mother’s drinking.
Information excluded from the updated family report prepared by Ms J
As a result of X’s account of being “yelled at” by the mother in response to her first report, Ms J describes deciding, jointly with X, to include in her updated family report only information already known to the mother, so as to reduce the likelihood of what Ms J considers to be emotional and psychological abuse of X by the mother
During her viva voce evidence, I asked Ms J if there was any information which X had disclosed to her, which she had not included in her report, and which had influenced her evaluation or recommendations. I was concerned that the parties might be disadvantaged if Ms J was relying, even in part, on allegations which had not been disclosed. Ms J confirmed that she had not relied on any of the undisclosed information in formulating her evaluation or recommendations. It was therefore accepted by all Counsel that it was not necessary or appropriate for Ms J to be requested to disclose that information.
X’s psychiatric assessment – Dr Q
Dr Q, a consultant child psychiatrist, prepared a psychiatric assessment of X, dated 30 December 2021. Her report considered a raft of matters falling outside the ambit of such an assessment. It purported to make recommendations as to parenting arrangements, which appeared to be based on the assumption that all of the allegations of family violence made by the mother were accurate. For those reasons, and very sensibly, no party sought to rely on the report save for the portion which set out Dr Q’s observations of X. I do not therefore attach weight to the report save for Dr Q’s record of her interviews with X via Zoom on 8 and 12 December 2021.
X described to Dr Q her distress at being exposed to the conflict between her parents and in particular her mother’s response when X told the family consultants that she wanted to live with her father. She referred repeatedly to how much she disliked being yelled at by her mother. She said that her mother knows her the best and that she trusts her father and her friend Ms R the most. She indicated to Dr Q a strong preference for living primarily with her father.
The parents’ psychological assessments - Mr G
Mr G prepared psychological assessments of the father and the mother, dated 16 and 12 August 2022 respectively.
Mr G’s psychological assessment of the father concluded that he did not have any major mental illness or personality disorder. The father’s Personal Assessment Inventory (“PAI”) clinical scores were indicative of someone who could be sceptical, overly sensitive, and lose his temper more commonly than most. Mr G concluded the father can, on occasion, lack impulse control. Mr G stated this was not an impediment to providing balanced parenting.
Mr G’s psychological assessment of the mother similarly indicated she had no major mental health problem or psychological disorder. The report referred to the mother’s previous alcohol use as situational (by the mother’s account), dysfunctional and problematic. However, Mr G opined that he had no reason to doubt that any problem she once had is now in full remission. The mother’s PAI clinical profile was indicative of someone for whom traumatic events are a prime feature of their presentation and someone who feels they are being treated inequitably.
As Mr G was not required to attend for cross-examination by any of the parties, his evidence went unchallenged.
The first family consultant – Ms H
In the first family report prepared by Ms H dated 26 October 2020, Ms H’s observations indicate that X:
(a)appeared evasive and reluctant when asked to make direct comments about her family experiences;
(b)appeared acutely tuned in to the adult behaviour around her;
(c)expressed that she did not “remember a lot of stuff” and that this could have been a subconscious way to protect herself from engagement in adult conflict;
(d)was clearly conflicted and appeared passive and careful in her verbalisations;
(e)did not express strong emotions other than sadness relating to her relocation to Suburb D, appearing quiet and tearful; and
(f)expressed that part of the sadness surrounding her relocation to Suburb D was because she had not seen her brother Mr E since he had left the mother’s home two years ago.
As Ms H was not required to attend for cross-examination by any of the parties, her evidence went unchallenged.
The second family consultant – Ms J
a. The family report dated 27 September 2021
Ms J completed her first family report dated 27 September 2021 without access to the subpoena material. She discussed with both parties her concerns about X’s acute awareness of conflict between parents. She notes that the father and his partner did not respond defensively but instead acknowledged that their previous behaviour may have been inappropriate, and asked for advice about how to handle X’s questions in the future.
Ms J provides a striking account of X displaying her ability to “fake” a loving and affectionate relationship with the mother. Ms J saw this as a “stark contrast to the cold and ambivalent relationship” described by X during interview, noting that it was followed by X seeking praise for her performance. Concerned about this level of deception, Ms J opined at [110] that:
… at some point in time, [X] had decided that she was psychologically unsafe in the presence of her mother and had consequently retreated into a fake façade within this environment. Consequently, this assessment has raised significant psychological concerns for [X] within her current situation.
Ms J went on to suggest that behaviour observed by Ms H in her family report might be a prelude to the development of this protective façade. At that time, Ms J recommended that X live primarily with the father and that she be assessed by a child psychiatrist.
b. The updated family report dated 10 August 2022
Ms J interviewed X on 5 August 2022 for purpose of her updated family report, dated 10 August 2022. I set out Ms J’s observations of X’s wishes and feelings later in these reasons.
In light of her observations, Ms J recommended:
(a)equal shared parental responsibility;
(b)if the Court determined it was in the best interests of X to live with her mother, she spend time with her father:
(i)during school terms on two out of three weekends;
(ii)alternate Wednesdays after school until 7pm; and
(iii)half of the school holidays;
(c)If the Court determined it was in the best interests of X to live with the father, she spend time with the mother:
(i)on alternate weekends;
(ii)every Wednesday after school; and
(iii)half of the school holidays;
(d)both parents be restrained from discussing legal processes with X;
(e)both parents be restrained from exposing X to family violence; and
(f)X be allocated a psychologist, counsellor or social worker to help her to manage her understanding of her family experiences.
I have already referred to the resolution of the potential evidentiary issue arising from Ms J’s decision to exclude from her report some of the information reported to her by X. That an experienced family consultant considered it necessary to do so to protect X from future emotional and psychological abuse by the mother speaks volumes about the extent to which X is required to be cautious about how she expresses her views both to her mother and to third parties.
The Court is under no obligation to accept the recommendations of a family consultant. Whilst Ms J was cross-examined by all Counsel, and made appropriate concessions, her evidence was not successfully challenged and her overall evaluation remained unchanged. I found her observations to be consistent with my own, and I place significant weight on her evaluation.
Parenting proceedings – legal principles
Part VII of the Family Law Act 1975 ("the Act") sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII. These are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons [2019] HCA 21 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”. The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright [2007] FamCA 520 and McCall & Clark [2009] FamCAFC 92.
In Jurchenko & Foster [2014] FamCAFC 127, the Court noted at [123] that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in s.65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the child's best interests. The primary considerations set out in s.60CC(2) of the Act are, as follows:
·the benefit 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 from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s.60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: ss.60CC(2)(b) of the Act.
Benefit of meaningful relationship
It follows from the parties’ proposals, which provide for X to spend substantial and significant time with the other parent, that both of them accept that she has a meaningful relationship with the other parent from which she derives benefit. I concur with that view.
Physical or psychological harm
Each parent argues that X should not be in the primary care of the other parent because of allegations of harm and risk. Many of those allegations are historical and are of limited relevance to the current dispute. I will nonetheless consider them.
a. The mother’s previous use of alcohol
The father alleges that the mother consumed excessive amounts of alcohol throughout the relationship. Her affidavit however, does not respond to these allegations. In her viva voce evidence she admitted (as she had to Mr G) that she used alcohol as a crutch during her relationship with the father. She conceded that “there had been times” when she had drunk to excess. She said that she had stopped drinking “a couple of years ago”. This evidence contrasts with what she said to Ms J in the family report dated 27 September 2021 where, at [70], she repeatedly denied ever having an issue with excess drinking.
The s.67Z response from the Department dated 29 October 2020 records that there was a report to the Department in October 2018. Mr E was said to have alleged that the mother was drinking and that she was at times “off her face”. He is recorded as saying that her boyfriend could “drink 10 glasses of wine and be normal”. When cross-examined about this report, the mother confirmed that Mr Phillips was her boyfriend at the time but maintained that he did not then and does not now drink alcohol.
Mr E also spoke of concern for his siblings, allegedly reporting that on one occasion the mother had been drinking and had fallen asleep while cooking, so that “the house went on fire”.
The mother accepts that she had not told either of the family consultants about the allegations which she says Mr E made up. Her affidavit did not refer to the allegations or offer an explanation for them.
In cross-examination, the mother denied that there had ever been a fire at her home. She said, in answer to questions from the father’s Counsel, that Mr E’s allegations were untrue and that he had made them up in order to be allowed to go and live with Mr G. She confirmed this evidence when cross-examined by Counsel for the independent children’s lawyer. When it was put to her that the Department report recorded that Mr E had gone to stay with his father four weeks before the relevant report, she said that his stay with his father was “transient at first”.
I do not accept that Mr E would have concocted such detailed allegations to enable him to stay with his father when he had already been in his father’s care for four weeks at the time of the report.
In preparing the s.67Z response dated 29 October 2020, the relevant Child Protection practitioners spoke to Ms F on 27 October 2020. She described the mother and father arguing when the mother would drink alcohol and said that the father would get “mad”. After the workers spoke with Ms F, they received a call from Mr E. Mr E told the worker that he had vivid memories of the mother drinking when he was younger and that her drinking was the catalyst for conflict with the father. He reported that it was the mother’s drinking and the physical fights between her and the father that followed that led to him choosing to live with his own father.
I am satisfied, based on the mother’s concessions to Mr G and the accounts given by Mr E and Ms F to the Department, that the mother drank to excess during her relationship with the father and continued to do so until at least late 2018.
The mother undertook a hair follicle test in or around January 2021 which did not show excessive consumption of alcohol. Ms J agreed with Mr G that there was no evidence to suggest that the mother is currently drinking to excess or that her drinking represents a risk to X. I am satisfied that her use of alcohol does not present a current risk to X.
b. Allegations of historical family violence
Ms J opined during her viva voce evidence that the allegations of family violence in this case are a “side issue” compared with X’s wishes and feelings. I concur with that view.
In his closing submissions, Counsel for the mother argued that the allegations of family violence should be given serious consideration by the Court when deciding which parent should be primary carer of X. It is to that limited extent that I have regard to those allegations.
In her affidavit of 19 August 2022, the mother makes a raft of vague and un-particularised allegations of family violence which she says occurred during the relationship. She alleges that the father was verbally abusive, threw objects at her and was also verbally abusive to the children. She says that she did not report this behaviour to the police as she believed to do so would further antagonise the father. The only allegations in respect of which she gives particulars are those which occurred post-separation. The father denies that he has ever used physical violence against the mother. He admits to “verbal violence” which he asserts was related to the mother’s excessive use of alcohol. In cross-examination, he said that the relationship with the mother was “toxic” and accepted that both he and she were to blame. Despite this acceptance, he appeared unable to accept that he had felt angry or behaved in an angry manner. For example, he described his behaviour as “argumentative” and his feelings as “frustration”, insisting that he was capable of “yelling without anger”. Whilst he was able to accept that the conflict between him and the mother would have been terrifying for the children in the home, he did not in his affidavit or his viva voce evidence express regret for the fear and distress they experienced.
I am satisfied that the verbal conflict in which both parties participated during the relationship constituted family violence with respect to the children in the household in that it caused them to be fearful.
i. Allegations in relation to Mr E
The mother says that in May 2016, Mr E asked repeatedly if the family could have a “slumber party” in the living room. In her affidavit, she says that the father “stormed out of his room, grabbed Mr E and threw him across two rooms of the house”. She alleges that Mr E slid into the living room window from the force of the throw, ran outside and then went to a neighbour’s house, having been so frightened that he wet his pants. She says that she left the house with the children and did not return.
The s.67Z response dated 29 October 2020 records that this incident was reported to the Department on or about 28 April 2016. That report refers to Mr E “being thrown against a wall” and says that thereafter, Mr G attended at the home and took all three children to the mother’s parents’ home.
In preparing the s.67Z response, the relevant Child Protection practitioner spoke to Ms F as well as to the parties. Ms F recalled an occasion when the father grabbed Mr E by the ear and “pulled him down the hallway”. Having contacted Child Protection himself as discussed earlier in these reasons, Mr E also recalled that incident, saying that he remembered being very scared and running to the neighbour’s house for help.
In his affidavit filed on 22 August 2022, the father says that Mr E was “stood up and pushed [two] steps towards the hallway”. He denies that Mr E lost his balance, fell over or hit the window. In cross-examination, he said that he did not recall grabbing him by the ear and that he lifted him up by the elbow and then pushed his back to move him. He did not recall Mr E running to a neighbour’s home.
Mr E also alleged to the Department in 2018 that the mother had thrown a laptop and other items at him and had hit him on his face, that she had pushed and grabbed him, ripped his clothes off and had locked him outside the home. In cross-examination, the mother denied all of those allegations save that she admitted throwing his laptop onto his bed, not at him, and that she had once locked him out of the house for about 20 minutes.
Neither party sought findings in relation to the other party’s conduct in relation to Mr E. I am satisfied, based on Mr E’s account and the father’s admission, that the children living in the parents’ household were exposed to family violence in that the conflict between the parents caused them to be fearful. It is not necessary for me to make findings as to the extent to which either party inflicted physical violence on Mr E.
ii. The ‘camping trip’ incident – 4 March 2017
In her affidavit filed on 19 August 2022, the mother says that she agreed to go on a camping trip with the father and X in March 2017. She says that after arriving at the campsite, they went for a “river walk” but that she slipped and cut her knee. She says that she and X lost sight of the father and returned to the campsite approximately an hour later as they had got lost.
She says that the father then drove them home in a state of anger and that he yelled at her in the car. She says that she “begged” him to stop the car and he did so. She then reached to get X from the rear seat but says that the father grabbed her shoulder and “repeatedly punched [her] in the head”. She alleges that he then opened the car door and kicked her out of the car “with extreme force”. She deposes to experiencing lacerations to her feet and that the existing cut on her knee worsened as she landed on a rocky embankment, and to the father throwing her bag at her and saying “by the way you have no phone” before he drove off.
The mother says that she spent a week in hospital afterwards with knee injuries and lacerations to her feet.
In his affidavit filed on 22 August 2022, the father says that the mother was “extremely drunk” and that she placed X in danger by getting lost in the bush with her for four hours and returning soaking wet. He denies that he struck the mother at any point. He says that he only did what was necessary to prevent X from being removed from the car.
The mother deposes that she reported the incident to the police who assisted her in obtaining an intervention order. The father was charged with Recklessly Causing Injury. She says that she withdrew the charges about three months later as she had no annual leave left with which to pursue the matter, and that she felt that ongoing animosity would be detrimental for X.
The mother made two statements to the police concerning this incident, both of which were tendered by the husband. In the first, dated 5 March 2017, she gives a similar account to that in her trial affidavit, except that she admits drinking three or four small cups of vodka and juice and being “a little bit tipsy” when she took X for a walk. In this statement, she says that the father punched her “really hard”. She said that the right side of her head “feels bruised and is very painful”. She refers to the father being very strong and doing sports training twice per week.
In her second police statement, dated 18 May 2017, the mother says she wants to “clarify some of the details” of the incident. She says in this statement that she slipped and cut her knee whilst the father was packing up the campsite, not during the bush walk as she alleges in her affidavit. She refers to bruises on her leg and chest, saying that some may have been caused “from previous accidents”. Notably absent from that otherwise detailed second statement is any reference to the allegation that the father punched her in the head.
In this second statement the mother says also she wants to withdraw the charges, that the father has never before been violent, and that she doesn’t want to go ahead with the intervention order because it is a burden when it comes to child arrangements. When asked in re-examination why she made this statement, she gave a different explanation namely that she could not take any more time off work to attend court and that she wanted the father to know that she was “not out to hurt him”.
Whilst I accept that, as Ms J noted, victims of family violence may retract allegations due to pressure from the perpetrator, the mother did not in this case suggest in her filed material or in cross-examination that the father applied any such pressure to her. Her second police statement gives the opposite impression.
The husband also tendered a police document entitled “Situation report – Mr Francis” dated 21 June 2017 in which the police record the account of the father. He told police that the mother had drunk about one third of a bottle of vodka before they went together on the bushwalk, that the mother fell over during the walk and that she and X then got lost for between three and a half to four hours. The “Situation Report” also records that the person who picked the mother up from the side of the road could smell alcohol on the mother. The mother conceded that this person would have had no reason to concoct that allegation.
I am not satisfied to the requisite standard that the father punched the mother as she alleges. I have regard to the records of S Hospital, tendered by the independent children’s lawyer, where the mother attended on 7 March 2017. Those notes contain what appears to be a summary of the mother’s account to hospital staff of being pushed out of a car. They contain no reference to any blows or injury to or pain in her head. Had the father punched the mother five times in the head, those blows would in my view have been sufficient to cause pain or injury which would have merited mention when she attended hospital just three days later. When cross-examined about the hospital notes, the mother’s only explanation for not mentioning the pain in her head was that her general practitioner had sent her to hospital specifically for her knee. That explanation is inadequate in all the circumstances.
I accept the submission made on behalf of the mother that the father could have done more to ensure she was able to get help after exiting the car, but given that his primary responsibility was to X, I make no findings in that regard. Because I find the mother’s account of that incident to be unreliable, I am not satisfied to the requisite standard that the father’s behaviour on that occasion involved family violence perpetrated against X or the mother.
iii. The January 2020 allegation
The mother deposes to the father being due to spend time with X on a date in January 2020. She says that at around 7pm, the father knocked at the door and that he then “rammed” the door open, put his forearm to her neck and pinned her to the wall with such force that she “went through the plaster”. She says that the father was screaming “you will not deny me my daughter”. She says that Mr Phillips was at home and ran to help her.
The father admits in his affidavit that there was an incident at changeover when he became angry with the mother and yelled at her. He denies that he entered her home or that he touched her.
He says that the allegations of physical assault made by the mother were withdrawn and that he was charged only with threatening and intimidating the mother. He deposes to being placed on an undertaking which was recorded without conviction.
The mother adduced no evidence from Mr Phillips in respect of this or any other factual matter. Mr Phillips was present in court on each day of the trial. In cross-examination, the mother was asked why she had not called him to give evidence. Her answer was that she did not know that she should have done so.
In the absence of evidence from Mr Phillips or an explanation for the absence of that evidence, I am not satisfied to the requisite standard that the father perpetrated family violence on that occasion or that there was anything more than a verbal confrontation between the parties.
c. The father’s anger
Both the mother and the independent children’s lawyer submit that the history of the father’s inability to control his anger would put X at risk, if placed in his care, of him exposing her to family violence or angry behaviour sufficient to cause her harm. This is the primary risk relied on by mother in support of her proposal to remain primary carer, and by the independent children’s lawyer in support of her submission for X to remain with her mother.
The appropriate approach to situations involving allegedly unacceptable risk to a child has been considered recently and in detail by the Full Court in the case of Isles & Nelissen [2022] FedCFamC1A 97. In that matter, their Honours clarified both the distinction between fact finding and risk assessment in such cases, and also the standard by which any finding of unacceptable risk is to be made.
Their Honours opined at [7] that because courts can and do consider risks which may be mere possibilities:
… it is an oxymoron to expect such possibilities to then be forensically proven on the balance of probabilities according to the civil standard of proof. By definition, possibilities are not, and could never be, probabilities. Risks of harm are not susceptible of scientific demonstration or proof (CDJ v VAJ (1998) 197 CLR 172 at [151]), but are instead postulated from known historical facts and present circumstances
Their Honours rejected the line of authorities including Potter & Potter [2007] FamCA 350 and Johnson and Page [2007] FamCA 1235 which suggested that an unacceptable risk of harm needs to be established according to the standard of proof found in s.140(1) of the Evidence Act 1995 (Cth). Their Honours reasoned:
85.The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment (Edwards v Noble (1971) 125 CLR 296 at 304), though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result (Norbis v Norbis (1986) 161 CLR 513 at 518). The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.
86.We have already acknowledged how risks of harm are not susceptible of empirical proof, but a mathematical hypothetical will nevertheless illustrate how findings of “unacceptable risk” cannot be measured by the civil standard of proof. Imagine a child will be minded by one of three randomly allocated carers. Assume one of the carers would sexually abuse the child, but the other two would not, meaning the child stands a 33.33 per cent chance of being sexually abused if left in care. No sensible adult would take the risk of leaving the child in care because, even though the prospect of sexual abuse is only possible but not probable, the risk is still too high to tolerate. In other words, it is unacceptable. If parents (and courts) were to instead only react to risks which are probabilities then, in that example, the child would still be left in care unless shown he or she was susceptible to sexual abuse by two of the three carers and the risk was then rated at 66.66 per cent.
The mother and the independent children’s lawyer rely upon the mother’s allegations of family violence as the factual foundation for the risk which they say the father’s anger represents. The findings already discussed in these reasons include family violence perpetrated by both parents in 2016, and conflictual behaviour by the father, falling short of family violence but distressing for X, in 2017 and 2020. There are no recent allegations of family violence by the father. There is no allegation that the father has ever been inappropriately angry with X. Indeed, the father has given evidence that he enjoys being verbally challenged by her. Whilst the absence of such an allegation does not mean that there is no risk, especially as X matures into adolescence, I do not accept that the evidence before me amounts to an unacceptable risk of harm if X was placed in the care of the father.
d. Exposure of the child to the parents’ negative views of each other
During X’s first interview with Ms J on 23 September 2021, X did not complain directly of denigration by her mother of her father. She described an occasion when her mother had asked her to lie to her father, namely that she had been late in arriving for changeover on Father’s Day because of a flat tyre rather than the mother forgetting that time was to take place. In cross-examination, the mother said that Mr Phillips had asked X to tell this lie.
Ms J noted that whilst both parents reported that X rarely mentioned the other home, the mother appeared unconcerned about this whilst the father and Ms L expressed a wish for X to be comfortable in discussing events in both households. The mother also admitted to monitoring X’s telephone and video calls with the father, which X said prevented her from speaking freely.
Ms J was so concerned about the extent to which X might be exposed to the parents’ hostility towards each other that she described the situation as one in which “X may currently be emotionally abused within both households”. Relevantly, when she raised this concern with the father and his partner she described their response at [65] as follows:
… [Mr Francis] and [Ms L] did not react in anger but rather responded in a child -focussed matter. They further acknowledged that, however unwittingly, their behaviour had been towards [X] may not have been appropriate and expressed a desire to rectify their future behaviour.
One would hope that on reading this report, particularly the description of the extent to which X was disguising her true feelings, the mother would thereafter have made similar efforts to rectify her behaviour. Sadly, the evidence before me indicates that the mother was unable to do so and that in fact her subsequent behaviour increased X’s exposure to and awareness of the parental conflict.
During her interview for the purposes of Ms J’s updated family report, X described her awareness of the distress and anger which Ms J’s first family report had caused to her mother. She said that she had been “yelled at” by her mother and Mr Phillips because of what she had said to Ms J. Further, X reported to Ms J that her mother had continued to raise this subject with her throughout the last 12 months. The mother admitted to Ms J that she had shared parts of the report with X and that X was aware of her distress.
In cross-examination, she admitted that she had asked X why she had said “those things” to Ms J, and when she was distressed, Mr Phillips had said “look what you have done to your mum”. Mr Phillips also conceded to the Department that after the receipt of the first report, X heard him saying “she has really screwed us over” to the mother. It is clear on the evidence that the combined behaviour of the mother and Mr Phillips indicated to X that they blamed her for the recommendations made by Ms J at the end of her first family report.
X also told Ms J that her mother had tried to persuade her that she did not really know what it would be like to live with her father. The mother conceded to Ms J that she had regularly spoken to X about ‘the negatives” of living with her father. In cross-examination, the mother initially denied that she had made this concession to Ms J. She went on however, to make what was essentially the same concession, namely that the conversations involved her getting X to “think about what she really wants” and to understand that it would mean “leaving what she knows”. She accepted that X may have overheard (as X reported to Ms J) that she had spent a lot of money on the court proceedings. She also conceded that X was aware that she was attending court during the week of 29 August 2022 for the judge to make a decision - “the decision” – which X had indicated to Ms J was the word which her mother used for the making of final parenting orders.
I find it impossible to reconcile the evidence given by the mother, namely that she tries not to involve X in the conflict with the father, with the mother’s own admissions about what she has actually said and done. The mother tried to justify her conduct by suggesting that she was relying upon the recommendation of Dr Q, that she cease shielding X from what Dr Q considered to be the reality of the father’s violent conduct. That justification is in my view a distorted interpretation of the report of Dr Q, who nowhere recommends the sort of conversations which the mother admits to having with X.
I find that the mother’s conduct in exposing X to her wholly negative views of the father, her own distress and anger at Ms J’s first family report, and in attempting to talk X out of wanting to live with her father, amounted to emotional and psychological abuse. The pressure which she has applied to X is unacceptable. I am satisfied that it has caused X distress and emotional harm. The mother’s conduct in continuing to behave in this manner after and in spite of the concerns expressed by Ms J in her first family report is inexcusable.
The presumption of equal shared parental responsibility
Section 61DA of the Act provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence. The presumption may also be rebutted by evidence that satisfies 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.
In this matter, the parties agreed that there should be an order for equal shared responsibility. That was also the recommendation of Ms J. I agree. There is no history in this matter of the parents being unable to resolve issues relating to issues such as education or medical treatment for X. I am satisfied that in spite of their entrenched conflict, the parties have the capacity to liaise with each other and make genuine efforts to come to a joint decision about major, long term issues for X.
Equal or substantial and significant time with each parent
If I accept it would be in the best interests of the child to make an order for equal shared parental responsibility, I am then required by s.65DAA (1) and (2) to consider whether to make orders that the children spend equal time or, if not equal time, then substantial and significant time with each parent.
For a parenting order to involve the child spending substantial and significant time with a parent, s.65DAA (3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance.
In MRR v GR [2010] HCA 4, the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an order for equal time.
The High Court also addressed the relationship between section 65DAA(1) and section 61DA(1) at [15]:
Section 65DAA(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 s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
There is no particular order in which I must address these questions, as per Beckham & Desprez [2015] FamCAFC 247. I will commence with a consideration of the s60CC factors, and then consider questions of reasonable practicability.
Additional considerations
Any views expressed by the children and any factors (such as their maturity or level of understanding) that the Court thinks are relevant to the weight it should give those views.
At the time of Ms J’s first interview with X on 23 September 2021, X “strongly advocated” to live with her father. She expressed anger with her mother for relocating to Suburb D and away from her school, half siblings and father. She described how her mother used to get angry with her in the past so she had decided to “keep quiet” and say only what her mother wanted to hear. Although she said that she was miserable in the care of her mother, she was able to describe some activities she enjoyed. Her account of the father was also balanced in that she said that she did not like him talking negatively about the mother.
Ms J undertook a second interview with X on 5 August 2022. She notes that X was in tears for most of the interview. She records that X at times “appeared to have the maturity of a much older child”.
X continued to express a strong desire to live with her father, describing as an “Uno reverse card” her wish to live with him and see her mother each alternate weekend. X said that “at worst” she hoped to be able to move to his care at the age of 12, the same age at which Ms F had been able to live with her father. As Ms J noted at [106]:
… [X] was also grieved that this was almost two (2) years away, and she was considerably upset by this. [X] both laughed and cried as she made light of the fact that she wished she was not nine (9) years old but 13 years old and hopeful that at this age, she could make her own parenting arrangements. [X] was wishing her childhood away.
(Emphasis added)
Ms J records X asking if she could meet with her every year “to prove that I’m not going to change [her] mind”. If unable to live with her father, she asked if she could spend two out of three or three out of four weekends with him.
I am required by s.60CC(3)(a) to consider not only X’s wishes but what weight, according to the evidence, I should give to those wishes.
In R & R: Children’s Wishes [2000] FamCA 43, an appellant argued that the primary judge was required to find that the wishes of the children were unsound, founded on improper considerations, or the subject of influence by others, in order to reject those wishes when making parenting orders. The Full Court opined at [54] that:
…while those considerations will be relevant in many cases, they are by no means the only issues that a trial judge must consider when considering a child's wishes. There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.
In Bondelmonte v Bondelmonte [2017] HCA 8, the appellant father argued that the primary judge was wrong to discount the views of his sons, who wished to remain in New York City rather than return to Sydney. In considering the weight to be given to the views expressed by children, the High Court opined at [34]:
The focus placed by the father upon the prescribed consideration stated in s 60CC(3)(a) tended to elevate the views expressed by a child to something approaching a decisive status. In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interest
Counsel for the mother put to Ms J that X’s wishes were so strong that they could be described as “melodramatic”. Ms J disagreed, noting that X on both occasions noted positive aspects of mother’s care. X was not describing one parent as wholly good and the other as wholly bad. Ms J also pointed out that the mother had herself confirmed that many of X’s complaints were accurate, for example the mother’s distress over Ms J’s first family report, and the subsequent conversations about X’s wish to live with the father.
Counsel for the mother also put that X might too young to be able to appreciate the impact of a further change of school. Ms J opined that as X has had recent experience of the move to Suburb D Primary School, her lived experience would assist her in grasping the implications of a further move.
I accept the evidence of Ms J in both respects.
The mother argues that X’s wishes were affected by her experience of living with the father for five weeks in 2020 at a time when fewer restrictions were in place in Town E than where the mother lived. She suggests that that experience of relative freedom has left X with an idealised view of life with her father. Ms J opined that X’s preferences were not based on difference in routine between two households but on X’s perception that her father is more attuned to her and that she has a closer emotional connection with him than with the mother. I accept that evidence. I note that in X’s two discussions with Ms J, she does not focus on practical realities but on her own emotional state in each household. Whilst the relatively relaxed rules in place in 2020 might have increased her enjoyment of the time spent with the father, I do not accept that that experience played a significant role in X’s wishes.
X’s wishes are just one of the many factors which I must consider in this complex case. Like Ms J, I attach significant weight to them as a result of X’s comparative maturity and articulacy, and the extent to which those wishes have become more deeply felt in the period between the two family reports of Ms J.
The nature of the children’s relationships with each of their parents and other significant persons in their lives
I have already discussed in these reasons the evidence of the difficulties present in X’s relationship with her mother. I have no doubt that the mother loves X. However, I accept the evidence of Ms J that there is a lack of emotional attunement between X and her mother.
I also accept the evidence of Ms J in relation to the close and attuned relationship between X and her father. The intensity of that relationship was raised by Dr Q, who considered that the relationship between X and the father was “overly close”, and that X had an idealised view of him. Those concerns were put by Counsel for the mother to Ms J, who opined that if there had not been the significant degree of family violence that Dr Q assumed to have occurred, then X’s positive view of her father might be realistic rather than idealised. I accept that evidence.
X’s relationship with Mr E and Ms F
X has described to a number of professionals her close bond with Mr E and Ms F, her wish to see them regularly and her sadness at being separated from them when she moved with the mother to Suburb D.
The mother has given inconsistent accounts of the frequency of her contact with Mr E and Ms F. She deposes to them visiting her and X every second weekend and during the school holidays. She told Dr Q on 12 December 2021 that they visited every two weeks. In her viva voce evidence, she confirmed that this was also the case in 2020. When first interviewed by Ms J on 20 September 2021, the mother conceded that Mr E did not visit or communicate with her and that Ms F rarely visited and did not stay overnight. During the mother’s second interview with Ms J on 1 August 2022, she provided contradictory information about the frequency of Mr E and Ms F’s visits to her home, saying on the one hand that they had always visited on alternate weekends and on the other that there had been long periods during the COVID-19 related lockdowns when they had not visited at all.
The evidence of the mother is also inconsistent with what has been said by the children to professionals. X told Ms H on 14 October 2020 that she had not seen her brother for two years. During the interviews conducted by the Department with Ms F and Mr E in October 2020, Ms F reported that she did not see her mother during the COVID-19 lockdowns, and both she and Mr E reported that Mr E does not visit the mother. When X first met Ms J on 23 September 2021, she said again that she had not seen Mr E in over two years and that Ms F rarely visited. During her second interview with Ms J on 5 August 2022, X said that she rarely saw or communicated with Mr E. When each of those accounts was put to her, the mother said that they were untrue, even ridiculous.
I prefer the account given collectively by X, Mr E and Ms F to the family consultants and the Department, to the mother’s evidence. It is improbable that each of the three young people concerned would lie to professionals about the extent of their communication with the mother. It is far more likely on my assessment of the evidence in this case that the mother is painting an idealised and inaccurate picture of the relationship she has with her two elder children.
The mother deposes to Mr E planning to find a job in the Suburb D area and move in with her after finishing school in about September or October 2022. There is no corroboration for that evidence. It flies in the face of everything that the Department has recorded Mr E as reporting, and that X has said to the family consultants about the relationship between Mr E and the mother. I am not persuaded to the requisite standard of the veracity of the mother’s assertion.
The father deposes in his affidavit to his ability to “facilitate X to spend time with her siblings Ms F and Mr E who reside close to our residence” but has taken no steps to do so. In cross-examination, he blamed this on the fact that X does not bring her mobile phone with her when spending time at his home, that he does not have contact details for Mr E and Ms F and that he does not anticipate either Mr E or Ms F welcoming contact from him. Given the emphasis which the father has placed on his ability to facilitate the relationship between X and Mr E and Ms F, it is surprising and unsatisfactory that he has not actively sought a means of communicating with them.
I find that neither parent has met X’s need for regular and frequent communication with her half siblings.
The extent to which the children’s parents have taken or failed to take the opportunity to participate in long-term decision making in relation to the children, to spend time and to communicate with the children
Although the parents disagree about many aspects of X’s care, they are both actively involved in making decisions on her behalf and each of them seek to spend time and communicate with her.
The extent to which each of the children’s parents have fulfilled or failed to fulfil their obligations to maintain the children
There was no evidence before me in this regard as neither parent argued that the other parent had failed to fulfil his or her obligations to maintain X.
The likely effect of a change in the children’s circumstances, including the likely effect of a separation from a parent or other significant persons in their lives
Pursuant to my orders, X will from term one in 2023 move to the primary care of her father which will, because of the distance between the parties’ homes, require her to change schools. The father refers in his affidavit to a school providing education from Grade Prep to Grade 12 within walking distance of his home. He was criticised by Counsel for the mother for the lack of detail in his material about this school which he proposes for X. In re-examination, he confirmed that the school to which he refers is T School. As he pointed out, the advantage of this school is that X would not need a further change after completing Grade 6.
The practical difficulty and expense associated with the children spending time and communicating with a parent, and whether that difficulty substantially affects the children’s right to maintaining personal relations and direct contact with both parents on a regular basis
Although the parents’ homes are some distance apart, both parents propose and my orders provide that X will be able to spend time and communicate regularly with both parents.
The capacity of the children’s parents and any other significant person to provide for their needs, including their emotional and intellectual needs
Both parents are able to provide care for X in practical terms. The mother has done so since separation. The father now lives alone in a two-bedroom house in Suburb K purchased in November 2021. He does not live with Ms L, and if placed in his care, X would see Ms L’s children less frequently than she did when he lived in Town E. The father confirmed to Ms J and in his viva voce evidence that he works from home on average four days per week and would organise care for X on the fifth day, as many working parents have to do.
There are some concerns about the ability of each parent to meet X’s emotional needs. The degree of attunement between X and each parent has already been discussed in these reasons.
Privacy for X is an issue in both households. It is inappropriate for the father to read her ‘secret diary” which he admitted in cross-examination to doing every month or so. It is also inappropriate for the mother to supervise the Microsoft Teams communications and video calls between X and her father (as she admitted doing to Ms J) and to leave the door open when X is showering (as X told Dr Q).
The parents responded differently to the recommendation of both Ms J and Dr Q that X would benefit from therapy or counselling. The mother told Ms J and confirmed in her viva voce evidence that X does not require psychological assistance. Although she had by the end of the trial consented to orders providing for therapy for X, her lack of insight is concerning.
By way of contrast, the father was eager for her to receive therapy and had saved funds for that purpose. The father also says that while X was in his care in August and September 2020, he arranged for her to obtain a mental health plan. He criticises the mother for failing to provide X with psychological support after returning to her care. I find that the father will be better able to support X in obtaining appropriate therapy because he recognises the benefit which she will derive from that treatment.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and their parents, and any other characteristics of the children the Court thinks relevant
I have discussed this factor in more general terms throughout these reasons.
If the children are Aboriginal or Torres Strait Islander children
This factor is not relevant in these proceedings.
Attitude to the child, and to the responsibility of parenthood demonstrated by each of the child’s parents
The mother’s relocation to Suburb D and its impact on X
The mother says in her affidavit that she relocated in 2019 “with X and [her] new partner Mr C”. She gives no reason for the move. When cross-examined about the reason for the move, the mother said at first that it was “work-related”. She then conceded that the reason for the move was the location of Mr Phillips’ business, which, if they lived together in Suburb H, would have required him to commute for one and half hours each way. Under cross-examination from Counsel for the independent children’s lawyer, she admitted that she could have waited for the end of the school year in 2019 rather than moving X at the end of term three. She admits in her affidavit that X found the move and resulting change of school “difficult”, but when cross-examined by Counsel for the father about X’s response said “she didn’t mind”.
The mother emphasised in cross-examination at this and other points that X was a “happy child”. She was asked by Counsel for the independent children’s lawyer to comment on the family report from Ms H which recorded X as being “quiet and tearful” when talking about the relocation. The mother said that X had not expressed those feelings to her and that she gave no indication of feeling miserable. When asked if she had felt worried when reading that report about her understanding of X’s feelings, she said that that X presented as “affectionate and happy” and said that for that reason she did not think that X needed to talk to another person, such as a counsellor, about her feelings. The mother was also cross-examined by Counsel for the independent children’s lawyer about the first family report of Ms J, in which Ms J reports that X described feeling angry with the mother about the relocation. The mother said she had been surprised by that part of the report. She said that X did not “demonstrate evidence of trauma” in day to day life.
None of the mother’s answers on this topic showed any insight into the impact on X of moving away from her home, her school and her siblings. Instead, I was left with the impression of a mother who was cautious about exploring any feelings of sadness or loss that X might have had, who preferred to assume all was well without probing into X’s feelings, and who put a premium on her child presenting as “happy”.
Father’s overholding of X
X was due to spend the weekend of 21 and 22 August 2020 with the father and the mother delivered her to the agreed changeover location in Suburb U on 21 August 2020 for that purpose. The mother says that the father sent her a text message on 23 August 2020 asking if X could spend another week with him so that he could facilitate her remote learning. The mother says that she was reluctant to agree but did so “to keep the peace”.
The mother says that on 30 August 2020, she and her husband were en route to changeover when they received a text from the father saying, “X wants another week and since next weekend is Father’s Day I don’t see why not.” The mother says that she did not agree to this and asked the father to deliver X to the changeover location. When he failed to do so, she went to Suburb U Police Station where she was told that the police could only undertake a welfare check.
The father does not in his affidavit filed on 22 August 2022 acknowledge that he failed to return X to the mother in accordance with their agreement. He simply says that from 21 August 2020, X was in his care and that during this time he “had increasing concerns of the extent of neglect, psychological and emotional abuse that X was subjected to in her mother’s care”.
He also refers in his affidavit to his discovery on 27 August 2020 of a GPS tracking device glued to the bottom of X’s suitcase. The mother conceded in cross-examination that Mr Phillips had attached the device because the father refused to disclose his address and she wanted to know where X was when in his care.
The father says that on that date, he was advised by police that the use of the tracking device meant that the mother had placed herself in breach of the intervention order and that X could not therefore return to her mother’s care. He adduced no evidence to support this alleged advice despite a subpoena having been issued to Victoria Police.
On 4 September 2020, the father sent the mother an email to which he had attached a proposed consent order providing for X to live with him and spend time with the mother on alternate weekends. She replied the following day making it clear that she did not agree to those proposals and asking for X to be returned to her care. The exchange of emails which followed was tendered on behalf of the mother. It demonstrates both the increasing desperation of the mother to secure X’s return and the intransigence of the father, concluding with the following exchange on 7 September 2020:
[Mother]I am not signing your documents for you to be her primary carer, is it your intention to withhold [X] from her mother, until your demands are met?
[Father] If you disagree with any specifics I’m happy to mediate through a professional mediator. [Mr Francis].
The father denied that he was withholding X in order to use her as leverage, but conceded that he did so because he did not think the mother would engage with negotiations if X was returned to her care. For that reason, I accept the submission of the mother that the father was retaining care of X during this period in part to secure the mother’s consent to a change of residence.
The father conceded also that he did not arrange for X to see the mother during her time in his care. He attempted to justify this on the grounds that the mother did not ask to see her and by drawing a distinction between a request for X’s return and a request to see her. That was, in my view, a distinction without a difference. As I have indicated, all of the mother’s emails confirm her urgent wish for X to be returned to her care.
X was eventually returned to the mother’s care on 28 September 2020 pursuant to orders made on that date.
I accept the evidence of the father that he retained X in his care because he was genuinely concerned about the extent to which she was falling behind at school and because she presented as unhappy in the care of the mother. However, in over-holding her, he prioritised the advantageous bargaining position of having her in his care over what he must have realised was X’s need to spend regular and frequent time with her mother. On this occasion, the father failed to ensure that X’s emotional needs were met.
Any family violence involving the children or a member of their family, and if a family violence order applies or has applied, any relevant inferences that can be drawn from the order
In her affidavit filed on 19 August 2022, the mother says that she is concerned about the father exposing X to controlling and abusive behaviour if placed in his care. The mother did not suggest that any difficulties arose during the time that X spent with the father over the long summer holidays of 2021/22 or in the term one or two holidays of 2022. Although the mother argues that the father might expose X to family violence or inappropriate anger in the future, the orders that she seeks provide for X to spend each alternate weekend and half of all school holidays in his care. Such a position is inconsistent with her suggestion that the father’s behaviour might constitute a risk of unacceptable harm to X.
Whether it would be preferable to make the order that would be least likely to lead to further proceedings
The orders that I make are intended to govern the parenting arrangements for X for the rest of her childhood. They are based on the evidence of Ms J which suggests she will adapt well to being placed in the care of her father. They are the orders which in my view are most likely to avoid further litigation in the future.
Orders to be made
The mother argues that the father’s evidence lacks detail as to how he will care for X when he is working, as to his schooling proposal and as to how he will promote her relationship with Ms F and Mr E. The father has failed to persuade me that he will be able to allow X to see her siblings more frequently than in the past, but so has the mother. I am satisfied that the father is capable of meeting X’s practical needs and I note that the mother has not made any complaints about how he has done so during the school holidays.
The independent children’s lawyer argues that if placed with her father, X may be affected by what the independent children’s lawyer describes as his “anger issues”. In the context of my findings and taken at their highest, these concerns include the evaluation of the father by Mr G in relation to impulse control, the occasions in 2016, 2017 and 2020 when he played a significant role in the conflict to which X was exposed, and his overholding of X in 2020. There is no suggestion that he has ever directed anger at X, or that since 2020 he has engaged in conflict with the mother to which X has been exposed. The evidence of Ms J which I have already considered indicates that he has been willing to accept and act on her advice about the need to avoid denigrating the mother in X’s presence. I accept Ms J’s evidence that the father has the ability to manage X as teenager will be assisted by Post Separation Parenting and Tuning into Kids courses.
In my view, the risk said to arise in respect of the father’s anger is a speculative one. The risk presented by the mother is not speculative but based on the actual, identifiable harm which her behaviour has already caused to X. The mother did not in her evidence demonstrate any recognition of the impact on X of that behaviour, even though she has the benefit of two detailed family reports from Ms J which describe it in detail. In my view, the risk of conflict with X as she attains adolescence is as great if not greater in relation to her mother than her father.
I accept and agree with the evidence of Ms J that X’s needs will be better met in the primary care of her father during the school term. My orders provide for her to spend alternate weekends and half of her school holidays with her mother, as well as one afternoon per fortnight if her mother is able to accommodate it.
I accept that an arrangement involving X living with her father during term time is untested but this is not a case where the difficulties which I have found that X experiences in care of her mother are about weekday routine. They are in my view centred on the mother’s lack of insight into X’s emotional needs, the pressure she applies to X to present as happy and her unwillingness to engage with any negative feelings of sadness or anger experienced by X.
With respect to X’s education, no formal application for a change of school was made by the father. However, I note that the mother has been placed on notice of the father’s proposal from previously filed affidavits.
With respect to changeover, when X is not at school:
(a)the father proposes Suburb M Police Station (which is approximately 30 minutes from his home) and on Wednesdays at Suburb K Police Station;
(b)the mother proposes McDonald’s in Suburb L for changeovers on all non-school days (which is approximately 30 minutes from home); and
(c)the independent children’s lawyer proposes McDonald’s on N Street, Suburb O and on Wednesday evenings at McDonald’s at P Street, Suburb D.
I note that no submissions were made regarding changeover. I accept that changeovers on Wednesdays should be in Suburb K as agreed, and in default of agreement, at McDonald’s at V Street, Suburb K. Other changeovers should occur at the halfway point between the parent’s respective homes. The proposals put forward by the parties are not appropriate.
In the absence of a sensible proposal from either parent, changeovers are to take place at a location as agreed between the parents, and in default of agreement, at McDonald’s on the corner of W Street Suburb U, which is approximately 45 minutes from each parent’s home.
Neither parent made submissions as to their proposals for Christmas or other special days, nor were their proposals put to Ms J. Doing the best I can with the limited evidence available, I adopt the proposals of the independent children’s lawyer which provide for changeover at 3pm on Christmas Day. I make orders for Father’s Day and Mother’s Day which provide for X to be with the relevant parent from the evening before the day in question which will be less disruptive to the established pattern of weekend time and therefore in the best interests of X.
As the parents propose to have equal shared parental responsibility, I make no orders in relation to Easter or birthdays. Despite the conflict between them, they have been able to deal sensibly and collaboratively with the division of special days and I am confident that they will be able to negotiate appropriate arrangements.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding one hundred and eighty-five (185) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burt. Associate:
Dated: 20 October 2022
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