Plouffe & Plouffe
[2023] FedCFamC1F 423
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Plouffe & Plouffe [2023] FedCFamC1F 423
File number: MLC 5339 of 2018 Judgment of: HARTNETT J Date of judgment: 26 May 2023 Catchwords: FAMILY LAW – PARENTING – Children – Where both parents seek sole parental responsibility – Where family violence perpetrated by the father around the period of separation and prior – Where the mother obtained IVOs against the father – Where separation occurred a number of years ago – Where both children experienced mental health issues – Where the mother has an enmeshed relationship with both children – Where the children have a meaningful relationship with both parents – Where the father alleges the mother has medicalised the children – Equal shared parental responsibility, save the father to have sole parental responsibility regarding medical decisions – No change to the children’s schooling – No relocation of the residence of the children – Orders made on applications of the father and the Independent Children’s Lawyer as to equal time spent by the children with each of their parents.
FAMILY LAW – COSTS – Where the Court made previous orders fixing and reserving the father’s costs of an Application in a Proceeding – Where the mother’s conduct has caused the father to incur unnecessary legal costs – Costs order made in favour of the father and the Independent Children’s Lawyer – Costs ordered in a fixed sum
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61C, 61DA, 65DAA, 65DAC, 117
Cases cited: Blinko & Blinko [2015] FamCAFC 146
Collins and Collins (1985) FLC 91-603
Goode & Goode [2006] FamCA 1346
M & M (1988) 166 CLR 69
Mulvany & Lane (2009) FLC 93-404
Penfold v Penfold (1980) 144 CLR 311
R & C [1993] FamCA 62
Division: Division 1 First Instance Number of paragraphs: 191 Date of hearing: 9-10 August 2021, 16-18 August 2021, 15-17 August 2022, 4 November 2022, 21 November 2022 Place: Melbourne Counsel for the Applicant: Ms Dellidis Solicitor for the Applicant: Accord Family Law Counsel for the Respondent: Ms Wheeler Solicitor for the Respondent: Aston Legal Group Counsel for the Independent Children's Lawyer: Mr James Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 5339 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PLOUFFE
Applicant
AND: MS PLOUFFE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HARTNETT J
DATE OF ORDER:
26 MAY 2023
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
THE COURT ORDERS, BY CONSENT OF THE APPLICANT FATHER AND THE INDEPENDENT CHILDREN’S LAWYER, BUT NOT CONSENTED TO BY THE MOTHER, THAT:
1.Subject to Order 3 herein, the mother and father have equal shared parental responsibility for the children, X born … 2007 and Y born … 2009.
2.The father have sole parental responsibility for decisions regarding medical and allied health matters affecting the children, including counselling, therapy, psychological or psychiatric intervention.
3.The mother be restrained from:
a.changing the children’s enrolment at E School;
b.relocating the children’s residence further than 20km from E School;
c.causing the children to attend upon any counsellor, therapist, psychologist, or mental health practitioner, and
d.causing the children to attend upon any medical specialist,
e.save with the express written consent of the father.
4.The children live with each parent week-about basis throughout the year, excluding the long summer holidays, with changeover every Friday:
a.commencing on the first Friday (upon the making of Orders) with the father from the conclusion of school (or 5.00pm if a non-school day) until the conclusion of school on the following Friday (or 5.00pm if a non-school day) and each alternate week thereafter;
b.commencing on the second Friday (upon the making of Orders) with the mother from the conclusion of school (or 5.00pm if a non-school day) until the conclusion of school on the following Friday (or 5.00pm if a non-school day) and each alternate week thereafter; and
c.the week-about arrangement be suspended during the long summer holidays and resume at the commencement of Term 1 in the same pattern as if the long summer holidays had not intervened.
5.The children live with each parent during the long summer holidays as follows:
a.in the long summer holidays commencing 2023 and each alternate year thereafter:
i.with the father from the conclusion of school on the last day of Term until 5.00pm 6 January (noting that the father’s time shall be suspended from 10.00am Boxing Day until 5.00pm 27 December and the children shall spend time with the mother for this period); and
ii.with the mother from 5.00pm 6 January until the commencement of school in Term 1.
b.in the long summer holidays commencing 2024 and each alternate year thereafter:
i.with the mother from the conclusion of school on the last day of Term until 5.00pm 6 January (noting that the mother’s time shall be suspended from 10.00am Boxing Day until 5.00pm 27 December and the children shall spend time with the father for this period); and
ii.with the father from 5.00pm 6 January until the commencement of school in Term 1.
AND THE COURT ORDERS, BY CONSENT, THAT:
6.Notwithstanding any other order to the contrary, the children spend time with each parent on the following special occasions:
a.for Christmas:
i.in 2023 and odd numbered years thereafter with the father from 5.00pm Christmas Eve until 10.00am Boxing Day and with the mother from 10.00am Boxing Day until 5.00pm 27 December; and
ii.in 2024 and even numbered years thereafter with the mother from 5.00pm Christmas Eve until 10.00am Boxing Day and with the father from 10.00am Boxing Day until 5.00pm 27 December.
b.for Mother’s Day / Father’s Day:
i.with the mother on the weekend of Mother’s Day from 5.00pm Mother’s Day Eve until the commencement of school Monday (or 5.00pm if a non-school day); and
ii.with the father on the weekend of Father’s Day from 5.00pm Father’s Day Eve until the commencement of school Monday (or 5.00pm if a non-school day).
c.for each parent’s birthday:
i.with the mother on her birthday from the conclusion of school until 8.00pm if a school day or from 10.00am until 5.00pm if a non-school day; and
ii.with the father on his birthday from the conclusion of school until 8.00pm if a school day or from 10.00am until 5.00pm if a non-school day.
d.on each of the children’s birthday, with the parent at whose home they are not otherwise sleeping that night, from the conclusion of school until 6.30pm if a school day or from 12.00pm until 5.00pm if a non-school day.
7.Both parties do all acts and things and sign all such documents and authorities necessary to apply for/renew the Australian Passports for the children with the parties to share equally in the cost of applying and renewing the passports.
AND THE COURT FURTHER ORDERS THAT:
8.Each of the children’s passports shall remain in the care and control of the father, save for periods when the children (or any of them) are travelling outside Australia with the father and in such instance the mother shall return the children’s passports to the father within 14 days of the children (or any of them) returning to Australia.
9.For the purposes of the children spending time with each parent pursuant to these Orders, changeovers that do not coincide with a school day occur as follows:
a.the mother deliver the children to the father’s residence and that the mother remain in her car at all times; and
b.the father deliver the children to the mother’s residence and that the father remain in his car at all times.
AND THE COURT FURTHER ORDERS, BY CONSENT OF THE APPLICANT FATHER AND INDEPENDENT CHILDREN’S LAWYER BUT NOT CONSENTED TO BY THE MOTHER, THAT:
10.Each parent utilise the F Medical Centre for the children’s medical needs where possible.
11.Each parent be at liberty to liaise with any medical or allied health practitioner upon whom the children may attend.
12.The mother is hereby restrained by injunction from permitting, encouraging, or acquiescing to, the children returning to her care during any period that the children are in the father’s care pursuant to these Orders, and in the event that the children attempt to do so, she forthwith do all things to cause the return of the children to the father’s care.
13.The father is hereby restrained from returning the children to the mother during his periods of care pursuant to these orders, even in the event the children or either of them request he do so.
14.Each parent is to notify the other by text message should the children or either of them leave that parent’s care without permission of that parent.
15.Each parent ensure that both children attend school on each school day unless the parent in whose care the children are in has obtained a medicate certificate from the children’s treating general practitioner stating that the children or either of them are physically too unwell to attend and forthwith provide such medical certificate to the other parent.
16.Each parent be at liberty to attend all school events, sporting events,
17.Each parent be at liberty to provide to the children’s school, and any medical and allied health practitioner upon whom the children may attend, with a copy of these Orders and Reasons for Judgement.
18.The Independent Children’s Lawyer within 7 days of these orders being made provide to the mother’s psychologist, Ms G with a copy of the Family Report of Ms H and with a copy of these Orders and Reasons for Judgement.
AND THE COURT FURTHER ORDERS, BY CONSENT, THAT:
19.The Family Report of Ms H will not be discussed with the children by either party.
20.Each parent be at liberty to:
a.liaise with the children’s school;
b.attend all school events to which parents are normally invited, including parent-teacher interviews and sporting competitions; and
c.receive all school reports, photograph order forms, notices and information from the school regarding the children’s education and welfare.
21.Each parent shall authorise the children’s school to provide to the other parent, at their own expense, information in relation to the children’s education (including but not limited to school reports, school photograph order forms and notices).
22.Each parent is restrained from:
a.abusing, insulting, belittling, rebuking, stalking, or otherwise denigrating the other parent or any member of the other parent’s family or household and from permitting any other person to do so; and
b.discussing these proceedings, the contents of any court related documents filed or intended for use in these proceedings, and from permitting any other person to do so,
within the hearing of the children.
23.Each parent notify the other of any change of telephone number or email address within 24 hours of such change and provide 28 days’ notice in writing of any proposed change of address.
AND THE COURT FURTHER ORDERS, BY CONSENT OF THE APPLICANT FATHER AND THE INDEPENDENT CHILDREN’S LAWYER BUT NOT CONSENTED TO BY THE MOTHER, THAT:
24.Each parent be at liberty to attend any of the children’s extracurricular activities irrespective of whose care they are in.
25.The parties communicate by SMS or email regarding matters relating only to the children and any variation to these Orders.
26.The mother pay the father’s costs in the sum of $4,000 reserved by order made 16 December 2021 within 30 days from this date.
AND THE COURT FURTHER ORDERS THAT:
27.The mother pay the father’s costs in the sum of $3,200 reserved by order made 2 May 2022 within 30 days from this date.
28.The mother pay the Independent Children Lawyer’s costs in the sum of $1,233.50 reserved by order made 2 May 2022 within 30 days from this date.
29.The appointment of the Independent Children’s Lawyer be discharged as from 30 days after these orders are made.
30.Otherwise all extant applications are hereby dismissed, save for any further costs orders and the matter be removed from the list.
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 the pseudonym Plouffe & Plouffe has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
INTRODUCTION
The parties to this proceeding have been involved in litigation for over four years at trial. The matter commenced in the Federal Circuit Court of Australia (as it then was, now the Federal Circuit and Family Court of Australia (Division 2)) on 16 May 2018, when the applicant father (“the father”) filed an Application for Final Orders seeking final and interim parenting and property orders. The respondent mother (“the mother”) filed a Response to Initiating Application on 4 July 2018 seeking also final parenting and property orders. The proceeding was transferred to the Family Court of Australia (as it then was, now the Federal Circuit and Family Court of Australia (Division 1)) for determination and hearing by a transfer order made 6 October 2020.
At the final hearing, only parenting issues remained in dispute. Final property orders had been made by consent on 22 August 2018.
The final hearing commenced on 9 August 2021. On 11 August 2021, the matter was stood over until 12 August 2021 due to counsel for the mother being unwell. On 12 August 2021, the solicitor for the mother wrote to chambers requesting that the matter be further adjourned to 16 August 2021 due to counsel remaining unwell. This adjournment was consented to by the parties. The matter proceeded on 16 August 2021 for three days, being its original allocated hearing time. At the conclusion of the hearing on 18 August 2021, the matter was adjourned part-heard to a date to be fixed.
On 9 December 2021, the father filed an Application in a Proceeding seeking interim orders regarding the children’s time to be spent with him during the immediate school summer holiday period; enrolment of the children for the 2022 school year; and for family therapy. On 16 December 2021, I made interim orders, by consent, as follows:
1.That the children [X] born […] 2007 and [Y] born on […] 2009 (“the children”), spend time with the father for the upcoming 2021/2022 summer school holiday period as follows:
1.1For one half of the summer school holiday period 2021/2000 (sic) from the conclusion of school or 3.30pm (whichever is the earlier) on 17 December 2021 until 5.00pm on January 2022; and
1.2That the mother have the children in her care from 5.pm Christmas Day until 5.00pm Boxing Day during the father’s holiday time.
2.That the term time arrangements pursuant to order 1 of the interim parenting orders made 19 December 2019 resume at the commencement of term 1 2022 as if they had not been interrupted by the summer holiday time.
And further orders, not consented to as follows:
3.That the parties each do all acts and things and sign all such documents as may be required to enable the children to each attend [E School] commencing term 1 2022, with the tuition fees at [E School] to be met by the father unless otherwise ordered by the Court.
4.The father’s costs of the Application in a Proceeding be fixed in the sum of $4,000 and reserved to trial.
The part-heard hearing resumed on 26 April 2022. The mother failed to attend the part-heard final hearing. On behalf of the mother, a medical certificate was provided to the Court wherein the mother was described to have a medical condition (concussion) and was assessed as unfit to attend Court on that day and up to 30 April 2022. On 26 April 2022, I made orders that:
1. The mother file and serve:
a.an affidavit of evidence as to her state of health and inability to attend at Court on 26 April 2022 up until 2 May 2022; and
b.an affidavit of evidence sworn or affirmed by [Dr J] as to the mother’s inability to attend at Court from 26 to 29 April 2022.
2. The hearing dates of 27, 28 and 29 April 2022 are hereby vacated.
3.All extant applications be adjourned part heard for final hearing to 2 May 2022 at 10:00am for 3 days.
On 2 May 2022, the mother again failed to attend Court. An additional medical certificate in respect of the mother’s health, dated 29 April 2022, was provided to the Court and other parties (on behalf of the mother). Such medical certificate stated that the mother continued to suffer from significant concussion symptoms and that she was unfit to appear in Court.
On 2 May 2022, upon the application of the father and the Independent Children’s Lawyer (“ICL”), and in circumstances where the mother’s ongoing health and capacity to care for the children was unable to be determined by the Court, and on the evidence, the father had such capacity, the Court made the following interim orders:
1. All extant applications be adjourned to a date to be fixed upon the Mother:
(a)filing an affidavit setting out the circumstances in which she has not appeared in court on 26 April 2022 and 2 May 2022, her capacity to give evidence at the resumption of the trial and her capacity to care for the children; and
(b)filing an affidavit from a medical practitioner as to her capacity to swear an affidavit in these proceedings, attend and give evidence at the resumption of the trial, and care for the children on an ongoing basis.
2. The costs of this day of:
(a)the Father fixed in the sum of $6,400;
(b)the Independent Children’s Lawyer fixed in the sum of $2,467; and
(c)[Ms H’s] fees for cancelled attendance at court on 4 May 2022, if any, and whether any such fee should be paid to her and by whom:
be reserved to the Trial Judge.
3.All previous orders for the children [X] born […] 2007 and [Y] born […] 2009 to live with the Mother be suspended in their operation until further order.
4. The children live with the Father until further order.
5. Until further order, the Mother be and is hereby restrained by injunction from:
(a)attending at the Father’s home;
(b)attending at the children’s school; and
(c)permitting, encouraging or acquiescing to the children returning to her care, and in the event that the children attempt to do so she shall forthwith do all acts and things to cause the return of the children to the Father’s care.
6. For the purposes of Order 4 herein:
(a)the Father shall be at liberty to attend the children’s school as provided in Order 5(b) herein and supply the children’s school with a copy of this Order; and
(b)the Father facilitate the children meeting via electronic means with the Independent Children’s Lawyer at a time agreed be to explain the reasons for, meaning and consequences of the Orders made this day.
7.The children communicate with the Mother by way of phone/Facetime or other electronic means daily between 4.30pm – 6.30pm, and for a period not exceeding 15 minutes, and for the purpose the Mother be and is restrained by injunction from discussing these proceedings and these Orders save to explain to the children that they are to remain with the Father until the Court deems her well enough to resume her care of them.
8.The children spend time with the Mother as agreed in writing between the Independent Children’s Lawyer and the parents until further order.
On 21 July 2022, the matter was listed of the Court’s volition for mention in circumstances where the mother had yet to file an affidavit in compliance with orders made 2 May 2022, and had continued to be, by inference, unable or unwilling to proceed with the trial. The children had not commenced to live with the father in accordance with the 2 May 2022 orders, but rather by agreement of the parties, (the father acquiescing to the wishes of the children) had commenced to spend five nights each fortnight living with their father and nine nights each fortnight living with their mother. The Court listed the further hearing of the matter for 15 August 2022, and relevantly, made orders that:
1.On or before 3 August 2022, each of the mother and father file and serve a brief further affidavit of evidence as to relevant matters that have occurred since the proceeding was last before the Court on 2 May 2022.
2.There is liberty to the Independent Children’s Lawyer to provide to [Ms H] and [Ms K] the affidavits of evidence referred to in Order 1 herein.
3.Costs of the Independent Children’s Lawyer and father are reserved as to the hearing this day and as to any extension of the trial by virtue of the making of Order 1 herein.
The part-heard final hearing resumed on 15-17 August 2022, being, as claimed by the mother, the first time the mother was able to again participate in the trial. The matter was further heard on 19 August 2022, 4 November 2022, and 21 November 2022 wherein judgment was reserved. Orders were made by the Court on 21 November as follows:
THE COURT ORDERS, BY CONSENT, THAT:
1. Notwithstanding any other previous order to the contrary, the children [X] born on […] 2007 and [Y] born on […] 2009 (“the children”), spend time with each parent during the long summer holidays commencing 9 December 2022 (including Christmas) as follows:
a. with the mother from the conclusion of school on the last day of term until 5.00pm 6 January 2023;
b. with the father from 5.00pm 6 January 2023 until the commencement of school on the first day of Term 1 2023; and
c. that the children’s time with the mother pursuant to 1(a) be suspended from 10.00am Boxing Day until 5.00pm 27 December 2022 and they shall spend this period with the father.
2. Notwithstanding any other order to the contrary, the children spend time with each parent on the following special occasions:
a. for Christmas:
i. in 2022 and even numbered years thereafter with the mother from 5.00pm Christmas Eve until 10.00am Boxing Day and with the father from 10.00am Boxing Day until 5.00pm 27 December; and
ii. in 2023 and odd numbered years thereafter with the father from 5.00pm Christmas Eve until 10.00am Boxing Day and with the mother from 10.00am Boxing Day until 5.00pm 27 December.
b. for Mother’s Day / Father’s Day:
i. with the mother on the weekend of Mother’s Day from 5.00pm Mother’s Day Eve until the commencement of school Monday (or 5.00pm if a non-school day); and
ii. with the father on the weekend of Father’s Day from 5.00pm Father’s Day Eve until the commencement of school Monday (or 5.00pm if a non-school day).
c. for each parent’s birthday:
i. with the mother on her birthday from the conclusion of school until 8.00pm if a school day or from 10.00am until 5.00pm if a non-school day
ii. with the father on his birthday from the conclusion of school until 8.00pm if a school day or from 10.00am until 5.00pm if a non-school day
d. on each of the children’s birthday, with the parent at whose home they are not otherwise sleeping that night, from the conclusion of school until 6.30pm if a school day or from 12.00pm until 5.00pm if a non-school day
3. Until further order, the parties each do all acts and things and sign all such documents as may be required to enable each of the children to remain enrolled at [E School].
4. For the avoidance of any doubt, all previous interim orders made 19 December 2019, 16 December 2021, 2 May 2022, 17 August 2022, as amended, otherwise continue in full force and effect with the term time arrangements pursuant to these orders to resume at the commencement of Term 1 2023 as if they had not been interrupted by the summer holiday time arrangement.
AND THE COURT ORDERS THAT:
5. For the purposes of the children spending time with each parent pursuant to these Orders, changeovers that do not coincide with a school day occur as follows:
a. the mother deliver the children to the father’s residence and that the mother remain in her car at all times; and
b. the father deliver the children to the mother’s residence and that the father remain in his car at all times.
AND THE COURT FURTHER ORDERS, BY CONSENT, THAT:
6. Each parent be at liberty to:
a. liaise with the children’s school,
b. attend all school events to which parents are normally invited, including parent-teacher interviews and sporting competitions; and
c. receive all school reports, photograph order forms, notices and information from the school regarding the children’s education and welfare.
7. Each parent be at liberty to attend any of the children’s extracurricular activities irrespective of whose care they are in.
8. Each parent is restrained from
a. abusing, insulting, belittling, rebuking, stalking, or otherwise denigrating the other parent or any member of the other parent’s family or household and from permitting any other person to do so, and
b. discussing these proceedings, the contents of any court related documents filed or intended for use in these proceedings, and from permitting any other person to do so, within the hearing of the children.
9. Each parent notify the other of any change of telephone number or email address within 24 hours of such change and provide 28 days’ notice in writing of any proposed change of address.
10. All extant applications are otherwise reserved for judgment.
MATERIALS RELIED UPON
The father relied on the following material:
(1)Further Amended Initiating Application filed 7 June 2021;
(2)his trial affidavit filed 7 June 2021;
(3)Financial Statement filed 7 June 2021;
(4)his case outline filed 2 August 2021;
(5)his affidavit in reply filed 12 July 2021;
(6)affidavit of Ms C, the father’s sister, filed 12 July 2021;
(7)affidavit of Ms L, a family friend, filed 12 July 2021; and
(8)the Family Report of Ms H (“Ms H”), Family Consultant, dated 12 April 2021 and annexed to her affidavit filed 20 April 2021.
The mother relied on the following material:
(1)Amended Response to Final Orders filed 24 June 2021;
(2)her trial affidavit filed 24 June 2021;
(3)Financial Statement filed 24 June 2021;
(4)affidavit of Mr M, the mother’s new partner, filed 24 June 2021;
(5)affidavit of Mr O, the mother’s adult son, filed 24 June 2021;
(6)affidavit of Mr N, the mother’s ex-husband, filed 24 June 2021;
(7)affidavit of Ms P, the maternal grandmother, filed 24 June 2021;
(8)affidavit of Dr Q, the children’s general practitioner, filed 24 June 2021;
(9)affidavit of Dr S, the children’s general practitioner, filed 24 June 2021; and
(10)Family Report of Mr R (“Mr R”) dated 11 December 2019. In respect of this evidence, I note that some years have passed since the preparation of this Report. Neither the father nor the ICL sought to rely on this evidence, in the main because the children’s and parties circumstances have changed. The mother did not make Mr R available for cross-examination. I nevertheless accept that the relevant circumstances at the time of the making of this Report have some historic usefulness, and without objection from the other parties, will give its contents some weight where appropriate. Otherwise, the single expert evidence at trial was that of Ms H; and
(11)The Therapeutic Interventions Report of Ms K, clinical family therapist, filed 10 August 2021.
Before the Court in evidence and relied upon by the ICL was:
(1)the Family Report of Ms H, Family Consultant, dated 12 April 2021 and annexed to her affidavit filed 20 April 2021; and
(2)the Therapeutic Interventions Report of Ms K, clinical family therapist, filed 10 August 2021.
The ICL also relied upon written submissions dated 17 November 2022.
BACKGROUND
The father was born in 1972 and was aged 49 years at trial. The father is employed in sales in MM Town and is residing in NN Town, Victoria, in rental accommodation. The father is in good health.
The mother was born in 1977 and was aged 44 years at trial. The mother is engaged in home duties and is residing in the former matrimonial home situated at T Street, PP Town, Victoria (“the FMH”). The mother has re-partnered with Mr M (“Mr M”). Mr M resides in Suburb U and has a child from a prior relationship aged approximately eight years. The mother is in relatively good health, despite having suffered from depression since she was approximately 18 years of age. She consults with a general practitioner and a psychologist as necessary.
The parties met in early 2005; commenced cohabitation in mid-2005; were married in 2006; and separated on a final basis on 25 August 2017. Their cohabitation period was approximately 12 years.
There are two children of the marriage, X born in 2007 and aged 15 years at trial (“X”), and Y born in 2009 and aged 13 years at trial (“Y”) (collectively “the children”). There is also an adult child from the mother’s former marriage, Mr O born in 2001 and aged 21 years at trial (“Mr O”). Mr O was aged approximately 12 months when the mother and her then husband, Mr N (“Mr N”), separated. Mr O was approximately four years of age when the parties met. He resided in their household from the commencement of their cohabitation until their separation.
Following their marriage in 2006, the parties lived at the mother’s property in Suburb U. The mother retains her proprietorship of that property. The parties operated a retail business called W Pty Ltd (“the business”) in Suburb V.
The parties briefly separated in 2007, whilst the mother was pregnant with X. In February 2007, Victoria Police made an application for an intervention order (“IVO”) on behalf of the mother and Mr O. In March 2007, a final IVO was made by consent against the father, for a period of 12 months and two weeks. This order was subsequently revoked by a final IVO made in substitution in August 2007 for a period of 12 months. The father was also charged with criminal damage and unlawful assault in January 2008, and was placed on a Diversion Order with no conviction. He was ordered to complete a Men’s Behaviour Change Program. The IVO was obtained in circumstances where, in February 2007 the father damaged some musical equipment and pushed a stand up heater to the ground. He had become jealous and angry about the mother playing music and singing old songs that she had written about a former boyfriend. The mother called the Police who arrived at the home. The father had departed the home. The father conceded that he had “lost it”,[1] stood over the mother, and smashed the equipment to get the mother to stop playing. The father denied pushing the heater over. The father claimed that he apologised to the mother for the incident. The parties subsequently reconciled and resumed their cohabitation.
[1] Transcript 9 August 2021, p.22 line 12.
In 2007, X was born.
In December 2008, the parties purchased the FMH, using as a deposit some equity in the mother’s Suburb U home and otherwise by application of a mortgage.
In 2009, Y was born.
In July 2016, the father and the mother became engaged in a verbal argument over the dishes. When the mother returned home that day, the father had stood in the doorway and blocked the mother’s access to the house. The father screamed, yelled and swore at the mother. He intimidated her. The father conceded he had acted in this way, stating that he had blocked the mother’s access to the house as he did not want the children, who were inside, to see the parents arguing.[2] The mother reported this incident to Victoria Police who took out an IVO on behalf of the mother in July 2016 listing the father as the perpetrator.
[2] Transcript 9 August 2021, p.53 lines 32-43.
In August 2016, a final IVO was made by the Magistrates’ Court against the father by consent in respect of the July 2016 episode, for a period of 12 months. Around this time, the parties separated for an approximately six month period.
In about February 2017, the parties reconciled and commenced to reside above the business in Suburb V.
On 25 August 2017, the parties separated on a final basis and the mother and children took up residence with the maternal grandmother and maternal uncle in Suburb B. The mother and children have a close and loving relationship with the maternal grandmother. The father continued to reside above the business.
In February 2018, the mother claimed, whilst she and the children were at a petrol station, that there were insufficient funds in her bank account to pay for petrol to place in her vehicle. The mother blamed the father for a failure to place money in her bank account at the time, and called him for him to make funds available. The father did not answer the call, he at that time having blocked the mother’s calls as known by her. The mother then contacted her brother to call the father, to request he transfer monies. The father did so. I note at this time that the mother in fact had funds in another bank account in her name, available for her use, but which she seemingly did not wish to use, despite the circumstances. The mother then proceeded to drive, with the children in the car, to the father’s house in Suburb V, being the apartment above the shop in which the parties ran their business. It was 10.00pm in the evening. The father did not answer the apartment door when the mother knocked and the mother let herself in. She proceeded into the father’s bedroom, where he had been asleep, and berated him, telling the father about the distress she claimed he had put her and the children through. The father grabbed and pushed the mother out of the bedroom, and slammed the door. The mother returned to her vehicle downstairs, in which she had left the children. The mother’s actions on that evening were calculated. She approach the Police and reported the matter.
In February 2018, Victoria Police applied for and obtained an ex parte IVO against the father listing the mother as the affected family member following the mother’s allegation that the father physically abused her at his residence, and failed to provide her with funds. In March 2018, an interim IVO was made against the father in the Magistrates’ Court. In August 2018 a final IVO was made in the Magistrates’ Court for 12 months duration. The final IVO was made by consent and without admissions by the father.
In March 2018, the mother and children relocated back to PP Town with the father’s agreement. They again took up residence in the FMH. The father also relocated to the PP Town area but not until July 2018. He had remained in Melbourne for a short time to deal with then outstanding aspects of the business operations, but it had always been his intention to reside in close proximity to the children.
On 16 May 2018, the father filed an Initiating Application seeking amongst other orders an order for equal shared parental responsibility of the children. He sought also that the children reside in a week-about arrangement with each parent.
On 20 June 2018, Williams J ordered that an ICL be appointed and that the mother file a Response.
Throughout June and July 2018, being a time when an IVO was operational against the father, conflict continued between the parties in respect to the business operations. The mother repeatedly texted the father accusing him of financial abuse, and she regularly attended the shop premises at which he was working, the father claiming as a form of harassment of him. The mother removed two computers from the shop premises further heightening the discord between the parties. The mother claimed the father would enter the shop premises when she was there and alleged to his solicitors a breach of the IVO.
On 4 July 2018, the mother filed a Response seeking final orders for sole parental responsibility of the children, and the children live with her and spend supervised time with the father. The mother also sought orders the father never drive with the children; the father remain under the care of a psychiatrist for so long as he maintained contact with the children; the father maintain a zero blood alcohol content level when with the children; and the father complete an anger management course.
On 2 August 2018, Williams J made orders that the parties have equal shared parental responsibility for the children and for the children to spend time with the father from Friday to Monday, and Wednesday to Thursday each alternate week but sequenced such that the children spent time with the father each week. No provision for spend time during the holidays was included in those orders.
On 22 August 2018, the parties entered into final property orders by consent whereby the mother retained her property in Suburb U and ownership of the FMH. She also retained the business, and made a payment in the sum of $51,000 to the father.
On 5 November 2018, orders were made by consent for the children to spend additional time with the father in the school holidays from Friday to Wednesday each alternate week.
On 29 January 2019, the father left the children at his home, unattended, for approximately four hours. The children were then 11 and 9 years of age. The father denied the time period when contacted by Child and Adolescent Mental Health Services (“CAMHS”) (on information as supplied by X) stating the children had been left alone for only one and a half hours. I note the mother had also reported to CAMHS generally that the children were left alone, whilst in the father’s care, for four hours. At trial the father’s evidence was that on the occasion of 29 January 2019, he had left the children unattended for approximately three to four hours whilst he was at work but that he had been in contact with the children during this time. It was his evidence that since January 2019, he had always called upon another family member to care for the children, or otherwise has left them unsupervised for a very short period of time. It was further his evidence that in the last six months before the trial, he had left the children unsupervised for up to one and a half hours, but no longer, in circumstances where he had local work appointments.
In March 2019, the mother obtained an IVO against Mr M’s ex-wife that was operative for a period of 12 months.
In April 2019, the mother did not accept the father’s assurance that he had X’s asthma puffer in circumstances where the children were spending time with him. The mother, as a result, contacted Victoria Police seeking a welfare check on the children at the father’s home. The Police attended upon the father’s home at approximately 11.00pm and asked if the father had X’s Ventolin. The father showed Police the Ventolin puffer. The Police did not identify any problems and left. The father texted the mother the next day to inform the mother that he had the puffers but did not have her preventer. Later that day, the father took X to her general practitioner to get a script for a preventer.
In July 2019, a further episode occurred in respect of X’s asthma wherein the mother called both the Police and the ambulance. This is as referred to in paragraph 125 of these reasons.
It was the mother’s evidence that in early December 2019, the father returned Y to her care earlier than provided for in the Court orders. Upon their arrival Y was “ashen in colour…despondent, would not eat and would not tell [her] what happened save that he had a fight with his dad.”[3] The mother’s evidence was that Y was crying and expressed he wanted to end his life and that when she sought the father’s consent that Y see a psychologist, the father refused such consent. Y then proceeded to spend the first half of the December-January school holidays with the father, with the father’s evidence being, that save for a period of “maybe 24, 48 hours…he was a bit out of sorts and then the remainder of the two weeks he had an excellent time”.[4] Otherwise, it was the father’s evidence that Y was indeed upset in early December 2019, as noted by the mother, and that he observed Y to be “really suffering”,[5] around that time, but not as a consequence of the father-son relationship. The father gave Y “as much support and comfort as [he] could throughout that time”.[6] The father considered Y was under a lot of stress, stress the father felt derived from an imminent final hearing, conflict between the parents, and Mr O being in poor health.
[3] Mother’s affidavit filed 24 June 2021, paragraph 16.
[4] Transcript 10 August 2021, p.120 lines 10-11.
[5] Transcript 10 August 2021, p.120 line 35.
[6] Transcript 10 August 2021, p.120 lines 35-37.
On 19 December 2019, O’Sullivan J found the mother failed to attend a final hearing, did not comply with trial directions, and provided no evidence of having a medical condition which prevented her from attending court. His Honour proceeded to make interim orders as sought by the ICL and the father, and on an application for which leave was required. Those orders provided relevantly, as follows:
1.The applicant and the Independent Children’s Lawyer have leave to proceed this day with their application for interim orders pursuant to Rule 13.03A(2)(a)(b)(iii)(vii), 13.03B(2)(d) and 13.03C(1)(e) of the Federal Circuit Court Rules 2001.
2.There be interim orders in terms of the Minute of Orders by consent between the applicant and the Independent Children’s Lawyer and dated 19 December 2019 (“the Minute”)…
3.All extant interim applications be dismissed.
4.The matter be adjourned to 17 September 2020 at 10:00 am for final hearing (with an estimated hearing time of 2 days) at the Federal Circuit Court of Australia at Dandenong.
5.The applicant’s costs in the sum of $5,832 and the Independent Children’s Lawyers’ costs in the sum of $2,200 be reserved.
In April 2020, the mother withheld the children from spending time with the father for five weeks on the basis that in her view, the children were at risk of “dying of Covid-19” or of “serious illness or even death in the father’s care”.[7] Y was tested twice for COVID-19 in early 2020, with both results being negative.
[7] Father’s affidavit filed 7 June 2021, paragraph 20.
In June 2020, X commenced seeing a psychologist, Ms Z (“Ms Z”). X was struggling with her mental health and had engaged in self-harming behaviours. The parties agreed on this referral.
On 25 July 2020, Y fell off his scooter while riding around a netball court whilst in the father’s care, and hurt his ankle. The father thought it not a serious injury. He contacted his sister, a health professional, for advice. He was told by her that Y needed to keep off his foot. The father’s evidence was that by the Sunday of his weekend time spent with the children, Y was ‘quite comfortable’ and he returned him to the mother’s care.
A couple of days later, the mother took Y to the F Medical Centre where it was noted that there was slight swelling over the ankle, no bruising, and otherwise Y was able to weight bear. The treatment recommended was Rest, Ice, Compression and Elevation (R.I.C.E) and analgesia. An X-ray report, completed by AA Radiology at CC Town, found that:
calcifications are identified in the inferior aspect of the medial malleolus which could be due to recent fracture or unfused epiphysis. A similar calcification is also identified in the lateral aspect of the talus interior to the lateral malleolus. No definite soft tissue swelling is identified. Clinical correlation is recommended. No other recent fracture or abnormal alignment is demonstrated.
Following this appointment, the mother and Y had a telehealth conference with Dr Q who reported:[8]
[8] Exhibit AF-1.
•Mother sais (sic) radiographer and […] saw avulsion fracture
•XR does not report that
•Mother got him crutches, cn (sic) hobble but is a bit sore
•She is very confused now as the report does (sic) confirm that and she is concerned they missed something
Plan
•I sent […] a msg to discuss how strongly he felt about fracture and ? location for further management
•If any change in Mx we will contact [Ms Plouffe]
In August 2020, the mother took Y for another appointment to obtain another X-ray referral due to, she asserted, Y complaining of pain. The doctor’s notes stated:[9]
[9] Exhibit AF-1.
1.Left Ankle Injury – Follow up
•has had an ankle injury – 6 weeks ago
•happen when he was with his dad
•as per the pt, his ankle inverted and the scooter went over the toes
•seen by [Dr DD] and had X-ray and USS
•ankle ligaments including AITFL was intact
•X-Ray showed a lateral Talar process Avulsion Injury
•has been using an ankle boot
•ongoing pain and a feeling of a ;click’ with sudden pain
•affecting his self-esteem and ability mingle with other kids
•mom worried about another missed injury that can affect him long term
•keen for more imaging like a CT scan
•has been well otherwise
O/E
Obviously large and ill-fitting ankle boot
Ankle Exam:
No tenderness on malleoli, Navicular and 5th MT bones
No pain with mid foot rotation
Stable ankle with intact ligament
Negative Drawer test
Mx:
Explained and reassured that the ankle is stable and no clinical signs of instability
Advised that the ill-fitting Ankle boot may have affected the healing
Agreed on the following plan;
Weight bearing back slab for 2 weeks
R/V in 2 weeks to review progress
If not improved, consider sports physician referral or imaging
In August 2020 and again in October 2020, there were further medical follow up consultations for Y as arranged by the mother. The mother suggested a second presenting problem in the October 2020 appointment, at that time seeking also a psychological referral for Y.
On 2 September 2020, the mother contacted CAMHS upon recommendation from X’s psychologist, Ms Z, following X’s report to Ms Z of her plan to commit suicide and her suicide note. The mother reported to CAMHS that when X was in the father’s care she experienced intense suicidal thoughts whilst showering.[10] A letter to F Medical Centre in September 2020 from CAMHS noted that:[11]
[X] presented as flat in affect and reported a number of depressive symptoms such as ongoing low mood, suicidal thoughts, avo1ition, and anhedonia, as well as panic attacks roughly once a week. [X] self- reported her mood to be "sad and tired", rating it at 3/10 at the time of interview. She reported that her mood was worse the night before the interview, and that she had experienced acute suicidal ideation at this time, that she was able to talk to her mother about. [X] had previously disclosed that a few weeks ago she had thoughts of ending her life by taking an overdose of over the counter medications or by lacerating her wrists with a blade. She was talked out of these by a dose friend that [X] relies on. [X] noted that she finds it difficult to discuss these thoughts with her family, though mum is understanding and trying to help out [X].
Sleep and appetite do not appear to be significant issues at this time, though [X] reported she often experiences nightmares of her family being killed. [X] was able to identify a number of psychosocial stressors that contributed to her deteriorating mental state . She identified school as a current significant stressor, describing lack of friends, ong6ing bullying and "not fitting in" issues from within her cohort that made her feel reductant to attend school. Reported peer group issues include the spreading of rumours of a sexualised nature among the peer group, ongoing cyber bullying, and pressure at school to partake in disordered eating behaviour. Online schooling has also been overwhelming for [X]. [X] started at this school only this year and none of her friends from her previous school have followed her here.
[10] Exhibit RM-32.
[11] Exhibit RM-24.
In October 2020, X was seen alone via telehealth by a psychiatrist from CAMHS. X was reported on as follows:[12]
…identifies her mood deteriorated post separation of Mum and Dad three years ago and has never recovered. She identified school as a significant factor with her mood and refusing to return and states Dad has said, “You don’t get a say in it”. The writer asked if she had one wish to make things better and she replied, “To kill myself and that my parents wouldn’t be sad about it”. She said she has been having counselling with [Ms Z], it wasn’t helping, nothing helps. She said she had strong thoughts to cut herself with a blade across her wrist. She was sleeping okay. Her appetite was okay and she was compliant with taking the fluoxetine with no side effects.
[12] Transcript 10 August 2021, p.139 lines 27-36.
In October 2020, Y was reported (by Dr EE at F Medical Clinic) to have improved ankle pain. That medical attendance was more specifically for a mental health care review plan as requested by the mother.
During the 2021 Term 1 Easter school holiday period, Y did not spend any overnight time with the father. Such time was provided for in the 2019 orders.
In May 2021, Y again injured his same ankle, but this time whilst in the mother’s care. The mother sought medical treatment and was advised to bandage the ankle. She did so. The following day, Y commenced to spend time with the father. Two days later, Y re-bandaged his ankle under supervision from the father. Y sent a photograph of his bandaged foot to the mother. A further two days later the father messaged the mother that Y was in pain and he sought to return Y back to the mother’s home rather than to the school (it being a Monday morning). The mother responded that Y should go to school, but suggested crutches and a moon boot. The father delivered Y to school without either. On the following day, the mother gave Y anti-inflammatories and sent him to school. She had not been able to obtain a medical appointment for him until the Wednesday. When seen by Dr EE on the Wednesday, Dr EE wrote out a plan for both parents at the request of the mother. It was “Left ankle ligament injury. Plan. Wear the boot all times except when showering or sleeping – for two weeks. (2) He can walk without restriction. (3) No sports, bike riding for two weeks. (4) Can have Nurofen, Panadol for pain as needed.”[13]
[13] Transcript 10 August 2021, p.113 lines 44-47.
Y spent time with the father for nine days in the June/July 2021 school holidays. As at the commencement of the trial in August 2021 however, Y had not spent any time with the father since the June/July holiday period. This was contrary to the provision for time to be spent between Y and the father as contained in the then operative Court orders. It was the father’s evidence that the mother did not support his spending of time with the children and that her actions, over a prolonged period, had resulted in the children, in particular Y, who post separation was very keen to spend time with the father, declining to do so and/or dictating the terms under which they would spend time with him.
On 16 April 2022, the mother sustained what she suspected was a concussion from a bicycle accident wherein she fell off her bicycle. Shortly after, the mother consulted with a doctor at her usual clinic, the F Medical Clinic in MM Town, who cleaned her grazes.
In late April 2022, the mother attended upon another doctor, namely Dr J (“Dr J”) and requested to undergo a neurological examination. Dr J was not the mother’s usual general practitioner. Dr J provided a medical certificate to the effect that the mother suffered a concussion. The mother claimed that she continued to experience ongoing symptoms of concussion and was referred by Dr J to FF Physiotherapy for further assessment. The mother did not attend upon this clinic, but rather chose to attend upon a physiotherapist at BB Physiotherapy.
On 2 May 2022, the Court made orders as set out in paragraph 7 above for the children to reside with the father until further order. The mother did not practically support those orders, and the children returned to her care, by electing to walk and train from the father’s home, without his consent, to the mother’s home that evening. The father ensured their safety by following them to the station, sitting with them at the station, and travelling to PP Town station to follow the children from the station to the mother’s home. By 27 May 2022, both children had begun to spend time with the father consistent with the previous orders of the Court of 19 December 2019.The father was worn down and not interested in engaging in anything approaching further hostilities. Plus, he had secured at least regular and substantial and significant time with both children which he saw as essential to their ongoing welfare.
In May 2022, the mother undertook a magnetic resonance imaging (“MRI”) which returned normal results.
By 3 June 2022, it was the father’s evidence that both parties had ‘fallen back into a pattern of five nine in accordance with the previous parenting orders’. As such the father agreed to formalise this arrangement, and confirmed his agreement otherwise to the upcoming school holiday arrangements, with the mother to have the first half and for the parties to act in accordance with earlier orders as to school holiday periods.
On 21 June 2022, the mother agreed to the children spending the second half of the school holiday period with the father, from 5.00pm on 6 July 2022 until they returned to school on 19 July 2022, and the children to spend time with the mother for the first half of the school holiday period. This occurred without incident, save for the father collecting the children from Melbourne Airport as the mother was struggling to obtain flights to return from Queensland.[14] The children then remained in the father’s care until 19 July 2022, save for one night when Y returned to the mother’s care.[15]
[14] Father’s affidavit filed 3 August 2022, paragraph 6.17.
[15] Father’s affidavit filed 3 August 2022, paragraph 6.18.
In August 2022, the mother consulted Dr GG (“Dr GG”) at the QQ Medical Clinic (“QQ Clinic”). The mother was prescribed medication for her symptoms and recommended to attend a concussion program.
It was the evidence of Dr GG that the mother was recovering gradually from her concussion and that she reported symptoms in the mild to moderate range on the Post-Concussion Symptom Checklist. It was Dr GG’s recommendation the mother further delay proceedings on 15 August 2022 until her concussive symptoms recovered. Dr GG stated she was “not in a position to comment about [the mother’s] capacity for a parenting role”.[16] Ultimately the matter proceeded on the 15 August 2022 and proceeded for a further five days over August and November 2022.
[16] Affidavit of Dr GG filed 3 August 2022, paragraph 7.
At the conclusion of the final hearing on 21 November 2022, the Court, relevantly, made orders regarding changeover as follows:
5.For the purposes of the children spending time with each parent pursuant to these Orders, changeovers that do not coincide with a school day occur as follows:
(a)the mother deliver the children to the father’s residence and that the mother remain in her car at all times; and
(b)the father deliver the children to the mother’s residence and that the father remain in his car at all times.
Orders were otherwise made by consent on 21 November 2022, and such orders are set out in paragraph 9 above. The mother had sought the addition of the words “at the end of the driveway” after the words “the mother’s residence” in Order 5 (b) above.[17] The Court declined to make an order in those terms.
[17] Transcript 21 November 2023, p.4 lines 3-4.
My reasoning for the Order as made above was to promote the best interests of the children, where the mother has a long driveway and it is her habit to drive the children between her residence and the road-side mailbox at both commencement and conclusion of their time with the father. The mother wishes to avoid an interaction with the father and particularly in the presence of the children. However, in driving to the point where the father is waiting in his vehicle, if in fact he has already arrived, or otherwise in driving to the point of changeover only to have she and the children wait by the side of the road, the children to then alight from one vehicle and enter the other, brings the mother in far closer proximity visually and otherwise to the father than her staying in her home, and he in his car, near the home on the property. The change-over on the roadside presents its own risks including passing traffic on a country road. Additionally, the children are required to be transported in two vehicles between each of their parents’ homes, instead of a situation where the father can drive up the mother’s long driveway, remain at a distance from her home in his vehicle, and have the children emerge from the home and walk directly across to their father’s car for travel to his home. Further to these matters, I am satisfied the father presents no risk to the mother, or children, regardless of the mother’s perception and that he too is invested in protecting the children from parental conflict.
EVIDENCE OF THE WITNESSES
Statements of fact in these reasons are findings on fact on the balance of probabilities, unless the context indicates otherwise.[18]
[18] Evidence Act 1995 (Cth) s 140.
Each of the mother and the father were cross-examined in the proceeding. Also cross-examined was Ms C (the father’s sister), Ms L (family friend), Mr O (the mother’s son from a prior marriage) and Ms H (the Family Report writer).
It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. Nor have I done so. However, every piece of evidence relied upon by the parties has been read and carefully considered by me.
The mother made a myriad of allegations against the father that had no credible rational basis. The father made concessions and admissions against his interests as was necessary and/or appropriate. Overall, his evidence exhibited a weariness in dealing with the mother who sought to align the children with her at varying times, and who was obsessive about not only her health but also the children’s health.
Both psychologists at the time of writing their reports supported the retention of shared parental responsibility on the basis it would promote the growth of better collaboration and communication between the parents. Since those reports, and in light of the evidence at the final hearing, as submitted by counsel for the ICL, the Court finds the acrimony and communication between the parties is poor with respect to significant major decisions regarding the children, specifically in relation to issues around medical and counselling treatment of the children.[19]
[19] ICL written submissions dated 17 November 2022, p.1.
Evidence of Mr R, Psychologist
Mr R prepared a Family Report dated 11 December 2019. In particular, it sets out the views held by the children at the time of Mr R’s interviews with, and observations of them, in September and November 2019, being approximately two years after the parties’ separation. The father had at that time sought to reach agreement with the mother about his regular and consistent time spent with the children but to no avail. He appeared to accept that the mother was the primary care giver to the children, and he sought to spend substantial and significant time with them as an interim measure before proceeding to an equal time arrangement.
At the time of the report, X wished to continue spending about the same amount of time with the father as the orders of 2 August 2019 provided for, whilst living with her mother. Y expressed the view he wished to share his time with his parents on a week about basis “because it’s fair” and “I love them both and I like being with them both and they love us and it’s fair”.[20]
[20] Family Report of Mr R dated 11 December 2019, paragraph 7.2.
X, when discussing the question of future schooling, said to Mr R “I know Dad wants me to go to [E School]…and Mum’s been talking about [D School]… I have been thinking [E School]…but I don’t mind that much…what I don’t want is to start and then to have to change”.[21]
[21] Family Report of Mr R dated 11 December 2019, paragraph 6.8.
Y explained to Mr R that he knew his parents had different views of where he might live and where he and X may go to school. Y said, nonetheless: “I know what I want if they want to know…I prefer to finish primary school where I am, and to go to [E School]”.[22] Y told Mr R he would like to spend equal time with each parent. Despite the expression of that wish, the mother began withholding the children from the father from time to time commencing in or about April 2020.
[22] Family Report of Mr R dated 11 December 2019, paragraph 7.5.
Mr R observed the children to move between their parents easily in that such movement was unremarkable. He said of the children “I do not think that either of them could be described as being of a particularly introverted or cautious temperament”.[23]
[23] Family Report of Mr R dated 11 December 2019, paragraph 7.6.
Mr R highlighted the differing perceptions of the mother and the children of the risk posed by the father. Mr R stated “I think I detected a tendency for [the mother] to conflate her own experience of [the father] with the children’s. She will need to separate her personal feelings about him from a consideration of what she wants to achieve for the children more if they are to come to parenting arrangements that are in X and Y’s best interests”.[24]
[24] Family Report of Mr R dated 11 December 2019, paragraph 5.5.
Mr R concluded that the children had formed their primary attachments to their mother. Further, that the children enjoyed “robust father-child relationships” with the father which he found would be of “developmental significance as both children grow into adolescence and adulthood.” He noted that there should be “adequate opportunity for these relationships to grow and flourish”.[25]
[25] Family Report of Mr R dated 11 December 2019, paragraph 8.2.
Mr R’s recommendation was that the parents continue to share parental responsibility for the children and he did not support the mother’s application for sole parental responsibility. He further recommended that the children live with their mother and spend subsequent and significant time with their father in a school term nine/five nights a fortnight in favour of the mother. During school holidays and special family cultural events, he opined that the children should spend equal time with their parents.
Mr R noted, in December 2019, that the parents needed to adopt a “parallel parenting approach” while the conflict between them continued.[26]
[26] Family Report of Mr R dated 11 December 2019, paragraph 8.5.5.
Mr R recommended that regular communication, emanating from the children to their parents, occur at all reasonable time.[27] Mr R also considered that the children’s wishes, which appeared to be based on a desire for stability, should be acceded to in respect of their schooling, recommending the children not change schools or relocate for a period of 12-24 months to afford them the stability that they needed.
[27] Family Report of Mr R dated 11 December 2019, paragraph 8.5.5.
I accept the unchallenged evidence of Mr R.
Evidence of Ms H Family Report Writer
Ms H prepared a second Family Report in this matter dated 20 April 2021. More weight is given to this report given its currency to the commencement of the final hearing, the parties agreement to the appointment of Ms H as the single expert at trial, and the reliance on it by the ICL with Ms H being made available for cross-examination by the parties.
In Ms H’s assessment, any relocation of the children from PP Town to Melbourne would be disruptive of the children’s education, extracurricular activities, healthcare, friendships, and family relationships, including the children’s relationship with the father and their maternal half-brother. Both of these relationships are of significant importance to the children.[28] The children were also likely to cope better with fewer transitions between the homes of their parents, and with adequate time to settle in each household.[29] Living in close geographical proximity assisted that transition.
[28] Family Report of Ms H dated 12 April 2021, paragraph 191.
[29] Family Report of Ms H dated 12 April 2021, paragraph 215.
Ms H assessed the father to present as the more stable, rational parent and the mother to present as more inclined to make impulsive fear-based decisions. Ms H stated that restrictive gate keeping by the mother (with regard to the father’s time with the children) and sole parental responsibility being exercised by either parent would undermine the development of greater cooperation, reduced conflict, and improved communication between the parents.[30]
[30] Family Report of Ms H dated 12 April 2021, paragraph 192.
With regard to the children’s wishes, Ms H found their wishes to not be their own, but “a reflection of the mother because of their enmeshed relationship”.[31] Ms H stated there was a “lack of psychological boundaries” between the mother and the children, so “if the mother was distressed, the children tended to mirror those emotions…they should not be burdened with that decision making which should be that of the parents”.[32]
[31] Transcript 4 November 2022, p.25 lines 19-20.
[32] Transcript 4 November 2022, p.25 lines 19-23.
Ms H recommended the children spend equal time with the parents on a week about basis during the school term and school holidays. However, if the mother was to relocate to Melbourne, the children should live with the father during the school term and spend time with the mother every second weekend. Ms H was of the opinion that if there was refusal by the children; the Court orders breached; and/ or the mother unable to support the children to spend time with the father, then the Court could consider a three month change of residence with minimal or no contact with the mother to enable the children to adapt to time with the father.
Ms H further recommended that the parties and the children engage in family therapy with a family therapist to address co-parenting difficulties, exclusionary processes, enmeshed relationships and to strengthen and develop healthy parent-child relationships with sessions to occur fortnightly.[33] Further, that the mother engage in individual fortnightly treatment for a minimum of 12 months with a psychologist.[34]
[33] Family Report of Ms H dated 12 April 2021, p.72.
[34] Family Report of Ms H dated 12 April 2021, p.73.
Neither party wished, at trial, being some five years since separation, to engage in further family counselling and/or therapy, and nor did they necessarily have the funds. I note that they and the children have been engaged in this litigation for a very long period. A change in parental attitude is unlikely. The children need to be released from further interventions and have a more usual childhood existence. I have determined that an order in the form of this recommendation should not be made and that any further family therapy, if it is to succeed, needs to be voluntarily undertaken.
The mother
Ms H determined that the mother presented an overly positive impression of her clinical presentation, stress levels, and parenting skills, suggesting she lacked insight into her difficulties. Additionally, the mother sought to limit information provided to others, including professionals treating her and the children, to that information which supported her aims and objectives. For example, Ms H noted the mother’s affidavit evidence as not making reference to X’s improved mental health since February 2021, in circumstances where the mother sought to relocate the residence of the children away from the father.[35]
[35] Transcript 4 November 2022, p.22 lines
Ms H observed the mother lacked insight into how a lack of boundaries between herself and the children could build resentment in the father, and noted the mother took no responsibility for the conflictual issues in the relationship between the parties. Further, she concluded the mother controlled the father’s time with the children following separation. In her view, the mother tended to catastrophise, and gave as examples the mother’s belief that “the children are at risk of serious illness or even death in the father’s care”; [36] the mother telling Y he had polio (no diagnosis ever made) and meningitis (he had a viral illness which was treated with routine treatment) when he did not; and referring to the children’s phones as their lifelines when they spent time with the father, suggesting they were unsafe in his care.[37] I note the evidence, which I accept, that the mother, in respect of the children’s use of their phones, encouraged the children whilst in the father’s care, to send her a ‘red traffic light signal’, being a code between them indicating a high critical emergency health issue for one of the children. This reinforced for the children their feelings of anxiety, and no doubt feelings that their mother had some expectation they would call her. Y did so, communicating (on one occasion) for hours with his mother in the middle of the night, before the father confiscated his phone. There was no health issue.
[36] Family Report of Ms H dated 12 April 2021, paragraph 22.
[37] Family Report of Ms H dated 12 April 2021, paragraph 186.
Ms H stated whilst the children had formed their primary attachments with their mother, they had not individuated appropriately, and described signs of anxious attachment between the children and the mother. Whilst she acknowledged the mother had been a nurturing parent, she also observed that the mother had been an anxious parent who failed to adopt consistent parenting patterns, boundaries, and structure. Significantly, Ms H stated that the mother did not appear to value the children’s need for stability, a meaningful relationship with both parents, or substantial and significant time with the father.[38]
[38] Family Report of Ms H dated 12 April 2021, paragraph 189.
Ms H found the mother to struggle with implementing boundaries with her children as with most domains in her life.[39] Further, the mother needed support to: implement boundaries, structure, and consistency; resolve her personality problems; and recognise how her mental health difficulties impacted her parenting, the co-parenting relationship, and the children.[40]
[39] Family Report of Ms H dated 12 April 2021, paragraph 198.
[40] Family Report of Ms H dated 12 April 2021, paragraph 212.
Ms H expressed concern that the enmeshment in the mother’s relationship with X needed to be addressed. Specifically, that the mother presented with greater risk to X than the father, who did not present a risk, and opined that if there was no change in the mother’s approach, X’s mental health issues would progress to a personality disorder. Ms H recommended that greater parenting input from the father was warranted to reduce these risks, which should be reflected in the children’s time and parental responsibility arrangements.[41] When asked to elaborate on the definition of an enmeshed relationship, Ms H explained an enmeshed relationship was “a relationship that includes imprinting onto them”, ultimately “a lack of boundaries”. [42] In her view, the emotional state of the mother was a part of the enmeshed relationship between the mother and children.
[41] Family Report of Ms H dated 12 April 2021, paragraph 214.
[42] Transcript 4 November 2022, p.32 lines 14-20.
In her observations of the interaction between the mother and the children, Ms H observed the conversation between X and the mother was “more like that of two teenagers gossiping than mother and daughter; there were concerns regarding a lack of mother-child boundaries”.[43]
[43] Family Report of Ms H dated 12 April 2021, p.63.
Despite the mother’s mental health difficulties, Ms H observed the mother to be a “competent, dedicated, nurturing parent who has a strong bond with each of the children and is attune and responsive to their needs. No basic parenting skills concerns were identified”.[44] The mother presented to Ms H with “good life skills, a strong social support network, good basic parenting skills and an ability to provide for the children’s basic needs”.[45] However, Ms H considered that even taking these things into account, the children were at a greater level of risk in the care of the mother, than the father.[46]
[44] Family Report of Ms H dated 12 April 2021, paragraph 198.
[45] Family Report of Ms H dated 12 April 2021, paragraph 104.
[46] Transcript 4 November 2022, p.32 lines 43-46.
When questioned by counsel for the mother about what difference seven nights versus five nights a fortnight would make for the children, Ms H stated the issue at hand was the imbalance in time currently, and what that communicated to the children.[47] That communication was the lack of equal value both parents had in the children’s lives, which Ms H saw as due to the mother’s failure to value the father’s role adequately and support meaningful time.
[47] Transcript 4 November 2022, p.28 line 46 to p.29 lines 1-2.
It was Ms H’s evidence the children were assessed to be at a moderate level of risk of neglect and abuse in the mother’s care. When questioned by counsel for the father as to whether there would be a risk of psychological abuse specifically, it was Ms H’s evidence the assessment of abuse previously mentioned absolutely included psychological abuse as an element.[48] Further, that if the children were to live with the mother for the majority of time in Melbourne, away from their current context and environment, the children would be “more at risk in terms of emotional abuse…particularly if [the mother] is unsupported professionally or has some crises that eventuates in her life”.[49]
[48] Transcript 4 November 2022, p.13 lines 32-36.
[49] Transcript 4 November 2022, p.15 lines 28-33.
The father
In her observations of the interaction between the father and the children, Ms H observed the father to be gentle and inclusive. She described the father as adept at involving both children, encouraging and praising the children and putting into place appropriate boundaries. Ms H observed the father to be attentive and responsive to the children’s needs, and noted the children appeared to share a close bond with their father and enjoyed interacting with him. No parenting concerns were identified by Ms H.[50]
[50] Family Report of Ms H dated 12 April 2021, p.65.
Ms H found the father to be devoted to his children and keen to be more involved in their lives. Her evidence was that whilst responsive and attuned to the needs of the children, the father was less emotionally connected than the mother.[51] However, he presented as the more stable parent and was more willing to promote the children’s relationship with the other parent.[52]
[51] Family Report of Ms H dated 12 April 2021, paragraph 203.
[52] Family Report of Ms H dated 12 April 2021, paragraph 213.
When questioned by the mother’s counsel as to whether there would be a risk of instability by changing the children’s current arrangements, Ms H stated it was difficult to accept that the relocation would benefit the children and that it was really a prioritisation of the mother’s needs. As to a change in the spend time with arrangements (the five nights a fortnight during school terms with the father) Ms H’s evidence was that the father “has a lot to offer and that these issues are significant enough to suggest that there should be a balance of time, balance of control” such that a small change in the time arrangements would not be so unsettling.[53]
[53] Transcript 4 November 2022, p.46 lines 28-36.
Ms H assessed the father to be a “confident and optimistic person who approaches life with a clear sense of purpose and distinct convictions. These characteristics allow him to be resilient and adaptive in the face of most stressors.”[54] In her view, the likelihood that the children would be exposed to neglect or abuse in his care was low. The father presented with several protective factors including a strong social and family support, good life skills, stable employment, good physical and mental health, and an ability to provide for the children’s basic needs.[55]
[54] Family Report of Ms H dated 12 April 2021, paragraph 132.
[55] Family Report of Ms H dated 12 April 2021, paragraph 153.
X
Ms H opined that X’s mental health difficulties were compounded by her enmeshed relationship with her mother, such that “their thoughts, feelings, and beliefs have become increasingly indistinguishable”.[56] Ms H’s evidence was that this was problematic for X’s independent social and emotional development. Ms H observed that X felt responsible for her mother’s feelings and well-being, and accordingly had aligned with the mother’s fears and negative view of the father despite previously having a positive view of the father.[57] Ms H expressed concern that in interview with her, X was using the exact language used by her mother, referring to behaviours of her parents for which she was not present, and recalled her parents “fighting in texts” to each other.[58]
[56] Family Report of Ms H dated 12 April 2021, paragraph 188.
[57] Family Report of Ms H dated 12 April 2021, paragraph 188.
[58] Family Report of Ms H dated 12 April 2021, paragraph 168.
X was asked by Ms H as to whether she had ever been scared in the care of either parent. X said she feared the father would kill her mother, and that he would hit them. X said she saw the father break things, and pin her mother against a car and yell at her, but acknowledged never seeing him hit or threaten anyone, adding “but his anger is such that I fear he will”.[59] X reported that neither parent was physically abusive, but that the father “gets angry, puffs out his chest, stands over and intimidates”.[60]
[59] Family Report of Ms H dated 12 April 2021, paragraph 171.
[60] Family Report of Ms H dated 12 April 2021, paragraph 168.
X could not recall much from when her parents were together other than a lot of yelling about money. X told Ms H she recalled “dad doing the yelling and her mother crying”.[61]
[61] Family Report of Ms H dated 12 April 2021, paragraph 168.
X expressed to Ms H wanting “to be at mum’s always” and that she did not want to commit to any time with the father, but rather, go there if she wanted to, perhaps after school one night per week.[62] X reported she went to the father’s house to avoid hurting his feelings. X said “if he could not talk about negatives, ask questions about why [she doesn’t] go there, [she] might have a good time”.[63] X was unable to explain why she wanted these arrangements other than that she felt comfortable and safe with her mother.[64]
[62] Family Report of Ms H dated 12 April 2021, paragraph 169.
[63] Family Report of Ms H dated 12 April 2021, paragraph 169.
[64] Family Report of Ms H dated 12 April 2021, paragraph 170.
Despite X expressing to Ms H that she did not want to commit to any time spent with the father, X commenced shortly thereafter, and had continued until trial, to spend substantial and significant time with the father in accordance with the orders of the Court. [65]
[65] ICL written submissions dated 17 November 2022, p.4.
Ms H’s evidence was that X had an enmeshed connection with her mother such that X was, for a period of time prior to the family report interviews, spending virtually no time with the father. During that period of time, X’s mental health was very poor.[66] Ms H’s evidence was that the father is a stabilising feature in X’s life, and that is “certainly a contributing factor to her improved mental health”.[67]
[66] Transcript 4 November 2022, p.24 lines 7-8.
[67] Transcript 4 November 2022, p.22 lines 38-40.
Ms H’s opinion was that relocating, changing schools, and establishing new friendship groups would be highly stressful for X. She cautioned against it for X, when her mental health was unstable.[68]
[68] Family Report of Ms H dated 12 April 2021, paragraph 190.
Y
Ms H expressed concern about the mother and/or X’s influence upon Y, when Y told her in interview that he wanted to spend more time with the mother, before the topic was raised by Ms H, and in circumstances where he was unable to articulate why.[69] Further, in circumstances where he was unable to say why he often did not feel like going to the father’s house. Y did not express any fear of the father. He stated the father did not shout at him, albeit he sometimes did so at X for “being on screens”.[70]
[69] Family Report of Ms H dated 12 April 2021, paragraph 154.
[70] Family Report of Ms H dated 12 April 2021, paragraph 158.
When interviewed by Ms H in February 2021, Y could not recall what it was like before his parents separated and was unsure why his parents separated. Y recalled his parents arguing sometimes “but not much”.[71]
[71] Family Report of Ms H dated 12 April 2021, paragraph 168.
The Court must also consider the additional considerations under s 60CC(3) of the Act, as far as they are relevant to this proceeding.
In Mulvany & Lane (2009) FLC 93-404 it was observed by Finn, May and Thackray JJ that:
76. It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis added)
Whilst the additional considerations as set out in s 60CC(3) must be considered by the Court, specific reference to each and every of those considerations is unnecessary in these reasons.[109]
[109] Mulvany & Lane (2009) FLC 93-404 at [77].
THE PARTIES PROPOSALS
The father and the ICL sought the same orders. The mother sought orders in part by consent of the parties and otherwise she sought significantly differing orders, the fundamental differences being set out below.
The father and the ICL proposed that the mother and father have equal shared parental responsibility save that the father have sole parental responsibility for decisions regarding medical and allied health matters affecting the children. In addition, the father and the ICL proposed that the mother be restrained from changing the children’s enrolment from E School; from moving her residence more than 20 kilometres from E School; and causing the children to attend, without the father’s consent, upon any medical and/or allied health specialist. The father and the ICL also sought orders that the children live with each parent in a week-about arrangement with changeover to occur every Friday. Otherwise, the father and the ICL sought orders pertaining to special occasions and other ancillary matters as they now appear in the Orders the Court shall make.
The mother sought orders on the final day of trial, that the children spend time with the father as agreed between the parties, and in default of agreement subject to the children’s wishes, during school terms on a fortnightly cycle; in the first week from the conclusion of school on Thursday until the commencement of school on Monday; and in the second week from the conclusion of school on Thursday until the commencement of school day on Friday. During the school term holidays, with the father from the conclusion of school on the last day of the school term until 5.00pm on the middle Saturday of the school holiday period in each year. In relation to the long summer holidays, with the father from 5.00pm on 6 January until the commencement of school in Term 1.[110]
[110] Exhibit A.
The ICL submitted that on the evidence it appeared unlikely that in relation to medical matters the parties would effectively consult each other and make a genuine effort to come to a joint decision as required by s 65DAC(3) of the Act.[111]
[111] ICL written submissions dated 17 November 2022, p.1.
The ICL therefore submitted that the parties should retain equal shared parental responsibility save that sole parental responsibility for medical and allied health matters reside with one of the parties given their historic and continued inability to collaborate and agree on such decisions.[112] If medical decisions are to be made by one party, the ICL submitted they should reside solely with the father.[113]
[112] ICL written submissions dated 17 November 2022, p.1.
[113] ICL written submissions dated 17 November 2022, p.1.
CONSIDERATION
It was common ground between the parties at trial that the children have a meaningful relationship with each of the parties and that the continuation of such relationship is beneficial to the children.
The ICL submitted, a submission with which the father concurred, that an equal shared week-about arrangement was most likely to meet the children’s best interests and best promoted and maintained a meaningful relationship with both parents.[114]
[114] ICL written submissions dated 17 November 2022, p.2.
It was the father’s contention that the primary and immediate risk to the children’s development was their relocation to Melbourne, where he argued the mother’s influence would be complete and overwhelming. It was further the father’s contention that the children will effectively be placed in the sole care of a parent who “presents with personality vulnerabilities, driven by her traumatic experiences, including a lack of boundaries, poor insight into her difficulties, catastrophic thinking, elevated suggestibility and dependent personality traits which are consistent with an unspecified personality disorder with dependent personality features that have affected her parenting and co-parenting”.[115]
[115] Father’s Outline of Case filed 2 August 2021, paragraph 8.
I accept that there is a risk to the children of psychological harm were they to relocate to Melbourne and remain primarily in the mother’s care. The consequence of that relocation would be a significant reduction in their exposure to the father and the stability and support he offers. That risk can be eradicated, or certainly significantly ameliorated by the orders the ICL and the father propose. Such orders do not permit a relocation of the residence of the children and further will place the children in the equal care of each of their parents. This is particularly important for the child Y as he navigates the immediate years to come. It is also important for the child X to ensure the ongoing stability of her mental health.
The ICL submitted, and I find, that the evidence before the Court is that X had, by the conclusion of the trial, spent regular, significant and substantial time with the father; had not suffered the same degree of dysregulated emotions, impulsivity, unpredictability and moodiness as noted earlier in time by Ms H; had not required ongoing mental health intervention; and had reported, and indeed actual, improved peer relationships and performance at her school. I accept Ms H’s opinion that such improvements in X’s mental health functioning have come about directly as a result of her increased regular time with the father. In my view that time should be further increased to a position of equality of time between her parents’ households.
Equal time with each parent will provide a stable and certain arrangement for the children with less changeovers and transitions between the parties’ households. Such an arrangement, as submitted by the ICL, lessens the risks that the children will continue to be subject to the same degree of the mother’s parenting that has given rise to the children’s anxious attachment and enmeshed alignment with the mother’s fears and negative view of the father.[116]
[116] ICL written submissions dated 17 November 2022, p.2.
The mother made allegations of ‘family violence’, as defined by the Act, perpetrated against her by the father including sexual, financial, physical and verbal abuse. The father, in his evidence at trial, conceded that family violence had occurred, namely that he had yelled, sworn, screamed and argued with the mother in front of the children, and in particular acted with physical force and verbal abuse in relation to the incidents that lead to three IVOs in 2007, 2016 and 2018 being taken out by Victoria Police on behalf of the mother.[117]
[117] Transcript 9 August 2021, p.14 line 45 to p.15 line 27.
It was common ground that the father was jealous and uncomfortable with other men being around the mother. Ms H noted that:[118]
[Mr Plouffe] admitted that he became jealous and uncomfortable in response to [Ms Plouffe’s] lack of boundaries with other men. He said she allowed her ex-husband to sleep over at the house until he expressed that he was not okay with this arrangement, though she labelled his reaction as controlling and harmful towards her son from that relationship. He said she constantly spoke about other men and even came home with flowers from another man, naively seeing no issue with the behaviour. He admitted to losing his “cool” and damaging property in 2007 resulting in the IVO in response to [Ms Plouffe] singing about a guy she was in love with. He said he never reacted in a similar manner again.
[118] Family Report of Ms H dated 12 April 2021, paragraph 10.
The father conceded that he had broken a children’s table in anger in or around 2007.
In 2008, the mother alleged the father cut up money in the presence of Mr O and X in anger.[119] The father denied this. He conceded that the parties argued about money and that he may have thrown money in the air saying “something was a waste of money”.[120] Mr O reported that the father had angrily ripped up money.
[119] Mother’s affidavit filed 24 June 2021, paragraph 59.
[120] Transcript 9 August 2021, p.30 lines 17-27.
In or around 2011, the mother alleged the father smashed the contents of the medicine cupboard onto the floor accusing the mother of wasting money on vitamins and medications.[121] The father denied this. Mr O also gave evidence about this incident saying that the father was angry about something and “the medicine spilled to the floor as [the father] continued to swear and yell extremely loud”.[122]
[121] Mother’s affidavit filed 24 June 2021, paragraph 60.
[122] Affidavit of Mr O filed 24 June 2021, paragraph 10.
The above are but some examples. The mother alleged that she had endured physical, emotional, verbal, sexual and financial family violence as perpetrated by the father upon her and, on occasion, in the presence of the children. Mr O made his own allegations about the father about which I can make no finding given the father’s denials, and Mr O’s enmeshment with his mother. The father admitted to some, considerably in time, past incidents of situational intra-couple violence during the relationship but otherwise denied many of the allegations as made by the mother. He alleged that the mother had perpetrated family violence against him on occasion of an emotional and verbal type; that the mother had, in respect of their relationship and behaviours within it distorted and/or exaggerated factual matters; and denied the type of broad systematic pattern of domestic violence alleged against him by the mother.[123]
[123] ICL written submissions dated 17 November 2022, p.3.
It is clear that family violence was perpetrated by the father upon the mother where conceded by him. It is also clear that at times the father drank too much and became verbally abusive. These behaviours caused the mother to be fearful of the father at those times. At other times, the mother behaved in a manner calculated to cause disputation between the parties and/or disputation between Mr O and the father. The parties had a conflictual relationship at times during their cohabitation, but also some happy and good family experiences. They had, at times, considerable financial stress. Regardless of these matters, the children are not the subject of, nor exposed to abuse, neglect or family violence by either of their parents and indeed the parents concede that it is beneficial to the children to progress their meaningful relationship with both of them. Further, the expert evidence before the Court supports the children’s progression of their relationship with the father and highlights its instrumental nature in the securing of their best interests.
It is common ground between the parties that X struggled at E School in the 2020-2021, Years 7 and 8, school years. Her friendship group, which included her peers, were self-harming and had mental health issues. X, also self-harming and depressed, reported to her psychologist that she wished to attend D School. The father at that time was “open to whatever was best for Maxie”.[124]
[124] Transcript 10 August 2021, p.134 lines 30-31.
However, by 2022, the father was opposed to a change of school for X as sought by the mother. His evidence at trial was that:[125]
“this year has been extremely good for [X]. She has settled for the last five months. I’ve had her parent/teacher interviews the other night. They all said she’s doing well. She has settled. She’s starting to hang out with some, sort of, more academic kids. She’s enjoying her work and she’s quite settled now in the school, so I think year 7 was extremely tough for all of them given all the COVID lockdown and home schooling, but I think [X], along with a lot of her friends, have settled down this year”
[125] Transcript 10 August 2021, p.134 lines 34-40.
Each of the ICL and the father opposed a change of school and residence for the children. The evidence supported the father’s claim that X and Y are doing well, both socially and academically, at E School and enjoying their attendance there. They have familiarity with the school and stability within the school environment. The school is in close geographical distance to each of their parents homes and located in an area in which they have lived for many years. The evidence of Ms H was that the children’s best interests are served by their continued attendance at this school. I find this to be the case.
Additionally, as submitted by the ICL, there is a real risk, if the children were permitted to relocate to Melbourne, that the relationship between the children and the father would be further diminished and marginalised by the influence of the mother. There is no practical or financial imperative for the mother to move to Melbourne – there has not been for many years. For all of the reasons as set out herein, the mother’s right to freedom of movement must defer to the paramount consideration of the children’s best interests.
Despite the ages of the children, I give their expressed views, being not equal time spent with each parent, less weight than ordinarily for children of their age, in particular the views as expressed by Y, because of the children’s alignment with the mother’s views. I am mindful that X will be 16 years of age later this year and has gained significantly in maturity. She has also fairly consistently seen the father for some extended period in circumstances where Y did not accompany her for a period of time. Whilst there were orders of the Court compelling same, neither child, in their actions, felt the need to comply with such orders in the context of their mother’s lack of support for the operation of such orders, and lack of decision-making for the children. Thus X’s voluntary attendance at her father’s home was a practical expression of her wishes.
In 2019, Mr R described Y as having a strong attachment to the father. When Y told Mr R he wished for equal time between his parents, the mother sent an email to the ICL indicating Y was manipulated like “a little puppet with a script”.[126] When Y told the child and adolescent mental health service that he liked being at the father’s home, and that he was not suicidal, his mother’s position was that Y must have been threatened by the father to make such statements.
[126] Transcript 15 August 2022, p.110 line 28.
In 2021, when Y told Ms H that he wanted to see the father five out of 14 nights the mother’s evidence was that Y must have lied to Ms H. I note that Y also at this time, told Ms H that he did not wish to go to the father’s home without his sister and dog but raised no safety concerns regarding the father. Despite this, he did not thereafter accompany X when she spent regular time with the father.
The ICL, in submissions, acknowledged the maturity of the children, noting their ages as 13 and 15. The ICL was however mindful of the risks arising from the children’s alignment and enmeshment with the mother’s very negative views of the father,[127] and the risks arising from the fact that the children had been inappropriately over-empowered in making decisions that should have been the domain of their parents. Further, that the children would not have fully comprehended the ramifications of their decisions.[128]
[127] ICL written submissions dated 17 November 2022, p.2.
[128] ICL written submissions dated 17 November 2022, p.3.
I find, as submitted by the ICL, the belief instilled in the children by the mother that their wishes will hold sway has led to uncertainty, conflict and confusion within the parenting arrangements. The proposal that the parents’ arrangements be subject to the children’s wishes is unworkable. Indeed, the expressed wishes and actions of the children have often been disparate.[129]
[129] ICL written submissions dated 17 November 2022, p.4.
I consider it significant, and rely upon the evidence of Ms H that “the children were unaware of their enmeshed views and are not capable of grasping the long-term repercussions of limiting contact with their father”[130] as neither child provided justification for the time arrangements that they proposed.
[130] Family Report of Ms H dated 12 April 2021, paragraph 210.
The ICL submitted that the Court should make no orders that were dependent upon the children’s express wishes.[131] I agree with that position. I am mindful of Ms H’s evidence that “children for whom boundaries have not been in put in place, commonly engage in limit pushing attention-seeking behaviour. This is because there are no clear expectations about how they should behave, and their behaviour is not contained by rules and boundaries.”[132] In my view, boundaries are needed in the form of directive orders of the Court to firstly, promote the children’s best interests, and secondly, reduce areas of potential conflict between the parties themselves, and the children and the father. Further, I am of the opinion that such an open order as sought by the mother, would inevitably lead to further litigation between these parties. That is to be avoided.
[131] ICL written submissions dated 17 November 2022, p.4.
[132] Family Report of Ms H dated 12 April 2021, paragraph 198.
An alteration of the children’s weekly residence during school term periods from a five/nine night regime in favour of the mother to an equal week about regime is a small extension of time which is appropriate given the ages of the children. Such extension has the benefit of reducing the changeover difficulties as perceived by the mother, from four a fortnight to two a fortnight, school to school without the need for the parties to come into contact with each other during school terms. It eradicates any need for the children to be getting in and out of motor vehicles at each of their respective parents homes during those times.
As submitted by counsel for the ICL, the father is cognisant of the children’s medical issues. There is no evidence to support any suggestion that he has neglected the children to any significant degree in relation to their mental health or physical treatment. He has a more measured approach to the determination of whether the children need treatment by a medical practitioner. On the other hand, the mother has catastrophized the children’s medical conditions and overly sought treatment for the children with such evidence going to that fact supporting Ms H’s opinion that the mother has so acted. In these circumstances, and as sought by the ICL and the father it is imperative that an order for sole parental responsibility with respect to medical matters be made, and in favour of the father. I accept there is no prospect on the history of this matter of the parties being able to adopt a unified approach that promotes the children’s best interests in respect of this aspect of parental responsibility.
One final issue going to parental responsibility is the parties’ disagreement as to whom should hold the children’s passports. I shall make an order that the father do so which is an order I think promotes the children’s best interests. I am of that view because I am confident the father will hand over to the mother the passports, at a time when they might be needed, to allow the children the benefit of overseas travel. The mother, on the other hand, may not make the process of handing passports over to the father as seamless. She may delay and cause anxiety to the father, together with the need for litigation, or she may seek some inappropriate trade off. The orders should be such that the areas for disputation and further litigation between the parties are reduced.
For the reasons above the Court shall make the orders it makes this day.
COSTS
Legal Principles
Although the Court must have regard to all of these matters, and their relevance will depend upon the particular circumstances of each case, it is not required to consider these matters in any particular order, and no matter takes precedence over another. It is also not necessary for there to be more than one relevant consideration for the purposes of deciding that an order is justified.
Section 117(1) of the Act sets out the general rule that each party shall bear their own costs. However, the Court being satisfied that there are circumstances justifying it doing so, may make such order for costs as it considers just in accordance with the Court’s discretion.[133] In considering what (if any) order for costs it should make, the Court shall have regard to the matters in s 117(2A) of the Act which are as follows:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
[133] Family Law Act 1975 (Cth) s 117(2).
In Collins and Collins (1985) FLC 91-603 at page 79,877, the Full Court of the Family Court of Australia (Evatt CJ, Pawley & Barblett JJ), as it was then, said:
In deciding whether the circumstances justify an order for costs, there is a broad discretion to be exercised, having regard to the factors set out in subs. (2A) so far as relevant. Those factors…. are not to be read in a restrictive way, however, the discretion remaining is a broad one: Penfold v Penfold (1980) FLC 90-800 at pp 75,053-75,054 (High Court); quoted in Mallet v Mallet (1984) FLC 91-507 at pp 79,123-79, 124 (by Wilson J).
In Penfold v Penfold (1980) 144 CLR 311 at page 315, the High Court (Stephen, Mason, Aickin and Wilson JJ) held that:
It is an accurate description of s. 117(1) to say that it expresses a general rule, provided that it is firmly understood that the subsection is not paramount to s.117(2). As subsec (1) is expressed to be subject to subsec (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Subsection (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently …... we do not agree with the suggestion….... that an order can only be made under s.117(2) in a 'clear case'.
Some outstanding costs issues, being party and party costs and departing from the usual rule remain, in a context where neither party is legally aided and where, on a consideration of their financial circumstances, including not only their receipt of income or funds otherwise, but also their assets (in particular with respect to the mother) the Court is satisfied that the parties financial circumstances would not preclude the making of a costs order.
The issue of costs arises because:
(1)On 16 December 2021, the Court made an order fixing and reserving the father’s costs of his Application in a Proceeding filed 9 December 2021. The sum fixed was $4,000. The mother filed no response nor affidavit material in respect of the father’s Application in a Proceeding. The order as to costs was an order of the Court, as was an order that the parents put into practical effect an earlier order making provision for the children to continue to attend E School in the 2022 calendar year. Otherwise on 16 December 2021, orders were made by consent in the terms as sought by the father which dealt with the children spending time with him for a part of Christmas Day, for one half of the long summer school holidays, and otherwise in accordance with earlier orders of the Court made in 2019. The father had earlier sought the mother’s assurances that the terms of the consent orders would be agreed between them without the need for Court intervention prior to the hearing date, and from as early as 12 November 2021. Whilst the mother indicated her agreement on 23 November 2021, that agreement was offered only after the father had advised that he had sought an urgent listing date in the Court of an Application to be filed by him to achieve the orders ultimately obtained. The father by that time had also proposed to the mother that the parties attend upon Dr LL (“Dr LL”) for family therapy, a proposal that was rejected by the mother. The father was not going to pursue that proposal in respect of Dr LL, in early December 2021. He nevertheless did so, unsuccessfully, when it became apparent the urgent Court hearing was unavoidable and proceeding. The central reason for the matter proceeding was that by correspondence of 8 December 2021, the mother advised the father that she would no longer consent to the forthcoming Christmas Day, one half summer school holidays, and reversion to the December 2019 operative spend time with orders, unless the father consented to an order that provided for the children’s enrolment at D School, being her school of choice which of necessity was coupled with a relocation final orders application. The ICL indicated to both parties that she did not support a change of school for the children. The mother proceeded regardless. The father was entirely successful as to the central subject of the Application in a Proceeding. Indeed, only after he had incurred considerable cost did the mother consent to that which the father had tried to achieve by discussion and adopting a necessary and commendable costs minimisation approach in early November. The mother’s conduct in seeking to withdraw from her earlier agreement at a time very close to the impending school holidays unless the father capitulated to what was an outstanding trial issue, was conduct adverse to the father and frankly reprehensible. In the exercise of my discretion, I shall order that the mother pay the father’s costs in the sum reserved by order made 16 December 2021 of $4,000 within 30 days of the order.
(2)On 2 May 2022, the Court ordered that the costs of the day of:
(a)the Father fixed in the sum of $6,400; and
(b)the Independent Children’s Lawyer fixed in the sum of $2,467.
be reserved to the Trial Judge.
The circumstances going to the making of this order were a part-heard trial that had resumed for hearing on 26 April 2022, that date being known to the parties for some time. The mother on that day failed to attend Court and conveyed through her counsel that she was unwell. Subsequently that day, a medical certificate was provided to the Court stating that the mother had concussion causing a range of symptoms including cognitive symptoms. The matter was re-listed to the following week and I made orders including essentially that there be relevant and necessary evidence from the treating doctor placed before the Court by way of explanation of the mother’s absence, and a description of her ill-health that had a nexus to her absence. That evidence was not provided before or on the adjourned date. The mother did not attend Court and her counsel indicated that the mother had suffered a concussion. Her health was otherwise unknown to the Court at that time. In those circumstances, the ICL and the father sought costs of the day. In my view, if the mother had been proactive, and complied with the earlier order in respect of the provision of her treating doctor’s medical practitioner’s affidavit, those costs may well have been avoided or at least reduced. Further, the state of health of the mother at that time was challenged by her own evidence that she went to the Magistrates’ Court on two relevant dates, being April 2022 and July 2022, to seek an ex parte IVO against her partner’s former partner, and subsequent final order. These actions were taken by her at a time when she presented to the Court as being unable to swear an affidavit and unable to participate in the trial. In the exercise of my discretion I propose to make an order that the mother pay one half of these claimed amounts by each of the father and the ICL and make such payment within 30 days of the order.
(3)On 21 July 2022, the costs of the Independent Children’s Lawyer and father were reserved. This was a mention hearing as called on by the Court. The mother indicated that she continued to be unable to participate in the trial and had subsequent medical evidence to support her contention. I do not propose in the exercise of my discretion to make any order for costs.
(4)On 19 December 2019, O’Sullivan J, in the then Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia (Division 2)) reserved a fixed costs order. I do not propose to further consider that order on the limited evidence I have before me. I note, from the order itself, His Honour did not make a costs order against the mother in circumstances where the mother failed to comply with trial directions, and failed to attend a Court hearing, with no medical evidence as to her inability to attend being provided to the Court. However, I also note that interim orders were made by consent of the father and the ICL, in the absence of the mother, on an application for which leave to proceed was granted on that same day which progressed the father’s time with the children amongst other things. Indeed those orders remained operative at trial. It is not a matter at this juncture, and on the materials before me, in which I should exercise my discretion to make a costs order.
I certify that the preceding one hundred and ninety-one (191) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 26 May 2023
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