Plummer and Spence - [2011] FMCAfam 1219

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PLUMMER & SPENCE

[2011] FMCAfam 1219

FAMILY LAW – Parenting orders – father’s application to spend time and communicate with children – mother’s on-going insistence for father to spend supervised time with children in circumstances where it is not warranted – orders made for father to have unsupervised time with children.

Family Law Act 1975 (Cth), ss.61DA(1), 65DAA(2), 60CA, 60CC

Applicant:

MR PLUMMER

Respondent:

MS SPENCE

File Number:

MLC 10777 of 2009

Judgment of:

Hartnett FM

Hearing date:

11 October 2011

Delivered at:

Melbourne

Delivered on:

11 October 2011

REPRESENTATION

Counsel for the Applicant:

Ms Jenkins

Solicitors for the Applicant:

Tehan George & Co

The Respondent:

Appeared in person

THE COURT ORDERS THAT:

All previous parenting orders are discharged.

THE COURT ORDERS BY CONSENT THAT:

The mother and father have equal shared parental responsibility for the children of the relationship [X] born [in] 2007 and [Y] born [in] 2009 (‘the children’).
The children live with the mother.

THE COURT ORDERS THAT:

The children spend time with the father as follows:
(a)each alternate weekend commencing 14 October 2011 from 6:00pm on Friday until 6:00pm Sunday or 6:00pm Monday, if Monday is a public holiday, with the mother to deliver the children to the father’s residence in [W] at the commencement of such time and the father to return them to the mother’s residence at the conclusion thereof, unless the mother notifies the father in writing within 14 days of the making of these orders that she intends to undertake all the driving of the children; and
(b)for up to seven weeks (49 days) in the next 24 months for periods not in excess of five continuous days (to include the Christmas period in 2011) with the father to provide the mother with at least 21 days written notice of his intention to exercise such times. The father to be in substantial attendance and not engaged in employment (transportation of the children to be as provided for in order 4(a) herein); and
(c)from 5:00pm on 25 December 2011 until 5:00pm on 30 December 2011 and in each alternate year thereafter (transportation of the children to be as provided for in order 4(a) herein); and
(d)from 5:00pm Christmas Eve until 5:00pm Christmas Day in 2012 and in each alternate year thereafter (transportation of the children to be as provided for in order 4(a) herein); and
(e)each Father’s Day weekend from 6:00pm Friday until 6:00pm Sunday and in the event that Mother’s Day falls on a time spent weekend then the children shall spend time with the father on another weekend (within 30 days) in lieu (transportation of the children to be as provided for in order 4(a) herein); and
(f)otherwise as agreed.
The mother and father are at liberty to telephone each other at all reasonable times but only as to matters concerning the children and for the purpose of speaking with the children when they are in the other parents care.
For a further 12 months, the mother and father to exchange a communication book at handover to contain only matters relevant to the care of the children.
Each of the mother and father keep the other informed at all times and within 24 hours of any change thereto of their residential address and a phone number on which they can be contacted.
The mother forthwith advise the father in writing of all medical practitioners (including specialists) who have treated the children or either of them in the past and any additional in the future, and in respect of all such doctors, notify the father immediately if any appointment is arranged for the children’s treatment and provide written information as to the nature of such treatment.
The mother and father be permitted to attend all kindergarten and school events and extracurricular activities normally attended by a parent including, but not limited to, parent-teacher interviews, school concerts, sport carnivals and the like.
The mother forthwith authorise any kindergartens and schools attended by the children to provide to the father, at his expense, if any, copies of all school reports, newsletters, notices, photo order forms and the like.
The mother and father immediately notify the other of any serious injury or illness suffered by the children whilst in their care and provide details of any treatments including the name and phone number of any treating health professionals and authorise the other parent to obtain information from these health professionals.
Any further applications that may be issued by either party be listed before Hartnett FM in the next 36 months.
Liberty to apply on short notice to the Chambers of Hartnett FM for an urgent listing of the matter.
Otherwise all extant applications are dismissed.

AND THE COURT NOTES THAT:

A. These orders make provision for the next 24 months and thereafter the parties may reach agreement or seek further and other orders whilst the children attend pre-school.

B. Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Annexure and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Plummer & Spence is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 10777 of 2009

MR PLUMMER

Applicant

And

MS SPENCE

Respondent

REASONS FOR JUDGMENT

Background

The father was born [in] 1983 and he is now 28 years of age. The mother was born [in] 1976 and she is now 35 years of age. The parties met in or about late January 2007 and commenced cohabitation shortly thereafter. The mother had been previously married and had two children, [A] and [B], from that earlier union. Both children were living with their father and spending alternate weekends with their mother when the parties met and that arrangement in the main continued throughout cohabitation. The parties’ cohabitation period existed from 2007 until their final separation in early January 2009. They had had some periods of separation prior to their final separation.
The parties had been together for a very short period of time when the mother informed the father that she was pregnant. It was an unplanned pregnancy and the father asked the mother to terminate the pregnancy, which she refused. As a result, the parties separated for a short period of time of approximately one month before reconciling. The father claimed that he did not wish to be an absent father and that although he had concerns about his relationship with the mother, his desire to assume the responsibilities of fatherhood outweighed the worries he had about the long-term prospects of the relationship. He saw Dr B, psychologist, at that time to help him deal with his anxiety issues and to help him cope with his forthcoming new responsibilities.
The parties’ daughter, [X], was born at only 29 weeks gestation and was in a neonatal ward at the [omitted] Hospital for approximately two and a half months. [X] was discharged from hospital on or about [date omitted] 2008. The parties again separated, this time only a couple of days after the child’s discharge from hospital as a result of a disputation which occurred at the father’s home just prior to Christmas. Subsequently the parties endeavoured to resolve their differences and resumed their cohabitation with the father asking the mother to come with him and see the psychologist, Dr B, with him, not only to help with the issues that had developed between the parties but also with issues that had developed between the mother and the father’s family. Subsequently the parties again separated, the father returning to Dr B to help him with his then depression. His general practitioner prescribed an antidepressant for him which he took at that time. The parties then resumed their cohabitation, but their relationship did not last and soon after New Year 2009 they finally separated.
Subsequent to the final separation, the mother advised the father that she was pregnant and she entered hospital with complications in the pregnancy at about 22 weeks. She was in hospital for 10 weeks and during that time she left [X] with her friends in [omitted], refusing the father access to [X]. The father did not see his daughter over that 10-week period. Following the mother’s release from hospital, the father attended at her home to see [X]. Over the next few weekends he spent time with the mother and their daughter.
On [date omitted] 2009 the parties’ son [Y] was born. The mother remained in hospital for three to four days and during that time she allowed the father to care for their daughter at her home. When the parties’ son was released from hospital, approximately one week after his birth, the father asked the mother whether he could continue to visit both children and to take his daughter, to stay overnight with her. The mother responded that that was not possible and shortly thereafter the parties had an argument about an issue of not major significance. Thereafter, the mother refused to allow the father to see the children for approximately four months. The father, having previously tried to negotiate with the mother and having attended upon a family relationship centre on earlier occasions, then filed his application.
These proceedings have had a long history in part because of the father’s ongoing acquiescence to the mother’s requests in the form of his consenting to orders which included supervision of his time spent with (and reviewing of such time) the parties’ two children. The proceedings commenced with the father filing an initiating application on 2 December 2009. In that application the father sought parenting orders with respect to the parties’ children, [X] born [in] 2007 and [Y] born [in] 2009. He sought by way of final orders that the parties have equal shared parental responsibility and that the children live with their mother. The application was one which pertained to what time the children would spend with their father and what communication was had with him.
The mother at that time filed a response on 16 June 2010 wherein she concurred in the order sought that the children reside with her and also sought an order as to the children spending time with their father as that deemed appropriate by the Court. The mother sought by way of interim orders that the father undergo a psychiatric assessment by a psychiatrist agreed to by the mother. That in the course of the proceedings occurred, but with both parties attending upon an agreed psychiatrist namely Dr K, with a report being prepared by Dr K in respect of each of the parties and produced in evidence in the proceedings. These two reports are dated 31 January 2011. Dr K in the currency of the proceedings was not required for cross-examination and the contents of his respective reports was unchallenged by either party.
The matter first came before the Court on 27 January 2010. Interim consent orders were made that day adjourning the further hearing of the father’s application to 2 March 2010. The mother was ordered to file a response and affidavit, and the children were ordered to spend time with their father on a supervised basis each week for some four hours commencing 31 January 2010. In those orders the father’s time with the children was to be supervised by Ms D and was to take place at the mother’s residence. There was a notation annexed to those orders which provided as follows:
“That the father agrees to the making of these Orders with a denial that his conduct, parenting ability or mental state in any way justifies supervised time with the children and without prejudice to him seeking unsupervised more extensive time with the said children at the next Court hearing.”
I shall here set out the subsequent history of those court hearings being a history of supervised times had between the father and his children. At the conclusion of this final hearing, the mother still opposed the father spending any time with the children that was not supervised.
By orders of 2 March 2010, and again by consent, the matter was adjourned for mention on 30 March 2010. At the time of this hearing and the earlier hearing, the matter was in the docket of Monaghan FM. As at 2 March 2010, the parties had not complied with an earlier order of the Court made on 27 January 2010, being order number 7, which provided that the mother and father attend for mediation counselling in relation to parenting issues at the [omitted] Family Mediation Centre as soon as practicable. On 2 March 2010, the parties agreed to do all things reasonably necessary to comply with that earlier order, and there was again a notation attached to the orders which was as follows:
“That in the event Ms D is available on a weekday then the Father agrees to change each alternate Sunday to a weekday to enable the Mother to spend each alternate Sunday with all her four children without interruption.”
When they returned to Court on 30 March 2010, the parties agreed to again adjourn the matter as they had commenced the mediation process. That process continued beyond the next listing date of 10 May 2010, and on that date Monaghan FM ordered all extant applications to be adjourned to 17 June 2010. On 17 June 2010 there were again, interim consent orders providing, in respect of the father spending time and communicating with the children (and covering a period of six months from 30 May 2010 until 30 November 2010), provision for the father to spend each third weekend with the children for four hours each Sunday with all such time to be spent at the home of the mother and in the presence of either the father’s brother, Mr P, a family friend, Ms D, or such other adult as was agreed between the parties. The orders provided for the father to spend additional time with the children on other weekends upon the father providing at least one week’s notice and upon the proposed additional time being convenient to the mother. Order number 5 of those orders provided as follows:
“Each party is to notify the other of any serious illness or of any serious injury to the child, of doctor’s appointments, hospitalisation or specialist care that may be required to the child as soon as reasonably practicable, and each party be at liberty to attend the child’s medical and dental appointments and to discuss the child’s health with the treating health professional.”
That order was clearly applicable to both children the subject of the application. There was a notation annexed to those orders which was as follows:
“The mother wishes it to be noted that the child [Y] is to have a medical procedure in 2 to 3 months to address being “tongue-tied”. The mother is not yet aware of the exact date this procedure will take place.”
As determined by the parties’ consensual arrangement, the matter did not then return to the Court until 22 October 2010. On that date the Court ordered the preparation of a family report pursuant to s.62G(2) of the Family Law Act 1975 (Cth) (“the Act”) and adjourned the matter to a final hearing on 22 March 2011, the matter remaining unresolved. There were, in addition, further interim consent orders which included that the father spend time with the children on each alternate weekend, commencing 23 October 2010 with [X] to spend time with the father from 11.30 am Saturday until 4.00 pm Sunday and [Y] to spend time with the father from 11.30 am until 1.30 pm on the Saturday and from 3.00 pm to 4.00 pm on the Sunday with collection and return to be at the mother’s residence in [M]. Supervision was again agreed to by the father with order 1.5 being as follows:
“Without admission of the necessity for this Order, the Father agrees that either his mother Ms P or his girlfriend, Ms G shall be present during his time periods with the children”
The orders provided for possible additional periods of time spent and alternative adults being present during such time spent if mutually agreeable to the mother and to the father, and further provided for the mother and father to participate in the completion of a psychiatric assessment of each by Dr K.
Thereafter, the father brought an application for contravention filed 23 November 2010. That contravention contained allegation of breach of the orders by the mother in that on 23 October 2010 the mother, without reasonable cause, refused to allow the father to spend time with the child [X] and with the child [Y] and further, that on 6 November 2010 the mother, without reasonable cause, refused to allow the applicant to spend time with both of the children. That contravention application was heard by Hughes FM on 10 January 2011 and the Court declared that the respondent mother was found to have breached the orders of 22 October 2010 on 23 October 2010 and 6 November 2010. The Court ordered on that day in orders 2 and 3 as follows:
“2. The mother shall forthwith arrange for and attend a post-separation parenting program and shall provide to the solicitors for the father a copy of the certificate of completion within 7 days of receipt.
3. The mother shall pay $400 toward the father’s legal costs to be paid within six months or such other time as agreed between the mother and the father’s legal representatives.”
I pause there. As at the date of the final hearing, the mother had still not arranged and attended a post-separation parenting program and the mother had not paid $400 or indeed any amount toward the father’s legal costs. The mother failed to comply with both of these orders made following a finding that she had contravened orders of the Court. When asked about those matters in cross-examination at trial, the mother’s responses were inadequate and evasive. She exhibited a blatant disregard of the Court’s orders. The mother claimed to have no financial capacity to meet any part of the payment of the earlier $400 costs order against her. Hence, the mother’s proposition at trial that the father should have supervised contact at a contact centre or with an independent person whom was required to be paid and that such payment would be met by her could not be an accepted proposition. I find she would make no payment to anyone of any sum to effect supervision.
The matter was subsequently relisted to 19 May 2011 with the family report not being released until 30 March 2011. On that day the matter was adjourned with priority to 15 June 2011 before Purdon-Sully FM. On that adjourned date, the parties in fact proceeded before me and entered into a final consent order that each of them have equal shared parental responsibility for their children and further interim orders as to the children continuing their residence with the mother and spending time with the father in a further arrangement of each alternate weekend to be weekend one from 11.00 am Saturday until 4.00 pm Sunday and weekend two from 9.00 am until 6.00 pm Sunday. The parties agreed to share the transportation of the children to and from each of their respective residences which are some two hours apart and again the father agreed to supervision of his time spent with the children. Order 5 read as follows:
“The father’s partner Ms G to be present during all periods the children are in his care.”
The mother was permitted to remain for the first hour of the first weekend the children were to spend with their father. A communication book was to be used by the parents. There was liberty to telephone each other at all reasonable times as to matters concerning the children.
Otherwise the matter was adjourned to 11 October 2011 as an ongoing defended matter. Again, a notation was annexed to the orders which was as follows:
“A. The mother consents to order 4 on the basis that she is currently receiving child support from the father of $150 per week (order 4 being the mother’s participation in the transport of the children to the father’s residence).
B. The father consents to these orders on the basis that he has liberty to apply at short notice to have the matter listed as soon as it can be accommodated by this Honourable Court if the mother does not comply with these orders and in the docket of Hartnett FM.
C. The father will telephone the mother at 7 pm each Saturday night for the first six occasions.”

The matter thus reached a final hearing in October 2011. By this time the mother in essence agreed to the orders proposed by the father as to time spent with the children and other incidental orders and general parenting orders save that she required continual supervision of any time spent between the father and children and stipulated that the supervisor should be either the father’s partner, Ms G, or the father’s mother, Ms P.
The parties agreed that the equal shared parental responsibility order earlier made in respect of their two children should remain. Whilst that order requires the Court to consider whether the children spending equal time with each of their parents would be in the best interests of the children, the parties agree that the children should live predominantly with their mother and that the issue is one of the father spending substantial and significant time with the children. The presumption of equal shared parental responsibility provided for in s.61DA(1) of the Act does apply and the Court considers, pursuant to s.65DAA(2) of the Act, that the children spending substantial and significant time with each of their parents would be in the best interests of the children and would be reasonably practicable when giving consideration overall to the geographical distance between the parties, the father’s employment, the children being of preschool age and the mother’s current flexibility of employment and primary occupation in home duties.
The mother agreed in evidence that the children needed to see their father and benefited from time spent with their father. She demanded, however, that all such time spent with be supervised. In the face of the refusal of both Ms G (the father’s partner) and Ms P (the father’s mother) to be further involved in any supervision orders, the mother had no other proposals to put before the Court save that time spent with needed to revert to a contact centre with the very limited time and limited environment that that would involve and in defiance of the evolution (over an extended period of time spent with) of the positive relationship between the father and his children. The mother’s proposal was not supported by the evidence in this regard.

The Family Report

The family report dated 18 March 2011 was released to the parties and their lawyers on 30 March 2011. It was prepared by Mr S, family consultant. Mr S was not required for cross-examination by either party and the contents of his report are unchallenged. He interviewed the father with his partner, Ms G, and interviewed the mother. The children were not interviewed for the report due to their young age. Observation of the interaction between the children and the parents was conducted separately. These interviews occurred on 2 February 2011 and the report writer had read the affidavit material and court file that existed up to that time.
In the background to the dispute Mr S noted that the parties had separated and reunited on more than one occasion, finally separating prior to the birth of their son [Y]. He noted that the mother had two older sons, [B] and [A], who were then 14 years and 12 years respectively from a previous relationship, and that those sons live with her for part of each fortnight in accordance with Federal Magistrates Court orders of 25 November 2010. He noted the geographical distance between the parties’ respective residences, being from [M] to [W], a distance of some 130 kilometres. At the time of the preparation of the report the children had not seen their father for approximately three months. The father had filed his contravention application and it had only just been heard and determined.
Mr S noted that the father had filed an amended application on 3 February 2011 in which he proposed that the children live with him and spend alternate weekends and half of school holidays with the mother. This amended application was, in effect, a reversal of his initiating application but the father proposed during the interview with the family consultant that if the mother were to comply with the orders of the Court, he was prepared to revert to his original application and continue to consent to the children living with their mother. That in fact was the approach that the father took at trial. As at the time of being interviewed by the report writer in February 2011, and despite the mother’s earlier concession that the paternal grandmother could supervise the father’s time spent with the children, the mother reneged on such concession and proposed that supervision continue and time spent with revert to being in her home and in her presence until such time as she felt that the father had obtained her trust and established a routine for the children. She proposed then that such time gradually extend and move to occur at the father’s home but supervised by his partner. The mother was adamant that time spent with should not take place at the home of the paternal grandmother.
As to this apparent contradictory approach, the mother gave evidence that she did not accept the orders of 22 October 2010 were made by consent (they including the order that the paternal grandmother was a person suitable to the mother to supervise). The mother said to the report writer (as to the orders made 22 October 2010) that she was unrepresented and did not consent to any orders. Mr S pointed out to her that the orders were by consent and that, in fact, she had been represented by a duty solicitor on the day. The mother maintained she was unhappy with her representation because the orders were effectively agreed to by her lawyer without her consent. She thus suggested it would be unreasonable to expect her to comply with conditions that she strongly believed were detrimental to her children’s well-being. The mother’s response to the father’s amended application that the children now live with him was that this was a “bullying” tactic which “his mother would have told him to do”. The mother told the report writer that she had maintained stability in the children’s lives after their parents’ separation stating that “[Mr Plummer] lost his rights when he walked out”. She reiterated several times that she considered her actions in not complying with the conditions of the orders to be justified despite the Court finding against her.
The father described to Mr S an extended period in which the mother’s behaviour became increasingly irrational and inconsistent with regard to allowing him to spend time with the children during which he drove from [W] to the mother’s home in [M] on numerous occasions. The interim consent orders made 17 June 2010, resulting in the father generally spending time with the children every third weekend was a positive outcome according to the father in terms of him actually seeing his children, but the visits occurred at the mother’s home and in her presence, which was problematic and uncomfortable because of her continued arbitrary decision-making and apparent dislike of his partner, Ms G.
The consent orders made 22 October 2010 were also not complied with by the mother. The father continued to attend at the mother’s home fortnightly in accordance with the orders despite having no expectation that he would be able to see the children or even that the mother would be at home. He became resigned to the fact that unless the children came to live with him, he would not be able to share a relationship with them as they grew up.
As to the mother’s contrariness in allowing the father to see the children and in relation to what terms she imposed, Mr S said in paragraph 18 of his report:
“Mr Plummer and Ms G report that despite her alleged concerns, Ms Spence has in fact allowed the children to spend unsupervised time with their father, prior to the current Court proceedings, when he and Ms G looked after [X] and [Y] overnight in

Ms Spence’s home whilst she attended a wedding. They were also able to spend the next day with the children at the beach, and the weekend went well.”
Mr S explored with the father issues as to his mental health with the father responding that he had consulted his General Practitioner in the past and was prescribed anti-anxiety medication, which he state was primarily due to the stress he experienced regarding the situation with his children and attempting to deal with the mother. He ceased taking such medication more than a year before February 2011 in consultation with his General Practitioner with whom he continues to meet.
The mother alleged that she had suffered repeated physical assaults by the father during their relationship, which the father has denied. The mother did not seek treatment or assistance from any third person or agency in respect of same and was reluctant to discuss the issue in detail with Mr S. She stated that the father had never shown any sign of aggression toward the children, neglected or mistreated them. She said however:
I think he has got bipolar, but no-one seems to want to assess him.
The family consultant was provided with the father’s court ordered psychiatric assessment and subsequently the mother’s assessment. He made reference to Dr K’s report in the family report saying as follows:
“33. Dr K describes Mr Plummer as having, ‘a mildly dependent and slightly immature personality presentation,’ and reports that there is ‘no major mood disturbance noted… no psychotic features, no delusions or hallucinations.’ Dr K concludes that; “From a psychiatric viewpoint, (Mr Plummer) is quite capable of having unsupervised access. Naturally, a Court will hear the totality of the evidence and decide on that issue.”
34. Regarding Ms Spence, Dr K assessed that; “From a psychiatric viewpoint, she presents as someone who has some personality weaknesses, although these fall short of a diagnosable personality disorder... someone who, in the past has been quite needy... who wanted to change [Mr Plummer].” Dr K found that Ms Spence ‘shows some mild situational anxiety over the Court proceedings... she was not someone who required treatment, at this stage.’”
The children were observed by the family consultant in the court playroom interacting with their father alone, and then together with his partner. They were also observed interacting with their mother. Their interaction with their father was enthusiastic and affectionate. The mood between the children and their father remained warm and relaxed as they engaged in various activities maintaining close physical contact and as they played together or quietly drew pictures. Likewise, the children remained relaxed and comfortable in the presence of Ms G and clearly enjoyed spending time with both the father and Ms G. During the observation session with their mother, the children engaged in activities with her. The mood remained positive and energetic throughout the session and the children clearly were accustomed to sharing their mother’s attention.
In his evaluation, Mr S noted that the children present with a primary attachment to their mother and as sharing a strong positive bond with their father. The children were demonstrably responsive and affectionate toward both mother and father and clearly enjoyed spending time and interacting with each. Mr S noted that unfortunately, given the considerable distance between each party’s residence, it was not possible for the children to spend the optimum amount of time with the non-residential parent (currently their father) which would be on at least one or two occasions per week.
At the time of the report writing [Y] was 17 months old and Mr S considered him not yet having reached a level of independence that would allow him to comfortably enjoy a similar amount of time in the care of his father as that of his sister. He is now many months older and the mother does not object to the time spent between the children and their father as proposed by the father, save her issue remains the totality of the time should be supervised. Mr S noted that there was no evidence of which the family consultant was aware to support

Ms Spence’s allegations of violence perpetrated upon her by the father and he noted that such allegations were strenuously denied by the father. He noted also that the mother had not alleged that the father has ever acted in a violent or aggressive manner toward either of the children and that her concerns regarding the children relate to her perception of the father as irresponsible, weak of character, dishonest, depressed and lacking insight regarding the needs of his children. The family consultant’s opinion was that there was nothing evident in the father’s presentation during interview, the material on file or Dr K’s psychiatric assessment to support the mother’s view.
The report writer notably said at paragraph 44 of his report:
“Ms Spence appears to lack insight regarding the potential impact of her own behaviour on the well being of her children, compared with her perception of Mr Plummer’s potential behaviour. It has been explained to Ms Spence that it is possible her refusal to comply with the current orders could jeopardise the stability she believes she is protecting in their young lives. [X] and [Y] have lived in her care since they were born. Mr Plummer believes she is the best choice as primary carer for their children, and orders have been made in support of that view. This must be weighed, however, against the possibility the children will only be able to experience a meaningful and positive relationship with one parent during this crucial developmental stage as is currently occurring.”
Mr S went on to say that if the Court was satisfied that the children were more likely to share sustainable relationships with both parents if they lived with their father and spent weekend and holiday times with the mother, then the father may well succeed in his then current application (which was for him to be the primary carer of the children).
Mr S recommended that if the Court was satisfied Ms Spence would in future comply with orders for the children to spend significant and substantial unsupervised overnight time with their father, then they should remain living with their mother and spend overnight and increased periods of time with their father. He recommended in the event the Court was not satisfied the mother would be likely to comply with orders for the children to spend significant and substantial unsupervised overnight time with their father, that the children move to live with their father and spend time with their mother.

Dr K’s Reports

These reports were referred to in the family report of Dr S and quoted from. The Court finds compelling Dr K’s assessment of both the father and the mother. He said in part:
a)as to the father –
“His intelligence level was average. He spoke in a voice of rather slow, and deliberate, manner, and with some mild anxiety in the tone. His voice was of appropriate volume. There was no dysarthria or dysphasia. There was no slurring to the speech. His memory and concentration seemed to be, at times, slightly slower than one might have expected, but I gained the impression that he was deliberately thinking of the words he wanted to use. There was no disorder of perception. His judgment showed someone who had a slightly dependent presentation. He indicated that he was sad about not seeing his children, but there was no major mood disturbance noted. His behaviour showed a man who had a slightly dependent temperament, who was probably a little insecure, and lacking in confidence. There were no psychotic features. There were no delusions, or hallucinations.”
He concluded from a psychiatric viewpoint that the father was quite capable of having unsupervised access and was someone who did not require any immediate psychiatric treatment but rather would benefit from some support from time to time from the local doctor. Given his past history of anxiety, he may need a referral to a psychiatrist if anxiety symptoms recurred. He determined the father was capable of working regularly and that the outlook for him from a psychiatric viewpoint was that he was likely to mature effectively but could always be prone to some anxiety features.
b)And as to the mother –
“her intelligence level was a little above average. She spoke in a voice of mildly anxious tone, but of appropriate volume. There were no neurological indications of disturbances in her speech. There was no slurring to her speech, but there were some raised, internal, verbal pressure features. Her memory and concentration appeared to be satisfactory. There was no disorder of perception. Her judgment was adequate. Her personality type was of the strongly maternal disposition, in someone who had clearly been very fond of her previous partner, [Mr Plummer]. She appeared to be someone who had an intense manner, and whose maternal drive was marginally over protective. Her behaviour showed someone who was upset that the relationship with her ex-partner and father of her last two children had failed. There were no psychotic features. There were no delusions, or hallucinations.”
He noted from a psychiatric viewpoint the mother presented as someone who has some personality weaknesses, although they fall short of a diagnosable personality disorder. Further, that the mother tended to be someone who in the past has been emotionally quite needy, who has an over strong maternal instinct and who in the last relationship with the father of these two children felt very strongly involved with him and who wanted to change him. Dr K noted further that the mother was not someone who required treatment at this stage with the exception that if she found it of benefit to have some counselling, it would be appropriate for her to do so. He noted her prognosis being that she would remain with her personality presentation into the future but that it was unlikely to cause any upset to her children. Her difficulty was one more of adult relationships than with her children.

Evidence of Ms G

Ms G was cross-examined by the mother. Ms G and the father commenced a relationship on New Year’s Eve 2009. Ms G has a [qualification omitted] and has been employed for a period of some seven years in the [omitted] industry. In her affidavit sworn 27 April 2011 she deposed to being 24 years of age. She and the father have been together for a period approaching two years, she moving into the applicant’s home on a permanent basis over the summer period of 2010/11 and having lived there ever since. In 2011 she commenced [omitted] work local to [W], where the parties reside. She enjoys her job and working with children and she is very capable in that regard.
She first met the children of the parties on 14 March 2010, and on 19 March 2010 the mother agreed that she and the father could care for the children whilst the mother went out on a Saturday evening and later on a Sunday afternoon. That appeared a happy occasion for all concerned with the respondent mother meeting Ms G and the respondent mother being satisfied as to the care provided by Ms G and the father in her absence at that time. However subsequently the respondent had a change of attitude toward Ms G and refused to approve her as an adult person who could supervise the time spent with between the father and children pursuant to orders made 17 June 2010.
Ms G was included as a person able to supervise in consent orders made 22 October 2010, but when she accompanied the applicant to the respondent’s home on 23 October 2010 and for the purposes of supervision, the respondent mother refused to allow the father to spend time with the children and required that the father and Ms G leave her premises. On the following alternate weekend, being 6 November 2011, Ms G again accompanied the father to the mother’s home for the purposes of collecting the children. The mother did not allow the children to depart her premises but allowed the father and Ms G to interact with the children inside her home and whilst she was at home. On 20 November 2010, the mother refused the father and Ms G to spend time with the children.

Ms G accompanied the father on each and every time that he travelled the two-hour distance to the mother’s home to see the children in accordance with the orders of 22 October 2010. On 18 December 2010, the mother’s door was locked and the curtains were closed. There was no response and no noise from the home. After leaving the home, the respondent mother sent the applicant a message saying she and the children were in the home. She denied hearing their knocking on the front door, or hearing the car. On 1 January 2011, the mother opened the door to the applicant and advised him that she had told him not to attend. She said that he and Ms G should return at 3.00 pm. She then closed and locked the door. Subsequently, she telephoned the father to advise that he could not return at 3 pm. The mother allowed the applicant to see the children on 13 February 2011 but on her terms. Ms G was again present in accordance with the earlier orders. The time spent was minimal. On 20 February 2011, the mother again refused time spent with the father and children. Time was spent on 6 March at the respondent’s home and again on 20 March at her home. On 3 April 2011, the mother refused contact between the father and children.
Ms G was an impressive and truthful witness. She has been a great support to the father and warm, caring and reliable in respect of her interactions with, and taking responsibility for, the two children. She supported the father’s decision in his amended application for the children to live with him and she into the future. She is a person in whom the mother has now faith in her caring of the children, but the mother does not accept that Ms G is no longer prepared to be bound by an order of the Court that she be present at all times and nor that she be substantially in attendance. She has been a supervisor for a period of some 12 months, at all times without the father admitting the necessity for same and without a testing of the evidence as to whether supervision was necessary. She also has suffered the mother’s dictatorial approach and refusal to hand over the children to her and their father, and has had challenged her fitness to care for the children in circumstances where she is eminently qualified. Her evidence is that the father has a good relationship with his children and is responsible in caring for them. She will be present on many occasions when the children are in the care of their father, in fact most occasions, but she is not prepared to be so in a supervision role.

Evidence of Ms P

The paternal grandmother, Ms P, is a [occupation omitted] and swore an affidavit in the proceedings on 20 April 2011. She currently is employed on a permanent part-time basis working three to four days each week. The father and Ms G reside in her home in a self-contained bungalow. Photographs of the living arrangement were tendered in Court and the bungalow and main home are clean, appealing and entirely suitable premises for the overnight accommodation of the children of the marriage. Ms P impressed as a truthful witness, a sensible person, a reliable and loving grandmother with an appropriate and good relationship with her son. She was not controlling of her son, as alleged by the mother, but, rather, supportive. She has observed her son to provide well – emotionally and physically for his children.

Conclusion

The Court is required to consider the best interests of the children as the paramount consideration (s.60CA). In making that determination the court considers the primary considerations as set out in s.60CC(2) of the Act and the additional considerations as set out in s.60CC(3) of the Act. The parties concur in the view that it is of benefit to the children to have a meaningful relationship with both of their parents and on the evidence that is appropriate. The Court does not find on the evidence a need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence as provided for in s.60CC(2)(b) of the Act. The additional considerations as set out in s.60CC(3) of the Act and those matters referred to in ss.60 CC(4) and (4A) of the Act are as follows:
60CC How a court determines what is in a child’s best interests
Addition considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
These reasons are limited to a consideration of the remaining matter in dispute, that is, whether the father’s time spent with should be supervised. When looking to s.60CC of the Act the Court notes the parties’ agreement as to the father spending significant and substantial time rather than equal time with the children.
The Court finds the mother has failed to facilitate time spent with between the father and children. Further, she has shown unwillingness to encourage a closer and continuing relationship between the father and children. Throughout the history of the father’s time spent with the children, the mother has made arbitrary decisions designed, I find, to prevent the father from spending time with the children as prearranged between the parties or as ordered by the Court. On other occasions the mother has simply denied him contact and for extended periods. The mother has insisted on supervision in circumstances where it has not been warranted, where it has involved other persons and so created significant obligations for them and created logistical difficulties. The mother initially refused Ms G as a supervisor and also refused the paternal grandmother to be present when the father saw the children. There was no basis on the evidence for her ever doing so. The mother has been abusive to the father and critical of the father, and despite her statement to the Court that she is desirous of the father spending time with the children, her actions belie the genuineness of such a statement.
The father has full-time employment as a [omitted]. He pays regular child support as assessed and has always done so. He provides well for the children when they are with him and the children have a very close relationship with him. The accommodation he provides is entirely adequate and appealing. The activities he engages the children in are age-appropriate and responsible, and the food he provides them with, nutritious.
The mother at trial referred to the parties’ daughter as being a special-needs child. There is no medical evidence before the Court to support this allegation and nor has the mother conveyed any such assessment to the father nor the names of any doctors or specialist doctors who may have attended upon the child, or for whom appointments are in place for future attendance. The mother further conveyed at trial that she was required to make a phone call on the day of the trial to arrange for the admittance to hospital of the parties’ daughter to have her tonsils out the following day. Despite having ample time in the middle of the day, the mother did not make such a phone call and when provided with a phone in the courtroom to make such a call, the offices were closed and no appointment was able to be made. The mother was not genuine in this assertion and made no real attempt to arrange for an operation for the parties’ child. Her evidence was implausible and I do not accept it.
Her evidence as to their daughter being a special-needs child is also implausible and I do not accept it. The mother will be required to produce medical evidence in the future to support any such assertion. Further, and critically, anything pertaining to the health of either of the children should be conveyed to the father immediately and he should be provided by the mother with the names of all treating doctors and other persons involved in the healthcare needs of the two children. He has been singularly excluded from this by the mother to date. (I note in that regard the mother’s earlier assertion that [Y] was “tongue-tied”.) This is despite the parties having equal shared parental responsibility for their children.
The Court will discharge all previous orders so that the parties have before them one set of final orders to which they can refer. The mother is now a litigant in person and it will be easier for the parties to engage in a dialogue as to the orders if they are contained in the one set of orders. The father’s application is acceded to.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Date: 9 December 2011