Roache and Dooley

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROACHE & DOOLEY

[2017] FCCA 1027

Catchwords:
FAMILY LAW – Final parenting hearing – competing live with applications – father alleges child at risk of physical and psychological harm if they remain living with the mother – family report highly critical of both parents – high conflict – least detrimental arrangement.

Legislation:

Family Law Act 1975, ss.11F, 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 61DA(2), 61DA(4), 64, 65D, 65DAA(1), 65DAA(2), 65DAA(3)

Cases cited:

Waterford & Waterford [2013] FamCA 33

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

MRR v GR [2010] HCA 4

Applicant:

MR ROACHE

Respondent:

MS DOOLEY

File Number:

MLC 9284 of 2015

Judgment of:

Judge Harland

Hearing dates:

12, 13, 18 & 19 April 2017

Date of Last Submission:

19 April 2017

Delivered at:

Melbourne

Delivered on:

19 May 2017

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Ms Colla

Solicitors for the Respondent:

Pearsons Lawyers

ORDERS

That the mother have sole parental responsibility for the children X born (omitted) 2004, Y born (omitted) 2008 and Z born (omitted) 2011 (“the children”).
That the children live with the mother.
That the children spend time and communicate with the Father as follows:
(a)During the school term period:
(i)Each alternate weekend from the conclusion of school Friday, or 4.00pm on a non-school day until the commencement of school Monday, or 9.00an on a non-school day, commencing Friday 19 May 2017;
(ii)By telephone each Wednesday from 6.00pm until 6.30pm, with the Mother to initiate the telephone call to the Father and the Mother shall afford the children privacy while they are communicating with the Father.
(b)During the school holiday period, excluding the long summer school holiday period the Father’s time and telephone communication with the children pursuant to order 3(a) will be suspended and the children will spend time with the Father during the second half of each school holiday period and until the first day of school after the school holiday period with changeover to occur at 4.00pm on the middle Saturday of the school holiday period;
(c)At such other times as agreed by the parties in writing.
During the long summer holiday period:
(a)For the first half of the 2017/2018 holidays and every alternate year thereafter for the first half of the holidays from the conclusion of school on the last day of term until 4.00pm on the middle day of the holidays;
(b)For the second half of the 2018/2019 long summer holiday.
Changeover shall occur at school or if a non school day changeover shall occur at the purchase counter at McDonalds Restaurant at (omitted).
If Father’s Day (being the first Sunday in September) falls on a weekend when the children are living with the Mother, the Mother’s time with the children will be suspended and the children will spend time with the Father from 4.00pm on the Saturday immediately prior to Father’s day until the commencement of school on Monday or 9.00am on a non-school day.
If Mother’s Day (being the second Sunday in May) falls on a weekend when the children are spending time with the Father, the Father’s time with the children will be suspended and the children will spend time with the Mother from 4.00pm on the Saturday immediately prior to Mother’s day until the commencement of school on Monday or 9.00am on a non-school day.
Each parent inform the other of any changes to their contact telephone number or email address within 24 hours of any change.
That each party inform the other of:
(a)Immediately any serious illness or injury to the children;
(b)Within 24 hours of the children or any of them requiring medical attention;
(c)Immediately of any hospitalisation of the children or any of them.
All communication between the parties with respect to the children be by text message or email unless otherwise agreed in writing.
The parties be restrained by injunction from using physical discipline on the children or any of them and from allowing any other person to do so.
The parties each be restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party either directly or in the presence or hearing of the children or either one of them and from permitting any other person to do so.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9284 of 2015

MR ROACHE

Applicant

And

MS DOOLEY

Respondent

REASONS FOR JUDGMENT

To their credit the parents were able to resolve their property dispute at the final hearing. They were not able to resolve their parenting dispute. This is not surprising given the nature of the parenting dispute.
The parties’ oldest child is X (“X”). He was born on (omitted) 2004 and is 12 years old. As I emphasised to the parties at the hearing, X is not a problem child but a child with problems. His problems, in no small part, stem from the high level of conflict between the parents. He has been caught in the middle of it since his parents separated.
Y (“Y”) is the parties’ only daughter. She was born on (omitted) 2008. She is 9 years old.
The parties’ youngest child is Z (“Z”). He was born on (omitted) 2011. He is 6 years old.
Y and Z are less affected by the ongoing conflict than X but they are not unaffected. There is a real concern that they will become as troubled as X if things do not change.
X is angry. He lashes out physically, especially with his mother. The primary issue in dispute between the parties centres on X. The father’s case is that X is subjected to physical abuse by the mother and that all three children are subjected to psychological harm in the mother’s home. The father says the only way to protect the children from ongoing harm is to change the children’s primary residence.
The mother says that X gets angry and lashes out at her. He has physically assaulted her more than once. She says this happens when she tries to enforce discipline. She says the father undermines her parenting of X such that X rings his father whenever he gets into trouble and that the father encourages this and at times he has interfered. She says to change residence would be to reward X’s bad behaviour and would not solve the problem.
The father was unrepresented at the final hearing. Part of the disadvantage unrepresented litigants face is that they do not have lawyer to provide a filter for them. The father was cooperative and respectful throughout the hearing. What was most telling was the focus of the father’s concerns.
After hearing the evidence, I am most concerned that X is a child who has been empowered by both his parents, but particularly by his father. This has done X a disservice as he gets attention by acting out. Children do well and have a better sense of security when clear boundaries are set for them by their parents.
The applicant father is 51 years old. The respondent mother is 36 years old. The parties were living together in 2002 and separated for the final time in April 2015.
Both parties have repartnered but do not currently live with their respective partners. The father says he is engaged to Ms M. When pressed he said he hopes they will be married by the end of the year but do not intend to live together this stage. They live in the same apartment building.
The mother’s partner is Mr S. He has not filed an affidavit in these proceedings and that is not surprising given the fact that there are proceedings on foot between him and the father with respect to an incident where Mr S slapped X across the face. I will refer to that further in these reasons.
The father has two older children from a previous relationship A and B.
When the matter first came before the Court on 8 December 2015, I directed the parties attend upon a family consultant for a section 11F report. The family consultant stated that X had said he was afraid of his father. I made further orders on 11 December 2015 with respect to parenting and property including that the parties attend upon Ms L for family therapy. Initially the father was ordered to spend short periods of supervised time with the children.
The father said he thought supervised time was unreasonable even in light an incident where the mother observed bruises on X in the shape of a handprint after he returned from his father’s home on 28 June 2015. He gives the mother no credit that she offered to make arrangements for the children to attend a memorial service for his mother. He said his lawyers must have advised her to do so. This shows a level of bitterness that the father has towards the mother despite his prosthetic protestations to the contrary.
The father’s rigidity and unwillingness to do things that are not on his terms is also evidenced by the fact that he chose not to see the children at all rather than continue to have supervised time which he said it was uncomfortable for him and artificial for them.
The father’s time with the children increased when further interim orders were made on 26 February 2016.
The parties could not agree on a high school for X. That was the subject of an interim application which was heard in October 2016.

Much of these reasons focus on X because of his behavioural difficulties. The younger two children do not display the same difficulties but are negatively affected by X’s behaviour at times. It is clear that all three children have been negatively affected by their parents’ separation and the high levels of conflict between them.
The mother describes defiant behaviour from X where he will refuse requests such as that he assist with chores, do his homework, get ready for school, and to engage in family activities.
She also expressed concerns about X’s aggressive behaviour which is mainly directed at her but also, at times, directed at his siblings.
The mother says that X frequently contacts his father and makes complaints about her to him and continually threatens he will do just that if he does not get his way. The mother is concerned that the father undermines her parenting of X. She says X told her that unless she bought him a new computer he would move to his father’s home as his father promised him a computer and told him that he can go to (omitted) School in (omitted). The father says he told X if he needed a laptop for school work he would buy him one.
She says on a number of occasions X has refused to go school.
The mother refers to an incident in 2016 when the children’s school celebrated (country omitted) day. The mother says X contacted his father and accused the mother of hitting him. X asked his cousin C to take a photo of a small red mark on his eye. The mother believes this was self-inflicted. The father cross-examined the mother about this and asked why C was asked to delete the photo from his phone. The mother replied that this was because C should not have been involved as it was inappropriate. The mother denied hitting X in the eye.
The father says he has written to the mother numerous times regarding her failure to follow the Court orders and about her hurting X. He complains that she has never properly addressed the issues he raised with her. His communication with the mother is concerning. It is clear that he accepts what X tells him on face value and then requires the mother to justify herself. It is not surprising that she has not responded.
The mother’s counsel suggested to the father that X manipulates his parents. He makes allegations against the mother and frequently contacts the father. The father says that X has made complaints to him and asked him to do something about it. It was put to the father that the mother says X bullies his siblings, that he threatened his mother that if she does not get internet access he would tell his father. The father was dismissive of this and said that that was the mother’s opinion and that he only knows what X says to him. The father’s response was illustrative of his lack of insight. The mother’s counsel asked the father if it occurred to him to tell X that when X tells him something he would check with his mother. The father said he would like to be able to do that but has not been able to because there is no communication between him and the mother. However, having observed the father in my view this would make no difference as a father would not believe the mother anyway.
The mother says the problems with X tend to worsen after he has been with his father and that his school refusals also coincide with this. This is another reason for reducing the father’s time and eliminating the Wednesday afternoons and not extending the Wednesdays to overnights.

The trophy incident on 28 August 2016

The mother says that on 28 August 2016 the children returned from spending time with father. X asked the mother if he could have some screen time to play a computer game. X accidentally deleted the game from the computer and had to download the game again. The mother says that X then asked whether or not she had fed the cats. She told X that she had not but would do so later but that it was also something that he could do. She says X refused and started screaming and swearing at her calling her a “fucking cunt”. The mother says as his behaviour escalated she sought to impose consequences including removing the iPad, switching off the home internet connection, and explaining to him why she was doing so. She says X screamed obscenities at her and picked up a ceramic soccer trophy and hit her with it, resulting in her sustaining bruises to her hand, shoulder and stomach. The mother says she retreated to her bedroom and that X followed banging on the door demanding return of his iPad. She says during the next couple of hours X tried to enter into her bedroom, removed her mobile phone and threatened to call the police. The younger children were present at the time.
The father says that if it occurred the way the mother says then X’s behaviour was one hundred percent unacceptable. He agreed that it was appropriate to take away computer access and explain the consequences to X.
X refused to attend school the next day and took the mother’s work telephone and refused to return it.

Department involvement with family March 2017

The Department of Health and Human Services (“the Department”) became involved with the family as a result of an incident between X and the mother on 7 March 2017. As the events were so recent, I gave both parties leave to give evidence in chief about this.
The parties had different versions as to what the Department told them. The Court was able to obtain an email response from the Department which was provided to the parties and marked as an exhibit.
Part of the parties’ reactions to these incidents was to approach the Magistrates Court of Victoria sitting at Sunshine (“Magistrates’ Court at Sunshine”) and take out intervention orders against each other. Those proceedings remain on foot. The parties have competing applications for intervention orders that are before the Magistrates Court at Sunshine on 16 May 2017.
The father emailed the mother on 6 March 2017 saying he had spoken to X and he had complained to the father that she would not let him access the internet to check what classes he had that day and that the mother told X she did not care. He asked what was going on and that this is the third day that X has taken off school this year because of arguments with her. He says “please speak to me as I want to help him. It is not working with you looking after him anymore.” He records that his response was to message X that he would attend the mother’s home to take him into school. He records receiving a text message from the mother telling him that she did not consent to him taking X and that she had contacted the police. The father sent further a text to the mother saying he had taken X to school and he had reported to the school principal that the X had not gone to school the day before because the mother had pushed him against the door and he sustained injuries to shoulder. He then asked the mother to refrain from physically disciplining X, threatening him, and saying nasty things to him. This is all part of the incident that escalated with the Department becoming involved and X staying with his maternal aunt. It is clear that the father accepted X’s version of events without question.
The mother says the trouble began on Monday, 6 March 2017. The night before she told X he needed to get his schoolbag ready for school. X had not organised himself. The mother went to work. She said she got a call from her father whilst she was on her way to work saying that X had run upstairs and punched a hole in the wall. The mother checked the hole in the wall when she got home. The mother says as punishment she took away his devices, including his mobile phone. X then went call his father on the house phone and asked him to pick him up. The mother says she told X “your punishment is not have phone access” X said “I’ve organised dad to pick me up.” The mother said “no it’s not up to you.”. X replied “I’ve done it anyway.” The mother then said “let’s agree to give you your phone tomorrow morning. You can text your father and take it into school.”
The mother says she woke X up at 6.00am the next morning and gave him his phone. The mother says she asked X to show her the text to his father. X refused. The mother said “how do I know if you told him not come”. The mother says she took his phone again. X called the father on his house phone. The mother says she was frustrated and took X’s wallet as well and went back to her room. X ran into her room. The mother was lying in bed. X pulled the bed sheets off the bed saying “give me back my phone”. He saw the mother’s iPad on the floor and picked it up. The mother grabbed it back. X swung around grabbing the mother and putting her in a headlock. The mother says she was in shock. X had hit her with objects before but had not done that. X is taller than her and quite strong and she could not get out of his hold. She screamed for help and Y and Z came into the room. The mother said as part of a safety plan, Y knows the access code of her mother’s phone. She told Y to ring the maternal aunt. X still had her in the headlock and she started to panic. She said she tried to use force to trip X’s leg so that he would fall and let her go. She managed to unbalance him and that he was really aggressive. The mother says she was concerned for the younger children and held on to X. X said “you’re holding me too tight I can’t breathe.” The mother said “I’m happy to let you go if you stop and go to your room.” She saw the bruises on his shoulder. She says she was concerned for the younger children. Her sister and C came to the home and X retreated to his bedroom. The mother says she was shaking. When she went to check on X he told her to “fuck off”. X had a school camp commencing that day. X asked the mother to drive him to school rather than him getting the bus. The mother did so.
The father cross-examined the mother about this incident. The mother says that when X had her in a headlock he was in control, not her and that the children witnessed it. She says that afterwards when she was holding him she was not using her full force. She says she did not know how the bruising on X’s shoulder occurred. The father suggested to the mother that she pushed X into the door and that’s when he hurt his shoulder. She denied this.
The mother says that after the incident she contacted the police and made a report. The police officer told her he would need to contact the Department. She says she wanted her version on the record as she was concerned about the father’s reaction as she considers him to be vindictive.

The father had the children that weekend through to the following Tuesday as the Monday was public holiday. The mother rang the school to check that Y and Z were there. She expected to see X after school that day but was concerned because he did not come home. The mother says she should have called the father but called the police instead after having tried to call X several times. The mother says X is constantly on his phone. She said she tried face timing him and texting him and when she did there was no reply and she was concerned so called the police.
She said she did not call the father because her contact with him is always intimidating and when she tries to talk to him she feels like she is being attacked by him. This is consistent with the text and email exchanges which are in evidence as well as the father’s own evidence in cross-examination.
The mother says by the time the police called her back after telling her they would check on him, the Department called her.
The mother went in to the Department office for an interview. She said she did not consent to X staying with the father and that her sister offered for X to stay with her.
I granted leave to both parties to give evidence in chief with respect to the Department’s recent involvement with the family. The father’s evidence was telling. He referred to X returning to the mother’s home after being placed with his maternal aunt. He said that X told him that he did not feel comfortable with his aunt. The first couple of nights were terrific but the next night he felt singled out especially when it was time to go to bed. His complaint centred on access to the internet. He said that because he left his door open he could be seen by his aunt still using his phone and was told to turn it off but because the other children had their door closed they could continue to play on the internet. Due to this, he felt he was being treated differently. The father said X had a minor argument with his aunt and did not want to stay. It is concerning that the father does not seem to appreciate that this is a minor issue of X not liking been told to follow a reasonable direction. My impression is that X knows all he has to do is call his father and complain about these kinds of things and the father will validate his complaints, rather than reality test X and tell him he has to follow reasonable directions.
The father was cross-examined about the maternal aunt’s understanding of why X returned to his mother’s house from his aunt’s house. He referred to the aunt telling the children that 9.30pm was time to go to bed and that she saw X use his phone and told him he needed to sleep. She checked 10 minutes later and when she saw he was still on the phone, X asked for another 10 minutes. She checked again 10 minutes later and he was still on his phone and his aunt warned him that he needed to get up for school early the next day.
This is consistent with the maternal aunt’s evidence.
The maternal aunt affirmed an affidavit with respect to X’s stay at her home after the Department became involved with the family in March 2017. The father did not require her for cross-examination. She lives with her husband and three children aged 12, 10 and 8.
She says that the Department asked her if she would agree to X staying with her overnight. She agreed. She agreed to extend that time. She says the Department requested that she take X for a medical check-up, which she did. She says the doctor told her there was nothing to be concerned about.
The maternal aunt says that during that period X stayed with her they had breakfast at her home and then she took X and his cousins to the mother’s home where the maternal grandmother would look after them until it was time for them to go to school as was the usual arrangement. After school, X would take the bus to the mother’s home and he would spend time with his siblings and cousin’s supervised by the maternal grandmother. This is also the usual arrangement. She says she would arrive at the mother’s home after work at about 5.00pm and stayed until the mother arrived home between 5.30pm and 6.00pm.
At the maternal aunt’s house the children’s bedtime is 9.30pm. On Wednesday, 29 March 2017 she told the children it was time to go to bed. She checked on X at about 10.00pm and saw him using his mobile phone. She told him that he needed to go to sleep. X told her he was just saying good night to his friends. When she checked 10 minutes later X was still on his phone. She told him he needed to go to sleep as he had school the next day. X said he would be another 10 minutes. When she checked on X again at about 10.30pm he was still on the phone. She said she was stern with him and warned him that he had to be up early. She says X became irritated and said he would be up at 6.00am. She got up at about 5.00am the next morning. She checked X at 6.00am and he was asleep. She went into his room at 6.30am and told him to wake up. He was asleep. She says X rolled over and said he had been awake since 6.05am. She said she told X she had been up and had not seen him at all. She saw X was sullen and did not respond to her.
At about 7.45am she observed X carrying some of his casual clothes and when she asked him why as he was not due to see his father until Friday he said “I’m going home.” When she asked what he meant he said “I’m going home to my mum tonight”.
Since then he has not stayed overnight and has continued to visit regularly and spend time with his cousins.
The mother confirmed that she saw X every day during that period he was staying at his aunt’s home. The maternal aunt told the mother on the Thursday morning of the second week that X told her he was going to come home that night. The mother called the Department worker. The mother says X told her that he missed his bedroom. They did not talk about the incident which lead to him staying with his aunt. The mother says X acted as if nothing happened. The mother says that she spoke to X briefly, asking him if he understood what his choosing to come home meant. He nodded. By this I infer she meant X being required to obey rules.
The father says that X told him he was not comfortable there anymore. This seems to be because he did not like rules being imposed upon him which is a recurring theme.
My impression is that currently, encouraged by the father, X sees living with his father as the ideal scenario, as he sees the father as being his champion. He is unlikely to have thought through what it would be like living with his father full time with the father imposing discipline upon him. There is a real possibility that once that reality set in, X would become disenchanted with living at his father’s home and the father may well face the same difficulties that the mother has faced and continues to face.
The father sets out a series of emails and texts he sent to the mother around this time. They are revealing and concerning. It is clear that the father takes what X says at face value. It also shows a naïve and lack of insight on his part which was obvious at the hearing. He expresses a desire for the parties to communicate for their children’s benefit and expresses a hope that they will be able to communicate constructively.
It is clear from the samples he has provided in his affidavit that he contacts the mother to put X’s complaints and accusations to the mother and require explanations. It is not surprising that the mother would not respond to those texts. The impression I have is that X plays his father against the mother. X has been allowed far too much control. As a child he cannot handle it well. Children rely on their parents to set boundaries.
The mother says that the father has enmeshed X in the dispute in that he maintains constant telephone and SMS contact with X, such that when X disagrees with the mother he contacts the father to complain. The father sympathises with X and validates his complaints.
The father was asked if he had his time over again with respect to the incidents that led to the Department’s involvement, what he would do anything differently. He said no. The mother’s counsel also put to the father that his response to X’s text was to go to the mother’s house to collect him. It was suggested that this was interfering with the mother’s home environment. The father replied that when the evidence comes out, the Court may see it differently. The Court does not. These events were in large part a product of the parties’ deep seated distrust of each other and the empowerment of X by the parties, but particularly by the father.
It was also put to him that the children are safe with the mother in a loving and nurturing home and the children see him regularly but he needs to stop validating X’s complaints and do things differently. The father said that the premise is that the children are safe and he does not believe that to be true. This is the difficulty. So long as the father believes that the children are not safe in the mother’s care, he is likely to continue to interfere and undermine the mother’s parenting, particularly with respect to X who he sees as being most at risk currently. I have some concerns that the father will not accept the Court’s assessment of this.
The mother gave a detailed account in her oral evidence as to the altercation with X which led to the reports to the Department. Exhibit B is an email from the Department to the Court providing information with respect to the recent intervention by the Department with family. The Department worker records that the Department investigated the allegation about physical altercation between X and the mother and the injuries that X sustained to his left shoulder. The Department interviewed the family. The father was not able to provide any information apart from what X had told him. X denied assaulting his mother, placing her in a headlock, or that he tried to choke her, and said that he was injured when the mother tried to take something from him and that she tackled him from behind and pushed him into the door.
The mother said that she had been experiencing difficulty in managing X’s behaviour for some time and felt his anger and aggression was escalating. X was violent towards her and his siblings. She felt undermined by the father as X would call him for support whenever she tried to impose house rules. The Department records that the mother reported the altercation to police and reported that X placed her in a headlock and that this had been witnessed by the younger children. Y was interviewed and her story was consistent with the information provided by the mother with respect to the altercation. Z told the Department worker that he did not witness that incident but disclosed other incidents were X had assaulted him and she had witnessed X kicking a hole in the wall of the family home.
It is significant that Y supports the mother’s version of events which is consistent as well with the mother’s evidence about ongoing issues with respect to managing X’s behaviour.
The Department concluded that the children are not at risk of harm in either parent’s care and that the matter should be determined by this Court.

The Easter weekend

The children were with the mother over Easter. On Easter Monday during the course of the afternoon X rang his father about six times. The father said X was quite distressed. The father said the first call was most upsetting to him and that X was referring to arguments with his mother. He said it was about his mother asking him to do chores which were reasonable.
When asked why X made so many calls to him the father said because he raises the issues. X complained that the mother was making it worse by throwing his sheets and his clothes on the floor. The father said that X was trying to get him on side but he was firm with him about following his mother’s instructions and not letting it deteriorate to a physical altercation. The father’s descriptions indicate that he still accepts what X says at face value such as referring to the mother throwing his clothes, even when at the same time he says he is telling X what the mother is asking of him is reasonable.
He said he did not go to the mother’s house this time because what the mother was saying was not unreasonable and there was nothing he could add.
I expressed concerns about the father encouraging X by keeping on taking calls.
The father said that there was an argument because the mother told X he needed to pack his back to get ready for school. X’s bag was dirty and he did not want to clean it, the mother told him he had to do so. The mother’s evidence is that X grabbed the mother’s backpack and started emptying it out at the dinner table. The mother leaned across to take her backpack from him. The mother says X hit her when he flung her backpack at her.
That night X tipped out the mother’s bag. The mother reached over the table to take her bag and the documents she had in bag. She says he swung the bag and hit her leg. Y took her phone to ring her aunt. The maternal aunt and her son C came over. The mother says she wound up wiping out X schoolbag as she did not want another excuse for X not to go to school.
The mother’s counsel suggested to the father that with respect to the phone calls taking place during the course of the afternoon that perhaps the father meant well but was not privy to what was going on. He answered “perhaps”. It was then suggested to him that it is possible that taking the six phone calls over the course of the afternoon was amplifying the situation. He disagreed with that. I am concerned that that is exactly what happened.
The mother says she had a nice weekend with the children over the Easter long weekend. She says on Easter Monday, X did not want to assist in cleaning up the house and his room. He refused to clean his room. When the mother asked him to do it, he said he would do it later. The mother says she asked X to pick up his clothes. The mother asked X to strip his bed so she could wash his sheets. The younger children did what she asked. X said “I’m going to call dad.” The mother checked to see if he stripped the bed and he had not and said “I’m not going to do it. I’m going to call dad”. The mother says she said “are you going to tell dad I’m asking you to clean up your room.” The mother said she knew that he was on the phone to his father. She says X’s behaviour escalated that afternoon. X wanted his school bag washed. The mother asked him why he had left it and told him to turn it out.
The father had told X to go to the park to calm down which X did. The mother says that whilst he did the mother cleaned up his room. The mother said she knew X would be anxious about school the next day and did not want to escalate things. The mother said that when X gets like that she cannot reason with him. The mother agreed that it was a good idea of the father to suggest that X go to the park to calm down. The father asked the mother why she did not suggest that. She said that X does not respond to her and does the opposite during these incidents.
The mother says that X gets very angry and is not able to process his emotions and channels it through anger and violence.

Ms R

Both X and Y have attended Ms R for counselling. She was not required for cross examination. She prepared two reports.
Her first report is dated 2 November 2015. In that report she says that X and Y were referred to her in August 2014 for adjustment difficulties after the breakdown of their parents’ relationship. Both children presented with anxiety but X presented as more labile, with periods of low moods and periods of aggressive and hostile behaviour.
It is of some significance that Ms R noted that the mother had been actively engaged with her in seeking her assistance but had only spoken with the father once.
She clearly states that it is not her role to interview children or investigate alleged incidents but that X had mentioned several incidents where his father had become angry with him and on one occasion where X complained that his father put his head in the toilet bowl in October 2014 and another occasion where the father bruised his arm in October 2015.
She spoke about the children feeling most safe in the mother’s care and that both would benefit from re-establishing a positive relationship with their father.
Her second report is dated 3 October 2016. Ms R has moved to Tasmania and has continued to treat X but several sessions have been via Skype which have not been as effective as face to face contact. She expresses concern about the mother’s reports of the “volatile, aggressive and seemingly manipulative nature of X’s conduct”. She said that Y has told her about being scared of X. She says X can become fixated and it is hard to change his focus. She says “there is no doubt that ongoing animosity between his mother and father contributes significantly to X’s presentation”. These observations are significant and are consistent with the mother’s descriptions of X.
When she last saw X in September 2016, he was distressed by the fact that he did not know where he was going to school in 2017 when all his friends did. He mentioned that (omitted) School was his preferred school X had mentioned to her in 2014. He told her he missed out on that school because his parents do not communicate and could not agree. This is a great shame for X. She spoke about her recommendation that X be assessed by the (omitted) Hospital Child and Adolescent Mental Health Service Unit (“CAHMS”).

Dr J

Dr J prepared a family report. She raises several issues of concern in that report about both parents and the children, particularly X.
She refers to an incident where the mother observed bruises on X in the shape of a handprint after he returned from his father’s home on 28 June 2015. She took X to the police station and took out an intervention order. The mother told Dr J that X is afraid of his father’s temper. Dr J asked the father about this. Initially the father said he took offence when the mother raised it with him and thought she was trying to set him up. He said that he had come to reconsider the incident. X had been angry with his younger siblings. The father dealt with the conflict by pulling X against him. The father said his actions may have caused the bruising. The father was cross-examined about this. He conceded that he denied it when the mother sent him photographs of the injury. He has never spoken to the mother about it. The father says this is because he raised it with Ms L and X. He told X that he could have caused the injury and that he was very sorry.
With respect to X’s complaint that the father put his head down the toilet, the father says he was disciplining X and said to X that unless he apologised he ought to put his head down the toilet. It is of concern that the father seems unable to appreciate the similarities between the difficulties that he had with X in disciplining him and X exaggerating or distorting what happened and the situation that the mother finds herself in now. It is an example of the father’s lack of insight and perhaps also his determination to have the children in his care. X made up the allegations against the father in the early days of the parties separation including that the father dragged him across the carpet causing carpet burns. The father denies this.
It is the father’s position that when X was making allegations against him, X was exaggerating or giving an inaccurate version. Yet the father has given no thought at all as to whether or not this could be the case with respect to the allegations X makes against his mother. What is striking is that the mother’s problems with X centre on discipline and rule setting but she has the added difficulty that the father did not have, which is that the father undermines the mother’s parenting. Consciously or not, the father has encouraged X to make complaints to him about the mother and it seems unlikely that the father engaged in any reality testing with X.

For a period the children did not see the father and then saw him on a supervised basis.
The father obtained an Intervention Order against the mother’s partner Mr S after he slapped X on the face. Dr J asked the mother about this incident. She said that at the time she was washing the dishes and the younger children were helping her. She asked X to take the rubbish out and he refused. Mr S then told X to take the rubbish out and X spoke rudely to him. Mr S slapped X and he then completed the chore sullenly. She justified Mr S’s behaviour saying it was a “controlled slap”.
The father told Dr J that X told him that Mr S had told him to feed the dog when X refused Mr S gave a “backhand across the face”. Dr J asked him if X had been provocative. The father said X had acted appropriately because he did not like Mr S’s demands.
The father also said that he knew about the mother’s allegation that X had punched her in the face the day before. He said there were a number of times when the mother has told him that X has hit her and that he said that X has acted in self-defence. Dr J records “he stated emphatically ‘I believe X’s version’”.
The mother blamed the father for X’s violent behaviour stating that it started after X started seeing his father.
There are some other concerns about the father’s allegations against the maternal grandmother. The mother acknowledged that there are some cultural issues around discipline and that although the maternal grandmother might threaten to hit the children with sticks to scare them, she loves them and cares for the six children (caring for the maternal aunt’s children as well) before and after school.
The father complains that the mother has a harsh parenting style. The mother, during the course of cross-examination, admitted that in (country omitted) culture, parents tend to focus on criticism rather than praise in wanting children do well but that this is something she has been working on. The mother is (nationality omitted).
Dr J recorded that the Department had investigated the complaint X made about his father putting his head down the toilet bowl about which X spoke to his school principal. The Department concluded that the father had behaved inappropriately. X also spoke about this with his counsellor Ms R.
Dr J’s observations of X are concerning. She said he was “doleful over much of the interview and began crying long slow tears while discussing the dispute over his school for next year”.
The mother described X as a caring and intelligent child but who is different at school and at home. That at home he is aggressive and likes to be the dominant person.
The father said that X has “good manners in the right setting” but he is stuck in the middle of the conflict between his parents. He said that X’s relationship with his mother is tense and that is often due to the mother saying something to X which X does not agree with and that X gets upset when she does not explain her reasoning to him.
X said that both parents told him why he was coming to the appointment but it was to discuss his preferences for living arrangements and that when he was 13 it would be up to him to choose. Dr J says she spoke to X for a long time about this including his rights not to make decisions.
Dr J discusses the bruising incident with his father and the slapping from Mr S, and she asked X to explain the difference. From X’s perspective the difference was that the father is his father, and that Mr S is someone who he sees as aggressive and who he resented imposing discipline upon him.
X said his mother had hit him and he hit her back and Dr J observed that X became doleful when speaking about this.
X said he would prefer to live with his father as he feels comfortable and he gets on well with his older half-brother A. He said his younger siblings always annoy him.
X was worried about high school and was concerned about this. His preference was to go to (omitted) School where most of his friends would be. He was sad that his mother had not enrolled him and now there was no place for him.
Both Y and Z were uncomfortable talking about their family with Dr J.
Dr J observed the children with each of their parents. She observed X to be rejecting of his mother:
He told his mother that he planned to spend the night with his father and go home with him after the assessment. Ms Dooley told him with firmness that he should not be making arrangements and his parents decide. X continued in a belligerent way but also showed sadness and emotional disturbance when challenging his mother this way.
She also observed that during play the mother would praise X whilst X remained “doleful and rejecting” he clearly enjoyed the mother praising him.
Significantly Dr J observed the following:
X was unhappy, but even more unhappy when he was rude to his mother, and his begrudging pleasure at her attention and praise of him showed that the relationship was more important and warmer than he preferred to show.
After initially making a show of rejecting the mother, X then joined in with enthusiasm and was keen for his mother’s attention. The mother was affectionate and she spread herself between the three children and showed delight in each of the children.
During the observation between the children and their father, X complained that he was bored and the father agreed with him that the observation was boring. The father focused most of his attention on X and allowed the other children to play by themselves. The father was kind and loving to the three children.
During both observations there was a lot of arguing amongst siblings. Both parents said this was pretty normal.
Dr J administered various psychometric personality tests to the parents. She identified the father having problem areas including a range of antisocial behaviours, impulsivity and paranoid thinking with suspicious beliefs. His suspicious beliefs could border on being delusional. The mother’s tests showed she was defensive and also problems around suspiciousness and distrust. Dr J said of the father that people who score like him are sometimes diagnosed with personality disorders with antisocial features. Of the mother she said the people who score like her sometimes attract diagnoses of personality disorder with narcissistic features.
Dr J noted limitations in the assessment and referred to both parents difficult communication styles. The father could not see a correlation between the incident where he caused bruising to X and the incident with Mr S. The mother did not appear to appreciate the fact that Mr S was spending more time at home in the lead up to the incident with X and that there may have been adjustment issues for X contributing to his difficult behaviour. She expressed concerns that mother had such an intense dislike of the father and to X being similar to his father but this could be contributing to the experiences she has with X.
Her impressions of X were that he is very unhappy. He is intelligent but greatly disturbed by his family circumstances. He sees his father as having changed in his behaviour but is disenchanted with his mother and perceives that she championed Mr S over him. He presents as a confused and emotionally disturbed child. She said allowing him to go to the school he wants to go to with his friends was likely to go a long way to ensuring has some stability and environment where he feels happy. The school environment can be very important for children of separated parents as it gives them some consistency and relief from the conflict.
Dr J found that Y impresses as a child who is negotiating precarious boundaries between her parents and she is sensitive to their feelings and is at risk of future psychological harm as she has no confidence in her parents’ ability to protect her and prioritise her needs. Of Z, she said his behaviour showed irritability with his siblings in a sense of competitiveness suggesting that he perceives his parents as having limited resources to share between them.
Dr J observed that all three children appeared uncomfortable and dissatisfied. They were fractious and easily aroused to anger and conflict with one another. Both parents have vulnerable personality styles and difficulty appreciating how the conflict between them impacts on the children and that they appeared unable to prioritise the children’s needs over the bitter conflict between themselves.
She opined that all three children are at risk of emotional harm:
X appears most overtly disturbed by the conflict between his parents and history of the matter suggests that he has succumbed to the persuasions of one and then the other parent. Both parents appear to be actively pursuing the support of their children against the other parent.
Having had the benefit of hearing all of the evidence I find this is more the case with respect to the father.
She found that there are emotional and psychological risks in both parents’ care and the greatest detrimental factor is the level of conflict between the parties. She said that any arrangement was unlikely to reduce the risks and both parents “impressed as in insightless”.
Most concerningly she said “the prognosis for the children appears rather bleak and I have little hope that the parents can understand the risk to the children and modify their behaviour.”
Dr J saw the family on 14 July 2016 and released her report on 22 September 2016. Most unfortunately, Dr J’s concerns seem well founded and nothing appears to have improved for the children. In fact the conflict has worsened and X’s behaviour has escalated.
The father was cross-examined about Dr J’s report and the discussions Dr J had with both parties whilst they attempted to negotiate parenting proceedings. The mother’s counsel put to the father that Dr J said there was no benefit to the children relocating. The father replied, rather tellingly, that there was no benefit but there was nothing against it either, as he understood it.
The mother’s counsel put to the father that X does not really appreciate what the change of residence will involve for him. The father agreed that X does not understand it from the adult perspective. It was put to him that it is possible that if there is a change of residence he would suffer similar difficulties to the mother. He disagrees with that. That is an example of the lack of insight on his part as there are similarities with respect to his experience early after the final separation and the mother’s experience now. Clearly X’s behaviour has worsened but I think this is because of the ongoing conflict, including the uncertainty with respect to where he would go to high school, which has disturbed X emotionally.
Dr J was cross-examined. The recent report from the Department did not assess the children as being at risk of harm in either household. Dr J agreed that her report indicates that really the problem is between the parents and that the conflict rains down on the children. She said that whilst the Department has said it will provide supports for the parents, she does not think that those supports are particularly aimed at high conflict families but rather focus on physical risk. Dr J said that the parents need considerable professional support. She is not sure that the Department has the resources available.
Dr J was asked about the incident on Easter Monday and the calls between the father and X. She said it was impossible for her to know whether or not the calls were appropriate. She said she spoke very clearly to the father particularly with respect to his behaviour of supporting X and undermining the mother which has the effect of disturbing X further. She told the father that he would do well to challenge X about his behaviour. This is essential for X’s future well-being and is not something that the father has done to date.
Dr J referred to her observations of X in the report where he made a show of rejecting his mother but then clearly enjoyed his mother’s attention. X loves his mother but shows an attitude of rejecting her when relating to her which is not genuine.
Dr J said both parents have real difficulties. The mother’s position is that X’s poor behaviour reflects the father’s complete lack of insight as to how his modelling of behaviour undermines his relationship with the mother. Dr J expressed the view that no amount of psychological counselling can assist with this as this is personality based. She said the changeovers can be difficult for children as it is so hard to move between the two households and would be better for the children if they never saw the parents come face to face with each other.
Dr J was asked about telephone contact. She said the children separately loved each of the parents and if their parents’ behaviour was better that they should be able to share day-to-day things with each parent but it can be hard for them when there is such psychological hostility between the parents.
The father cross-examined Dr J about X. She said some of X’s problems is because the mother can be a bit harsh but that the father is too ready to provide sympathy to X and does not challenge him. She says the younger children are also suffering and expects it to get worse. Dr J’s comments encapsulate the problems neatly.
Dr J opposes separation of the siblings. She said the sibling relationship is very important for the children because one day their parents will die but the sibling relationship will last beyond this. Siblings having daily interaction with each other whilst growing up is how those relationships get cemented. The father asked Dr J what circumstances would be appropriate to remove the children from the mother. Dr J said she did not think removing them would solve the problem and would only solidify X’s feelings that he does not need to manage his behaviour. She cannot see any benefit in removing them.
I was concerned about the number of phone calls that took place between X and the father in the afternoon on Easter Monday and asked Dr J asked whether or not it would be helpful for the father to not take calls from X. Dr J gave very helpful evidence in this regard. She said that if X rang the father and the first time the father told X that the mother asking him to clean his room is appropriate, and then X’s behaviour would have escalated because X would have been confused about the father’s change in behaviour. The afternoon would have ended in the same way. The most powerful thing for the father to do in this situation is, in front of the mother, to tell X to clean his room and to apologise to his mother. Even if X does not receive a call from the father he feels his sympathy. If the father again gives sympathy to X rather than challenging him then his communication is not good for X. Dr J says it would be important for the father to be consistent with X. Dr J said that the father looks back to his admissions to her, he has been a powerful model for X and he has to work hard to undo some of that.
It really is within the father’s control to improve things for X. It will be difficult but he needs to start challenging X’s behaviour and reality test with him and stop undermining the mother’s attempts to impose discipline and boundaries. If the father can do this all three children will benefit.

The father

The parties initially separated in early 2014 and during the year made attempts to reconcile. The father moved out of the former matrimonial home in March or April 2014 and obtained a 12 month lease on a property in (omitted). He says his former wife needed support during this period as his oldest daughter was unwell and so he moved out of the (omitted) property so that his ex-wife and daughter could move in and went to stay with his father in (omitted). The father lived in (omitted) for about 12 months after the parties finally separated on 27 April 2015 and currently lives in (omitted). (omitted), (omitted) and (omitted) all involve travel of between 45 minutes to an hour to the former matrimonial home.
It was very telling, when cross-examined, that the father was unable to identify a single positive thing to say about the mother despite being given two opportunities to do so. Yet he claims of being hopeful of being able to communicate with her constructively. His responses in cross examination and his own communication with her belie that.
The father conceded that he has discussed with X with whom he wants to live and when X told him that he did not want to live with his mother. The father told him that he would see what he could do. When I questioned him about whether he thought that was appropriate or something that was better left to the adults, he said in hindsight maybe he should not have said this to X. He says he has always told X, with respect to his schooling, it is the adults that will make that decision.
It was put to the father that he stormed out of the last session with Ms L. The father said he could not recall. When it was put to him that he cut the session short he also said he could not recall. He agreed that there have been no sessions since. When it was put to him that the sessions with Ms L had not worked he said he would not entirely agree as he found her very knowledgeable and hoped her experience could help resolve issues. Either the father is being disingenuous or lacking insight. It is apparent that the parties had not been able to improve the communication at all.
The father has repartnered with Ms M who has three children aged 28, 20 and 16. The father was reluctant to tell the Court when he plans to marry her until he was directed to do so and said he hoped towards the end of the year. They live in the same apartment block. He says they were not in a committed relationship when Dr J interviewed the family but became engaged in (omitted) 2016.

The mother

The father cross-examined the mother about X. The mother says that when X becomes enraged he does not listen, uses obscene language, and becomes aggressive and sometimes violent. She says she has a safety plan in place with the younger children where they are to call the maternal aunt if things get out of hand. The mother says X knows what buttons of hers to push and that the problem is that his bad behaviour has no consequence as when she tries to be firm he lashes out and contacts the father.
The mother says his bad behaviour can be triggered when she asks X to go to bed, clean his room, or to stop using devices.
The father cross-examined the mother about her complaints that X calls the father and makes arrangements with him directly. The mother also complains that the father has come to the mother’s home to collect him. The mother said that that had occurred until the recent intervention order which prevents the father from attending her home. The mother said the father had done this successfully twice. She said there were many other times where he said he would, and on one occasion she called the police.
It is concerning that both parents resort to calling the police. This involves the children in having to talk with police. This is no good for the children.
The father cross-examined the mother about her treatment of X. The father put to the mother that there was an incident in April 2017 when she called X a “fucking retard”. She denied this. She also denied calling him a “retard” when she asked him to clean his room.
The mother says she has not seen the maternal grandmother hit the children. She said she understands the ramifications of breaking orders.
The mother says that she was brought up in (nationality omitted) culture where parents tend to criticise rather than positively praise. She says sometimes she has fallen into this but it is something she is working on improving.
As part of the property consent orders, the mother is receiving the former matrimonial home. She has indicated that she may sell. In which case should plan to move to (omitted) which is 15 minutes away.
In cross-examination the father asked the mother if she has any conciliatory approach to make. The mother said she does not hate the father but he is very quick to criticise and judge her as poor parent. She says she has concerns she would like to address and she does not want X to harm himself or hurt her badly. She says that while she does not agree with the father’s parenting style, she has to trust him and that he needs to trust her and know that she loves the children. The father should heed these words. The father is quick to criticise and judge the mother and has exacerbated the situation of conflict particularly with respect to X.

The father asked the mother, if things get worse when it would be appropriate for X to live with him. The mother said that when X calls the father he encourages him and escalates the situation. The father cannot understand this. She said that when X is with the father X needs to listen to him and when X is with the mother X needs to listen to her. The best thing the father could do for X is to stop undermining the mother’s parenting by encouraging consciously, or otherwise, X to report on his mother and make complaints about her to his father. I agree.

Communication between the parties

The mother says that she and the father are unable to communicate constructively.
The parties have had the assistance of Ms L for family therapy but despite this their communication has not improved.
The mother complains that after Dr J released a report, the father attended her home with a copy of the report and said in front of the children “you’re a narcissist and the children would be better off with me.” What is telling is that the report refers to both parties having personality vulnerabilities with the father being anti-social. He admitted to going to the mother’s home with the report. He said he did not know if the mother had received it. This is disingenuous. He received it from his lawyer. He had no reason to think that the mother also would not receive the report from her lawyer. Not only does this reflect poorly on the father, it is most concerning that this is what he took away from the report.
He said he did not recall whether the children were around. He says he did go to the mother’s home to see if she had a copy of the report. I find the father had no regard to whether the children were there or not. The father says he did not go to the mother’s home with the intention of making that comment. This is a serious lapse of judgment on the father’s part. Nothing positive could have come out of it. It is little wonder that the mother finds it extremely difficult to communicate with the father and does not want to do so.
My impression of the father is that he is quite good at saying what he thinks is expected of him, such as that he and the mother both need to take responsibility for the conflict and the difficulties children are experiencing, but he does not really take responsibility for his own actions. Rather he is focused on his negative views of the mother.
The parties have competing intervention order applications which are next returnable the Magistrates’ Court at Sunshine on 16 May 2017. A recent example of this parent’s inability to communicate is the fact that they were unable to even make arrangements for the children’s care during the course of the hearing such that there was much confusion as to where the children were going to be on the Wednesday afternoon. This is something that both parents should have turned their minds to much earlier.
There was a dispute between the parties about the January school holidays due to differences in interpretations of the consent orders the parties agreed to on 20 October 2016. The consent orders provided for the father to have specific periods of time during the school holidays in December and January. The controversy surrounded order 2(c) which provides for the father to have the children from after school until 6.30pm each Wednesday. The reference to after school indicated that it was supposed to be during school terms and not school holidays. Whilst this could have been made more explicit and accepting that the father did not appreciate this, and noting he was self-represented at the time he was put on notice of this by the mother’s lawyers he disagreed with that. Despite being told very clearly that the children would not be made available for the three Wednesdays in January and that the mother was taking the children on a three night cruise, the father continued to attend expecting to pick up children. He rang the police and asked them to do the welfare check. He says he did this because he could not get in contact with them and did not know what had happened. He was concerned that the mother might snap and hurt the children. If the father is genuine about that it is a complete over reaction as he did have information that the children were with the mother on a cruise. The mother says the police contacted her and she told them she offered for them to speak to the children. It was put to the father that this was as intrusive and unwelcome disruption to the holiday and the father conceded that it could be seen that way.
Exhibit C is a copy of a letter from the mother’s lawyers to the father dated 24 January 2017. It refers to the fact that although they had written to the father confirming that the children would not be made available on 18 January 2017. They referred to in order 2(c) of the interim orders. Despite this the father still called police and asked them to undertake a welfare check. They refer to the father’s actions as being unhelpful and a waste of public resources. There was no genuine reason for the father to call the police this was not a situation of him not having any notice. Clearly he disagreed with the interpretation of the order but this did not justify involving police or interfering with the mother and the children’s holidays. I doubt that he gave any consideration to how the children would feel about the police making contact in this way.
Exhibit D is a letter from the mother’s lawyers dated 14 December 2016 to the father’s lawyers addressing the interim orders of 20 October 2016. The father’s email in response is Exhibit E the father saying he cannot afford his lawyer anymore and that he would not be responding to her lawyer’s letter, yet he requested other responses to topics he wished to discuss. That was not a helpful approach, one has to wonder why he would think that the mother would engage given his clear attitude that he only wanted to speak about things on his terms and topics of interest to him. That is not conducive to the parties communication about issues constructively which is what the father says he wants to be able to do. The mother’s lawyers wrote to him again on 21 December 2016. This is Exhibit F. Exhibit G is a further letter sent by the mother’s lawyer on 11 January 2017 with respect to the January dates. Exhibit H is a series of text exchanges between the parties with respect to the January issue. Somewhat ironically in one of the texts the father says they need to discuss and agree, yet he ignored the correspondence raising these issues. I am left with the impression if communication does not occur in the way and in the manner that he chooses he will not engage.
There appears to be at times a disconnect in the things the father says and his actions. It is a recurring theme of the father, both in his emails and texts to the mother and his oral evidence and submissions in Court, that he wants to be able to improve communication with the mother and is hopeful that this will happen, yet in his opening he had incredibly negative things to say about the mother and when cross-examined was unable to identify positive things about her when asked. When the contents of his emails and texts are examined they are judgmental and accusatory of the mother and it is not surprising that the mother finds his communications harassing and unwelcome and does not reply.
Despite having the assistance of Ms L and family report which they have now had for some months which was damning of both parents, they have been unwilling or unable to make changes. In part this is because both parties lack insight and when people lack insight they are not able to change. Parents are not able to put aside the conflict for the sake of the children and both tend to externalise the blame on to the other party and to not take responsibility for their part in it.
It is significant that when considering the history of this matter, there was a time when X complained about his father being angry and violent and was reluctant to see him. If the residential arrangements are reversed there is no guarantee that this will not happen again. Currently X sees his father’s home as a place where he will get what he wants. There is a real likelihood that when X is living with his father most of the time and the father imposes rules and boundaries upon him, that the father may well face the same challenges with X as that the mother faces now.
The weight of the evidence is against changing the children’s primary living arrangements and placing them with the father. This would have a huge upheaval for all three children. I am not satisfied that the mother is physically and emotionally abusive of X or of the other two children. I am satisfied that X is emotionally disturbed and that his behaviour is incredibly challenging and difficult to manage, particularly when it comes to any attempt to set boundaries upon his behaviour and impose rules and discipline upon him. The situation is exacerbated by the father accepting at face value what X says in effect encouraging X to make complaints about his mother to him and reinforcing to X that he thinks X is unsafe in the mother’s care. The father undermines the mother’s parenting and, whilst it may well be unconscious, it encourages X’s behaviour.

Sole parental responsibility

The circumstances surrounding a referral to CAHMS and the lack of progress with that referral is one example of why equal shared parental responsibility is not likely to work. Ms R had recommended that X be referred to CAHMS for an assessment in 2015. The mother says she did not act on this straight away and then there was a long wait list. The mother says she then was contacted by CAHMS in June 2016 but later discovered that the father refused to participate in any assessment process and unilaterally cancelled the appointments without telling her.
On 4 October 2016 interim orders were made for X to attend CAHMS for an assessment and report. The mother says that when they attended the appointment on 12 October 2016, the father indicated he was only there because he was ordered to. The father agreed he said that. This is an example of the father’s unwillingness to engage he does not agree with it. The mother says the father indicated that he thought that X’s problems arose out of living with her and refused to acknowledge his behavioural difficulties. The father says he cannot recall saying it like that. I prefer the mother’s evidence to the father’s on this point.
I have real concerns that if the parents were to share parental responsibility for X that he will not get the support he needs from mental health professionals and that there will be ongoing difficulties with respect to the children’s schools. The father seeks an order that the parties be restrained from taking X to see any psychologist other than Ms R unless by agreement. Based on the evidence it is unlikely that they would agree.
I am far more pessimistic than the father about the parties’ ability to communicate constructively in the future. The evidence does not support there being any improvement even after the assistance of Ms L. Dr J’s report also does not support there being any likelihood that the parents will be able to parent cooperatively in the future.
Dr J did not support a sole parental responsibility order being made with conditions that the party with parental responsibility being required to inform the other party and seek their input before making the final decision. Given the parties’ inability to communicate and their ongoing criticisms of each other, I also do not think that arrangement would be workable that the parent with primary care for children should simply have sole parental responsibility with no conditions attached to it.
It is also quite telling that the father agreed that the Department has offered both parents referrals to parenting services. The father said that he was happy to keep an open mind about it but if he disagrees he will not do it. That is also the risk in what happened with respect to the CAHMS appointment which does not reflect well on him.

Future schooling arrangements

The mother would like X to attend (omitted) School. X is on the waiting list. Currently he attends (omitted) School which is a feeder school from (omitted) School.
It is clear from the father’s evidence that it is very important to him that the children complete their (religion omitted) school. All of the children have been baptised. X has completed his reconciliation and communion that needs to complete his confirmation. The younger two children will also need to complete their sacraments. The children do not need to attend (religion omitted) schools in order to complete the sacraments as the father can arrange this through his parish church.
I accept the mother’s evidence that she is supportive of the children completing the sacraments given the importance of it to the father. She says that she always agreed to this.
Whether or not the children will be able to attend (religion omitted) schools will largely depend on whether the parents can afford the fees. The mother said she would like all three children to go to (omitted) School, as it is co-educational school, and she would like the children to attend co-educational schools.

Mr S

The father has proceedings in the Magistrates’ Court against Mr S with respect to an intervention order against him arising from the assault against X. The father seeks an order that he be permitted to rely on Dr J’s report in those proceedings.
No submissions were made by either party on this point during the proceedings.
Dr J did not interview Mr S. In those circumstances it is unlikely to advance matters.
The mother remains in a relationship with Mr S and he was in Court throughout the hearing but was not called as a witness by her. This may well have been because of the ongoing proceedings in the Magistrates’ Court.
The mother proposes that there be an order that the children shall not be physically disciplined. The father says he does not trust the mother with respect to Mr S. In this regard it is not surprising. I find it concerning the mother appears to minimise this incident. During cross-examination she referred to it as a “controlled slap”. She said it was not a slap in anger. That does not make it better.
The father suggested to the mother that in addition to the slap, X had told him that Mr S grabbed him to do jobs around the house. The father asked if Mr S had ever grabbed X. The mother said “maybe, not sure.” The mother said that X told him that he had been verbally threatened and often been told to “do it or else”. The mother denied this. The mother said she thought it was in children’s best interests for them to be able to have contact with Mr S. She accepts that X says that he is afraid of Mr S. The mother said that through counselling or other services Mr S could slowly and positively be reintegrated with the children. As there are proceedings still on foot involving Mr S and an intervention order preventing Mr S from coming into contact with the children, I will not make the injunction the father seeks.

Changeovers

There are some issues with changeovers. Every second or third time instead of the father simply dropping the children off and leaving straightaway there is to-ing and fro-ing. For example, X will go into the house to fill up the father’s water bottle and bring it back to him. The mother wants this to stop and it should. It is not helpful for the children.
The mother wants handovers to take place at public place. The father opposes this and says handover should take place at each other’s homes. The handovers will take place via the children’s schools except for school holidays.
In light of the ongoing intervention orders, I am of the view that the handovers which do not take place via the children’s schools should be at a public place.

Legal Principles and their application to children’s issues

The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
The children have a meaningful relationship with both their parents and will continue to do so. I am not satisfied that the children are being subjected to physical or psychological abuse in the mother’s home. Whilst clearly there have been violent episodes, I find that this is due to X lashing out physically when he does not get his way and when the mother fails to impose boundaries.
There are 13 additional considerations which are set out in s.60CC(3) which I will refer to later in these reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount. The parties have competing intervention orders on foot which will be determined in the Magistrates’ Court.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent. I have addressed this separately.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.

In MRR and GR [2010] HCA 4, the High Court of Australia (“High Court”) found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an Order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an Order for equal time. At paragraph [13] of the judgment the High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
Neither parent seeks an equal time arrangement. That would not be practical because of the distance between the parties’ homes which is unlikely to change in the future. Even more important is the different parenting style of the parents, their inability to communicate, and their distrust in the other would make this unworkable for the children and would only add to the children’s difficulties in navigating their way between their parents’ households.
Turning to the additional considerations at s.60CC(3) of the Family Law Act. I accept that X has expressed a view to live with his father. I do not think it would be in X’s best interests to accede to his wishes as it will only reinforce to him that the way he behaves with his mother is an appropriate way to behave to get what he wants. The move would be a huge change for all three children, as it would not be in their best interests to separate them (nor do the parents seek this). They would need to change schools and the time they have all the extended maternal family would be greatly reduced.
Both parents have at times shown a poor attitude towards the responsibilities of parenthood and in being unable to prioritise their children’s needs over the conflict. This has also impacted on their capacity to provide for their children’s emotional needs in particular.
There is no practical difficulty or expense with the orders I will make.
I have to consider what orders are least likely to lead to further proceedings. I have concerns that the father will seek to agitate the children coming into his care in the future. This was apparent by his questions during the course of the hearing. However I am satisfied that the orders I will make are in the children’s best interests. It is not an ideal situation; rather it is the least detrimental alternative.
Having considered all of the evidence even if the parents lived closer together, in my view the shared care regime would not work for these children as the communication between the parties is so poor and the level of distrust disconnect between them is so high.
I do not think the children will benefit from continuing the Wednesday afternoons with their father or having the Wednesdays converted to overnight time.

Conclusion

I have real concerns that the father will not accept this outcome and may continue to undermine the mother’s and X’s relationship which will be psychologically damaging for X in the long-term. Remaining in their mother’s care means that they will remain in their local area with friends and family and remain at their current schools. The children have extensive contact with the maternal extended family with the maternal grandmother looking after the children and their three cousins in the mornings before and after school. The maternal aunt and her children live across the road from the mother.
The mother is to be able to make arrangements for X to access mental health services if required without the father’s input so that what occurred at the CAHMS intake session to is not occur again. The father was very clear that there is nothing the mother can say or do to assure him that the children are safe in her care. He said too many things have happened since Dr J’s report.
In his closing submissions the father talked about needing to break the cycle. He sees the way of doing this is having the children live primarily with him but that is not the cycle that needs to be broken. That will not assist X in particular. In order to break the cycle, the father needs to stop undermining the mother and providing sympathy to X rather than challenge his responses to his mother. This will take a lot of effort by the father but if he can do that then all three children will benefit.

I certify that the preceding one hundred and ninety-eight (198) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 19 May 2017

[2017] FCCA 1027

19 May 2017

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

Remedies

Procedural Fairness