ROGERS & BLOOM

[2015] FamCA 27

FAMILY COURT OF AUSTRALIA

ROGERS & BLOOM [2015] FamCA 27

FAMILY LAW – CHILDREN – Application for Final Orders – where hearing proceeded on an undefended basis with the mother having limited participation – where parties reside in rural location – mother seeks to relocate to Adelaide – where mother maintains two homes to comply with interim parenting orders – consideration of bests interests of the children – reasonable practicality – whether either party is able to support a meaningful relationship between the other party and their children – decline to make final orders – interim orders to continue until further hearing – further hearing conditional upon mother’s compliance with trial directions.

FAMILY LAW – CHILDREN – Family Assessment Report – where recommendations of the family consultant would require drastic change from existing parenting regime – whether family consultant considered all the evidence available – treatment and weight to be given to family consultant’s report.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA

Andrew & Delaine [2009] FamCAFC 182
MRR v GR (2010) 240 CLR 461

APPLICANT: Mr Rogers

RESPONDENT: Ms Bloom

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 3452 of 2009

DATE DELIVERED: 30 January 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 7 May 2014, 18, 19, 20 August 2014 and 23 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: Paul Doube Lawyers

THE RESPONDENT: Litigant in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Read

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

UPON NOTING that the orders of 12 May 2011 remain in force until further order

AND UPON NOTING that by consent on 7 March 2014, order 6 (c) (i) (2) of the orders made 12 May 2011 were amended by the insertion of the following words after the words “eighth day of holiday period” – (NOTING that the last day of term shall be considered as the first day of the holiday period)

Orders

(1)That paragraph 18 of the orders of 12 May 2011 as amended be discharged and in lieu thereof the following shall apply:-

18.That any handover which cannot be effected by the said children being delivered to or collected from school shall take place at the entrance of the Town D shopping centre, I Street, PROVIDED that should one child be absent from school due to illness, then the ill child shall be delivered to the said children’s school to effect handover at the conclusion of school that day NOTING that the parties are not restrained from coming to any other agreement as to the terms and conditions in which handover may take place.

(2)That the parties be restrained and an injunction is hereby granted restraining each of them from attending the children’s school at the conclusion of school when they are due to be collected by the other parent.

(3)That the proceedings are adjourned for further hearing on 31 October 2016 (5 days allowed).

(4)That by 4pm on 30 June 2016, the mother file and serve upon all other parties:-

(a)An Amended Response setting out with precision the orders to be sought;

(b)The Affidavits of evidence in chief of all witnesses including those of the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

(5)That subject to the mother complying with paragraph 4 herein, by 4pm on 12 August 2016 the applicant file and serve upon all other parties:-

(a)An Amended Application setting out with precision what orders are being sought;

(b)The Affidavits of evidence in chief of all witnesses including the applicant relied upon.

(6)By 4pm on 31 August 2016 the respondent file and serve any Affidavit in reply to that of the Affidavits of the applicant.

(7)By 4pm on 15 September 2016 the Independent Children’s Lawyer file and serve upon all other parties any Affidavit material relied upon.

(8)That no party file any further material other than as provided by these orders without leave of the Court.

(9)That pursuant to s 62G (2) of the Act, the parties and the children attend upon and at the direction of a Family Consultant nominated and appointed by the Director of Child Dispute Services of the Adelaide Registry for the purposes of the preparation of a Family Report to be completed and released by 4pm on 30 September 2016.

(10)That the matter be listed for mention at 9.15am on 3 October 2016.

(11)That in the event the mother fails to comply strictly with the orders requiring the filing of an Amended Response and trial affidavits, the trial date shall be vacated, the proceedings shall be dismissed and all matters be removed from the pending list of cases.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3452 of 2009

Mr Rogers

Applicant

And

Ms Bloom

Respondent

REASONS FOR JUDGMENT

INTRODUCTION 

1.By Amended Initiating Application filed on 4 September 2013, Mr Rogers (“the father”) seeks parenting orders in respect of J born in 2004 and K born in 2006 (“the children”).

2.By Response filed 3 July 2013, Ms Bloom (“the mother”) opposes the father’s application and seeks the following orders:-

(1)That the mother have sole parental responsibility for the children.

(2)That the said children spend time with the father in accordance with the Court recommendations.

3.The Amended Application and Response of the parties are not to be considered in isolation.  The parenting dispute has had a long history, with the first application filed in the Family Court on 6 October 2009.  Those proceedings were the subject of bitter litigation, but ultimately the parties reached agreement and final orders were made on 12 May 2011.

4.A summary of the effect of those orders is as follows:-

·That the parties have equal shared parental responsibility for the children.

·That the children live with the father during school terms from the conclusion of school Friday until the conclusion of school the following Thursday and each alternate week thereafter.

·That the children live with the mother during school terms from the conclusion of school Thursday until the conclusion of school the second Friday following and each alternate week thereafter.

·Provision is made for school holidays and special occasions.

5.The father resides in Town D, South Australia.  The mother no longer wishes to reside in the Town D area but rather, she prefers to live in Adelaide.  The current construct of the orders means that the children attend E School in Town D.  When the children are not with the mother she lives and works in Adelaide. When the children are in her care she resides in rented accommodation in the Town D area.

6.It is not controversial that she has become increasingly resistant to the rigor of the current arrangements which require her to maintain two homes and separate employment.  She complains of the additional costs involved and the physical dislocation of living in two separate locations.

7.The evidence was heard on 7 May 2014, 18, 19, 20 August 2014 and following submissions judgment was reserved on 23 October 2014.  These reasons are in respect of that hearing.  During the course of the trial, the father and the Independent Children’s Lawyer (“ICL") were represented by counsel. Unfortunately the mother was a self- represented litigant.

BACKGROUND

8.The father was born in 1983.  The mother was also born in 1983.  The parties commenced cohabitation in June 2003 and separated in January 2007.

9.As has been the subject of comment, the parties are very mistrustful of each other and there is almost no area where the parties are able to discuss common parenting issues or even communicate with any degree of civility.

10.On 7 June 2013, the father filed an Application for Contravention of orders alleging that there had been 13 breaches of the orders made 12 May 2011.

11.On 20 August 2013, a Registrar ordered that the Contravention Application be listed for hearing and upon noting that the father may discontinue his Initiating Application, any Amended Initiating Application should be filed within 14 days of the order.  It is in respect of that order that the Amended Initiating Application of 4 September 2013 was filed.

12.On 26 November 2013 the proceedings were referred to a list of matters awaiting a trial allocation.  On 5 December 2013, a significant difficulty arose in respect of the continued representation of the mother.  The order reflects that the mother’s former solicitors failed to attend on her behalf on the adjourned hearing date of the Contravention Application and an order was made that they appear on the next occasion.

13.There was also an amendment to the orders of 12 May 2011 namely, that in respect of order 6 (c) (i), the time of 6pm be deleted and in lieu thereof the time of 5pm be substituted.  On 17 December 2013, leave was given to the mother’s solicitors to withdraw from the file and the contravention proceedings were concluded with judgment being reserved.  On 22 January 2014, I delivered judgment and found that the mother had contravened the orders without reasonable excuse.  I was satisfied that the mother had behaved in a way that showed a serious disregard for her obligations under the order.

14.Following submissions on 13 February 2014, I ordered that the mother enter into a bond to be of good behaviour and to comply with all existing and future parenting orders made by the Court for a period of nine months.

15.The question of costs in respect of the Contravention Application are still at large.  The mother entered the bond as ordered.

16.On 7 March 2014, I made detailed trial directions which appointed an Independent Children’s Lawyer (“ICL”) and required the applicant mother to file and serve by 4 April 2014 any Amended Application and any affidavits upon which she intended to rely. Orders were also made for the preparation of a report pursuant to s 62G (2) of the Family Law Act 1975 (Cth) (“the Act”) and that the mother should be considered as the applicant and should file her trial affidavit material in priority to that as may be filed by the respondent father.

17.Importantly, by consent paragraph 6 (c) (i) (2) of the orders made 12 May 2011 were amended by the insertion of the words “eighth day of the holiday period” – “NOTING that the last day of term shall be considered as the first day of the holiday period”.

18.On 29 April 2014, the mother had not filed any affidavit material and was not able to indicate to the Court (by telephone attendance on that occasion) that she would either be represented or prepare affidavit material.  She did not seek any extension of time within which to comply with my trial direction orders.

19.The father filed an application seeking that the proceedings take place on an undefended basis.  Following the indications of the mother that she did not reasonably anticipate being able to comply with trial direction orders, the Response filed by the mother on 3 July 2013 was struck out.  The orders noted that because the mother was not likely to prosecute the orders sought by her, the trial time was reduced from three days to one day and leave was given to the father to rely upon affidavit material utilised by him in the contravention proceedings on 4 and 5 November and 11 and 17 December 2013.

20.Whilst I struck out the mother’s Response, I did give her leave to attend on the proceedings on 7 May 2014 and that her involvement in the trial would be limited to her ability to cross-examine the witnesses called by the father and the ICL and if she elected to do so, to make final submissions. 

21.The matter came back before me on a number of interim occasions during which the mother was offered the opportunity to bring an Application in a Case seeking orders that would enable her to adduce evidence.  The mother did not avail herself of those separate opportunities and ultimately the proceedings were heard and determined with judgment reserved on 23 October 2014.

22.The father relied upon the following documents:-

(1)Amended Initiating Application filed 4 September 2013.

(2)Affidavit of the father filed 4 September 2013.

(3)Affidavit of Ms L filed 7 June 2013.

23.The father’s counsel submitted a draft order which generally retained the orders made by consent on 12 May 2011, but varied them in terms of place of handover, changes already made pursuant to orders and an accommodation to enable the children to attend and participate in the father’s wedding in February 2015.

THE POSITION OF THE ICL

24.At the commencement of the proceedings, counsel for the ICL handed up a draft Minute of Order.  The document lacked a level of clarity in that whilst purporting to being a Minute of Order, it included submissions.  Doing the best that I can, the document would seem to support the general thrust of the orders of 12 May 2011 but proposed a reduction in the extent of the time that the children spent away from her during school holidays, but with the general overview that:-

The Independent Children’s Lawyer believes it necessary for the children to have support surrounding their awareness of the parental conflict and the mother’s inability to shield them from her own emotions and impulses surrounding her angst and mistrust of the father and he spending time with them.

25.The ICL relied upon the following documents:-

(1)Report of Family Consultant dated 5 May 2014.

(2)Affidavit of Mr S filed 18 August 2014.

(3)Affidavit of Ms T filed 18 August 2014.

(4)Affidavit of Ms O filed 18 August 2014.

(5)Affidavit of ICL filed 18 August 2014.

26.The family consultant gave evidence on 7 May 2014 and 18, 20 August 2014.  The father was cross-examined by the mother as was his partner and Ms O, a rural and remote mental health nurse employed by Child Adolescent Mental Health Services (“CAMHS”).  To the extent that there was a focus on her evidence this arose in respect of various notes, running sheets and memoranda created by her in the course of her employment involving the children.

27.Obviously the mother had not filed any affidavit material, it was not possible for her to seek specific orders. I did however allow the mother leave to cross-examine witnesses and to make submissions at the conclusion of the proceedings. There is no inconsistency in this approach. I hold the view that there is no concept of an undefended hearing where orders are made pursuant to Part VII of the Act simply upon the application of one party. I am obliged to apply appropriate principles in determining a parenting case and providing parties are not prejudiced or taken by surprise, a range of orders may well present themselves as being in the best interests of the children. In any event, the ICL, whilst generally supporting the position adopted by the father, did consider that some of the matters raised by the family consultant should be properly considered.

EVIDENCE OF MS O

28.The evidence of this witness was presented in her affidavit filed 18 August 2014.  She is clearly an experienced mental health nurse having had experience of more than 30 years in rural and remote mental health.  Her contact with this family, but in particular the children, was in her capacity as a CAMHS employee.

29.It is uncontroversial that her involvement culminated in a proposed care plan for each of the children following a history provided by the mother and interviews with the children and the parties in May and June 2013.

30.Whilst not evidence, the ICL considered that it was necessary to annex the CAMHS file to the affidavit of this witness.

31.I have reference to those documents only in so far as they were the subject of cross-examination or specific submission.  Counsel and the mother were aware that I did not consider it appropriate to have regard to all of the notes generally and take from them that which I considered might be relevant without the parties knowing the use or purpose to which the notes might be used.

32.The mother sought the involvement of CAMHS in relation to K.

33.Under the heading of Clinical Formulation, Ms O opines that the children are currently in a state of high anxiety and that this arises from their involvement in a highly stressful situation.  The factors leading to their stress arises from the uncertain accommodation arrangements noting that the mother has moved several times and would wish to reside in Adelaide.  As the conflict escalates between the parties, the children have been the subject of repeated questioning by various agencies as to their wellbeing.

34.It is recorded by Ms O that the children appear to have a close, supportive and loving relationship with each of their parents and that each of them have been counselled to adjust their behaviour with the effect of providing a safe and protective environment for the children but also one in which the children understand that their relationship with the other parent is supported.

35.On 13 May 2013, Ms O prepared a care plan for the children.  Each of the parties were advised to think more carefully as to their behaviour, but in particular to focus on protecting the children from “adult information”.

36.It was during an interview with Ms O that J volunteered the information that he did not want to go to his father’s home, but that when he does, it is not his father that assists him with his homework but rather his father’s partner.  Whilst it is not a matter of great weight, it is worth noting the view of the worker that J was refusing to see his father because he instinctively understood that his mother would be lonely without him and displays a high level of distress.  Under cross-examination, the worker gave evidence that the mother was unhappy with the care plan and wanted to “rip it up”. The mother rejected the assessment by Ms O and ultimately terminated the children’s involvement with CAMHS.

37.Subject to the caveat that much of the history taken by the worker was provided by the mother, her general view appears to provide corroboration for the demonstrably poor relationship between the parties and the potential estrangement between the children and their father arising from their need to protect the mother and her inability to support their relationship with the father.

EVIDENCE OF MS T

38.This witness is the principal of E School.  She has had the educational care of the children since they enrolled in the school.  She notes that both parents would appear to interact appropriately with the school.  The children present well at all times and are appropriately attired in school uniform, books and other school equipment.

39.There is nothing extraordinary in respect of their attendance record and the overall description is that the children are “average students”.

40.The principal notes that J has been diagnosed with dyslexia but it appears to be at the low end of the scale and does not seem to require additional teaching and resources.

41.Generally there is no adverse behavioural observations, although the principal does note an incident on 21 March 2014 when K appeared to have a tantrum and it was only upon the mother being called and removing him from the school that brought some calm to his presentation.

42.Both parents act appropriately when dealing with the school.

EVIDENCE MR S

43.This witness is the class teacher of the children and his evidence is contained in uncontroversial correspondence forming Annexure A to his affidavit filed 18 August 2014.

44.Generally his evidence was not dissimilar to that of the school principal and he records that the children appear to be making steady if unremarkable progress, are polite and well-presented and each would have academic strengths and weaknesses.

MS U – FAMILY CONSULTANT

45.Pursuant to my order of 7 March 2014, the family consultant prepared a s 62G report dated 5 May 2014.

46.The report and in particular the recommendations of the family consultant are controversial.  She was the subject of rigorous cross-examination by the father’s counsel.

47.An indication of the basis for the father’s consternation is readily gleaned following a consideration of the recommendations of the family consultant:-

(1)That the children spend time with the father each alternate weekend and half of each school holidays;

(2)Consideration be given to the mother being permitted to relocate with the children to Adelaide.

(3)That the children and the parties access various counselling options.

48.Clearly if the recommendations were implemented, this would represent a dramatic change to the current orders.

49.It is therefore necessary to explore how the family consultant reaches the recommendations and then the extent to which they should be given weight.

50.The mother raises the father’s alleged lack of involvement with the children abrogating his care to his partner and the harsh level of discipline.  For his part, the father alleges that the mother leads a transient lifestyle, that she is aggressive, engages in substance abuse and is generally neglectful of the children both in terms of their education and emotional needs.

51.The mother complains that it is becoming increasingly more difficult for her to continue to reside in the Town D area.  She is isolated and feels ostracised by the townspeople who she considers have now sided with the father.

52.Neither party impressed the family consultant with their insight into the developmental needs of the children and how the ongoing conflict detrimentally impacts on the children.

53.Each of the parties provided a detailed history which unsurprisingly apportions blame to the other.

54.Whilst the father alleged that the mother has previously engaged in alcohol abuse, it is her position that it is no longer an ongoing problem.  The father appears to be relying on historical observations but properly concedes that he was uncertain as to whether alcohol was still a problem for the mother.

55.The family consultant observed that “alcohol abuse does not appear to have relevance in the current litigation”.  I consider that is an appropriate finding.

56.Each of the parties have no hesitation in raising significant allegations of family violence against the other.  Whilst it is difficult to form a view as to the accuracy of the evidence given to the family consultant, her observations are such that whatever the underlying truth might be, nonetheless it highlights the high level of mistrust that exists and the likely negative atmosphere in each of the homes of the parties to which the children are inculcated.

57.Consistent with the observations of Ms O, the family consultant observed the obvious mistrust that the mother has for those professions and other persons who have been dragged into the dispute and the children’s lives.

58.Some of the concerns of the mother appear to emanate from her dislike of being required to remain in the Town D area.  She says that she experiences a degree of ostracism and whilst she has some measure of support, she feels that the general community sides with the father.

59.Of greater moment however are the observations of the family consultant that the parties are not able to reach any proper agreement as to the ongoing medical and other care needs of the children.  This is highlighted in a dispute between the parties as to whether a computer program recommended for J would be purchased jointly by the parties.  The father took J to the “Vision and Learning Centre” and when it was time for J’s 12 month review it is alleged that the mother refused to cooperate in that process.

60.The mother denies the father’s allegations and whilst she could see the advantage in a computer program designed for J through the Vision and Learning Centre, the cost was prohibitive and there was no suggestion that the father would assist.

61.The parties clearly are not able to reach any consensus in respect of educational needs or indeed medical diagnosis and treatment as it arises from time to time in respect of the children.

62.A dispute arose as to whether the parties were able to properly attend to a tonsillitis condition affecting K.

63.Again the observations of the family consultant would appear to be apposite namely, that “the lack of communication and mistrust between the parties appears to have compromised the parties’ ability to meet [K’s] medical needs”.

64.A further incident arose in which J had been involved in a motorcycle accident whilst in the care of his father.  As a result of injuries received by the child, he was air lifted to hospital and the mother was not kept informed of the circumstances surrounding the injury and condition, the fact of hospitalisation or indeed treatment for a period of 17 hours.  The mother was clearly distressed in relation to what she perceives as the deliberate negative conduct of the father.

65.For his part, the father did not appear to understand that the mother would view his behaviour as being unsupportive of her relationship with the children.

66.The mother agreed that she had lived in a number of houses in recent years.  It is not of her choosing and she would rather live and work in Adelaide where she has appropriate employment and secure housing.  The father is critical of the mother’s “transience” and seeks to contrast the stable home environment that he and Ms L provide in distinction to the unsatisfactory nature of the accommodation that the mother has in Town D and presumably in Adelaide.

67.The observations and involvement of the children in the assessment was problematic.  It may well have been an unfortunate portent that at first instance K locked himself in the observation room and refused to come out.

68.Eventually he was prepared to participate in the interview with J, but they were nonetheless aware of the ongoing unhappiness and conflict between their parents.  The family consultant records the following:-

[J]…knew his mother and father were fighting and “sending messages – Mum gets rude messages – Dad gets rude messages” and that his father was “pushing stuff to make Mum upset, she cries when she gets off the phone from Dad…when we come back from Dad’s she cries”.

69.The children did not appear to have a clear understanding of the care arrangements even though they had been in place over a long period of time.

70.J was clearly attuned to his mother’s distress and the family consultant records that:-

I’d like to spend more time with Mum even though I get more time with her…I miss Mum – when I go to bed I miss Mum – over Easter Dad got 10 days.

71.The children also seem to suggest that when in the care of their father it is delegated to Ms L, but an issue arises with the perception of the boys that Ms L is called “Mum”.

72.The family consultant observed interaction between the children and their parents also including Ms L when they were observed to be with the father.

73.The observation of the family consultant is that she did not consider the father to be “psychologically minded” and it seems was prepared to attribute this to Ms L carrying the parenting obligation when the children are in his care.

74.Generally her observations of the mother’s time with the children were more favourable and she found the mother, when removed from the litigation and the conflict, to be calm and relaxed and “demonstrate apparent sensitive parenting skills”.

75.In her evaluation, the family consultant said that the parties had engaged in “parallel parenting” but with the potential for adverse outcome in circumstances where there was clearly no ability between the parties to communicate in any form that might approximate a cooperative fashion.

76.She records her view that the children have expressed their wish to spend more time with their mother and that she is more in tune with the needs of the children than is the father who was observed to be “somewhat unavailable to the boys”.

77.Ultimately the family consultant placed significant weight on the disadvantage that the current circumstances cause to the mother in that she is required to maintain two homes which suffer from their lack of permanence. 

78.The thrust of the cross-examination of the family consultant was that she had exhibited substantial bias towards the father and was inexplicably sympathetic to the plight of the mother.

79.The family consultant was asked to comment on the behaviour of the mother in taking the children to multiple assessments involving different people.  This was a concern of Ms O.

80.She agreed that it was important to outline the relevant information, but that the family consultant was prepared to reject evidence that was contrary to the favourable view she had already formed of the mother.  Not surprisingly, the family consultant rejected that contention.

81.It was put to the family consultant that there had been insufficient weight on the mother’s inability to recognise that her former partner Mr V was not a person who should come in contact with the children.  The notes reflect that Mr V was involved in drug use and possibly dealing.  By the mother’s own admission Mr V was a man prone to significant violence.

82.The point being made by counsel was that none of these matters appear in the report.  The implication being that the family consultant was aware of the allegations but chose to exclude them.

83.In summary, these are matters that go to the ability of the mother to protect the children which should properly have been included in the report.

84.The family consultant made appropriate concessions in this regard but considered that they were now of historical reference only.  There was no allegation that the mother’s home environment involved drug use or even the abuse of alcohol.  As far as Ms U was concerned, she considered the aspect that merits most weight is her observations of the interaction between the children and each of the parties. Essentially, the mother was attuned to the needs of the children with the father being less so.

85.It was also a further criticism of the report process and the evidence of the family consultant that the children were clearly upset, anxious and “acting up” at the assessment and such was the overt behaviour of K in locking himself in the observation room that this must have been considered a poor foundation on which to continue the assessment.

86.A significant focus of the cross-examination of the family consultant centred upon the extended period of 10 days that the children had spent with their father.  Upon enquiry, it was upon K’s return to his mother that he said he was sad and that he had missed her.  It is agreed that this extended period was the first time that the children had spent 10 days away from her.

87.The thrust of the cross-examination was to seek a concession from the family consultant that not too much weight could be placed upon the child’s comments as to missing his mother.

88.It was put to the family consultant that she had failed to properly explore the activities that had been undertaken by the children during this extended period.  If she had, it was the contention of the father’s counsel that she would have been told that the children were actively engaged throughout the entire period in a number of pleasurable activities.  This is to be seen in answer to the children’s assertion that it was Ms L rather than their father that provided the primary care when they spent time with him.

89.Whilst the point was well made by counsel, it ignored the explanation by the family consultant of why the children would have expressed their time with their father in a negative context.  The position adopted by the family consultant is that whilst the father may be actively and appropriately engaged with the children, she considers that there is not the emotional connection that the children have with their mother.  She opines that this may well be an explanation as to why the children would seek to minimise the enjoyment that they have with their father and why during the observed interaction she did not observe any eye contact, emotional support or bonding, summarised by her as “two people playing in a paradox fashion”.

90.It was also put to the family consultant that whatever favourable view she may have taken of the mother, she has not brought to account the Court’s findings that the mother was found to be in serious disregard of Court orders and that as part of the penalty process, the position of the mother at first instance was to prefer a sentence of imprisonment.  In this regard I consider the implied criticism of counsel to be properly founded. 

91.The family consultant was also cross-examined by the mother.

92.The family consultant confirmed what had become self-evident in the evidence namely, that the children have been exposed to the parental conflict and that their adverse and poor behaviour probably arises because of the “unworkability of the living arrangements and parental conflict”.

93.In summary, it is suggested that the children lack stability in their lives and that the current arrangement should not be seen as a long-term outcome.  The family consultant considered that the impact of what she considers to be an unsatisfactory arrangement is further heightened by the children being attuned to the anxiety and distress that the mother exudes.

94.At one point I put to the family consultant that stability for the children could be restored by either the children living with their mother in Adelaide and seeing the father on weekends or alternatively, adopting the father’s second alternative position namely, living with him, attending at E School in Town D and spending time with the mother on weekends.  I asked the family consultant whether the position had been reached where such a dramatic change was required or warranted.

95.The family consultant agreed with the proposition of the mother namely, that if the mother was happy, equilibrium for the children would be restored.  That could be achieved by the mother residing in Adelaide.

96.Ms U agreed however that this assessment needs to be tempered by the Court being satisfied the mother is able to protect the children given the history of her having been involved in several violent relationships, Mr V in particular.

97.I indicated to the parties that I would find there was a strong and meaningful relationship between the children and each of the parties.

98.The family consultant did concede however that the children’s behaviour may well be minimised if the mother was able to contain her obvious displays of distress and anxiety.  It is difficult to unpack how each of the various elements influence the children.

99.I consider that the family consultant undertook the assessment with significant skill, but ultimately the process was hampered by the relative brevity of the contact, the adverse presentation of the children and the difficult presentation of each of the parties.

100.Her recommendations may well be a signpost for the future, but at this stage it would be difficult to use them as an alternative to orders properly sought by the mother supported by her own evidence.

101.In the decision of Andrew & Delaine [2009] FamCAFC 182 the Full Court considered the treatment and weight to be given to the recommendations by a family consultant:-

[72]It is not in doubt that an expert’s opinion, which is based on an appropriate foundation and given by a suitably qualified person, will carry substantial weight.  Departure from an expert report in such circumstance requires careful consideration by a trial Judge.  However, the ultimate decision still must be that of the trial Judge.  The weight to be given to a family report was explained by the Full Court in Hall & Hall (1979) FLC 90-713 at 78,819 as follows:

In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.

(a)There is no magic in a Family Report.  A Judge is not bound to accept and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities.  In Wood (1976) FLC 90-098 at p. 75,447; Harris & Harris (1977) FLC 90-276; (1977) 29 F.L.R. 285.

(b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in informing his ultimate conclusions.  When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent, with the rest of the body of evidence before him.

(c)While the counsellor’s views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witness in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.

(d)Hence the counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.

(e)Sometimes the Family Report will necessarily be neutral.  While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child’s welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.

(f)Whether the report contains a positive recommendation, or whether it neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court’s investigation.  A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.

102.I consider that I am significantly helped by the report and evidence of Ms U, but am not persuaded that the interests of the children would necessarily be served by simple reliance upon the recommendations.

THE FATHER

103.The mother took the opportunity to cross-examine the father.

104.The thrust of the mother’s questions was to focus on certain specific incidents, but in particular the occasion when J crashed his motor cycle and ultimately was taken to hospital. The mother alleges that the father was negligent of his supervision of the children and in his dealings with various medical practitioners and health professionals the information was provided by Ms L rather than himself.  The implication was that the father had effectively abrogated his parental obligations to Ms L.

105.It does seem to be the case that there are certain aspects of the children’s lives that Ms L deals with.  Of particular irritation to the mother was the arrangement the father had made to have somebody else collect the children’s school books in circumstances where he was aware that it was the mother’s year to pick up books and prepare the children for the new academic year.

106.Generally, I have little difficulty in finding that the father implements appropriate physical care for the children when they are with him.

107.The evidence of the father demonstrated significant frustration with the proceedings and what he considered to be the hyper-vigilance of the mother.

108.The mother by her questioning of the father was critical of the arrangements that he had made for the children’s extra-curricular activities and whether when the children left school and walked home, they were being properly supervised.

109.I am however satisfied that the relationship between the parties is poor and demonstrates an almost total inability on the part of the parties to communicate at an appropriately civil level.  There is ongoing mistrust and the father describes aspects of the parental relationship as “World War 3”.

ISSUES AND CONSIDERATIONS

110.Whilst the matter has proceeded upon the Amended Initiating Application of the father supported by his Affidavit and that of his partner, I do not consider that the parenting issues are matters to be determined by default. The mother may not have a formal application before the Court but she has nonetheless partaken in the proceedings in terms of her right to cross-examine generally and then to make submissions. I am obliged to consider the provisions of Part VII of the Act with the overarching consideration that orders made must be in the best interests of the children as a paramount consideration.

111.The father’s position and that of the ICL is that the orders of 12 May 2011 should remain subject to some minor variation as sought by the father and considered in interim proceedings by the Court. The mother does not have an obvious position but relying upon some of the matters raised by the family consultant in her evidence, submits that the Court should dramatically interfere with the current parenting orders and in a broad sense make orders that would enable the mother to relocate the residence of the children to Adelaide.

112.It is however a common position of all parties that they should each have equal shared parental responsibility.

113.As such, s 65DAA (2) provides:-

The court must:-

(a)      …

(b)      …

(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

114.I am required to consider whether the orders sought by each of the parties are reasonably practicable.

115.The Act provides assistance in the determination of “reasonably practicable” in terms of  the provisions of s 65DAA (5) namely:

(a)how far apart the parents live from each other; and

(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c)the parents’ current and future capacity to communicate with each other and resolve the difficulties that might arise in implementing an arrangement of that kind; and

(d)the impact that an arrangement of that kind would have on the child; and

(e)such other matters as the court considers relevant

116.I propose to adopt the following approach:-

·    Give consideration to the proposals put forward by each of the parties as they were identified and presented to the Court;

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

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

1. The additional considerations are set out in s 60CC (3).

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

3. Section 61DA requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having appropriate regard to the matters as set out in s 61DA which would rebut the presumption if a parent or person living with the child has engaged in:-

   §Abuse of the child or another child, who at the time was a member of the parent’s family (or that other persons family); or

   §Family violence.

4. If the presumption is rebutted then the Court can proceed to make parenting orders having regard to the provisions of the Act but based on the findings under s 60CC.

5. If as in this case the presumption applies and is not rebutted then s 65DAA requires the Court to consider whether there should be an order for equal time or if not, substantial and significant time.  The test is whether the order would be in the best interests of the child and is reasonably practicable.  Section 60CC is to be utilised in order to determine the question about best interests and the issue of whether an order for substantial and significant time would be reasonably practicable is to be determined by reference to the provisions of s 65DAA. There will of necessity be some overlap and in terms of assessing whether a proposed order is reasonably practicable, the decision of MRR v GR (2010) 240 CLR 461 at 467 is helpful:-

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

PROPOSALS OF THE PARTIES

1. As already the subject of comment, the father would seek a retention of the orders made 12 May 2011.  The practical effect of those orders is that the children live with him from the conclusion of school Friday until the conclusion of school Thursday and each alternate week thereafter.  In addition, the children spend one half of each holiday period with him with provision for time to be spent on special occasions.  The children live with the mother at all other times.

2. Whilst the mother seeks no substantive orders, she urges the Court to put in place orders that would see the children remain in her care but in circumstances where their residence could be relocated to Adelaide. 

3. The position of the ICL is not clear but seems in a general sense to support the continuation of the orders but to leave open the possibility that depending upon the weight that I may give to the evidence of the family consultant, orders made could be made in terms of those sought by the mother.

4. Whilst the mother would maintain that the current orders are no longer practicable in the sense that she is significantly dislocated, unsettled and lonely, there is no evidence to support that contention other than the matters referred to in the report of the family consultant.

5. I am not able to find that the current orders are no longer practicable.  Equally however, if orders were made that enabled the children’s place of residence to be in Adelaide with the mother, whilst there would be changes to their schooling namely, that they would have to attend a school in reasonable proximity to where they reside, they would still be able to maintain a proper relationship with the father on the basis of each alternate weekend and half school holidays.  Whilst the father would be concerned at any diminution in the amount of time that the children currently spend with him, the evidence of the family consultant is that a reduction in time would not necessarily translate to a detrimental effect or impact on the relationship between the father and the children.  In short, if orders were made in terms of those as submitted by the mother there would still be a meaningful relationship retained between the father and the children.

CONSIDERATIONS PURSUANT TO SECTION 60CC

Section 60CC (2) (a)

1. It is clear that at present the evidence demonstrates that the children have a strong and meaningful relationship with each of the parties.  It is in their interests that the relationships be maintained, but in respect of the differing proposals of the parties, the evidence of the family consultant would support the view that a meaningful relationship would continue even if there was a significant change to the time that the children would spend with their father.

2. The difficulty however is that there are warnings that whilst the current arrangement may be satisfactory, regard must be had as to whether in the future the current circumstances will properly serve the best interests of the children.

Section 60CC (2) (b)

1. I do not consider that there are any matters that suggest either of the parties present a present risk to the children in respect of family violence.  Whilst it is true that the observations of the children as to the dysfunctional relationship of their parents are distressing, I do not consider that at this stage it has reached the point where their emotional development is currently adversely affected.  It is however the contention of the family consultant that the situation may not always be as equitable given the escalating conflict, the lack of communication between the parties and the high level of mistrust.

Section 60CC (3) (a)

1. The only evidence of the wishes of the children is to be found in the evidence and the report of the family consultant.  Both children have indicated a preference to reside primarily with the mother.  They have attempted to underpin their wishes by the potentially false statement that when the children are in their father’s care, it is not he but rather his partner who provides the primary parenting role.

2. Whilst the father was not prepared to concede that at this stage significant weight should be given to the wishes of the children, I did consider that when pressed he begrudgingly conceded that a time might well be reached in the medium term where serious consideration would need to be given to the children’s continued residence in the Town D area as opposed to Adelaide.  Whether that consideration is motivated by educational limitations in the Town D area, or whether it is a recognition that if more consideration is not given to the wishes of the children their behaviour may become oppositional, is unknown.  It is difficult to assess the weight to be given to the children’s wishes given the evidence and the more complex issue of whether the real import is not whether what the children say is correct, but rather, why the topic was raised by them at all.

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

1. The children have a beneficial relationship with each of their parents.  I also find that they have a good relationship with Ms L notwithstanding that she and the father have been less than diligent in making sure that the line between the children’s parents and significant other adults is not blurred.

2. Each of the parties, albeit with some reluctance, was prepared to concede that the children have a meaningful relationship with the other.  I am satisfied that as between the parties the relationship is poor, but where no other alternative exists the parties are at least able to reach some consensus to assist the children.

Section 60CC (3) (ca)

1. The parties appear to fulfil their parental obligations and maintain the children to the extent that they can.  I am uncertain as to the financial arrangements that exist in the respective households, but generally the financial resources of each of the parties is modest.  The mother clearly struggles to maintain two separate households, two places of employment and the additional costs in travelling as a necessity in order to maintain her compliance with the current orders.  I do not propose however to place any significant weight on considerations in respect of this subparagraph.

Section 60CC (d) (e) (f) and (i)

1. There is a practical difficulty for the mother in maintaining the current obligations pursuant to the order of 12 May 2011.  Her accommodation is required in both Adelaide and Town D.  She has two employers and whilst she maintains the current arrangement, I accept that it is not ideal and takes place only with significant difficulty and a commitment on her part to begrudgingly comply with the parenting orders.  The situation is significantly easier for the father who lives in the Town D area and has no intention of changing either his or the children’s residence. His partner is also employed and generally the circumstances in respect of the current order better suits the father than the mother.

2. If the mother’s submission were accepted and orders were made that enabled the children’s residence to change to Adelaide, this would significantly improve the circumstances of the mother but with relatively limited effect to the father in terms of the convenience of the current orders.

3. The issue is as to whether a substantial change in the time that the children spend with their father would be detrimental and not in their interests.

4. There is little evidence to support that view.  There are indicators that may suggest the current orders potentially are of limited duration.  Unfortunately the mother chose not to present any evidence which would enable the Court to give weight to those matters.

Section 60CC (3) (l)

1. The parties and by clear association, the children, have been engaged in ongoing litigation over a lengthy period of time.  The children are well aware of the parenting dispute and the family consultant has observed that the children are adversely affected by the lack of cooperation and mistrust between the parties. It is reported that:-

   [K’s] emotional outbursts as described by both parties and by [J], need to be viewed from within the context of increasing tension between the parties and (effectively) a shared-cared parenting arrangement.  It seems the current care arrangements are not in [J’s] best interests.  For a shared-care arrangement to be considered viable, parents need to have the capacity to communicate, to resolve conflict, have a modicum of trust and respect for the other party, and have the capacity to remain child focussed.  It is assessed that the parties in this matter do not appear to meet this criteria and the children would be psychologically compromised should this shared-care arrangement continue.

2. The parenting arrangements are currently tenuous but viable.  I am not satisfied that they will necessarily remain so into the future.

3. At paras [56]and [57] the following is reported:-

   The allegations and counter-allegations of violence are a matter of evidence.  Overall it seemed clear that there was significant mistrust and animosity between the parties with the alleged assaults raised by the parties seemingly suggesting a pattern of, at least violence resistance, if not conflict-instigated violence.  Conflict-instigated violence is characterised by hostile verbal exchanges that can escalate to physical struggles initiated by one or the other of the parties over time…

   The allegations relating to medical and educational issues, transience and inappropriate discipline are matters for evidence.  What is clear from the information gathered in this assessment is that the parties are unable to cooperatively communicate and co-parent and this emerged as a primary risk factor.

4. Each of the parties have embarked on a course of conduct where they seek separate medical assistance for the children. The family consultant considers that the parties are currently engaging in parallel parenting as distinct from the parties being able to cooperate and reach appropriate consensus focussed on the needs of the children.

Section 60CC (3) (m)

1. I am left in the invidious position of having credible evidence from the family consultant that the current parenting arrangements are becoming untenable. I am satisfied from the evidence I have heard and my observations as to the demeanour of the parties, that they have no ability to reconcile their differences.  The mother is hyper-vigilant in respect of any aspect of the children’s lives enjoyed with their father and his attitude is one of hostile resignation towards the mother.  What has not occurred is any ability for the parties to communicate even at the most cursory level.

2. I accept the mother leads a generally unhappy and lonely existence and whether by malicious intent or by sheer dint of proximity the children are closely attuned to their mother’s distress.

3. The recent history is marred by allegation and counter-allegation, and of relatively recent date contravention proceedings.

4. There is nothing in the evidence of the father or the family consultant which would suggest a pathway likely to enable the parties to reconcile their differences and thereby provide some stability for the children in an environment that is free of parental conflict.

5. Whilst concerned that the prophecy of ever increasing dysfunction between the parties may well come to pass, these considerations must necessarily be in the abstract given there is no proper application or evidence filed in support of the mother’s case.

CONCLUSION

1. I consider that there is a reasonable likelihood that left to their own devices, further litigation is inevitable.  Whilst I am not prepared at this stage to interfere with the broad thrust of the orders made 12 May 2011, I must give weight to the proper concerns expressed by the family consultant and some recognition by the ICL that the children have “expressed that they both miss and worry about their mother while they are away from her” and the fact that they felt the entire April school holidays was too much for them to be away from their mother, consideration should be given to ensuring that the time spent with the father does not exceed one week at a time.

2. It is not in the interests of these children that this matter be resolved by the making of final orders and the proceedings dismissed.

3. In final submission, counsel for the father conceded that she would not speak against a notation to the order which would enable the parties or each of them to revisit the orders. Given the potential for a complete breakdown of the parenting arrangements, I propose to adjourn the proceedings to 31 October 2016 for further hearing.  The listing of the matter is conditional upon the mother filing a response and trial affidavits within the time allowed.

4. I make orders as appear at the commencement of these reasons.

I certify that the preceding one hundred and fifty one (151) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 30 January 2015.

Associate: 

Date:  30 January 2015