ROSE & ROSE - [2010] FMCAfam 241

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ROSE & ROSE

[2010] FMCAfam 241

FAMILY LAW – Parenting – equal shared parental responsibility – whether mother should have sole parental responsibility for all decisions concerning children’s medical and psychological matters – substantial and significant time – family report – meaningful relationship – children’s views.

Family Law Act 1975, ss.4, 60CA, 60CC, 61B, 61C, 61D, 61DA, 64B, 65DAA, 65DAC

In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713
In the Marriage of Harris Fam LN No 33; (1977) 29 FLR 285
In the Marriage of Wood (1976) 2 Fam LR 11,182
Lindell v Ranteri [2010] FamCA 52
Newlands v Newlands [2007] FamCA 168; 37 Fam LR 103

Applicant:

MR ROSE

Respondent:

MS ROSE

File Number:

SYC 1586 of 2008

Judgment of:

Monahan FM

Hearing date:

13 January 2010

Date of Last Submission:

3 February 2010

Delivered at:

Sydney

Delivered on:

6 August 2010

REPRESENTATION

Counsel for the Applicant:

Mr Johnston

Solicitors for the Applicant:

Moylan Family Lawyers

Counsel for the Respondent:

Mr Millar

Solicitors for the Respondent:

Fox & Staniland

Counsel for the Independent Children’s Lawyer:

Ms Falloon

Solicitors for the Independent Children’s Lawyer

Legal Aid NSW

ORDERS

All previous orders are discharged.
MR ROSE (“the father”) and MS ROSE (“the mother”) have equal shared parental responsibility for [X] born [in] 1997, [Y] born [in] 2000, and [Z] born [in] 2001 (“the children”).
The children live with the mother when not spending time with the father pursuant to these orders.
Unless otherwise agreed in writing between the parties, the children spend time with the father as follows:
(a)Commencing 6 August 2010, during school terms:
(i)each alternate weekend, from the conclusion of school Friday (or 9:00am if a non-school day) until 5:00pm on Sunday; and
(ii)each Wednesday, from after school (or 3:30pm if a non-school day) until 7:30pm;
(b)during school holidays:
(i)in the December-January school holiday period (“the summer holidays’) for two non-consecutive periods of five days and four nights (“the two periods”) as agreed or, failing agreement, the father nominate the two periods for the summer holidays commencing in December 2010 and each alternate year thereafter and the mother nominate the two periods for the summer holidays commencing in December 2011 and each alternate year thereafter; and
(ii)in each of the school term holidays for one period of five days and four nights (“the period”) as agreed or, failing agreement, the mother nominate the period for school term holidays in 2010 and each alternate year thereafter and the father nominate the period for school term holidays in 2011 and each alternate year thereafter;
and
(c)where not otherwise provided for by these orders, the children spend time with the father:
(i)on Fathers’ Day each year from 9:00am until 5:00pm;
(ii)on each of the children’s birthdays from after school until 7:30pm on school days or if a non-school day then from 9:00am until 2:00pm in 2010 and each alternate year thereafter and from 2:00pm until 7:30pm in 2011 and each alternate year thereafter;
(iii)
from 3:00pm on 24 December until 3:00pm on

25 December in 2010 and each alternate year thereafter; and
(iv)
from 3:00pm on 25 December until 3:00pm on

26 December in 2011 and each alternate year thereafter.
Order 4 herein be suspended as necessary for the children to spend time with the mother from 10:00am on each Mother’s Day.
Unless otherwise agreed in writing between the parties, the father collect the children from school or the mother’s residence at the commencement of the children’s times with him, and the mother collect the children from the father’s residence at the conclusion of the children’s time with him.
Each party do everything reasonably necessary to ensure that the children have telephone communication with the other party:
(a)during school terms, on Tuesdays and Thursdays at times convenient to the children in accordance with their extra-curricular activities;
(b)at any time during school holidays between 6:00pm and 8:00pm; and
(c)at any reasonable times that the children or any of them wish to have such communication.
Each party be permitted to attend at all extra-curricular activities engaged in by the children and all school events and activities which parents ordinarily are invited to attend.
Neither party denigrate the other in the presence or within the hearing of the children or permit any other person to do so.
In the event that either party proposes to travel with the children more than 100 kilometres from that party’s home then, not less than seven (7) days prior to the intended date of travel, that party advise the other party in writing as to:
(a)flight times and dates if relevant;
(b)the proposed destination;
(c)any place where it is intended that the children will stay overnight; and
(d)all details necessary for the other parent to maintain telephone contact with the children.
Each party do all things necessary to ensure that the children:
(a)take any medication prescribed by a doctor at the required times and in the prescribed doses;
(b)adhere to dietary recommendations of a doctor or dietician which are particular to any or all of the children; and
(c)obtain such assistance for their medical and dental health and general well-being as is recommended by treating professionals.
The mother forthwith purchase a book to be used for essential communication between the parties about the children’s needs, including but not limited to information about their extra-curricular activities and the matters set out in order 11 herein, and the book be exchanged between the parties each time the children move from the care of one party to the other, and at other times should there be a need for communication about such matters.
Both parties ensure the children are appropriately supervised at all times, in particular when they are:
(a)in or near water; or
(b)using the internet.
In the event that any or all of the children suffers illness or injury while in the care of a party, that party shall, as soon as is reasonably practicable, inform the other party of the nature of that illness or injury and provide particulars of treatment including, if relevant, details of any hospital or other emergency health facility caring for the child, and nothing in these orders shall prevent either party from being with the child at that time.
Neither party shall telephone the other except about arrangements for the children within the next 48 hours, or if an emergency situation arises for any or all of the children.
Each party shall advise the other of:
(a)any proposed change of his or her residence not less than seven (7) days prior to such change;
(b)any change to his or her landline or mobile telephone numbers; and
(c)any change to his or her email address.
If the parties are unable to reach agreement regarding the children’s long term care, welfare and development both parties participate in family dispute resolution counselling.
Where used in these orders, “writing” shall be taken to include telephone text messages and emails.
The Independent Children’s Lawyer’s application for costs (“the costs application”) be adjourned to 6 September 2010 at 9:30am.
All extant applications except for the costs application be otherwise dismissed.

AND THE COURT NOTES THAT:

(A)Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and those particulars are included in these Orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 1586 of 2008

MR ROSE

Applicant

And

MS ROSE

Respondent

REASONS FOR JUDGMENT

Introduction

This case involves an application by MR ROSE (“the father”) for various parenting orders in relation to [X] born [in] 1997 (“[X]”), [Y] born [in] 2000 (“[Y]”) and [Z] born [in] 2001 (“[Z]”) (collectively “the children”).[1]
[1] The father’s application also sought various property orders but the financial aspect of the case was subsequently resolved by orders made by consent on 3 November 2009, as detailed later in this decision.
The father’s application for parenting orders is opposed by MS ROSE (“the mother”) who is seeking different parenting orders in relation to the children.
The matter initially came before Kemp FM on 4 June 2008. On that occasion his Honour made orders appointing an Independent Children’s Lawyer (“ICL”) as well as numerous property orders and related directions. There were notations to the orders indicating that the parties were to discuss the appointment of an appropriate psychiatric expert, and that the mother was considering a proposal in regard to the parenting arrangements.
The matter returned for mention before Kemp FM on 13 August 2008 and on that date interim parenting orders were made with the consent of the parties and the ICL. These orders provided for, inter alia, the appointment of Dr M, psychiatrist, or Dr R, psychiatrist, or, failing agreement, one as selected by the ICL as a single expert witness to enquire into and report upon matters relating to the welfare of the children. The matter was adjourned to 18 November 2008 for an interim hearing in regard to parenting and spousal maintenance issues.
Dr M was subsequently appointed as the single expert witness and following the release of his expert report on 17 November 2008, an interim hearing proceeded before me on 18 November 2008 in relation to parenting matters only and on that occasion all the parties were legally represented.
On 20 November 2008 I made a number of interim orders which provided that, inter alia:
·the parties have equal shared responsibility for the children;
·the children spend time with the father:
i)on each alternate weekend from 10:00am Saturday until 5:00pm Sunday commencing 22 November 2008 and ending 24 May 2009;
ii)each alternate weekend from the conclusion of school Friday (or 9:00am on non-school days) until 5:00pm Sunday commencing 5 June 2009;
iii)for specified times on Christmas and Boxing Day 2008; and
iv)for several days as specified in January, April, July and October 2009 (i.e. during the school term holidays); and
v)at all other times the children live with the mother;
·the children spend time with the father each Wednesday commencing 26 November 2008 (with one exception) from the conclusion of school on school days until 7:30 pm, in addition to times on the father’s birthday and Father’s Day;
·the father be at liberty to attend the children’s extra-curricular activities during the week and on weekends; and
·both parties allow the children to telephone the other parent during times they are in their respective care on such occasions as the children may request.
In addition, I adjourned the case for final hearing on 3 November 2009 with an estimated hearing time of two days and made various associated orders and directions including an order for Dr M to prepare an updated expert’s report (“the updated report”).
Between 3 December 2008 and 20 October 2009, further orders and directions were made by Kemp FM in relation to the financial proceedings only.
The updated report was released to the parties and ICL on 28 October 2009.
On 3 November 2009 Kemp FM made final property orders in terms of a minute of consent orders signed by the parties. His Honour also set the parenting proceedings down for final hearing on 13 January 2010 with an estimated hearing time of three days and made orders and directions in relation to the filing and serving of material. An interim parenting decision was reserved to 4 November 2009.
On 4 November 2009 his Honour made various parenting orders on an interim basis that included the following:
“(1) In addition to the orders made on 20 November 2008 the father, upon his written undertaking to the Court to personally supervise the children whilst in his care when swimming in or spending time near water, be permitted to spend time with the children as follows:
a. from 2pm Friday 25 December 2009 until 5pm Saturday 26 December 2009.
b. From 9am Wednesday 6 January 2010 until 5pm Sunday 10 January 2010.
(2) That current arrangements for medical and psychological therapy shall continue with Dr P Psychologist and Dr C, paediatrician unless there is written agreement of the parties otherwise, or further order of the Court, and Dr P shall see the children and the parties at times and in combinations as directed by her.”
The matter came before me for final hearing on 13 January 2010.

On that occasion all parties were legally represented by Counsel;

Mr Johnston for the father, Mr Millar for the mother and Ms Falloon for the ICL. The hearing concluded on 15 January 2010 but the parties were given the opportunity to file and serve final submissions by

3 February 2010.
In addition, orders were made by me on 15 January 2010 providing that:
a)The father spend additional time with the children from 9:00am on 5 April 2010 until 5:00pm on 9 April 2010;
b)the father’s alternate weekend time recommence as agreed between the parties or, failing agreement, on 23 April 2010;
c)the children telephone the mother each day at times as agreed or, failing agreement, between 6:00pm and 7:00pm should the father take the children away overnight from the Greater Sydney area, and outside an area with usual mobile phone coverage; and
d)the father ensure [Y] received his medication as prescribed by paediatrician Dr C whilst he was in his care.
The father’s undertaking to supervise the children whilst in his care while in or near water was continued.

Proposals

The father set out the orders he is seeking in a minute of proposed orders contained within his Case Summary. Following the final hearing, and in final submissions by Mr Johnston on behalf of the father, the father made some changes to his proposals and he now seeks:
·orders for equal shared parental responsibility;
·the continuance of the existing parenting regime as provided for in the interim parenting orders; and
·by consent, the making of orders 5 and 7 to 16 as proposed by the ICL.[2]
[2] See father’s written submissions dated 3 February 2010, page 17.
In summary the father seeks that the children spend with him:
a)each alternate weekend from the conclusion of school Friday (or 9:00am on non-school days) until 5:00pm Sunday;
b)from after school until 7:30pm each Wednesday; and
c)on special occasions.
He also proposes that the parties continue to allow the children to telephone the other parent during times they are in their respective care on such occasions as the children may request.
In her Case Outline document dated 11 January 2010[3] the mother seeks the following orders:
[3] See also mother’s written submissions dated 3 February 2010.
“1. That the children … live with the mother.
2. That the mother have sole parental responsibility for all decisions concerning medical and psychological matters in relation to each of the children, including decisions with regard to the administration of medication, the undertaking of psychological therapy, the attendance of the children at medical and psychological appointments, that the mother is to inform the father of any decision she makes with respect to such matters forthwith upon such decision being made.
3. Other than as provided in Order 2 the parties have equal shared parental responsibility for the children.
4. That the children spend time with the father as follows:
During school term time
4.1 In week one from 10:00am Sunday to 5:00pm and Wednesday from the conclusion of school until 7:30 pm; and
4.2 In week two from the conclusion of school Wednesday until 7:30pm.[4]
[4] In other words, during school terms every Wednesday from after school until 7.30pm and each alternate Sunday from 10.00am until 5.00pm (i.e. no overnight time).
During School holidays
4.3 Until [Z]’s 12^th Birthday From 9:00 am Monday to 5:00 pm Tuesday every second week of the school holidays, commencing week one of the holidays provided that the time spent with the children is in the presence of another parent; otherwise from 9:00am to 5:00pm Monday and 9:00am to 5:.00pm Tuesday in alternate weeks of the holidays commencing on the first Monday and Tuesday of each school holiday period.
4.4 From [Z]’s 12^th birthday - From 9:00am Monday to 5:00pm Tuesday every second week of the school holidays, commencing week one of the school holidays.[5]
[5] In other words, during school term holidays from 9.00am Monday until 5.00pm Tuesday in the second week and during the long summer vacation from 9.00am Monday to 5.00pm Tuesday every second week of the school holidays but that until [[Z]’s birthday] 2013 all overnight times be supervised by a third party “parent”, and if not, the children spend time with the father from 9.00am until 5.00pm on each applicable day only.
Special Days
4.5 From 10:00am until 5:00pm each Father’s Day
4.6 On the Fathers birthday
4.6.1 If a school day from after school until 7:30pm; or
4.6.2 If a non school day, from 10:00am to 5:00pm,
4.7 On each of the children’s birthdays,
4.7.1 If a school day (other than a Wednesday) from 7:45am until the commencement of school in odd numbered years and from after school to 5:00pm in all even numbered years;
4.7.2 If a non school day from 9:00am until 2:00pm in all odd numbered years and from 2:00pm to 7:30 pm in all even numbered years.
4.8 From 3:00pm Christmas Eve to 3:00pm Christmas Day in even numbered years and from 3:00pm on Christmas Day to 5:00pm Boxing Day in odd numbered years.
5. The changeovers to facilitate Order 4 shall take place as follows:
5.1 The father shall collect the children from the mother’s residence at the commencement of his time with the children (except on Wednesdays when the children will be collected from school) and the mother will collect the children from the father’s residence at the conclusion of his time with the children.
5.2 On Wednesdays the father will collect the children from school and the mother will collect the children at 7:30pm from the father’s residence.
6. The father will be at liberty to communicate with the children by telephone each Monday and Friday between 7:30pm and 8:00pm.
7. Both parents shall encourage and facilitate the children to telephone the other parent during time they are in their respective care on such occasions as the children may request.
8. Notwithstanding the provisions contained in Order 4 above, the children shall spend time with the mother as follows:
8.1 from l0:00am to 5:00pm Mother’s day
8.2 If the children are in the father’s care on [birthdays omitted], pursuant to these orders, then the children shall spend the following time with the mother:
8.2.1 If a school day (other than a Wednesday) from 7:45am in even numbered years and from after school to 5:00pm in all odd numbered years.
8.2.2 If a non school day from 2:00pm until 7:30pm in all odd numbered years and from 10:00am to 2:00pm in all even numbered years.
8.2.3 From 3:.00pm on Christmas Eve to 3:00pm Christmas Day in odd numbered years and from 3:00pm on Christmas Day until 5:00pm Boxing Day in all even numbered years.
9. That the parties shall keep each other informed of any change to their residential address not less than 7 days prior to such change taking place and the parties shall inform the other party of any change to their telephone number within 24 hours of such change taking place.
10. That neither party shall denigrate the other party or members of their family to or in their presence or hearing of the children and shall use their best endeavours to ensure that any third party does not so denigrate the other party.
11. Both parties shall use their best endeavours to ensure that the communication between them concerning the children is via email, unless in the case of an emergency or necessity when the parties should be contacted by telephone.
12. Both parties shall use their best endeavours to ensure that the land line telephone is available for the children to telephone either parent when they are in each parent’s respective care.
13. Both parties shall ensure that if they are taking the children outside of the Sydney metropolitan area, the party wishing to take the trip must at least 7 days prior to the expected departure date, provide to the other parent:
13.1 written/email notice to the other parent of their intention to take a holiday advising of the dates of travel and the intended location;
13.2 contact details of where the children will [be] staying including names of accommodation or camping sites, telephone numbers and addresses;
13.3 any other relevant details concerning the proposed trip.
14. Neither parent is to physically discipline the children.
15. Both parties shall administer to the children, any prescribed medications as prescribed by the children’s treating doctor/medical practitioner.
16. Both parties shall follow the special dietary requirements of the children as recommended by the children’s doctor/medical practitioner.
17. Both parents shall ensure that the children are properly supervised at all times when near water.
18. Both parties shall supervise the children when they are using the internet to ensure that the internet is used appropriately by the children.
19. Both parties shall ensure that when the children are in their respective care that all of the children are supervised at all times.
20 It either parent is running late for a contact changeover, to collect or return the children to the other parent, then that party shall telephone the other parent to advise that they are running late and notify them of their expected time of arrival.
21. Both parents shall inform the other parent of their intention to attend any specialist medical appointment for the children at least 2 days prior to the appointment.
22. The time spent with the children in accordance with Orders 4.1 and 4.2 is to be suspended during school holiday periods.
23. If the father wishes to return the children to the mother’s care early when the children are in his care, the father must telephone the mother and inform her that he is unable to care for the children and notify her of the time that the children will be returned to her to ensure that she is available to care for the children.”

In her proposed orders provided with her written submissions, the ICL seeks the following final orders:
“1. All previous orders are discharged.
2. The parents shall have equal shared parental responsibility for [the children].
3. The children shall live with the mother when not spending time with the father pursuant to these orders.
4. The children shall spend time with the father as follows, unless otherwise agreed in writing:
A. During school terms:
i. in alternate weeks, from 9am on Saturday until 6pm on Sunday; and
ii. each Wednesday, from after school until 7:30pm.

B. During school holidays:
i. in the December-January school holidays: for two non-consecutive periods of five days and four nights;
ii. in each of the holidays between terms 1 and 2, 2 and 3 and 3 and 4: for one period of five days and four nights.
C. For the following times unless the children are then to be with the father in any event, pursuant to these orders:
i. on Fathers’ Day each year, from 9am to 5pm;
ii. on each of the children’s birthdays, from after school until 7:30pm on school days, otherwise from 9am until 2pm in odd-numbered years and from 2pm until 7:30pm in odd-numbered [sic] years.
iii. in even-numbered years, from 3pm on 24 December until 3pm on 25 December; in odd-numbered years, from 3pm on 25 December until 3pm on 26 December.

5. Order 4 shall be suspended as necessary in order for the children to be with the mother from 10am on each Mother’s Day.
5.[sic] Unless otherwise agreed in writing, the father shall collect the children from school or the mother’s residence at the commencement of the children’s times with him, and the mother shall collect the children from the father’s residence at the conclusion of those times.
6. Each parent shall do everything reasonably necessary on his and her part to ensure that the children have telephone communication with the other parent:
I. During school terms, on Tuesdays and Thursdays at times convenient to the children in accordance with their extra-curricular activities;
II. in any event, during school holidays every day between 6pm and 8pm;
III. in addition at any reasonable times that the children or any of them wish to have such communication.
7. Both parents may attend at all extra-curricular activities engaged in by the children and all school events and activities which parents ordinarily are invited to attend.
8. Neither party shall denigrate the other in the presence or within the hearing of the children or permit any other person to do so.
9. In the event that either parent proposes to travel with the children more than 100 kilometres from that parent’s home, then not less than seven days prior to the intended date of travel that parent shall advise the other parent in writing as to:
I. flight times and dates if relevant;
II. the proposed destination;
III. any place where it is intended that the children will stay overnight;
IV. all details necessary for the other parent to maintain telephone contact with the children.
10. Each parent shall do all things necessary on his or her part to ensure that the children:
I. take any medication prescribed by a doctor at the required times and in the prescribed doses; and
II. adhere to dietary recommendations of a doctor or dietician which are particular to the child or children; and
III. obtain such assistance for their medical and dental health and general wellbeing as is recommended by treating professionals.
11. The mother shall forthwith purchase a book to be used for essential communication between the parents about the children’s needs, including but not limited to information about their extra-curricular activities and the matters set out in order 10, and the book shall be exchanged between the parents each time the children move from the care of one parent to the other during weekends or school holidays, and at other times should there be a need for communication about such matters.
12. Both parents shall ensure that the children are appropriately supervised at all times but in particular when they are:
i. in or near water;
ii. using the internet.

13. In the event that a child suffers illness or injury while in the care of a parent, that parent shall as soon as is reasonably practicable inform the other parent of the nature of that illness or injury and provide particulars of treatment including, if relevant, details of any hospital or other emergency health facility caring for the child, and nothing in these orders shall prevent either parent from being with the child at that time.
14. Neither parent shall telephone the other except about arrangements for the children within the next 48 hours or if an emergency arises for a child.
15. Each party shall advise the other of:
I. any proposed change of his or her residence not less than seven days prior to such change;
II. any change to his or her landline or telephone numbers;
III. any change to his or her email address.
16. Where used in these orders, “writing” shall be taken to include telephone text messages and emails.”

Background

The father was born [in] 1963 and the mother was born [in] 1965. The parties commenced cohabitation upon their marriage [in] 1991 and separated on 11 February 2008. An order for the divorce of the parties was made on 21 January 2010.
Neither party has re-partnered since separation.
As stated previously, there are three children of the marriage, namely [X], [Y] and [Z].
Both the mother and father are in good health.[6] Although denied by the father, the mother alleges that he “suffers from an untreated mental illness such as ADHD and Asperger’s syndrome”.[7]
[6] See mother’s case outline document provided to the Court prior to the 3 November 2009 hearing, page 7; see also father’s case outline document provided to the Court prior to the 3 November 2009 hearing, page 12.
[7] Affidavit of the mother sworn 9 December 2009 and filed 11 December 2009, paragraph 27.
Throughout the marriage the mother was the primary homemaker and caregiver for the children.[8] The mother states that upon [Z] starting school in 2007 she began working part-time for four days per week as a [omitted].[9] During the marriage the father worked full-time as a [omitted] and at the time of the final hearing was employed as a [omitted].
[8] See mother’s affidavit sworn 6 August 2008 and filed 7 August 2008, paragraph 16; see also father’s affidavit sworn and filed 6 October 2009, paragraph 18.
[9] Affidavit of the mother sworn 6 August 2008 and filed 7 August 2008, paragraph 17.

Issues

Broadly speaking, the following issues were in dispute at the hearing:
·whether the presumption of equal shared parental responsibility should apply or whether the mother should be given sole parental responsibility for medical and psychological matters relating to the children;
·whether the children should spend substantial and significant time with the father; and
·whether the father’s overnight time with the children should be supervised and, if so, on what basis.
There was no dispute that the children should primarily live with the mother.
In addition, the following related issues are relevant:
·whether the children are displaying inappropriate sexualized behaviours or not; and
·whether the children are safe in the father’s care, and:
oif so, whether the mother’s concerns are affecting the children;
oif not, what safety issues need to be addressed.

Expert Reports

In accordance with the orders made on 13 August 2008, an expert report was prepared by psychiatrist Dr M and dated 14 November 2008 (“the first report”). The first report was subsequently admitted into evidence and marked Exhibit ‘ICL1’.
In accordance with orders made by me on 18 November 2008, Dr M completed the updated report dated 27 October 2009. The updated report was subsequently admitted into evidence and marked Exhibit ‘ICL2’.

The first report

Dr M conducted his interviews for the first report on 21 and 22 October 2008.
He outlines his interview with the mother and her background history in paragraphs 1 to 20. At paragraphs 4 and 5 he states:
“4. At the time of assessment, the children had daily telephone calls with their father, had contact every second Wednesday between 3.00 pm and 7.00 pm and every second Sunday between 10.00 am and 5.00 pm. The mother indicated that she encouraged the father's involvement in extra-curricular activities, such as picking [X] up from ballet on Monday nights. Since the cessation of overnight contact, the children and [Y] in particular, had been more settled and less anxious. It was the mother's assertion that the previous overnight visits had been traumatic for the children. This had ceased in July 2008.
5. The mother was aware that the father was motivated to have 50% care of the children. She had previously agreed to a more significant contact regime, however this had been discontinued as the children had been distressed and refused to go. She found the father to be "aggressive" at handover. During these visits the children would ring her repeatedly in a distressed state. It was her clear view that such arrangements were not in the children's best interests. The couple and [Y] had attended Dr P, a psychologist specialising in relationships and Asperger's Disorder. They however had difficulty in negotiating suitable arrangements, as the father had been intransigent. Nevertheless, a change to weekend overnight contact was negotiated. In the mother's view, the children had not coped with the father's active and demanding routine, particularly during overnight contact. The mother emphasised that she understood that the father was highly motivated to have contact with the children, however was guided by the children's level of distress. She had thus formed the opinion that there should be no overnight contact at present. She was strongly supportive of the father's regular contact with the children and recognised his importance in their lives.”
In paragraphs 7 to 10, Dr M summarises the mother’s concerns in relation to the children’s well-being, and in particular [Y] being diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and being found to have traits of Asperger's Disorder.
In respect of the mother’s specific concerns regarding the father’s behaviour with the children, Dr M states at paragraph 12:
“12. Firstly, she had safety concerns given his lack of attention to turning appliances off in the house. Secondly, he had an explosive temper with anger management difficulties. This was in the context of his inflexibility and demands on family members. She was particularly concerned that when the couple first separated, he lacked empathy for the children's level of distress. He was particularly angry with the mother in the process of negotiating arrangements regarding the children's needs.”
Dr M goes on to state that while the mother has not experienced any significant psychiatric problems, nor received any specific psychiatric treatment, she “had received counselling support in view of her anxiety with regard to her life experience”.[10]
[10] The first report, paragraph 14.
In respect of the mother’s relationship with the father, Dr M states at paragraph 19:
“Over the years she however felt increasingly resentful, as she felt manipulated by him. They had difficulty in negotiating domestic duties. The mother complained that the father was often absent surfing and at work. Due to the instability in the couple's relationship, the mother described herself as experiencing a constant state of uncertainty. Over the years they had attended counselling on several occasions. The father had also attended psychiatric assessments in view of his concerns that he was suffering from Asperger's Disorder and/or Attention Deficit Hyperactivity Disorder. These interventions failed to improve their marital difficulties.”
Dr M outlines his interview with the father and his background history in paragraphs 21 to 41. At paragraph 24 Dr M states:
“24. When asked about the children, he described them in a thoughtful and detailed manner. He referred to the individual strengths of the three children. He referred to specific experiences that he had with the children, acknowledging that in the past his role had been as disciplinarian, whilst the mother had been the nurturing parent. He reflected that it was important for both parents to play both roles. He acknowledged he had difficulty in adjusting to this following the separation. Particularly in the first month he had experienced difficulties. He emphasised that he now felt more comfortable as a parent, having learnt more about approaching parenting following his attendance at a Parenting after Separation course at Relationship Australia on Thursday nights. In the past, he felt that it had largely been "trial and error" with the children. He had sought advice in addressing this challenging circumstance.”
In relation to the father’s proposals for the children, Dr M states at paragraph 29:
“29. The history of the contact arrangements was reviewed with the father. This was consistent with the mother's statements. He described the current arrangement, without overnight contact, as a consequence of the mother's concerns for the children's best interests. She had found the previous arrangement of alternative weekends with the father and overnight contact to be unacceptable for the children's welfare. When I asked the father for his proposal, he grimaced and stated: "To be frank, I really don't know what is best for the children". Although the had previously been motivated to pursue 50/50 shared care, whilst this would be of benefit to himself and his lifestyle, he acknowledged that the children needed a base, with regular contact with him. He explained that it was very hard to separate self interest from the children's interests. He accepted that the children would benefit from having the majority of their time with their mother. He felt that the children were coping better with handovers now. An increase in contact could be arranged, respecting the children's experience. He had no desire to take the children if they were distressed and preferred to reside with their mother.”
In respect of [Y]’ medical condition, Dr M states at paragraph 25 that the father had concerns regarding the process of diagnosis and treatment but that he was “comfortable with the approach” being taken by [Y]’s paediatrician, Dr C. Dr M also states that the father “favoured a more independent approach to the assessment of the children”, which contrasted with the mother’s “approach to provide a detailed background history to the assessing doctor.”[11] Dr M then states that while the father’s “empirical approach was understandable in light of his professional training and experience”, it was “inconsistent with clinician’s approach to such issues”.[12] That having been said, Dr M also states that the father was conscious of the need to adopt “a consistent approach to [Y]’s management” and that the father’s “own views were not of exclusive importance”.[13]
[11] Ibid, paragraph 25.
[12] Ibid.
[13] Ibid.
At paragraph 26, Dr M states:
“26. The father described in a thoughtful manner his response to the assessments and treatment to date. He indicated that although he had been opposed to the diagnosis and use of medication, he now accepted the need for this. He acknowledged that in the past, in the context of his opposition, he may well have threatened legal action to have the medication ceased. He however denied that he had deliberately withheld the medication, although on occasion [Y] may have forgotten to take it. He indicated that Dr C now had his confidence as the treating paediatrician, despite his previous concerns.”
In respect of the mother’s concerns about the father’s behaviour and mental health, Dr M states at paragraphs 32 and 33:
“32. The father had sought psychiatric and psychological assessment and intervention in the past in response to the mother's concerns. Dr D, paediatrician, had suggested that he suffered from Asperger's Disorder and Attention Deficit Hyperactivity Disorder. This had been rejected by Dr S and
Dr H, consultant psychiatrists. He had also sought assistance from Ms G regarding his family circumstances, on referral from Dr H. In the past he had followed the mother's recommendations. In part, this was in response to her threats: "Unless you have medication for ADHD, I will leave". When he had not been diagnosed with this condition, the mother had responded in a dismissive fashion. Given the mother's response, he had discontinued couple therapy as he felt convinced that she would not be satisfied. Most recently they had consulted with Ms B, an experienced family therapist, however the mother had not pursued this further.
33. The father had previously consulted a psychologist in response to the mother's concerns that he may have been sexually abused as a child. The mother had uncovered a "special" relationship between himself and a particular school teacher. The father emphasised that he had never had any recollection of traumatic experiences. He had finally agreed to be assessed in response to the mother's concerns, stating: "Give me every test". Not surprisingly, the psychological assessment did not shed light on this issue. There was a discrepancy between the parents as to whether the father experienced any specific issues regarding his sexual identity and behaviour. The mother had expressed concerns regarding such issues, however this was inconsistent with the father's experience.”
Later, at paragraph 41 Dr M states:
“41. On specifically exploring the father's life experience, he denied having features of Asperger's Disorder or Attention Deficit Hyperactivity Disorder. He however readily acknowledged that he was somewhat obsessional, black and white and independent in his views. He did not regard himself as normal as he felt that he was brighter than average, would think more and analyse issues in greater depth than average. He acknowledged that in the past when he had been stressed and overloaded at work at [omitted], he had been less attuned to normal day to day events, which had raised concerns for his mother. He however later agreed with the mother's description of his idiosyncrasies.”
Dr M details his interviews with the children in paragraphs 48 to 80. In addition he outlines his observations of the children with the mother in paragraphs 42 to 47 and with the father in paragraphs 81 to 89.
Dr M describes his interview with [Y] in paragraphs 48 to 59. [Y] readily indentified with his mother as his primary attachment figure and he clearly has issues about being in his father’s care. At paragraph 59, Dr M states that:
“59. [Y] understood that my role was "to make the decision about when and how long with mum and dad and how much money they get". His wishes were: "I probably like seeing dad how it is. Occasionally stay overnight. Very occasionally. Just what we have been doing, spend time with mum. Every second weekend and every second Sunday with dad."”
Dr M describes his interview with [X] in paragraphs 60 to 67. While [X] also indentified her mother as her primary attachment figure, she was clearly more comfortable about being in her father’s care. At paragraph 63, Dr M states that:
“63. In describing her family experience, she was unable to identify the best thing about her family, however the worst thing was: "Well, me and [Y] fight a lot and we weren't seeing dad very much." I asked [X] if she missed her dad. She replied: "Not really, because he picks me up from ballet and things, but I would like to see him a bit more". She explained that she did not see him much because "sometimes he gets a little bit angry, he did before and mum said it was not a good idea to go with him for long periods of time". She agreed that she used to go for overnight stays. When I asked her about this experience, she told me that "it was mainly pretty good" and that she would like to do it again "but not every week".”

Interestingly, [X] nominated [Y] as the person “who felt most scared in the family”, and she admitted that while she “felt angry at times”, [Y] “was the most angry, and he would sometimes yell if he didn't get what he wanted”.[14]
[14] Ibid, paragraph 64.
A paragraph 66 Dr M states that:
“66. [X]'s three wishes were for: "never ending wishes, for everything to be fair – at school and in the family." She did not feel that it was fair at the moment and that it would be more fair if they had more time with dad. She also wished that unhealthy food could be healthy for you.”
Lastly, Dr M describes his interview with [Z] in paragraphs 68 to 80. While she also readily indentified her mother as her primary attachment figure, Dr M states that “[Z] had difficulty in describing her experience with her parents”.[15] Nevertheless, Dr M states at paragraph 75:
“75. She became fidgety when describing her dad. She was unable to identify the best thing about him but the worst thing was: "when mum and dad get angry with each other, when sometimes dad gets really angry. If we just take a tiny bit of something, he just gets really angry."”
In addition, he states at paragraph 78:
“78. [Z] felt worried "a little bit, when mummy and daddy are getting really angry with each other".”
[15] Ibid, paragraph 76.
Dr M appears to have concluded his interviews with all three children being seen together. At paragraphs 86 to 89 he states:
“86. The children felt comfortable to talk about their experience. I asked the children what would make their family experience better. [X] responded: "I'd like to see dad a bit more than I see him now. Stay overnight with him every second or third week or something like that and see him a bit more in the week, maybe every Wednesday".
87. [Y] responded: "I probably like how it is now". I asked him about [X]' s idea, he responded: ''I'm not sure".
88. [Z] lay with her legs up on her dad. She coughed. She said that she didn't remember my question and when I repeated it, she responded: "I don't know".
89. I asked the children about mum and dad fighting. [X] told me that they were: "Not really fighting now". [Y] added: "It's because they're not seeing each other now".”
Dr M thereafter conducted a final interview with the parties. In paragraphs 90 to 96 Dr M states:
“91. A further interview was held with the mother. She highlighted her concerns regarding the father's odd and obsessional manner. She related his difficulties in adjusting to life after boarding school. She viewed him as having developmental vulnerabilities, with difficulties in coping with stress and anger.
92. Her concerns regarding the possibility of him being a victim of child sexual abuse were reviewed. She related a scenario where such an event could have occurred in his youth. In her view, his extreme reactions were consistent with this possibility. She found him to be "a different person in different settings". The father minimised these issues.
93. Despite the father's initial minimisation of many of the mother's concerns, he did acknowledge that "some elements" of the books he had read on ADHD and Asperger's Disorder did apply to him. He acknowledged that he had experienced many difficulties over the years, but not to the same degree as alleged by the mother.
94. It was acknowledged by the couple that their difficulties in communication had been a source of ongoing conflict. The father's attempts to provide normal guidance for [Y], such as instructing him not to sit on the toilet, had been problematic in light of his developmental vulnerabilities. It was unfortunate that the father had not respected the mother's concerns regarding such issues. The couple's attempts at couple counselling, most recently with Ms B, had failed in the context of the lack of mutual respect. Despite this, the couple indicated their willingness to pursue further counselling to further address these difficulties.
95. The father reluctantly acknowledged that he had indeed disconnected the telephone to limit contact between the children and their mother during their visits. He acknowledged that this was "inappropriate".
96. The mother emphasised that piano, ballet and drawing teachers had all noticed [Y]’s positive response to medication. When he did not have his medication, his performance was impaired. This was consistent with the mother's ADHD rating scales. This was consistent with a diagnosis of ADHD, which had responded to medication. This was inconsistent with the father's assessment.”
Dr M provides his opinion in paragraphs 97 to 112. In summary he states that:
·the mother’s longstanding concerns with regard to the father’s emotional and behavioural status are consistent with her previous view about the father exhibiting signs of ADHD and Asperger’s Disorder and that his emotional and behavioural vulnerabilities may follow from the father having been possibly abused as a child;
·the father acknowledged that the mother had raised these concerns repeatedly during their marriage and that he had sought to appease her by having a psychological and psychiatric assessment and that several psychiatrists had not found evidence to support these concerns and the father’s “presentation to myself was consistent with this”;[16]
[16] Ibid, paragraph 99.
·while the father acknowledged idiosyncrasies suggestive of Asperger's Disorder and vulnerability to stress related angry outbursts, there was insufficient evidence to make any significant psychiatric diagnosis;
·the father had acknowledged that in the past he had responded to family situations “in an excessively angry manner” and that “his approach to parenting had been less than ideal at times” and was “not child centred”;[17]
[17] Ibid.
·while there was no evidence to support the mother’s view that the children were unsafe in the father’s care,[18] she presented as a “concerned and motivated parent”, who had sought appropriate treatment for the children and had prioritised their developmental needs;[19]
[18] Ibid.
[19] Ibid, paragraph 100.
·while the mother did not identify as having any significant vulnerability with regard to her personality or mental health, “she was however seen to have been hypervigilant with regard to her concerns” about the father and that “this would be regarded as understandable if her expressed concerns are held to be substantively correct”;[20]
[20] Ibid.
·the children presented in “an age appropriate manner”, were compliant with the assessment process and did not have any significant emotional or behavioural disturbance during the assessment or exhibit any highly anxious or “catastrophic reactions”;[21]
[21] Ibid, paragraph 101.
·the children have a close relationship with each other and each of their parents;
·the children articulated their experience and views and did not appear to have “been coached in preparation for the assessment interview”;[22]
·[X] clearly stated her wish to have more time with the father and “hoped to be able to stay overnight with her father on alternate weekends and see him more regularly during the week, at least one evening per week”;[23]
·in relation to [Y], the lack of any symptoms or signs of ADHD observed during the assessment process, while not surprising because he was on medication,[24] was nonetheless “encouraging and indicative of the excellent progress he was currently making in the context of his current medication and psychological treatment”;
·as [Y] has been highly sensitive to experiences in his environment, it is not surprising that he was stressed by the father’s approach to parenting and he will benefit “from a stable routine”;[25]
·[Y] expressed a wish for the maintenance of the current contact arrangements (fortnightly Sundays only and each Wednesday evening);
·[Z] was identified by both parties “as the most robust of the children” and “this was consistent with her presentation, in spite of her upper respiratory tract infection”; she also “clearly described a loving relationship with both her parents”; [26]
·it was clear that the parties have had “a long history of conflict and misunderstanding” and that “this was not surprising given the stark differences in their personality styles” and most clearly demonstrated in their approach to [Y] medical condition;[27]
·[Y] had had appropriate medical and psychological intervention as arranged by the mother although there had been methodological problems, as identified by the father, in the process of assessment and diagnosis; and
·[Y]’s ongoing treatment with paediatrician Dr C and clinical psychologist Dr P should continue.
[22] Ibid.
[23] Ibid, paragraph 102.
[24] ‘Methylphenidate’ which Dr M describes as a “commonly used psychostimulant medication in the form of Concerta, 27 mg”.
[25] The first report, paragraph 104.
[26] Ibid, paragraph 105.
[27] Ibid, paragraph 106.
Finally, Dr M states at paragraph 111:
“111. In the context of such intervention, it is my view that it would indeed by possible for there to be a gradual increase to the father's contact with the children. I did not share the mother's concern that the children were at risk in his care. [X] in particular expressed the clear wish to have increased contact, including overnight contact. Whilst [Y] remains apprehensive regarding such arrangements, I would envisage a gradual increase in contact could be implemented on an incremental basis. This will however require more flexibility on the father's behalf and the establishment of mutual respect and trust, to allow more effective communication and problem solving between the parents.”

The updated report

Dr M conducted his interviews for the updated report on 29 and

30 September 2009. Dr M states on the first page that he requested

Dr P to provide “a detailed summary of her intervention with the family”. With her permission, he annexed Dr P’s report dated 8 October 2009 (“Dr P’s report”) to the updated report. Following submissions, it was agreed by the parties and the ICL that various parts of Dr P’s report would not be admitted into evidence as part of Exhibit ‘ICL 2’.
Dr P’s report is in three parts:
i)her clinical observations and ongoing therapy of the children;
ii)her family observations; and
iii)her conclusion.
In relation to her clinical observations and ongoing therapy of the children, Dr P makes the following points:
·[X] demonstrates a good ability to express herself and this may be why she is more confident than [Y] and [Z] around the father;
·whilst in the father’s care, [X] was alleged to have associated with a female child which led to a knowledge of sex and sexual behaviour that was not age appropriate and that, consequently, she may have initiated sexual experimentation with [Y];
·her current diagnosis of [Y] “is that he meets diagnostic criteria for Asperger’s Disorder and, like many individuals on the Autism Spectrum, has co-morbid Attention Deficit/Hyperactivity Disorder, anxiety disorders and obsessive interests”, and that in the last three sessions with [Y] she has observed “a small but significant improvement in his concentration, verbal expression, insight and eye contact”;[28]
·when [Y] does not take his medication “he is extremely restless, engages in a lot of movement … and finds it more difficult to concentrate and express himself verbally”;[29]
·she was “very concerned for [Y] and his sisters ongoing safety, because [Y] has a strong interest in sex and displays overt sexualised behaviour” and that “[Y] appears not to be cognisant of appropriate boundaries”;[30]
·while “[Y] regularly reports feeling distressed and is globally afraid of [Mr Rose’s] chaotic” and in [Y]’ words “exhausting and unsafe behaviour”, Dr P has seen improvements in “[Y]’s level of anxiety over time”, and that this is particularly so when he is around the mother or herself, and moreover, [Y] appears somewhat more relaxed with the father;[31]
·the children confirmed that the father takes them “outdoors all the time” when they spend time with him, and that whilst [Y] enjoys these activities to a degree, he stated that “Dad encourages us to do dangerous things that we all feel very frightened of and uncomfortable with (eg. climbing cliffs, going into deep dark holes, sending [Y] off swimming by himself at a beach when [Y] was clearly uncomfortable with this and he said he did not want to go, etc)”;[32]
·the children also stated that the father does not take notice of their views and continues with his plans and activities even if they are feeling unwell; and
·[Z] presents as “timid, shy and cautious” and finds it difficult to express her needs to the father.[33]
[28] Dr P’s report, page 2.
[29] Ibid.
[30] Ibid.
[31] Ibid, page 3.
[32] Ibid.
[33] Ibid.
In relation to her family observations, Dr P makes the following points:
·the mother is clearly anxious about the children’s safety, health and welfare when they are in the father's care;
·the mother’s anxiety is appropriate and not excessive but she is aware that the mother has sought and continues to have ongoing support from another professional;
·the mother is “organised, reliable and extremely vigilant when it comes to supervising the children” and in contrast the father “appears to be more disorganised and does not supervise the children as much”;[34]
·apart from the therapy process, there is no effective communication between the parties;
·the father “is often very demanding, controlling and dominating” in the therapy sessions and moreover, comes “across as cool, calculating, scary and controlling”;[35]
·the children and the father “had clearly lied on several occasions” during therapy sessions;[36] and
·the father “significantly lacks nurturing and protective instincts, as well as cognitive and effective empathy”, and “despite repeatedly asking him to supervise the children constantly when they are under his care, he has failed to do so to an appropriate standard”.[37]
[34] Ibid, page 4.
[35] Ibid.
[36] Ibid.
[37] Ibid, page 5.
Finally, Dr P states by way of conclusion that it is clear both parties “are working hard, and to the best of their abilities to support their children during this period of transition”, but that having been said, there remained a number of concerns.[38] She reiterates the concerns previously made in her report which she summarises as:
·a lack of effective communication between the parties, which the children are aware of, causes ongoing stress for all concerned;
·the vulnerability of the children to sexual abuse by a sibling or, in [Y]’s case, potentially by an outsider;
·the father’s lack of empathy and supervision of the children; and
·the significant levels of stress, distress and anxiety that still exists with the children.
[38] Ibid, page 6.
Dr M outlines his supplementary interview with the father in paragraphs 2 to 6. Dr M reports the father describing the incremental increase in the children’s time with him as “fantastic” and that while “his relationship with the children had improved in this context … he viewed the children as benefiting from having a stable base with their mother”.[39] Dr M also reports that while the father remains generally positive about the medical and psychological interventions in respect of [Y], the father had also acknowledged that he had challenged many aspects of the treatment over time and “raised the possibility of alternative approaches in the future”.[40] Lastly, Dr M reports that the father “indicated that he had attempted to address the criticisms identified in [the first report] and in response to the professional intervention to date”.[41]
[39] The updated report, paragraph 2.
[40] Ibid, paragraph 3.
[41] Ibid, paragraph 6.
Dr M outlines his supplementary interview with the mother in paragraphs 7 to 14. Dr M reports the mother describing the incremental increase in the children’s time with the father as “an absolute disaster” and that she had been terrified that the children would be hurt by the father who, in her view “deliberately put them in harm’s way”, had deceived the children into thinking they were safe when they were not and who had failed to give [Y] his medication.[42]
[42] Ibid, paragraphs 8-9.
Dr M also reported that the mother stated she “had lost 10 kg to 12 kg of weight in the past year due to “sheer worry”” and had attended with a clinical psychologist, Ms Z, for supportive therapy.[43] Dr M also reports that the mother complained that the father had “refused to pay more than the basic Child Support Agency payment”.[44]
[43] Ibid, paragraphs 10 and 14.
[44] Ibid, paragraph 13.
In paragraph 12 of the updated report, Dr M refers to a “12 page typed document” which the mother had provided to him and which she indicated would “form the basis of her yet unfiled affidavit”. This document was subsequently produced to the Court and was ultimately admitted into evidence and marked Exhibit ‘AH5’.
Dr M describes his interviews with, and observations of, the children in paragraphs 15 to 48. The children also attended with notebooks, which had been given to them by the mother. In respect of [Z]’s notebook,

Dr M, after quoting a specific passage in relation to alleged incidents between the children and the father, states in paragraph 22 that:
“22. [Z] had written these words in a notebook for the purpose of the assessment. It was written in the presence of her mother. There were numerous spelling mistakes. It was clearly her handwriting.”
Similarly, Dr M quotes from [Y]’s notebook in paragraph 25.
Prior to interviewing the children separately, Dr M interviewed the children together. In paragraphs 30 to 32 he states:
“30. [Z] told me that she sometimes liked going to dad's. [X] agreed. She told me: "When we're with dad, he likes to do a lot of things. It's good fun. When we are at home, it is hard and disorganised. Everything is all over the place and messy. I think I left my school uniform at dad's place. Dad found my shoes in the sewing box.
31. [X] told me she would like to go to her dad's every second weekend and every Wednesday afternoon. [Z] hesitantly agreed that she would like to go every second Sunday and every second Wednesday. [Y] told me that his wish was "nearly the same as [Z]'s, every second Sunday, but not overnight and every Wednesday".
32. I discussed the children's experience overnight with their father. [X] told me that they would have a few late nights and their father would not make sure that they would do things like have a shower and clean their teeth. [Y] agreed that they would have quite a few late nights. He also complained about the dangerous and angry stuff that his father would do. His father would also be late for his activities. [Z] agreed, complaining that her father was once a quarter late for netball.”
Dr M then goes on to record his interviews with [Y] in paragraphs 34 to 39, [X] in paragraphs 40-42 and [Z] in paragraphs 43 to 45.
Dr M reports his interview with the parties seen together in paragraphs 49 to 50. Dr M records that the father referred to “his concern about Dr P’s lack of neutrality”, and that the mother did not accept the possibility that her concerns in respect of the children spending time at the father “were magnified”, but rather insisted that, according to statements made to her by the children, “there had been many incidents when the children have been placed in significant jeopardy”.[45]
[45] Ibid, paragraph 50.
Dr M provides his opinion in paragraphs 51 to 59. In summary he states that:
·the family situation has not improved since the initial assessment;
·the mother’s concerns remain consistent in that she has “a fixed belief that [the father] places the children in danger” and that children should not be left in the his care unsupervised overnight;[46]
[46] Ibid, paragraph 52.
·in contrast, the father “benignly described the family circumstances as progressing in a positive manner” but also acknowledged that there had been some incidents which the mother had raised “which had been a cause of concern”;[47]
[47] Ibid, paragraph 53.
·while the father “no longer considered it appropriate for the children to be placed in … a shared care arrangement”, he was of the view that the current spend time arrangements needed to continue and gradually increase “over the school holidays so he could have the children for a full week to enable visits to family members interstate and other holidays”;[48]
[48] Ibid.
·while the father “acknowledged that at times the children had been left unsupervised and that he had fallen asleep whilst they were in his care” he did not however accept the mother’s view that the children were constantly unsafe in his care;[49]
·it was concerning that the father still questions aspects of [Y]’s treatment; the father “was willing to accept the current intervention for 6-12 months but was motivated to seek alternative therapeutic strategies.”[50] In addition, despite acknowledging that [Y] had maintained a good connection with Dr P as his treating therapist, the father maintained an objection to her continuing as the primary therapist because, in his view, “she was strongly aligned with the mother”;[51]
·the mother focussed on numerous aspects of the father’s behaviour which supported her view that he was not acting in the best interests of the children; she “was frustrated that he was only providing the minimum financial support for the family”,[52] and she strongly believed that the father was an ineffective supervisor for the children and consequently the children were at risk whilst in his unsupervised care;[53]
·it was evident that the mother “absolutely believed the children’s disclosures about their father”, yet she “would often choose between stories told by the children about each other. As she did not trust the father, she discounted his communications as manipulative;”[54]
·it was highly concerning, and predictive of further angst and disputes between the parties, when the children reported “concerning events or behaviour” whilst in the father’s care, the mother’s concerns had become “amplified”; moreover, the children’s view of the father “was amplified by their mother’s attitude in response to such issues”;[55]
·all three children “presented in a stable manner”, had “a close rapport” and their presentation was otherwise consistent with the initial assessment; all “were supportive of maintaining regular contact” with the father, although [Y] “was anxious about staying overnight” and [Z] “felt distressed by the father’s expression of anger at times”;[56]
·although the children “appeared anxious about expressing their concerns and wishes whilst in the presence” of the father, their description of the allegedly “dangerous” activities they experienced whilst in the father’s care “included such normal childhood activities as rock hopping along the beach over oysters”; moreover “the children’s description of the sexualised behaviour appeared to be more consistent with children skylarking naked and acting in a provocative manner” and “was not consistent with the children being at risk of sexual abuse in their interactions with each other”;[57]
·the mother had not changed her opinion that the father suffered “from a psychiatric illness, namely Attention Deficit Hyperactivity Disorder and Asperger’s Disorder”; while the father’s “management of the children was not as attentive to the children's needs and as organised as that of the” mother, and despite Dr P’s view supporting the mother’s opinion,
“I remain unable to make such a diagnosis” and this “is consistent with the previous opinions of other psychiatrists”;[58] and
·the mother has “experienced prominent reactive symptoms of anxiety which had been associated with weight loss” and is “receiving psychological support”.[59]
[49] Ibid.
[50] Ibid.
[51] Ibid.
[52] Ibid, paragraph 54.
[53] Ibid.
[54] Ibid.
[55] Ibid.
[56] Ibid, paragraph 55.
[57] Ibid.
[58] Ibid, paragraph 56.
[59] Ibid, paragraph 57.

In relation to [Y]’s on-going treatment and care, Dr M states in paragraphs 58 and 59:
“58. My discussion with Dr C was consistent with my assessment. He indicated that [Y] had a working diagnosis of Autistic Spectrum Disorder and Attention Deficit Hyperactivity Disorder. He was receiving a standard intervention including long acting methylphenidate, Concerta, at a standard dose, in combination with psychological intervention and social skills training, coordinated by Dr P, a clinical psychologist with specific expertise in this field. The mother was noted to be highly anxious and the father dismissive of the mother's repeated concerns. This scenario had further amplified [Y]'s vulnerability to anxiety.
59. A report was prepared by Dr R, which detailed [Y]'s response to medication for ADHD and experience of anxiety. Dr P and
Dr R's reports were generally supportive of the mother's perception of [Y], his disability and impairment.”
Finally, Dr M makes the following recommendations in paragraphs 60 to 62.
“60. Given these circumstances, I would recommend the maintenance but not extension of current contact arrangements and therapeutic intervention.
61. Given that [Y] is reportedly more impulsive when medication is discontinued on the weekend, I would recommend that this be maintained seven days per week.
62. With regard to [Y]'s therapy, it would assist if the father would recognise that his intrusive behaviour in the therapy may obstruct the desired therapeutic outcome. It is not my view that the father needs to be actively involved in every session.”

Evidence of the parties

In addition to the evidence of Dr M, both parties provided the Court with affidavit and oral evidence.

Applicant father’s evidence

In support of his application, the father relied upon the following documents:
·Initiating Application filed 19 March 2008;
·Affidavit of the father sworn and filed 6 October 2009 (“his first affidavit”);
·
Affidavit of the father sworn 10 December 2009 and filed

11 December 2009 (“his second affidavit”); and
·Case Outline document provided to the Court prior to the January 2010 final hearing.
The father’s final submissions were provided to the Court on

3 February 2010.
In addition the father gave oral evidence, and was cross-examined by Counsel for the mother and the ICL. The father presented as a polite witness, taking time to answer questions put to him. He appeared genuinely concerned for the children’s welfare and clearly wanted a resolution of the on-going family law dispute he has had with the mother.

Respondent mother’s evidence

The following documents were relied upon by the mother at the final hearing:
· Further Amended Response filed 11 December 2009;
·Affidavit of the mother sworn 6 August 2008 and filed 7 August 2008 (“her first affidavit”);
·
Affidavit of the mother sworn 14 November 2008 and filed

10 September 2009 (“her second affidavit”);
·
Affidavit of the mother sworn 14 October 2009 and filed

15 October 2009 (“her third affidavit”);
·
Affidavit of the mother sworn 9 December 2009 and filed

11 December 2009 (“her fourth affidavit”); and
·Case Outline document provided to the Court prior to the final hearing and dated 11 January 2010.
The mother’s final submissions were provided to the Court on

3 February 2010.
In addition the mother gave oral evidence, and was cross-examined by Counsel for the father and the ICL. She presented as an intelligent and capable person who appeared honest and forthright in giving her evidence. Despite her clear love and affection for the children, she had difficulty in acknowledging or accepting that the father should play any major role in the child’s lives.

Independent Children’s Lawyer’s evidence

At the final hearing the ICL relied on their Case Outline dated

10 January 2010. This acted as a supplement to the Case Outline document provided to the Court prior to the final hearing listed for

3 November 2009. As previously stated, the first report and updated report of Dr M, that annexed Dr P’s report, were tendered by the ICL as exhibits “ICL1” and “ICL2” respectively.
The ICL’s final written submissions and proposed orders were provided to the Court on 26 January 2010.

The report writer’s evidence

Dr M was examined by Counsel for the ICL and cross-examined by the parties’ respective Counsel.
While Dr M did not specifically address the issue of parental responsibility in either of his reports, he was cross-examined about the issue. He confirmed that he had been under the impression that the mother was seeking sole parental responsibility in respect of all parenting matters, and that the mother had indicated such in her handwritten notes he had viewed as part of the interviews for the updated report.[60]
[60] See Exhibit “AH1” (document prepared by mother entitled “Points for Dr M’s second assessment”), paragraph 2 where mother states “I think I should have 100 per cent parental responsibility and he should have supervised access only alternate Sundays, 10am-5pm, and Wednesday afternoon until 7.30 pm. During school holidays, I believe [Mr Rose] should have two supervised consecutive nights on alternative weeks (i.e. Mon and Tues).”
While Dr M described the father’s approach to [Y]’s medical and psychological care as “excessive” and “beyond the normal degree of parental concern regarding the appropriateness of diagnosis”, [61] he did not believe that the father should be excluded from having parental responsibility for such issues.[62]
[61] Transcript, 15 January 2010, page 22, lines 24-27.
[62] Ibid, page 23, lines 5-6.
While Dr M agreed with the proposition that the particular order sought by the mother would be “a way of addressing” any further disagreements between the parties in respect of [Y]’ treatment,[63] he also agreed that such an outcome might “signal to the children” that the father’s views were to be discounted in some way, and that this might manifest itself in the children being “dismissive” of the father’s directions to them in controlling their behaviour.[64]
[63] Ibid, page 30, line 36.
[64] Ibid, page 51, lines 25-31.
The Full Court of the Family Court’s decision of In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713; contains an authoritative statement about how reports such as the ones written by Dr M should be treated in proceedings such as this case:
“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 it 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 the Marriage of Wood (1976) 2 Fam LR 11,182, In the Marriage of Harris Fam LN No 33; (1977) 29 FLR 285.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming 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 witnesses 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 be 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.
(g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.”
(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation …
(i) Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied …”[65]
[65] In the Marriage of Hall (1979) 5 Fam LR 609 at 614-615; (1979) FLC 90-713 at 78,819-78,820 (per Evatt CJ, Asche SJ and Hogan J).

The law

Parenting orders are defined in s.64B of the Family Law Act 1975 (“the Act”) and provide for, inter alia:
(a)where a child is to live;
(b)the time a child is to spend with another person; and/or
(c)otherwise allocate parental responsibility in relation to a child.
Section 60CA of the Act makes it clear that, for the purposes of making a parenting order, the Court must regard the best interests of the child, or the children in this case, as the paramount consideration. What is considered to be in the best interests of a child in parenting disputes depends on the particular circumstances in each case; different circumstances require different resolutions. That said, to determine the best interests of a child, the Court must consider the primary and secondary considerations under s.60CC of the Act and I will consider these specific provisions in light of the evidence shortly.

Parental responsibility

Section 64B(2) of the Act stipulates that a parenting order may include the allocation of parental responsibility for a child. That order may deal with the allocation of responsibility for making decisions about major long term issues in relation to a child. In the absence of a parenting order, s.61C of the Act stipulates that “each of the parents of a child who is not 18 has parental responsibility for the child”.
Section 61B of the Act states that parental responsibility “means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. This not only includes those duties and responsibilities relating to such matters as health and education, but also, as stated in the recent case of Lindell v Ranteri [2010] FamCA 52, “the general direction in life that is so important for children in teenage years”.[66]
[66] Lindell v Ranteri [2010] FamCA 52 at [31] (per Cronin J).
In s.4 of the Act, the relevant definition as to what the law expects of parents in relation to this decision-making states:
“major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child's education (both current and future); and
(b)the child's religious and cultural upbringing; and
(c)the child's health; and
(d)the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.”
Section 61DA of the Act requires the Court to presume that it is in the best interests of the children for their parents to have equal shared parental responsibility.
Section 61DA(2) of the Act makes it clear that the presumption does not apply if there are reasonable grounds to believe that there has been abuse of the children or family violence.
In addition, under s.61DA(4) of the Act, the presumption may be rebutted if its application could be contrary to the children’s best interests, those interests being determined by reference to the matters in s.60CC of the Act in light of the evidence. If the presumption is not applied or is rebutted then the Court must still make an order which is in the best interests of the children, again taking into account the considerations in s.60CC of the Act.
As indicated, there is a dispute between the parties that each should have equal shared parental responsibility for the children. The father and the ICL support an outcome favouring equal shared parental responsibility whereas the mother, somewhat unusually, but not surprisingly given her evidence, is seeking sole parental responsibility for the children but only in relation to:
“… all decisions concerning medical and psychological matters in relation to each of the children, including decisions with regard to the administration of medication, the undertaking of psychological therapy, the attendance of the children at medical and psychological appointments …”[67]
Apart from this specific allocation of sole parental responsibility, the mother agrees that the parties should have equal shared parental responsibility for the children. The mother further proposes that should she be given sole parental responsibility in respect of the children’s medical and psychological matters, then she would be under an obligation “to inform the father of any decision she makes with respect to such matters forthwith upon such decision being made”.[68]
[67] See “Minutes of Order Sought by Respondent Mother”, paragraph 2.
[68] Ibid, paragraph 3.
As already noted, while Dr M did not specifically address the issue of parental responsibility in either of his reports, he was cross-examined about the issue and he offered the opinion that the father should not be excluded from having parental responsibility for such issues.[69]
[69] Ibid, page 23, lines 5-6.
In her final written submissions, [70] the mother submitted that the order she proposes can be made pursuant to s.61D of the Act which states:
[70] Mother’s final submissions, 3 February 2010, paragraph 1.
“(1)A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2)A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.”
The mother argues that it is clear from the terms of s.61D(1) “that an order can confer on a person particular duties, particular powers or particular responsibilities”.[71] The mother further argues that this interpretation is supported by the terms of s.61D(2).[72] In support of this interpretation the mother referred the Court to the Full Court of the Family Court decision in Newlands v Newlands [2007] FamCA 168; 37 Fam LR 103, and in particular paragraph [84] where the Full Court stated:[73]
“84. We accept that it was open to her Honour, if she concluded, on the evidence, that it was in the best interests of the children that an aspect of parental responsibility be exercised solely by one parent, to make such an order provided the parties were afforded procedural fairness by raising with them her intention to do so and inviting submissions …”[74]
[71] Ibid.
[72] Ibid.
[73] In the context where the trial judge (Lawrie J) “allocated one portion of parental responsibility (education) to one party only” (at paragraph [88]).
[74] [2007] FamCA 168 at [84] (per Bryant CJ, Finn & Boland JJ).
The Full Court went on to comment that where a Court proposed an order be made to allocate one aspect of parental responsibility to one parent alone, then two possibilities arose in respect of the remaining parental responsibility:
1. There could be an order “that the parties have equal shared parental responsibility for the remaining aspects of parental responsibility, which would require them to make decisions about those remaining aspects jointly as is required by s 65DAC”;[75] or
2. The order could “be silent as to the remaining aspects of parental responsibility in which case s 61C and s 61D would have effect and the remaining aspects of parental responsibility would be exercised by both parents either jointly or independently”.[76]
[75] Ibid, at paragraph [90].
[76] Ibid, at paragraph [91].
In his final written submissions, the father conceded that the Court had the power to make the order sought by the mother.[77] I agree.
[77] Father’s final submissions, 3 February 2010, paragraph 2.1.
I note that while the ICL did not address this particular legal issue, she did submit in her final written submissions, in the context of a recommendation favouring an order for equal shared parental responsibility, “that there should not be an order to alter the existing position, which is that the parents both have all the duties, powers, responsibilities and authority which, by law, parents have in relation to children: s61B”.[78]
[78] ICL’s final submissions, 26 January 2010, paragraph 11.

Equal time or substantial and significant time

If the presumption applies, then the Court is required under s.65DAA of the Act to consider whether the children’s best interests would be served by making an order that they spend equal time,[79] or alternatively substantial and significant time,[80] with each of the parties. Either outcome requires the Court to consider whether the children spending equal time, or substantial and significant time in lieu, with each of the parties would be in the “best interests of the child” and is “reasonably practicable” given the circumstances.
[79] Section 65 DAA(1) of the Act.
[80] Section 65 DAA(2) of the Act.
This consideration is a major issue in this case because the mother is seeking an order that would significantly limit the children’s time with the father compared to that currently provided for in the relatively long-standing interim orders. As previously stated, the mother proposes that the children spend time with the father:
a)during school terms:
i)each alternate Sunday from 10:00am until 5:00pm; and
ii)every Wednesday from after school until 7:30pm;
b)in the second week of the school term holidays, from 9:00am Monday until 5:00pm Tuesday; and
c)every second week of the summer holidays from 9:00am Monday to 5:00pm Tuesday.
However, the mother also proposes that until [[Z]’s birthday] 2013, all overnight times be supervised by a third party “parent” or, if such a third party is unavailable, the children only spend time with the father from 9:00am until 5:00pm on each applicable day.

Although the father commenced these proceedings seeking an equal time outcome, he has changed his position and now accepts that the children’s best interests would be served by them living with the mother and spending substantial and significant time with him. The father proposes that the spend time arrangements contained in the existing interim orders be continued on a final basis.[81] In other words, the children spend time with the father:
a)each alternate weekend from the conclusion of school Friday (or 9:00am on non-school days) until 5:00pm Sunday;
b)for five days and four nights during school term holidays; and
c)two non-consecutive periods of five days and four nights during the summer holidays (as proposed by the ICL and now supported by the father).
[81] Father’s final submissions, 3 February 2010, page 17.
The father’s overall position is supported by the ICL but with one significant change raised during final submissions; namely limiting the fortnightly time the father spends with the children during school terms to “from 9am on Saturday until 6pm on Sunday” rather than from after school Friday (or 9:00am on non-school days) until 5:00pm Sunday as provided for in the current interim orders.[82]
[82] See “Orders proposed by the Independent Children’s Lawyer” which accompanied the ICL’s final submissions dated 26 January 2010.
Section 65DAA(3) of the Act stipulates that a child will only be taken to spend “substantial and significant time” with a parent if:
“(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
In considering the reasonable practicality issue, s.65DAA(5) requires the Court to have regard to:
“(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 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.”
In her final written submissions, the mother argues that the children’s best interests would not be served by them spending substantial and significant time with the father.[83] She further argues:
“Indeed, as is proposed by the mother's Orders it is submitted it is not in their best interests to spend overnight time with their father with the exception of a night during school holidays in the presence of another parent until [Z] reaches 12 years of age. Although Dr M provided some limited support in his evidence for the children spending one night per fortnight with their father indicating that they may be comfortable with it, it is submitted that on a consideration of the whole of the evidence the Court could not be satisfied that the father is sufficiently conscientious about the care and supervision of the children that they should spend time with him overnight.”[84]
[83] Mother’s final submissions, 3 February 2010, paragraph 52.
[84] Ibid.
In his final written submissions, the father states that:
“2.8 The orders sought by the father in his Minute of Order provide substantial and significant time including week days, weekends, holidays and times of special significance.
2.9 The orders sought by the mother would deprive the father of having a significant role in the children’s lives and would not enable the children to enjoy a meaningful relationship with both of their parents.”
In her final written submissions, the ICL states:
“13. The mother contends that the father does not have capacity to care for the children except for limited times, largely confined to daytime. Her application is for them to spend less time with the father than they have since early June 2009, pursuant to interim orders made on 20 November 2008. The father seeks orders essentially similar to those in the final phase of the interim orders, i.e. two nights on alternate weekends, but with overnight time on Wednesdays in addition.
14. As the ICL understands the orders now sought by the mother, she asks that the children spend time with the father:
·    in the daytime only during school terms, viz seven hours on alternate Sundays, and about four hours each Wednesday;
·    until [Z]’s birthday 2013: two days (one night) in school holidays, with that time to be in the presence of “another parent”;
·    after [Z]’s birthday 2013: two days (one night) in school holidays;
·    once overnight at Christmas each year.
15. On the mother’s proposal therefore, [X] would be aged 16, [Y] aged 13, and [Z] aged 12 before they would spend any overnight time with the father without “another parent” being present. Until the age of 18, their one-night visits with the father would be limited to about seven occasions per year.
16. The ICL submits that, on the orders sought by the mother, the children would not be best able to have a meaningful relationship with the father; such orders would reduce their time with him to the bare minimum required by the s65DA(3) definition of “substantial and significant.”
The issue of whether the time proposed to be spent is reasonably practicable was not specifically canvassed by the father or the ICL in their final written submissions. That is not surprising given that the parties reside in relatively close proximity; approximately two kilometres. The mother, however, questions the father’s capacity to be able to care for the children during overnight periods.[85]
[85] Ibid.
As stated previously, the Court is under an obligation to make parenting orders that it determines are in the children’s best interests. For this purpose, the Court will now turn to consideration of the factors in subsections (2), (3) and (4) of s.60CC of the Act in the context of this case.

Primary considerations: section 60CC(2)

Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child's parents

It is clear from the evidence of the parties that both accept the need for the children to have a meaningful relationship with the other party. However, they differ on how this can be achieved.
It is also clear from the evidence of Dr M, that any outcome should not jeopardise the children’s wellbeing including their ongoing and long term relationships with both parties.
There is an issue in this case that any reduction in the time the children currently spend with the father, which will occur if the mother’s proposals are adopted, would have a significant impact on the children’s relationship with him. I agree, prima facie, with the ICL’s submission that if the orders sought by the mother are adopted, “the children would not be best able to have a meaningful relationship with the father; such orders would reduce their time with him to the bare minimum required by the s65DA(3) definition of “substantial and significant.”[86]

Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

[86] ICL’s final submissions, 26 January 2010, paragraph 16.

This factor is clearly relevant to the current dispute. The mother’s case raises a number of concerns about the quality of the father’s care of the children, and in particular, “his supervision of them, their physical care and their emotional connection with him.”[87] A number of incidents were raised during the final hearing including the father:
·losing his temper in front of the children;
·using inappropriate disciplinary methods;
·failing to adequately supervise the children’s use of the internet;
·taking the children on “dangerous” boating, camping and bushwalking adventures;
·not allowing the children to maintain a gluten-free diet; and
·most recently in July 2009, failing to adequately supervise the children during the beach holiday.
[87] Mother’s final submissions, 3 February 2010, paragraph 15.
The mother submits that these concerns demonstrate a need to protect the children “from the risk to which they are exposed as a result of the shortcomings with respect to his care and supervision of the children”.[88] She further submits that “one way” this risk could be limited “is to not permit overnight time with the father except upon the terms referred to in the mother's Minute of Orders”.[89]
[88] Ibid, paragraph 16.
[89] Ibid.
While the father submits that there is no evidence of child abuse, he does admit that, in the past, he has made mistakes and errors of judgment in relation to his parenting of the children.[90] Indeed, I would agree with Mr Johnston’s submission that the father “was scrupulous in admitting his mistakes”.[91] By way of example, under cross-examination from Mr Millar, the father was asked (in relation to the July 2009 incident):
“… you recognise now, you say, that it was an error of judgment to let them go to the beach without you?”
---It was a shocker.
Yes. Why did you commit some sort of shocking error?
---Well, I was sitting there – they said can they go to the beach. No mention was made of swim but – hey, I’m the responsible adult. I thought they were just going to go down to the sand in front of me but that’s no excuse. And, I’m sitting on a couch and I fell asleep. I mean, God. I’ve – you know, I have made a mistake.
[90] Father’s final submissions, 3 February 2010, paragraph 1.3.
[91] Ibid.
It’s a pretty serious mistake, isn’t it?
---It is a bad mistake and I’ve apologised to [Ms Rose]. I’ve apologised to [first name omitted] and I’ve spoken to the children and told them, again, that that’s unacceptable but what can I do?”[92]
[92] Transcript, 13 January 2010, page 85, lines 19-30.
In her final written submissions, the ICL qualified her criticism of the mother’s proposal as follows:
“17. The ICL does not submit that the mother’s concerns about the children’s safety when they are with the father are fanciful or without foundation. The ICL is particularly concerned about the father’s admitted lack of vigilance in allowing the children to be at a beach unsupervised, as well as examples of his singular lack of insight in “frisking” [X], and taking the children around a supermarket roped together.
18. While the father appears, from his oral evidence, to have developed some insights in this regard, the ICL notes the mother’s contention that if the Court believes the father, it has been “conned.” The ICL notes also the father’s many admissions against interest.
19. However the ICL submits that the mother sees this issue – and others – through a prism:
·    one facet is her own professional background and knowledge, which leads her to the conclusion that the father has a psychiatric illness, a diagnosis which neither Dr M nor other psychiatrists have been able to make: Exhibit ICL 2, paragraph 56;
·    another is her high level of anxiety and stress, coupled with her belief that the father will not treat the children properly because he wants to hurt her;
·    another is her conviction that only she is a responsible parent, and that the father is incapable of being so.”[93]
[93] ICL’s final submissions, 26 January 2010, paragraphs 17-19.
I agree that the evidence supports that the mother’s concerns about the children’s safety when they are with the father are, using the ICL’s words, neither “fanciful” nor “without foundation”. It is of concern that the father’s admitted lack of vigilance in supervising the children, as well as a number of other examples questioning his lack of insight, has caused the children and the mother so much distress. It is also concerning that the father has used his anger to resolve problems in his relationship with both the children and the mother.
Nevertheless, I am satisfied that the father has developed some insights into his past behaviour and decision-making, perhaps with the assistance of the post-separation parenting course he attended, and certainly with the benefit of the time that has elapsed since separation and the processes related to these proceedings.
While I understand the mother’s submission that one method of avoiding any risk to the children whilst in the father’s care is by not permitting overnight time, I am not convinced that such an extreme outcome is in the children’s best interests. Indeed, I find it difficult to accept how any restraint on overnight time would have prevented some of the incidents that took place during daylight hours. Reflection and parental education would clearly serve to prevent a repeat of past incidents.
Two aspects of the mother’s proposal raise problems:
i)the mother only agreeing to unsupervised overnight time taking place once [Z] turns 12 (i.e. after [omitted] 2013) seems to overlook the obvious reality that by that time [X] will be aged 16 and [Y] will be nearly 14. That having been said, the case proceeded on the basis that the father would spend time with all three children at the same time. Indeed both parties and Dr M agree that the children need to be together, and should not be treated differently as to their time with the father.
ii)as to who might act as an appropriate supervisor, the mother simply stipulates in her proposal that it be “another parent”. Under cross-examination the mother suggested that it be “whoever” the father is “going away with”.[94] The practical problems and uncertainties that such an order would create are obvious.
[94] Transcript, 14 January 2010, page 54, lines 18-19.

Additional considerations: section 60CC(3)

Section 60CC(3)(a): any views expressed by the child and any other factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views

Generally speaking, the views expressed by children such as [X], [Y] and [Z], particularly children with an apparent intelligence and a developing maturity, provide one of the keys to unlock the future parenting arrangements between the parties. In this case the evidence from Dr M is quite clear that the children would like to spend time with the father[95] but they disagree on how much time and in what circumstances.
[95] Dr M’s supplementary report, paragraph 55.
The children made a number of comments to Dr M about the father’s expressions of anger and of him being “disorganised”, which the mother asserts are prominent features of the father’s personality. In this context I agree with the submission of the ICL that, given the children’s primary involvement with the mother, “the children would be unlikely to express views radically different from hers, and notes that observations by Dr M of their interaction with the father are not suggestive of fear or resistance to being in his company.”[96]
[96] ICL’s final submissions, 26 January 2010, paragraph 22.
At paragraph 24 of her final written submissions the ICL states that:
“it is Dr M’s opinion that the children would be most comfortable with orders providing for them to spend time with the father on alternate weekends, including one night”.
The mother also refers to this particular evidence in her final submissions when she states that:
“Dr M provided some limited support in his evidence for the children spending one night per fortnight with their father indicating that they may be comfortable with it”.[97]
[97] Mother’s final submissions, 3 February 2010, paragraph 52.
These submissions from the ICL and the mother somewhat overstate Dr M’s evidence. When he was cross-examined by Ms Falloon he said that:
“it would certainly be most comfortable for the children to be one overnight on the weekends”.[98]
He then qualified that statement by adding that:
“when I say "the children" … it's slightly different for … [X] and for [Y], but, if we're taking [Y]'s comfort particularly, one night on the weekend.”[99]
Ms Falloon then asked:
“And so then, is it in your view reasonable that there be in a way that compromise to accommodate the children's different characteristics and views?”[100]
To which Dr M replied “Yes”.[101]
[98] Transcript, 15 January 2010, page 50, lines 37-39.
[99] Ibid, page 50, lines 41-44.
[100] Ibid, page 50, lines 46-47.
[101] Ibid, page 50, line 47.
When one reads Dr M’s evidence in light of the clear recommendation in the updated report that there be the “maintenance but not the extension” of the current spend time arrangements, I am satisfied that Dr M was not changing his recommendation in his oral evidence but rather qualifying the views expressed by the children, and in particular, [Y].

Section 60CC(3)(b): the nature of the relationship of the child with each of the child’s parents and other persons

The father submits that while Dr M was satisfied that the primary attachment of each child is with the mother, he also stated that each child was supportive of maintaining regular contact with the father.[102]
[102] Father’s final submissions, 3 February 2010, paragraph 3.2.
The mother also submits that, although Dr M provided some “limited support” in his evidence for the children spending time with the father;
“on a consideration of the whole of the evidence the Court could not be satisfied that the father is sufficiently conscientious about the care and supervision of the children that they should spend time with him overnight.” [103]
[103] Mother’s final submissions, 3 February 2010, paragraph 52.
There is no doubt that both parties love their children and there is no evidence before me that would suggest that the children do not reciprocate that love and affection. That having been said, it is clear that the general relationship between the parties and the children, as a family, remains strained post-separation. However, the Court believes, that the recent resolution of the parties’ financial dispute, coupled with the judicial resolution of this parenting dispute, will serve as a basis to build a better relationship between the parties and their children in the future.

Section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent

While both parties argue that they have individually been willing to encourage a closer relationship between the children and the other party, they make criticisms of each other in this regard.
The father submits that, following separation, the mother engaged in a course of conduct “to undermine the children’s’ relationships with” him,[104] and that she persists “in her fixed views of the father that he poses a danger to the children and that he suffers from ADHD and Asperger’s Disorder” which Dr M “clearly disagrees with”.[105]
[104] Father’s final submissions, 3 February 2010, paragraph 3.3.
[105] Ibid, paragraph 3.4.
In her submissions, the ICL states:
“26. The focus the mother has created in this regard is on her own attitude: given the orders she seeks, and her evidence about what she sees as the father’s attitude towards her, it is difficult to conclude that she is either willing or able to facilitate and encourage a close and continuing relationship between the children and the father.
27. However there is no notable suggestion in the mother’s evidence that the father has behaved in way which adversely affect the children’s relationship with her, aside from her allegation of copied behaviour in blocking their ears when she is, she says, giving them directions.”[106]
[106] ICL’s final submissions, 26 January 2010, paragraphs 26-27.

The Court agrees that there is evidence that the mother has been unable to facilitate and encourage a close and continuing relationship between the children and their father due to her deep distrust of the father’s care of the children. I am also satisfied that this distrust has been an influencing factor in the formation of the children’s views.

Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of the parents or any other child, or other person with whom the child has been living

There will be a significant change to the children’s circumstances if the orders sought by the mother are made. It would significantly reduce the time the children currently spend with the father. In contrast, the proposed orders sought by the father would simply confirm the status quo that has been in existence since June 2009. This was built up incrementally in the preceding six months to June 2009 in line with the preliminary recommendations of Dr M. As stated previously, Dr M recommended in the updated report that there be “maintenance but not the extension” of the current spend time arrangements.
The ICL largely supports the father’s position but has proposed a reduction in the alternate weekend time to just one overnight Saturday. This position seems to reflect the views of the children, and in particular [Y]. As I stated above, it also seems to reflect an aspect of

Dr M’s evidence, and appears to accept, that his qualifying comments favoured a compromise that supported [Y]’s position. Given the totality of the evidence, I agree with the father’s submission that this change proposed by the ICL “would constitute a significantly detrimental change in circumstances for these children”.[107]

Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

[107] Father’s final submissions, 3 February 2010, paragraph 3.9.

Both parties appear settled in their current environments and neither propose any specific changes in respect of the child’s physical circumstances.
As I stated previously, I am concerned that the mother’s proposal for “another parent” to supervise the father during all overnight time spent with the children until late 2013 is problematic and likely to lead to further disputes between the parties. Given the absence of any evidence of unacceptable risk, such third party supervision also sends a particularly negative message to the children about the father and his parenting skills.

Section 60CC(3)(f): the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs

I agree that the evidence supports the mother’s submission that “she has shown an appropriate attitude to the children and to the responsibilities of parenthood” and that she has provided the children with consistent and quality care.[108] The father concedes that the mother “is capably meeting the children’s physical needs”.[109] That being said, I also agree with the father’s submission that the evidence supports the view that the mother “is placing emotional and psychological strain on the children by virtue of her attitude” to the father.[110]
[108] Mother’s final submissions, 3 February 2010, paragraph 42.
[109] Father’s final submissions, 3 February 2010, paragraph 3.12.
[110] Ibid.
The evidence is also clear that the father has made some serious errors in his parenting of the children post separation but, of course, he claims to have learnt from his mistakes and also to have significantly expanded his parenting capacity, which the mother does not concede.
I am satisfied that a number of the orders proposed by the ICL will assist the parties, and in particular the father, in providing for the children’s needs. For example, the ICL proposes that each party do all things necessary to ensure that the children:
·are appropriately supervised at all times but in particular when they are in or near water or using the internet;
·take any prescribed medication;
·adhere to dietary recommendations of a doctor or dietician; and
·obtain such assistance for their medical and dental health and general well-being as is recommended by treating professionals.
The ICL also proposes that the parties use a communication book and, in addition, exchange travel plans and contact details in advance of that travel. These sensible proposals will enable the children to have a meaningful relationship, not just with their mother but with their father, and balance facilitating these relationships with the children’s health and safety needs.

Section 60CC(3)(g): the maturity, sex, lifestyle and background of the child, and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

There are no specific matters here that assist the Court.

Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child

This consideration is not relevant to the present dispute.

Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

Both parties question the other’s parenting ability. I reiterate my earlier comments.

Section 60CC(3)(j): any family violence involving the child or a member of the child's family

This consideration is not relevant to the present dispute.

Section 60CC(3)(k): any family violence order that applies to the child or member of the child's family

There is no evidence of any family violence orders between the parties.

Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

While the Court proposes that any order that it makes be subject to any agreement between the parties that benefits the children, it is clear that the parties will require specific Court orders to assist them in their future parenting.
As stated previously, the parties resolved their property dispute by entering into consent orders in November that year. The Court is confident that once these parenting proceedings are resolved and defined orders are in place, there is little likelihood of any further proceedings in the immediate future. That having been said, the Court believes the parties would be assisted by a Court order that would require the parents to resolve any future difficulties with the assistance of a Family Dispute Resolution Practitioner.

Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant

There are three particular circumstances that the Court thinks are also relevant in this dispute. They are:
i)[Y]’s on-going health and health management;
ii)the father’s involvement in the children’s schooling and extra-curricular activities; and
iii)the location of changeover.
Firstly, there is a real issue about [Y]’s on-going health that will require medical and psychological assistance into the foreseeable future.
In her final submissions the mother referred to Dr M’s evidence that it is very difficult to maintain effective therapeutic intervention for [Y] if the father does not accept the recommended medication and therapy and constantly insists on re-evaluation.[111]
[111] Mother’s final submissions, 3 February 2010, paragraph 50.
The father has indicated that “he would do whatever it takes to co-operate in [Y] treatment”.[112] The father has also indicated that, despite his view that Dr P has demonstrated a bias towards him, he will abide by the recommendation of Dr M, made in paragraph 62 of the updated report, not to obstruct the therapy sessions.[113]
[112] Father’s final submissions, 3 February 2010, paragraph 3.22.
[113] Ibid, paragraph 3.21.
The mother also makes a valid criticism of the father’s past failure to ensure that [Y] takes his prescribed medication. The Court agrees with her submission that the father “could demonstrate his support for [Y]’s medication regime by having in place a procedure to ensure that it was administered.”[114]
[114] Mother’s final submissions, 3 February 2010, paragraph 50.
Secondly, I note that Ms Falloon cross-examined the father at some length about his involvement in the children’s school and their extra-curricular activities.[115] The mother makes no substantial complaint about the father’s involvement in the children’s schooling and extra-curricular activities apart from suggesting that she was better placed to supervise the children’s homework and asserting that the children’s ballet and sporting classes were “things that were put in place before we separated and I’ve just kept doing them”.[116]
[115] Transcript, 14 January 2010, page 30, line 11 – page 33, line 38.
[116] Ibid, page 80, lines 20-21.
While the mother did not deny that she and the father had recently discussed enrolling [Y] in Scouts, she did assert that the father had made some child support objections in the past based on his view that the children were engaged in too many extra-curricular activities including their ballet.[117]
[117] Ibid, page 80, lines 23-27.
Thirdly, the issue of changeover location becomes an issue if the proposals of the mother and/or the ICL are adopted by the Court, because it would involve the father collecting the children from the mother’s residence. Given the evidence presented, I am satisfied that the children’s interests would be better served by minimising the need for the parties to come into physical contact. Changeovers at school provide an obvious way of avoiding face to face parental conflict.

Section 60CC(4): additional considerations

The Court is also required under s.60CC(4) of the Act to consider the “extent to which each parent has fulfilled, or failed to fulfil, his or her responsibilities as a parent…”. In this case both parties have been actively involved in the children’s lives. Despite their particular disagreement over [Y]’s on-going treatment and the children’s dietary needs, the evidence suggests they have been generally able to make the necessary major long-term decisions in relation to the children. That having been said, the Court notes the parties differed in their submissions to the Court about their respective fulfilment of their responsibilities.

Conclusion

The parties should continue to have equal shared parental responsibility for the children.
There is no disagreement between the parties that the children should live with the mother. Consequently an order to that effect will be made.
The Court is satisfied that the children’s best interests would be served by the “maintenance but not the extension” of the current time that the children spend with the father.
As previously stated, I am satisfied that a number of the orders proposed by the ICL will assist the parties, and in particular the father, in providing for the children’s needs. Consequently there will be orders that each party do all things necessary to ensure that the children:
·are appropriately supervised at all times but in particular when they are in or near water or using the internet;
·take any prescribed medication;
·adhere to dietary recommendations of a doctor or dietician; and
·obtain such assistance for their medical and dental health and general well-being as is recommended by treating professionals.
There will be orders that the parties use a communication book and, in addition, exchange travel plans and contact details in advance of all travel with the children.
There will also be an order directing the parties not to denigrate each other in the children’s presence.
Lastly, the orders will include a requirement that both parties participate in family dispute resolution in the event that they are unable to reach agreement relating to the children’s long-term care, welfare and development.
There will be final orders and notations of the Court to reflect this decision.

I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of Monahan FM

Associate

Date: 6 August 2010