Rosington and Rosington (No 2)
[2020] FamCA 645
•31 July 2020
FAMILY COURT OF AUSTRALIA
| ROSINGTON & ROSINGTON (NO 2) | [2020] FamCA 645 |
| FAMILY LAW – PARENTING – Best interests of the children – Where the father proposes a change of primary residence – Where the children have significant vulnerabilities – Where the parental separation was characterised as high conflict – Where a change of primary residence would not be in the best interests of the children – Orders for the children to live with the mother – Orders for the children to spend significant and substantial time with the father. |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA, 112AP |
| MRR v GR (2010) 240 CLR 46. |
| APPLICANT: | Mr Rosington |
| RESPONDENT: | Ms Rosington |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 6654 | of | 2015 |
| DATE DELIVERED: | 31 July 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 14, 15, 18, 19, 20, 21 and 22 May and 4 June 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Christie SC |
| SOLICITOR FOR THE APPLICANT: | Barkus Doolan Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Hodgson |
| SOLICITOR FOR THE RESPONDENT: | Mills Oakley |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Longworth |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
All previous orders in relation to the children C born … 2009 and B born … 2009 ("the children") are discharged.
The parties have equal shared parental responsibility for the children.
The children live with the mother.
The children spend time with the father as follows:
4.1each alternate weekend during school term from completion of school on Friday to commencement of school Wednesday
4.2for one half of the short school term holidays as agreed between the parties, but in default of agreement, for the first half in even numbered years and the second half in odd numbered years
The children spend time with each of the parties as follows during the Christmas school vacation:
5.1 for the 2020/2021 holiday period and each alternate year thereafter:
5.1.1from conclusion of school on the last day of term to 12 noon, 21 December with the mother
5.1.2from 12 noon, 21 December to 12 noon 25 December with the father
5.1.3from 12 noon, 25 December to 5.00 pm, 26 December with the mother
5.1.4with the mother for the first half of the remaining school holiday period from 5.00 pm, 26 December to the midpoint of the period calculated from 5.00 pm, 26 December to 12 noon on the day before school
5.1.5with the father for the second half of the remaining school holiday period being the midpoint of the period calculated from 5.00 pm, 26 December to 12 noon to the day before school resumes
5.2 for the 2021/2022 holiday period and each alternate year thereafter:
5.2.1from conclusion of school on the last day of term to 12 noon, 21 December with the father
5.2.2from 12 noon, 21 December to 12 noon, 25 December with the mother
5.2.3from 12 noon, 25 December to 5.00 pm, 26 December with the father
5.2.4with the father for the first half of the remaining school holiday period from 5.00 pm, 26 December to the midpoint of the period calculated from 5.00 pm, 26 December to 12 noon on the day before school resumes
5.2.5with the mother for the second half of the remaining school holiday period commencing the midpoint of the period calculated from 5.00 pm, 26 December to 12 noon to the day before school resumes.
For the purposes of implementation of these orders, the parties execute changeovers at the children's school wherever possible and, otherwise, by the mother delivering the children to the home of the father at the commencement of all periods of time in his care and the father return them to the home of the mother at the conclusion thereof.
Notwithstanding any other order, the children spend time with the father from 9.00 am until 5.00 pm on each Father's Day.
Notwithstanding any other order, the children spend time with the mother from 9.00 am until 5.00 pm on each Mother's Day.
Leave is granted to the ICL to provide a copy of these Orders and any judgment associated with these Orders to Dr X, Dr Y, Professor Z, Dr AA and Dr BB.
The parties are at liberty to vary the provisions of these Orders at any time by agreement in writing and, in particular, so as to give effect to any arrangements which they may negotiate between them with the assistance of Dr X.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rosington & Rosington has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 6654 of 2015
| Mr Rosington |
Applicant
And
| Ms Rosington |
Respondent
And
| Independent Children's Lawyer |
Legal Aid NSW
REASONS FOR JUDGMENT
The proceedings
Mr Rosington and Ms Rosington are the parents of twin boys, C and B, who were born in 2009 and are currently 11 years of age. These proceedings concern parenting arrangements for the children, the parties having finalised issues of property settlement by consent orders made on 16 January 2018.
In his Initiating Application filed on 9 October 2015 the father sought orders which may be summarised as follows:
1. the parties have equal shared parental responsibility for the children
2. the children live with the father
3. the children spend time with the mother:
3.1.each Tuesday and on alternate weekends from the conclusion of school on Friday until the commencement of school on Monday
3.2.for half of all school holidays
3.3.on special occasions
4.each party has first option to care for the children in the event that the other parent is unable to do so for a period in excess of twelve hours.
In an Amended Initiating Application filed on 5 February 2020 the father sought orders which may be summarised as follows:
1. the parties have equal shared parental responsibility for the children
2. the children live with the father
3. the children spend time with the mother:
3.1.from Wednesday afternoon until Thursday morning in each week
3.2.each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday
3.3.for half of all school holidays
3.4.on special occasions
4.the children live with the father in the event that the mother is incarcerated as a result of conviction for criminal offences.
In a Minute dated 10 March 2020 the father sought orders which may be summarised as follows:
1. the father has sole parental responsibility for the children
2. the children live with the father
3.the children spend no time with the mother for a period of six weeks following the orders of the court
4. thereafter the children spend time with the mother as follows:
4.1.each Saturday under professional supervision for a further period of six weeks
4.2.from 10.00 am until 2.00 pm each Saturday for a further period of eight weeks
4.3.from 10.00 am on Saturday until 12.00 noon on Sunday on each alternate weekend for a further period of eight weeks
4.4.thereafter, from the conclusion of school on Friday until the commencement of school on Monday on each alternate weekend; each Wednesday night and for half of all school holidays
5. the children spend time with each parent on special occasions
6.the parties seek the assistance of Dr X and ensure that the children continue to attend upon their therapist, Dr Y
7.the father ensure that he and the children engage in family therapy from the date of orders of the court.
In an Outline of Case Document filed on 8 May 2020 the father submitted a Minute which sought the following orders:
1. the parties have equal shared parental responsibility for the children
Alternative One
2. As set out in the Minute dated 10 March 2020
Alternative Two
1.during school term time B live with the father and spend time with the mother as follows:
1.1in week 1, from the conclusion of school on Friday to the commencement of school on Monday and
1.2in week 2, from the conclusion of school on Wednesday until the commencement of school on Thursday
2.during school term time C live with the mother and spend time with the father as follows:
2.1in week 1, from the conclusion of school on Wednesday until the commencement of school on Thursday and
2.2in week 2, from the conclusion of school on Friday until the commencement of school on Monday
3.the children spend equal time with each parent during school holidays
4.the children spend time with each parent on special occasions.
During the trial the father abandoned his proposal to split the twins, presumably after having heard evidence from two experts as to the likely adverse consequences of such an arrangement for the children. Ultimately, the father sought orders in accordance with the proposal of the Independent Children's Lawyer ("the ICL") as set out below.
In her Response to Initiating Application filed on 9 November 2015, the respondent mother sought orders in the following general terms:
1. the mother has sole parental responsibility for the children
2. the children live with the mother
3.the children spend supervised time with the father for two hours each Sunday and from 9.00 am until 5.00 pm on Father's Day and the father's birthday
4.the children have telephone contact with the father between 7.00 pm on 7.45 pm each Wednesday
5.the father refrain from consuming alcohol or illicit drugs for twelve hours prior to and during the children's time with him
6.the mother provide to the father at least four weeks' notice of plans for interstate or international travel with the children.
In an Outline of Case Document dated 8 May 2020 the mother proposed the following orders:
1. the parties have equal shared parental responsibility for the children
2. the children live with the mother
3. the children spend time with the father:
3.1.each alternate weekend from the conclusion of school on Friday until 5.00 pm on Sunday
3.2.each other Wednesday from the conclusion of school until 7.00 pm
3.3.during school holidays for increasing periods, leading to six nights per fortnight
3.4.on special occasions.
On 14 May 2020, the mother proposed the parties have equal shared parental responsibility, provided that she be solely responsible for mental health plans for the children. She proposed orders that the children live with her and spend time with the father each alternate weekend from Friday afternoon to Monday morning in 2020. Thereafter, the mother sought orders that the children spend time with the father each alternate weekend from Thursday afternoon until Monday morning.
The ICL sought orders as follows:
1. the parties have equal shared parental responsibility for the children
2. the children live with the father
3. the children spend time with the mother:
3.1.for a period of eight weeks from the date of orders, from the conclusion of school on Friday until the commencement of school on Monday on each alternate weekend
3.2.thereafter:
3.2.1.from the conclusion of school on Friday until the commencement of school on Wednesday in each alternate week
3.2.2.for half of all school holidays
3.2.3.on special occasions
4.the parties do all things necessary to retain Dr X for assistance with the implementation of these orders
5.the father continue to attend upon Dr BB, psychiatrist, as he may recommend from time to time.
For reasons which were unclear to me, counsel for the ICL elected to inform the court and the parties of the substance of this proposal during his
cross-examination of the mother. With no prior notice to her and affording her no opportunity to discuss this proposal with her legal representatives, counsel for the ICL proceeded to question the mother in relation to this proposed change in primary residence of the children.
Background
The father and the mother, who are aged 52 and 45 respectively, commenced cohabitation in late 2003/early 2004 and married in 2006. They separated in August 2015 and divorced in 2017.
The father has a son, Mr CC, from a prior relationship. Mr CC is 18 years old and lives in New Zealand with his mother. The father described his relationship with Mr CC as "distant" and indicated that they are in contact on some 20 to 30 occasions per year.
The children were removed from their natural mother at birth and placed with two different foster carers during their first ten months of life. They were then placed in the care of the parties to these proceedings in April 2010 and adopted by them in 2013. A plan negotiated with the Department of Family and Community Services ("FACS") provided that the children have supervised contact visits on four to six occasions per year with their birth mother, maternal grandparents, siblings and the adoptive parents of their brother and sister.
In 2012 the father presented to a hospital emergency department. His current treating psychiatrist, Dr BB, noted in his report of 20 August 2018 that the father told the mother that he "was depressed and had been parked by the side of the road for six hours." Dr BB noted that the father "was assessed and discharged after approximately six hours."
In 2012 the father consulted Dr DD, a psychiatrist, who prescribed antidepressant medication. The father's current treating psychiatrist, Dr BB, opined that "it is likely this was an Adjustment Disorder with Depressed Mood" or a "Persistent Depressive Disorder."
In his oral evidence the father referred to an incident which he described as "a feigned suicide attempt" and said that he has experienced "suicidal ideation". He said that he asked the mother, "Is this what you want from me?" and "demonstrated with a cord around my neck in the garage." The father said that the children were in the family car and that he "was in a drunken stupor" at the time of this incident.
There was a dispute as to which party was the primary carer of the children prior to 2015. There is no doubt that the children attended day care on multiple occasions per week, while the parties continued to operate their businesses. In 2012 the father began to stay at home with the children. The mother worked full-time and, in the course of her employment, she travelled interstate and overseas regularly.
Whatever may have been the reality of initial primary care of the children, the arrangements put in place by the parties attracted criticism from the single expert Dr EE. I will refer to this evidence in detail below but, for present purposes, it suffices to note her opinion that "their ideal proposal [to FACS] was not enacted by them, a significant parenting failure ... the organisation of their time with the boys following the placement was not child focused."
In February 2014 the children attended WW School for one term. They then attended YY School for five days per week, before they returned to WW School in February 2015.
The mother alleged that the father subjected the children to harsh physical discipline and verbal abuse prior to the separation of the parties. She contended that, in January 2011, the father struck B on the back of his head and shouted "you're a filthy animal" when the child defecated in the bath. She alleged that the father put B under a cold shower. According to the mother, she comforted both children and the father then gave each boy a goodnight kiss. The father agreed that "there was an incident in the bath" but suggested that the mother fabricated part of her version of this incident.
The mother deposed that, in November 2011, the father shouted at B and dragged him into the bathroom when he had difficulty with toilet training. She alleged that the father pushed B's face into the toilet bowl but she grabbed the child before the father could push the flush button. The father denied that there was any such incident.
The mother contended that the father again placed B in a cold shower in May 2013, when he could not swallow his food. She alleged the father pushed B off his chair, kicked him while he was on the floor and dragged him upstairs. According to the mother the father said to her "you deal with this" after he put B in a cold shower. The mother maintained that she comforted B, whereupon the father returned to the bedroom with pyjamas and said to the child "there you are mate put those on, will warm you up, love you B".
The father denied that any such incident had occurred and maintained that he did not use cold showers as a punishment. He suggested that the children had cold showers on occasions at swimming training if they did not have a token for warm water. As appears below, however, the evidence indicated that the father in fact used cold showers as a punishment.
The mother alleged the father dragged B out of a car in March 2014, when the child struggled to fasten his seatbelt. She deposed that B screamed "No Daddy, no Daddy no cold shower" and the father then slapped the child on his hand, face and leg. The father denied any such incident and agreed to a suggestion in cross-examination that this evidence was "a fabrication" by the mother.
The mother contended that in April 2015, the father kicked B and said "I'll show you what hurt is, now get up" when the child fell over while walking the family dog. The father described this evidence of the mother as "a fabrication."
In January 2015 the maternal grandparents arrived in Sydney from the United Kingdom and stayed with the parties and children for several months. The maternal grandparents were present in the family home when the father assaulted the mother and the parties' friend, Mr Q, on 10 January 2015. The father was intoxicated at the time of these assaults, which occurred in the early hours of the morning after a party. The father saw the mother and Mr Q "intimately kissing each other on the lips and ... groping each other", to adopt his words.
According to an Agreed Statement of Facts in subsequent criminal proceedings, Mr Q suffered fractures to facial bones and nerve damage and bruising around his eye as a result of punches and kicks inflicted by the father. He also suffered a chipped tooth and bruising to his ribs. It appears that Mr Q suffers ongoing physical effects from these injuries.
According to the same Statement of Agreed Facts the father slapped the mother forcefully on her face, causing her to fall to the ground on her side. The father then kicked her leg while she was on the ground.
Neither the mother nor Mr Q made a contemporaneous report of this incident to police. Ultimately the mother reported the incident in September 2015, following the separation of the parties in August 2015.
The parties continued to live together after these assaults and holidayed overseas with the children and the maternal grandparents in May/June 2015. The father travelled to Country GG on 28 April 2015 and attended an entrepreneurs program. He then attended a two-week MM program in HH City, JJ City and KK City.
The mother, the maternal grandparents and the children joined the father in VV City on 22 May 2015 and they travelled in Country PP for approximately two weeks. The mother informed the father that she intended to close one of their businesses on 30 June 2015. He objected strongly and remained in UU City to attempt to raise capital for this business. The mother returned to Australia and the children spent five weeks in England with the maternal grandparents. The mother collected the children in the United Kingdom and they returned to Sydney around late July 2015.
The father remained in Country PP until September 2015, when he returned to Australia. During this time he consulted a psychotherapist on a fortnightly basis.
While the father was in Country PP, the mother cancelled his credit cards and closed the business for which he had been attempting to raise capital. On his arrival in Australia, the father was arrested at the airport and charged with a number of offences arising from the incident on 10 January 2015. These charges, which related to both Mr Q and the mother, included "recklessly inflict grievous bodily harm" and "assault occasioning actual bodily harm."
The father was granted bail and an Apprehended Violence Order ("AVO") taken out for the protection initially only of the mother. Subsequently, the terms of the AVO were varied so as to include the children.
The father filed an Initiating Application on 9 October 2015. On 25 November 2015 interim orders were made which provided that the children spend time with the father, under professional supervision, for three hours each Tuesday and Thursday and from 10.00 am until 3.00 pm on Sunday. The children commenced to spend time with the father on 12 December 2015, after a break in contact of approximately six months.
On 17 February 2016 further interim orders were made by consent. These orders allowed for supervision of the children's time with the father by the paternal grandmother or an employed nanny. Additionally, provision was made for the children to spend three days per week with the father during school holidays.
Following these orders the father completed a five-week program known as Keeping Kids in Mind. He engaged a nanny, who remained in that role for approximately four months. Thereafter a different person acted as nanny until January 2019, when she moved to BF Region.
Following a contact visit on 27 March 2016 the mother complained by a solicitor's letter that the father had showered naked with the children, in the absence of the nanny, after a visit to a beach. The father's solicitor responded that he had assisted the children in the shower after the beach visit and that he wore board shorts and a vest. The father's solicitor indicated that the nanny was in the bathroom at all times during the children's shower.
The mother continued to cause her solicitor to make various complaints in relation to the father's alleged conduct during the children's time with him, all of which supposedly took place in the presence of the nanny. These complaints, which were denied by the father, persisted throughout the year 2016.
In August 2016 the father was arrested and charged with three breaches of the AVO, on the basis of complaints by the mother. He spent one night in gaol and was granted bail. The father defended these charges, which were dismissed in October 2016.
The first report of the single expert, Dr EE, was released on 6 September 2016. Inter alia, Dr EE recommended that the father undertake "a further psychiatric assessment, to exclude the presence of a Bipolar Disorder ...” The father began to consult with Dr BB on 23 November 2016 and subsequently attended a total of 42 sessions. Dr BB gave written and oral evidence in the case for the father in these proceedings.
In her first report Dr EE recommended that the children continue to live with the mother and spend supervised time with the father, for a further period of 18 to 24 months. These arrangements continued until April 2019, when the children began to spend unsupervised time in the care of the father by agreement between the parties. This agreement was reached during an intensive family therapeutic intervention by Dr X, to which reference is made below.
On 22 March 2018 the mother was found to be in contempt of court pursuant to section 112AP of the Family Law Act 1975 (Cth) (“the Act”). She was fined $50,000 and ordered to pay the father's indemnity costs in the sum of $40,000. The court found that she had withdrawn funds from a LL Bank account, with knowledge that in doing so she breached orders made on 25 November 2015. The presiding judge was satisfied that "the breaches were a flagrant challenge to the authority of the Court."
In August 2018 the father purchased a house at Suburb I. He has become involved in community activities in this area, including church attendance, sports and volunteering work.
In her second report of 10 October 2018, Dr EE recommended the engagement of Dr X for "intensive family four-day therapy". Dr X described this process as follows:
With the four day Intensive Family Therapy Model, on the first day of the therapy I usually conduct home visits with the children and the parent they usually live with and then a later appointment with the other parent and typically have some type of joint session.
The subsequent therapy sessions and configurations will also follow on from discussions and agreement with family members but likely range from 11 am until after dinner each day.
I expect that family members will decide on outings and activities to be undertaken in addition to the formal therapy sessions.
Dr X described her therapeutic process further as follows:
The theoretical basis for the type of therapy I provide is underpinned by Kelly and Johnston's 2001 model relating to circumstances where children are resisting a relationship with one parent and encompasses situations where children have very genuine reasons to reject a relationship with one of their parents to those families where children's reasons seem irrational or unfounded.
(Footnotes omitted)
Dr EE made alternative recommendations in her second report, depending upon whether the father received a custodial sentence as a result of the criminal charges. She recommended that the children continue to live with the mother and spend time with the father in a prison family room each fortnight or, alternatively, on an unsupervised basis after the RIFT ("Reportable Intensive Family Therapy") intervention by Dr X.
In November 2018 the father began a relationship with his current partner, Ms RR. They began to live together in August 2019 and became engaged in February 2020. Ms RR has twin daughters, SS and TT, who are approximately eight years of age. Ms RR's children live with her and the father and spend regular time with their father in a flexible arrangement.
In February 2019 the father was sentenced to imprisonment for a period of one year and ten months, which he was permitted to serve by way of an Intensive Correction Order. He pleaded guilty to an offence of "recklessly inflict grievous bodily harm" in relation to Mr Q. The father also pleaded guilty to a charge of assault occasioning actual bodily harm in relation to the mother, for which he received a conditional release order.
The father included in his trial affidavit an extract from the remarks of the sentencing judge, as follows:
In considering the extensive victim impact statement of the female victim, it is quite clear, both by reference to the way it was delivered and the detail of it, that she conflated her feelings about the prisoner in a wider sense into what she identifies her perceived injury from the subject charge. In my view, the detail and the length of the particular victim impact statement was disproportionate to the seriousness of harm that could reasonably be considered to have caused by the prisoner's actions.
In somewhat less critical terms, however, the sentencing judge said also in relation to the mother's Victim Impact Statement:
In relation to the specifics of details of harm identified by the prisoner's
ex-wife, I regard some of the claims as exaggerations and not supported by the detail of the agreed facts or could reasonably be concluded to be consequences of the conduct of the prisoner. Many of the assertions within the statement are repetitive and as I said, appeared to me to be designed to address grievances that go beyond the subject of this particular litigation. She is obviously and I do not doubt, perhaps with good reason, bitter towards the prisoner. ...
During the RIFT therapy conducted by Dr X on 25 to 28 March 2019, the parties agreed that the children would spend unsupervised time with the father. Initially they spent time with him from 9.00 am until 6.30 pm on Saturday and Sunday of each alternate weekend.
In March 2019 the mother was charged with approximately 74 offences of dishonesty involving the ZZ Bank. She has been granted bail and is likely to face trial in late 2021/early 2022. If the mother is convicted, there is a real prospect that she will face incarceration.
From July to September 2019 the children did not spend time with the father. According to the mother, they told her that the father favoured his partner's children over them. The mother alleged that the children also told her that the father had shouted and lifted his hand so as to hit B. The children informed the father on 11 July 2019 that they no longer wanted to spend time with him.
The father contacted Dr X immediately and she recommended that he refrain from attempting to spend time with the children, pending a second therapy session. Dr X confirmed in her letter to the ICL dated 11 September 2019 that she advised that the father "give the children a short break until we could come together for a further few days of [RIFT]". This therapy took place on 7 and 8 September 2019.
On 18 September 2019 a Senior Registrar made interim orders, over the objection of the mother, that the children spend time with the father each alternate weekend from the conclusion of school on Friday until 5.00 pm on Sunday and each Wednesday evening. The first overnight period took place on 19 October 2019.
On 15 November 2019 the mother and B attended upon Associate Professor Z, following a referral from a general practitioner. The mother alleged that there had been a deterioration in B's mental health since he began to spend overnight time in the care of the father. Associate Professor Z referred B to Dr AA, a child psychologist. The mother gave the father no opportunity to be involved in these arrangements.
The parties attended a Legal Aid mediation conference on 19 December 2019. They agreed to orders which provided that the children spend overnight time with the father during the Christmas school holidays.
The children have continued to make complaints to the mother in relation to the father's alleged mistreatment of them after most, if not all, periods of time in his care. These complaints filled several pages and numerous paragraphs of the mother's trial affidavit. It appears that she is receptive to the children's complaints of alleged mistreatment and insensitive behaviour on the part of the father.
In March 2020 C left his school and walked to the mother's house on an afternoon when he was to spend time with the father. He had previously informed a teacher that he did not want to spend time with the father on that Wednesday afternoon. C then remained with the mother and B spent time with the father in accordance with the existing orders. The mother and C collected B from the father's home at 7.00 pm on this day.
The principal of the school determined that there should "be a consequence [for C] for leaving the school grounds without permission" and informed both parents that he would be required to complete "a reflection sheet." The mother complained to school staff that C "felt intimidated, unsafe and bullied into writing untruths in his reflection sheet."
On the weekend of 6 to 8 March 2020, the father collected B from school and C went home with the mother. She had arranged for the children to attend a BD Centre event in BF Region on the Saturday of this weekend. B told the father that he did not want to attend and felt unwell, so they remained in Sydney.
After B returned to the mother's home, he rang the father and said that he was not really sick and that he had lied when he told the father that the mother was recording a phone call. B wrote a letter to the mother in which he apologised to her for telling lies.
Since 16 March 2020 B has spent time with the father in accordance with the orders and C has attended on most occasions. C did not spend time with the father on 4 March 2020, 6 to 8 March 2020, 11 March 2020 and 3 to 5 April 2020.
The evidence and witnesses
The applicant father relied upon the following affidavits:
1.Mr Rosington (the father) sworn on 14 February 2020, 10 March 2020 and 8 May 2020
2.Ms RR (the father's fiancée) sworn on 15 February 2020
3.Dr BB (the father's treating psychiatrist) sworn on 12 February 2020.
All of these witnesses were required for cross-examination by counsel for the mother and the ICL.
The respondent mother relied upon the following affidavits:
1. Ms Rosington (the mother) affirmed on 15 February 2020
2.Ms XX (the maternal grandmother) affirmed on 15 February 2020
3.Ms FF (friend of the mother) affirmed on 6 March 2020.
All of these witnesses were required for cross-examination.
I had the benefit of three reports from the single expert psychiatrist, Dr EE, dated 25 August 2016, 10 October 2018 and 5 May 2020. I also had the assistance of letters from Dr X to the ICL dated 29 March 2019 and 11 September 2019, together with her report dated 6 May 2020. Both Dr EE and Dr X gave oral evidence by way of cross-examination. In light of the past and potentially future therapeutic role of Dr X, it was regrettable that the parties and the ICL elected to involve her in the adversarial process of the trial.
In light of the nature of the issues in these proceedings, I have found it necessary to quote extensively from the evidence of Dr EE and Dr X. I consider it preferable that I include their precise words, rather than my summation thereof, in these reasons.
Approach to these proceedings
In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Act sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in a child’s best interests.
The Court must have regard to the objects of Part VII, as contained in s 60B(1) and the principles underlying those objects, as set out in s 60B(2). Subsection 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA of the Act requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the Court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (s 65DAA(1) of the Act). If there is no order for equal time, the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicality” are defined in ss 65DAA(3), (4) and (5) of the Act. There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 240 CLR 461 the High Court of Australia said:
8.Sub-section (1) of s 65DAA is headed “Equal time” and provides:
“If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:
“(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Sub-section (3) explains what is meant by the phrase “substantial and significant time.”
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question.
Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents”.…
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
…
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible…
(footnotes omitted)
The best interests of the children: section 60CC considerations
Section 60CC(2) considerations
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence."
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
The recommendations of Dr EE and Dr X indicate clearly that they each hold the view that the children will benefit from a meaningful relationship with both of their parents. In her oral evidence Dr X said "I don't see us in disagreement" in relation to the recommendations of Dr EE.
In her third report dated 5 May 2020 Dr EE made these recommendations:
At this point in time, the children continue to live with their mother, their primary caregiver and more predictable, structured parent since the parental separation. This will cause the least disruption to the children and assist them to manage a possible future change in residency.
B and C must be supported by Orders to spend incrementally increasing amounts of time with their father to four nights a fortnight over the next twelve months.
They will need to remain at the same primary school until the end of Year 6, in 2021. Their holiday time could be increased to a fifty/fifty arrangement. Their secondary school should be located halfway between both parents' homes.
Given the very real uncertainty about the outcome of Ms Rosington's criminal trial, there needs to be clear orders for the children to live with their father if she is sentenced to gaol. I would not consider the maternal grandparents as viable alternate carers of the boys.
The parental responsibility for them should remain shared, to continue to promote co-parenting, with both parents having equal authority and power to make decisions about their children.
In her letter to the ICL dated 6 May 2020 Dr X opined as follows:
It is my strong opinion that the children want to maintain their relationships with both parents, would prefer to live with their mother and see their father regularly and frequently, but most urgently would be satisfied with the semblance of cooperation between their parents that allows them to get on with their lives.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is no question that the father engaged in acts of family violence in January 2015, when he physically assaulted the mother. I have no reason to doubt his claim that he is genuinely remorseful for his actions. I accept that the father has not drunk alcohol since the assaults and that he has embraced therapy and advice offered by Dr BB. I accept the evidence of Ms RR, to the effect that there is no violence in her relationship with the father.
As set out above, the mother made several allegations of abusive behaviour directed at the children by the father during the parties' marriage and since the separation. The father largely denied these allegations and claimed that some of this evidence was "fabricated" by the mother. I will not attempt to analyse the evidence pertinent to and make findings about each of these allegations. As addressed below, the children's complaints in relation to the father's treatment of them fall under the umbrella of a high level of parental conflict and complex separated family dynamics.
The evidence suggested that the father treated the children harshly and insensitively during the marriage. This evidence consisted not only of the account of the mother but emerged also from admissions made by the father to two independent witnesses and the affidavit of the mother's friend, Ms FF.
The single expert, Dr EE, raised the issue of use of cold showers as a punishment with the father in her 2016 report interviews. She noted:
He acknowledged using cold showers as a consequence for their behaviour at swimming lessons - if they messed around, they had a cold shower and if they listened to the coach they got a token to have a warm shower. Cold showers also became a threat at other times: for example, during tantrums, C was asked if he was going to calm down or have a cold shower.
In her oral evidence Dr EE said "... at that point it did seem like he was using quite a punitive consequence for their mucking up in the swimming classes". She pointed out that the father described himself to her as "a strict,
no-nonsense” father.
A Family Consultant noted that the father made a similar concession in a Children and Parents Issues Assessment dated 29 March 2016. The Family Consultant reported that the father "acknowledged ..., on occasion after swimming lessons if they had not behaved, giving the boys a cold shower (as opposed to a warm shower for good behaviour.)"
In his oral evidence the father said words to the effect:
I was the victim of excessive punishment by my father.
He agreed with a suggestion by counsel for the mother that he "has done the same to the twins ... I have meted out undue punishments. I tapped them on the hand harder than I should have ..." The father also said words to the effect:
there are issues around that so I would not be that person ...
In the Children and Parents Issues Assessment dated 29 March 2016, the Family Consultant reported: "Mr Rosington acknowledged throwing a ball at the boys, flicking the boys with a tea towel", in addition to giving them a cold shower if they misbehaved at swimming lessons.
Dr EE noted that "flicking tea towels at them ... can be an enjoyable game but the children have to enjoy it, not just the adult."
I consider that there is no present need to protect the children from physical abuse in the care of either parent. It may well be that the father subjected the boys to harsh and insensitive treatment, including inappropriate physical discipline, during the marriage. I do not accept his denial, on his oath, that he used cold showers as a punishment. As noted above, the father acknowledged that he did so both to Dr EE and a Family Consultant.
Ms FF deposed that she saw the father hit B, drag him upstairs into a bathroom and put him in a cold shower on two occasions. She deposed that she heard "screaming and hitting sounds." In my view, Ms FF was unshaken in her evidence.
The children are eleven years old and might reasonably be expected now to be better equipped to protect themselves and each other from any excessive or inappropriate physical discipline by the father. For reasons which appear below, I do not accept that the children give accurate reports to the mother concerning their experiences in the father's household.
Both Dr EE and Dr X identified a dynamic in which the children attempt to please and gain approval from the mother and the maternal grandparents, by making complaints in relation to their experiences with the father and his current family unit. As appears below, both experts described that the children have developed a psychological coping mechanism so as to deal with the high level of conflict between their parents.
Dr EE was asked by senior counsel for the father "... you would accept, wouldn't you, that the children have felt enormous pressure to provide accounts to their mother of what occurs in the father's household?"
Dr EE replied:
I believe they have been pressured. The question, to me, is where has this pressure come from? Whether it comes from one person. In this case we’re talking about Ms Rosington. Or whether it comes from the whole process. We know that children, and particularly once children get to older children, that nine year olds and so forth, that they somehow manage to resolve ... the high conflict that they find themselves in, is by telling dad one story, telling mum the other story, and this is the way they’re able to manage the situation. ... So, it’s not about one person doing that. It’s about how the child makes that adjustment, and, of course, it’s a very maladaptive type of strategy to have.
Dr EE said also:
If you don’t learn to know which of your experiences are real and which are misperceptions etcetera etcetera, then you really have difficulty in your life. The whole of your life.
Senior counsel for the father asked Dr EE:
If the court were to find that the mother cannot change her view about how the children experience their father, or will not change her view, then it does not create a proper environment for them if they continue to live in her household, does it?
Dr EE answered:
It certainly is very difficult for them, and one could consider more of the same will happen, which would be detrimental to the children. There’s no doubting that. I think we also need to know that the children are getting older. The children are active players, if you like, in this. They bring their own way of dealing with things. So the – where I’m going with this is one of the strengths that Ms Rosington would have on the boys once they are older children and would they then start to reject her, and we always say in these matters that the parents who might be alienating a child, when that child is older might end up rejecting the alienating parent because he or she then sees things differently.
Dr EE said further:
[The father] was very blatant about saying he does not trust Ms Rosington. And certainly his new partner was very critical of her. So their capacity to be able to – what we don’t want is if things are – aren’t easy for the boys with their mother, if they’re being somehow coached ... unconsciously or consciously to make up stories about their father – it’s a strategy they’ve developed to survive in the situation, we don’t want it reversed so that if they go over to dad’s house for the majority of time, where somebody who doesn’t trust their mother or who is critical of their mother, – the couple the children will be living with, and now doing similar things with the boys that you’re implying the mother has done with the boys.
In my view, the risk so identified by Dr EE, that a similar dynamic may develop in the household of the father, was illustrated in the evidence both of himself and also his partner Ms RR. The father's fiancée said inter alia:
B does not really care if he gets to see his mother and I think that is due to punishments. ... He said he slept on the bathroom floor without a pillow or doona for seven hours ... I think he regards seeing doctors as a bit of a punishment. I believe B.
I note that the mother denied, plausibly in my view, that B ever slept on the floor without a pillow or doona for seven hours.
In response to questions by senior counsel for the father, Dr EE said further:
"So she’s following supposedly following the guidance of Ms BC [a parenting counsellor], she’s asking questions of the boys and they’re coughing up all this stuff which is untrue, and she doesn’t critically evaluate it. Well, she has tried to critically evaluate it, but the boys are still saying things because they believe this is what mum wants to hear, so she accepts it. She says, right, I will ask them enough questions, this is how it is and, you know: boys, you can write it down if you feel you need to – whatever. That’s very different from a parent who questions their child and is saying to the child: and then what did he do and did he ... So it’s more of an active coaching sort of thing where a parent is deliberately trying to undermine the relationship. … from my view, she isn’t – Ms Rosington is not able to take the feedback that other people are giving, that, perhaps the children are saying this to you because they think this is what you want to hear. But Mr Rosington, similarly, is not able to hear, well, perhaps that the children are telling her that because that’s the way the children have adjusted to this horrible high conflict relationship their parents are in, as opposed to Ms Rosington is coaching them.
Dr EE said also:
It’s really about whether it’s more advantageous to the boys to have her as the parent for the majority of time as opposed to their father and the new stepmother, who is an unknown element in some way, as they’re the children’s main caregivers. If we want to talk about consistency, we will talk about Ms Rosington, but, of course, with that comes her consistently being unable to fathom whether what the children are saying to her is factual or not and, secondly, her inability to be able to perhaps give Mr Rosington the benefit of the doubt because she is so set in her belief that he is exactly what the children are describing.
Dr EE expressed these opinions in relation to B's experience in moving between the two households:
one has to think about what B is bringing to this, and part of B’s adjustment to this situation is he wants to please everybody, and if he’s enjoying himself at dad’s, and he knows mum is anxious about him, and he knows – he has told mum he doesn’t like being there or whatever he has done, B is going to be guilty about loving being with dad, if he loves being with dad. He’s going to feel badly about it. So he might come home to mum ... spending time with mum, and telling stories, you know – “and then they did [this] and then they did that”. So the stories might continue, and he – so I’m going to the emotional response being guilt that he has – enjoys dad or being in dad’s household and that he has left mum all alone, ... so we’ve got this aspect of the boys feeling badly about mum being by herself and mum having no one, and this can be the ground for some children to prefer to stay with the single parent, if the other parent has re-partnered.
In response to a question from counsel for the ICL, Dr EE commented upon the observations of Dr X that C experiences "cognitive dissonance" in his dealings with the mother. Counsel for the ICL asked:
If that’s what’s going on for C – and, indeed, perhaps B, but more so C – that creates a whole other level of risk with the mother, doesn’t it?
Dr EE replied:
That’s right. I mean, this type of cognitive dissonance that you refer to… will lead people to shut off from anything that they can’t agree with or they don’t have in their own mind, so they’re not open to other information coming in which disproves what they are thinking, and so they become more
narrow-minded ... it’s the old echo chamber we hear a lot about – how people can – will only take on information that is already there in their mind. They’re not free to take on other information which might challenge the way they’re thinking.
During cross-examination by counsel for the ICL, Dr X commented on an event which was described as "the ice-cream incident", which she described as follows:
[ICL]C is wearing a jacket and ice cream spills on the jacket, which is his father’s. Is that correct?
[Dr X] It’s a little bit more than that. Smearing it, like in a really provocative way, hoping that his father would notice and get angry, I think, but it was really quite a really nasty thing to do. It was deliberate and it was not nice to see.
In relation to this incident counsel for the mother asked Dr X:
So C’s plan, as it were, to make his father angry just didn’t happen?
Dr X answered:
I would like to think of it as a self-fulfilling prophecy on C’s part to try and make that happen so that he would have something to complain about ... so he wouldn’t suffer cognitive dissonance by it not happening, as he expected.
Dr X was asked by senior counsel for the father:
Would it be fair to say that one of your concerns is that, because you don’t expect the mother to change, you’re not confident that she will be able to shield the children from the emotional effect of her not supporting their relationship with the father?
Dr X answered:
I see that as a constant and ... one of the problems with making children attend to the negative is that it sets up a depressive style of thinking where you only look for problems, where you only look for the negative, where you look to complain and, as I said in my report, I am concerned about the number of clinicians and then the children are trotted off to clinicians to make complaints that may not be true, that they are focused on the negative, looking for the negative with their father. It’s just a terrible style of thinking and sets children up for depression and adult depression and hopelessness and, you know, terrible – poor relationship.
Senior counsel for the father asked Dr X:
It is abusive if, in due course, her Honour finds that the mother has required them to prepare these accounts, isn’t it?
Dr X answered:
That’s assuming that Ms Rosington is very conscious of what she is doing or that there is another way that she could have gone about it. I see her as genuinely quite genuine, that it comes from a lack of knowledge, psychological knowledge, and this repressive style of personality that she firmly believes something and she clings to it. I don’t see her as particularly manipulative ...
Dr X added:
It trains them to not trust themselves in their own judgment, it encourages them to distort and manipulate information, it sets up a style of thinking that it’s everyone else’s fault and not their own, not accepting [responsibility] for themselves or their own behaviour, it encourages thinking up excuses about why you behave this way, it’s someone else’s fault. You know, it’s not good.
Senior counsel for the father put to Dr X:
Now, you suggested ... that the real difficulty for the children was the conflict between their parents...
Dr X answered "Yes."
She was then asked:
Now, at the heart of the conflict is the mother’s desire that the children’s time with the father be minimal or none…; do you agree?
Dr X answered:
I don’t think so. I didn’t say that. What I think is that she perceives problems with it and sees it as a negative experience for the children.
Dr X said also:
So B is very much about focusing on the negative. C is very aware that he is not telling the truth because he feels so conflicted and so disturbed. So his response to it is that he’s upset by it and then he tries to be provocative to get calm and resolved in himself that what he is saying is true. So it’s cognitive dissonance. I’m saying something that’s not true, but if I make dad behave that way then it will be true and then I will feel more comfortable.
The expert evidence left no room for doubt that the toxic, highly conflictual relationship between their parents places the children in a chronic situation of psychological difficulty. I am satisfied that the conduct each of the parties contributes to this harmful situation. Regrettably, the evidence of each expert would suggest that neither party is likely to modify their behaviour.
Section 60CC(3) considerations
I will refer only to those considerations set out in section 60CC(3) which are relevant to the present proceedings. Some sub-sections, for example 60CC(3)(h), have no role to play in a determination of which parenting orders are in the best interests of these children.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The father gave evidence that B has expressed a wish to spend more time or to live with him. The father also said that B has expressed a wish for an equal time arrangement. He deposed as follows:
159.... B usually says after a weekend "Can I stay longer. I feel so happy here.”
160.Last weekend on 7 February 2020, B said "I wish I could live here with you and C could live with Mummy." B and C had had an argument. I know that B was venting his emotions; however in conversations with the boys over the last few months, B openly says "I wish I could live equal time with both you and Mum."…
The mother gave no direct evidence as to any views expressed to her by either child in relation to living arrangements. As noted, her trial affidavit included a litany of alleged complaints to her by the children in relation to their time in the father's household.
The children first expressed their views to an independent person in March 2016 in a Children and Parents Issues Assessment. The Family Consultant reported inter alia:
Notwithstanding saying that his father hurt him, B said that he enjoys spending time with his father and playing soccer with him.
and:
Despite saying that his father "smacked us for no reason", C said that he enjoys spending time with his father and that "he was nice mostly".
In June 2016 the children were interviewed for the first time by Dr EE. She described B as "angry and rejecting of his father, a marked contrast to his behaviour when seen with Mr Rosington on the following day." Dr EE assessed that C was "less strident (than when with his mother) about rejecting his father but still found it difficult to say anything positive about dad." Dr EE opined that:
A probable factor contributing to the boys' ongoing complaints and allegations about father [sic] is their need to support their mother's case, keeping her close to ensure they do not lose another caregiver. They have had to cope with significant losses in their short lives.
In August 2018 B told Dr EE that he wanted to spend less time with the father, "about four hours every five days." He said "I would be kind of uncomfortable not being with Mummy". He said that the father is "not dangerous" and, when asked if "he gets lots of good kisses and cuddles from Dad", he responded "yes".
In August 2018 Dr EE discussed with C what time he wishes to spend with the father. She reported as follows:
Asked if he wanted "more/less/keep the same" time with his father, he queried if I would tell his Dad, explaining he did not want Dad to know as he did not want Dad to shout at him. Pressed whether this would happen, he thought "maybe".
Referring to his diary, C then answered the question, stating “Thursday one week, Thursday and Sunday" in the other week. He denied talking to anyone and stated that he had thought about this schedule by himself.
Dr EE last interviewed the children in April 2020. In relation to B's views as to his time with the father, she reported:
B explained he came to the assessment to see about increasing or decreasing his time with his father. He was told there was a further option, to continue the current arrangement of fortnightly, two nights from Friday to Sunday and every Wednesday for a few hours.
Asked what he would decide, if he was the Judge, B replied "a bit more Daddy time". He continued to mumble in a rather pressured manner and both "make it even" and a repeat of "more" were mentioned.
Dr EE reported that, at a later point in this interview, B said "I just want to live with Dad, see Mum ... want to see him a lot longer ... hard leaving, want to see more". Asked if anyone told him what to tell me, he stated clearly "No it's what I think." In her oral evidence Dr EE said "I felt it was a genuine statement from B at that point." She added "he was a pretty wretched child".
In her third report Dr EE expressed a clear view in relation to the weight which should be attached to the expressed views of the children. She opined:
Both boys do not have the maturity to appropriately evaluate their ongoing living arrangements.
In her oral evidence Dr EE effectively cautioned against the attachment of significant weight to B's stated wish to live with the father. She said:
he talks about ... that he sometimes feels C is the golden child… But that is also – you see, the trouble with that is that’s also dad’s view. So here it’s hard to know ... because Mr Rosington went on at some length to talk about how he felt C was the favoured child with Ms Rosington that he’s going on information that B tells him.
Dr EE continued:
So that was Mr Rosington’s strong view that C is favoured by Ms Rosington and poor B misses out. So when B tells me ... sometimes it feels C is the golden child, and he gets into trouble more when at mum’s, well, what is that is that B telling me what dad thinks, or is that B telling me what he thinks?
Dr EE was asked by senior counsel for the father:
either option 1, where the children live with the father, or option 2, a substantially equal time arrangement, would have the significant advantage of being at least much more consistent with B’s expressed wishes to you, expressed very recently, wouldn’t it?
Dr EE did not accept this proposition and said:
but poor B, does he really know what he wants?
In April 2020 Dr EE reported as follows in relation to C's stated views:
He recalled the previous interview and said he had returned "to say what I want until I'm eighteen ... length of time with my Dad.
Asked if he wanted more or less time with Dad or keep it the same as currently, C indicated he wanted to continue the same amount of time with his father but, in four or five years, to return and say if he wanted more or less time with him.
C confirmed that he was not seeing Dad every second weekend at present, explaining "I don't feel like it". ...
During an exploration of how he did "not feel like it", C said it was "something inside of me, like an instinct feeling, thought something could happen. It seemed like he was not in a "good mood". However he confirmed he made his decision before he saw Dad and volunteered that he had not shouted at Dad, "said something in a really nice way" but Dad "shouted".
Section 60CC(3)(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
There can be no issue that the mother has been the primary carer for the children since mid-2015. They lived with her in Australia from that time and the father remained in Country PP until September 2015. Thereafter, the children lived with the mother and spent no time with the father until December 2015. They then began to spend supervised time with the father for three hours each Tuesday and Thursday and five hours on Sundays. On 17 February 2016 the parties consented to interim orders which increased the children's time with the father and maintained a requirement for supervision on a "without admissions" basis.
In October 2019 the children began to spend overnight time with the father from Friday afternoon until Sunday evening. They also spent time with the father each Wednesday for some hours. They spent overnight time with the father during the Christmas school holidays by agreement between the parties.
In her report of 6 May 2020 Dr X opined that the children "love and adore their mother and hold similar feelings for their father. They also experience the vast gulf created by their parents' disputes." Dr X described that "In their father's household, both children are full of delight in their father, seek out his attention, enjoy his praise and avoid talking of the allegations they have made to their mother." In her oral evidence Dr X said:
…the children ... show delight in their mother and enjoyment of her love and affection and she ... praised them a lot for their skills and emphasised their strengths and they enjoyed that.
Dr X described the relationship dynamics of the children and their parents as follows:
Some of the significant risks to the children include Ms Rosington describing their behaviour in pathological terms, when I consider that many of C and B's difficulties emerge from their exposure to the conflict between their parents and having to all reconcile the different experiences they have in each parent's home. B does have some clear developmental difficulties, but these are ameliorated by positive personality factors. C and B are of course disturbed by their parents’’ conflict and their two different realities, but this is sometimes exacerbated I consider by having to repeat their untrue complaints about their father and describing negative experiences with him to professionals and clinicians.
Dr X rejected a suggestion from senior counsel for the father that the children have an enmeshed relationship with the mother. She said:
I think the term is not appropriate. It's not an enmeshed relationship. I think it’s a combination of Ms Rosington having a poor understanding of ... the psychological nature of others, being a very conscientious parent who applies herself, I imagine, to any task with a great deal of energy and enthusiasm, which is done to parenting, and she loves her children very much and wants the best for them. So I think it’s a combination of those rather than an enmeshed relationship. She certainly encourages independence in them.
Dr EE offered these opinions as to the nature of the relationship between C and the mother:
… C has taken sides. He has aligned with his mother… the other thing about C is how defended he is. ... He's very contained. He has his way of thinking about things and so forth, very similar to his mum. So that sort of defensiveness, not being able to let yourself go and play, is about feeling ... angry, sad, upset. It’s your defence against being in touch with feelings like that, and so C – it’s not just about mum. I mean, there are the elements ... about losing another mum ... but also his grief, perhaps… or his distress at not being able to connect with his dad. He’s upset about the assault on his mother and his… Mr Q. I mean, C – if you’re going to have a child who can’t let go of things, that’s going to be C, who won’t let go of the fact that, you know, dad… harmed Mr Q like he did. So there are lots of reasons. It’s not just black and white. It’s not just C and mum. ... and part of that is how dad has contributed to C's perception of life.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long‑term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child
The father's opportunity to participate in the making of decisions in relation to major long-term issues concerning the children has been curtailed by the lengthy period of limited supervised time in his care. Supervision of the children's time with the father during this period accorded with the expert recommendations of Dr EE and the delay in finalisation of the criminal proceedings.
There is no doubt that the mother has made unilateral decisions, at least in relation to the children's education and health care. In June 2017 the mother changed their school, without any consultation with the father and without his consent.
In November 2019 the mother arranged for B to consult with Associate Professor Z, a child developmental paediatrician, after he allegedly expressed suicidal thoughts and a desire to stab other people. Professor Z referred B to a psychologist, Dr AA, and recommended a psychometric assessment. The father was afforded no opportunity for input into these arrangements.
The children spent no time with the father between July and September 2019. As noted above, however, I accept that the father acted on the expert advice of Dr X to the effect that he await her further intervention rather than attempt to force this issue.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Neither party raised the issue of child support as a consideration relevant to the outcome of these proceedings.
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: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The father agreed with counsel for the ICL that "a move to me would be shattering for C." He agreed also that a change of residence "will deprive C of his safest relationship in the world" and that "he will blame me." The father predicted that C "would truant, seek out his mother" and that "in the home his behaviours will be projected toward everyone else being wrong." He opined that "I think I can manage that because of our bond. We share outdoor activities."
The expert evidence of both Dr EE and Dr X identified a serious potential for significant adverse consequences for the children of a change in primary residence. Both Dr EE and Dr X were asked for their opinions as to the two proposals initially advanced by the father.
Dr EE was asked for her opinion as to the father's first proposal for a change in primary residence with a period of no contact whatsoever with the mother for six weeks, followed by twenty weeks of limited supervised time and ultimately alternate weekends and Wednesday evenings. Dr EE commented as follows:
I think it’s a highly undesirable proposal. ... I think one does change residence of the children if there’s evidence… of significant undermining, an alienating process occurring ... I don’t believe there is significant alienating process happening here, that most of the time the children do go to their father’s and on his reports to me, they have a good time, so that’s one thing, that I don’t believe there should be a change of residency because of that process happening, because it’s not happening. Secondly, even if her Honour found that there were significant reasons to change… the children’s residency, I would really want her to take into account that these are not the average children one might see in these high-conflict divorces and consequences. The children have a really long history of separation - and loss. They’ve had multiple caregivers from the time they were born and before they went to the Rosingtons, after they went to the Rosingtons while the parents were still together. ... they had nannies and long day care and grandparents caring for them while the parents went about their own business, so they’re children who have had multiple separations, multiple caregivers which impacts on their attentions and the security of their attachments. Then of course they’ve had separations from their father. The last thing they would need now is a significant separation from their mother. ... for these children to have any hope of growing up and having a reliable – forming a reliable dyadic relationship with another person, they need to have that as an experience of their own. ...
In relation specifically to the father's proposal that the children have no contact whatsoever with the mother for six weeks after a change in primary residence, Dr EE expressed these concerns:
…not seeing their mother for six weeks… having minimal time for months after that would just add to the trauma, and this is their trauma, their development trauma they’ve had through how they have not had one consistent person being with them for all of their lives.
Dr EE also expressed concerns as to the proposed move of the children into a household with a stepmother and stepsiblings. She said "yes, that is further going to disrupt their sense of what a relationship is all about" and “who is going to be round to care for me, who can I trust to stay with me".
Dr EE expressed great concern in relation to the father's application for orders which would separate the twins. She said:
I think it's a disastrous proposal. I think it goes to what I've been talking before about disruptive relationships these boys are experiencing ... the one person who has been around all their life, their twin, is no longer going to be there on a fulltime basis. Their relationship… will be compromised – and just what it means for B not to see his mum, knowing his mum was with his brother – I mean, that has got to raise questions about rejection. … it doesn’t matter how logically one might explain it to him. The feeling, that felt experience, will be one of rejection, abandonment, and possibly the same for C. C is not likely to have those feelings so close to the surface. He keeps his feelings way buried, so ... his sense of entitlement, I have concerns about C, that he is there supporting his mum ... to be left with just C there with mum, I’m sure there would be a sense of “Now I’ve got to take care of mum all by myself” ...
Dr X offered these opinions in relation to the father's proposal for a change in primary residence, followed by a period of no contact whatsoever with the mother for six weeks and thereafter alternate weekends and one day in the other week. Dr X said:
I think it would be devastating and they also have a very [close] relationship with their maternal grandparents, who are heavily involved in their care. I think it would be very difficult for them to deal with that. They love their mother, they love their maternal grandparents.
In relation to the father's proposal to split the twins, Dr X agreed with the suggestion from counsel for the mother that the effects would be "very traumatic" and added:
… I would probably extrapolate to say that it would turn into what I would call a red team/blue team type of family that whoever is with dad would then take up dad’s side and whoever is with mum would take up mum’s side probably to the point of complete estrangement between them.
Dr EE agreed with Dr X that this proposal of the father would probably create a situation of two completely estranged family groupings.
Dr EE agreed with the suggestion from counsel for the mother that the father's proposals indicated "a significant degree of insensitivity" or "[lack of] insight into the needs of the children. She added "it's worrying because he has had access to various clinicians". Dr EE said also:
…I am really concerned that he should think, well, “I am right” ... “I have thought this up, this is… my way of resolving the problem,” and “who cares what anybody else says."
As noted, the father withdrew these proposals after hearing the expert evidence. It is perhaps to his credit that he elected to do so, but, on the other hand, nothing can alter the fact that he advanced these arrangements in the first place.
Counsel for the ICL indicated that the proposal for a change in primary residence was designed to address an "unacceptable" risk to the children in the care of the mother. This unacceptable risk was said to be the experience of cognitive dissonance in her primary care.
In response to a question from counsel for the ICL, Dr EE referred to cognitive dissonance and said:
... if she really is unable to assist C, then, yes, I do have concerns. And she mightn't go to jail [sic], which means to make changes, again, we would have to come back to court, which we don't want to do. So if she's not going to prison, that means the boys are with her for the majority of time, which means that C is always having reinforced his complaints ... about his father, and that's the way he grows up. If she's unable to assist him with this, then that's a serious flaw, even though she's able to offer him ... the love she can give him.
Senior counsel for the father then asked "and it does raise a question mark about the appropriateness of the children continuing to live primarily with her doesn't it? Dr EE answered:
… it certainly would raise concern if the children aren’t having sufficient experiences of their own to know that whatever her perceptions of their dad is, they know he can be ... kind and safe and so forth.
…
However, if… she is steadily giving them the message, well, daddy is unsafe ... if that message is coming through to them and she’s unable to step back and say, well, actually they are safe with him, that, sure he’s not a perfect parent, but there’s no such thing; sure he’s going to make mistakes, but all parents do; that they are safe, he’s not damaging them,… – if she’s not able to give that message to the children, then I would agree that they need more time with their father so that they have their own experience of him and to have this experience where he is… a good enough parent. If that’s actually what he is – if that’s what he is, they need to know that.
Senior counsel for the father asked Dr EE "if, at the end of this trial, the court could not be confident that she would stop that conduct, then we have to be worried about the boys’ mental health arising out of that, don’t we?" Dr EE replied "Yes. Well, I’m worried about the boys’ mental health anyway."
During the course of this exchange, Dr EE spelt out her concerns as to the inability of both parents to implement feedback which did not accord with their opinions and beliefs. Senior counsel for the father informed Dr EE that Dr X indicated that the mother was unable to implement feedback that she disagreed with and did not accord with her view. Senior counsel for the father then put to Dr EE:
That accords with some of your observations, doesn't it?
Dr EE replied:
Yes, but there's also some – Mr Rosington, my observations of him too, and we go to that clanger he has of Munchausen… by proxy, which I know he has held onto despite talking about that with his treating psychiatrist whom he has a lot of respect for - in my impression ... this is not appropriate. He still trotted it out when I saw him.
The father made this assertion to Dr EE as recently as 6 April 2020. In May 2020 Dr EE reported:
He opined this was a case of Munchausen by Proxy, which he defined as "mothers damaging a child to prove their knowledge of medicine ... to be around doctors."
Dr EE agreed with counsel for the ICL that, if there is a change in primary residence, C may truant and "try and find his way back to his mother". She agreed also that it is likely that C would blame the father for the fact that he is no longer able to live with the mother.
When asked about the capacity of each of the parents to manage a change in residence for C, Dr EE said "Perhaps Dr X would need to live halfway between each household." Dr EE opined that B "might become very guilty" if removed from the primary care of the mother. She said:
I know there has been a lot made today about… how much, possibly, that was from the mum ... making him write those letters… and I don’t doubt that she has influenced him in that way ... one has to think about what B is bringing to this, and part of B’s adjustment to this situation is he wants to please everybody, and if he’s enjoying himself at dad’s, and he knows mum is anxious about him, and he knows – he has told mum he doesn’t like being there or whatever he has done, B is going to be guilty about loving being with dad, if he loves being with dad. He’s going to feel badly about it. So he might come home to mum ... spending time with mum, and telling stories, ... So the stories might continue, and he – so I’m going to the emotional response being guilt that he has – enjoys dad or being in dad’s household and that he has left mum all alone ...
When asked about the father's capacity "to give the children [his] blessing and be happy and love their other parent" Dr EE said:
Well, I suppose it’s why I responded to the last counsel’s questions, when I talked about Mr Rosington saying he doesn’t trust the mother. ... he really found it hard to speak positively about her. I mean, he was – you know, “she’s a good administrator”, “she’s a good –” there was a sense that he couldn’t –… He said “C needs mum’s love, not that I think that that’s real love.” ... So, yes, he sees himself to be the superior parent.
As to the mother, in this context, Dr EE opined as follows:
I think she has tried really hard. She has certainly supported the children in getting external resources. Now, you can think of that in a toxic way, that she has gone off to… make a big mountain out of a molehill. She’s pathologising the children ... to be able to get at the dad. Or you might see it as ... her anxiety about the children’s wellbeing. She wants to make sure that the children are fine, so she’s perhaps going off to see lots of people to make sure they’re fine, and that ... she doesn’t really trust her own opinion that much, but she does trust the experts, and she seeks them out.
Dr X agreed with Dr EE that the mother values the opinions of experts. Dr X said:
… Ms Rosington freely admits, to me at least, that parenting did not come easily to her and she has taken strong advice about parenting, which makes her a little rigid about parenting and what she has learned and not very well able to generalise. ... she has learnt these ideas very well and very conscientiously, but it means that she’s somewhat rigid in applying them. ...
Dr X contrasted the very different psychological experiences for the children in scenarios where they are removed now from the mother's primary care by court orders, as opposed to a transition to residence with the father if she is convicted and sentenced to imprisonment. Dr X said:
…that's a different psychological state because that’s inevitable, it’s not a loyalty conflict. Can I say that the family were genuinely moving along quite well but I suspect that this court hearing has been a point of escalation in the issues and if the children aren’t doing so well at the moment, I wonder about how the… court progress has impacted on the family. The difference is: if the children are removed under court orders to live with their father, in that I imagine they will suffer a significant amount of guilt and distress and, perhaps, do things that they think their mother might approve of, which is to be provocative, you know, smear more ice-cream, run away from home, do things like that, because they think it’s – because, in children’s thinking, they do more of that, it might let them return to their mother and they will worry about their mother, their grandmother has been treated for cancer ... they worry about her, I’ve seen that worry for her. So there’s that potential. The difference is if their mother is incarcerated – and hopefully that doesn’t happen – if that happens, then it’s not a choice that they can make and their adjustment is likely to be much better because of it.
In her 2020 report, Dr EE recommended that the children spend incrementally increasing periods of time with the father, leading to four nights per fortnight over the next twelve months. In response to questions from counsel for the mother, Dr EE indicated that it may be preferable to introduce an immediate regime of four nights per fortnight. She contemplated that Dr X would play a role in the introduction of such an arrangement.
Dr EE said that a four night per fortnight arrangement may assist C to settle into the care of the father. She considered that he "will not be able to put up the resistance that he is showing ... and start to join in, particularly if he can see the other kids are enjoying themselves ..."
Dr EE agreed with counsel for the ICL that five days per fortnight "is an option, and would give the children that period of time for dad to do a lot of hard work, dad and Ms RR, to make the boys feel secure in his household." She agreed that an introduction of a five night per fortnight regime would be likely to be a better option than in initial regime of four nights and then an increase to a nine/five split.
If there were to be a change of residence, Dr EE recommended that the children initially spend three nights per fortnight with the mother for approximately two months. In her view, the children should then spend nine nights per fortnight with the father and the remaining time in the care of the mother.
Section 60CC(3)(f) the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
and
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Each of the parties has in the past suggested that the other suffers from a psychiatric illness and/or a personality disorder. I have referred above to the father's contention to Dr EE that the mother suffers from Munchausens Syndrome by Proxy. The father alleged to a Family Consultant in March 2016 that the mother is "a sociopath". In a Children and Parents Issues Assessment in March 2016 the mother said that the father "suffers from serious mental health issues."
Dr EE identified no psychiatric illness or personality disorder in either party. As noted, in 2016 she recommended that the father undergo a psychiatric assessment "to exclude the presence of a bipolar disorder." Dr EE had raised this possibility in her first report, on the basis of the father's "history of mood disturbance, emotional lability, excessive alcohol use on occasions, sematic symptoms and at least one episode of significant violence."
Dr BB assessed that the father did not meet the criteria for a borderline personality disorder and opined that "the features described by ... Dr EE were present at times of stress" but were absent at the time of his report of 20 August 2018. Dr BB opined that the father did not meet the criteria for a diagnosis of narcissistic personality disorder, nor histrionic personality disorder.
Dr BB expressed the view that the father has a positive prognosis, as indicated by his longstanding relationships with family and friends, strong family values, support network, abstinence from alcohol, history of employment and the therapeutic relationship with himself. Dr BB considered that the father "has shown good progress and a significant improvement in insight with the progression of treatment."
In her oral evidence Dr X described the process by which the children's time with the father ceased in the period July to September 2019. She said that difficulties had occurred at changeover because "pretty much against my advice, [the father] included Ms RR and the children at arriving at Mum's house". She added that "[the father] wanted his new family constellation to be included; could not see that that might be provocative ..." and shortly after that "things fell down pretty quickly". Dr X said also "wanting his partner to go along and the children was just provocative. I really tried to show him how that caused our positive beginnings to go off track ..."
Dr X rejected a suggestion put on behalf of the father that the presence of Ms RR was "the mother's problem". She said, "It's rubbing her face in it". Senior counsel for the father then said, "Right. But that’s her problem, isn’t it?" Dr X replied:
It’s not. It’s a factor. People have foibles, people have feelings, it’s about fitting people together in a jigsaw puzzle that fits and works. It’s not – Mr Rosington is inclined to make up these theories that is entirely Ms Rosington’s problem and he has all these things about being a narcissist and all these theories that he has ...
As noted, Dr X declined to agree with a proposition from senior counsel for the father that "at the heart of the conflict is the mother's desire that the children's time with the father be minimal or none". Dr X disagreed and said:
I don’t think so. I didn’t say that. What I think is that she perceives problems with it and sees it as a negative experience for the children.
Dr X then added:
She would say, I would imagine, that she does want the children to see [him] but she would like an improvement in that relationship and probably, in her words, that it’s not about quantity but about quality.
Dr X expressed the view that the father struggles with an appropriate level of assertiveness in his dealings with the children. She said:
I’ve seen that they deal very well with him and are really enthusiastic for him but I can also see the problems with Mr Rosington in that he also doesn’t deal very well with conflict and doesn’t like negative emotions. And people who present that way typically struggle to be appropriately assertive and sometimes when they display anger they can be – it can be too much.
Dr X then said:
I’ve seen the children be very provocative and Mr Rosington have to use skilful techniques to try and turn them ... Mr Rosington presents as someone who is – who contains himself and holds himself quite well together but also impresses as someone who doesn’t manage negative emotions well.
In April 2020 the father discussed his proposal for a change in primary care, involving no contact and then limited supervised time with the mother, with Dr EE. She reported:
Asked to evaluate the pros and cons of his application, he mentioned the "pro" for B was he "will feel safe not having to explain himself when he gets home" and would "thrive” in his home. He said it was "harder to articulate" any positives for C.
The negative for C was not understanding why the decision was made and he "will see it as a punishment". Mr Rosington stated in "a perfect world, C's love needs would be met by Ms Rosington... he gets what he wants and needs" from her, which, he added, was "not real love in my terms".
Dr EE reported that the father then referred to "a perfect world" and said that:
... in it B would live with him and spend time with Ms Rosington, while C would live with Ms Rosington and spend time with him. He acknowledged the twins had a "very loving relationship" in the past but opined they were "now distant with each other".
During the trial, the father was asked for his opinions as to the likely reaction of the children to each of his two proposals. He offered these views before he heard the expert opinions of Dr X and Dr EE.
In relation to his first alternative, the father said words to the effect:
Each child will have a different response and my approach will be different. With B it will be a huge relief because he is asking to live with me. C is completely in his mother's camp and believes her version of events. He will require the intervention of therapists. Both children will need therapists.
He said also:
How will I cope with alternative 1? It's called parenting, lots of love and understanding, calling out behaviours and imposing strong guidelines.
In relation to alternative 2, the father said:
I agree it would be a very significant change for the boys. I would have held the view that twins have a special bond until I saw the chasm between B and C, compared to the other twins in my family. My observation is that C has no time for his brother, he is bullying and belittling whereas B is loving and extends a hand to his brother.
In April 2020 the father indicated to Dr EE that he considered that C would become "a complete narcissist if no change" occurred in his life. He said that C has "no empathy, not showing real feelings of his own (or) for others ... in sport, not a team player."
These remarks troubled Dr EE, who commented:
I have significant concerns about Mr Rosington's negative comments about C and narcissism. They suggest he requires a greater understanding of the development of toxic narcissism, as well as how and why a child becomes allied with a parent and might refuse time with the other parent during a high conflict parental separation.
Dr EE advised the father to engage with Associate Professor Z and Mr QQ in relation to B. She opined:
It is positive he wants to normalise B, seeing his immaturity but not wanting him labelled. However, B is a traumatised child and his father must be sensitive to how this manifests in B. It is advisable Mr Rosington make contact with A/Professor Z and Mr QQ [sic], to provide them with his experience of B and to understand their approach to helping B.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
I have dealt above with issues of family violence.
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
It seems to me that orders for a change in primary residence would be likely to lead to further litigation. In my view, there is a high probability that C would display challenging behaviours in the household of the father. Dr EE considered that C would blame the father and attempt to find his way back to the mother. She opined that B would feel guilty about enjoying life with the father and continue to make complaints to the mother. In my view, further litigation would be likely to create ongoing distress and uncertainty for these vulnerable children.
Conclusion
Most unfortunately for these children, there is no outcome to these proceedings which is likely to spare them from further distress and psychological damage. I do not consider that the evidence led to a conclusion of a clear-cut outcome of removal of the children from an "unacceptable risk" of cognitive dissonance in the care of the mother. In my view, each alternative placement is fraught with risk for these children.
I have referred above, in some detail, to the expert evidence of Dr EE and Dr X in relation to the likely consequences of a change in residence for each of the children. In addition to these foreshadowed psychological consequences I consider that there are potential risks to C's physical safety, if he attempts to make his way alone from Suburb I to the eastern suburbs in order to return to his mother. I have no reason to doubt that he is very likely to attempt to do so.
I am conscious of the expert evidence of Dr EE, to the effect that these children are particularly vulnerable because of the succession of losses which they have already suffered in their lives. Dr EE stressed that "the last thing they ... need is a significant separation from their mother."
Both Dr EE and Dr X were aware of cognitive dissonance which the children experience in the primary care of the mother, yet neither expert recommended a change in primary residence. Dr EE suggested that the children "need more time with their father so they have their own experience of him and to have this experience where he is – he is a good enough parent ...". (emphasis added)
Dr X said "I don't expect insight from the parents and I don't expect a change in family dynamics". Nonetheless, she advanced no proposal for a change in primary residence.
Dr EE expressed concern that a change of residence could well result in a harmful situation where the children live in an environment of mistrust, suspicion and criticism of the mother. I have referred above to the evidence as to the critical attitude of the father and his partner toward the mother. It seems to me that there is a real possibility of such an outcome.
The evidence left me in no doubt that successful implementation of a change in primary residence would be a very difficult and delicate undertaking for the father and his partner. I have real doubts as to their capacity to meet this challenge.
The father put forward two proposals for parenting orders which were described as "highly undesirable" and "disastrous" by Dr EE and "devastating" and "traumatic" by Dr X. It is true that the father withdrew these proposals after he heard this evidence but the fact remains that he was prepared to advance these options in the first place. I am now urged by the ICL and the father to entrust a risky and very difficult parenting exercise to a father who seriously advanced these proposals and a stepmother who is critical and suspicious of the mother.
I am mindful of the evidence of Dr X as to the different psychological experiences for the children of a removal by court order from the primary care of the mother, as opposed to a transfer to life with the father is she becomes unavailable due to incarceration. In simple terms, the latter alternative would involve no conflict of loyalty and would be accepted much more easily by the children. If the mother ultimately is incarcerated, there will be no alternative for the children other than placement in the primary care of the father.
I am mindful, of course that the outcome of these proceedings is to be determined by the court and not the expert witnesses. I cannot, however, ignore that neither Dr EE nor Dr X made a recommendation for a change in primary residence. Both experts were alive to the "cognitive dissonance issue", upon which reliance was placed by the ICL, yet neither recommended a change in primary residence.
I was taken to no evidence which would enable a conclusion that the regime proposed by the ICL, and adopted by the father, would alleviate the “unacceptable psychological risk” to the children which was propounded by the ICL. There was no evidence nor submission which explained why this risk would be addressed, alleviated or eliminated by a regime whereby the children begin to spend five nights per fortnight and half of all school holidays in the care of the mother, within eight weeks of the orders of the court.
It seems to me that the outcome of these proceedings involves a balancing of a number of risks, with no optimal result available to the children. On balance, I conclude that their particular vulnerabilities militate in favour of their remaining in the primary care of the mother. I will make orders which will result in their spending substantial and significant time in the care of the father.
I am reluctant to make overly prescriptive orders in relation to the children's time with the father, given that the intention of the parties seemed to be to engage further with Dr X. The orders which I will make are intended to be a
fall-back position, in the event that they are unable to agree upon the mechanics of implementation of a regime of five nights per fortnight, half school holidays and special occasions regime of time with the father.
Both Dr EE and Dr X recommended that there be an order that the children live with the father in the event the mother is sentenced to a term of imprisonment. Neither parent nor the ICL proposed such an Order, although the mother conceded a notation to that effect.
I will not make an order for change in primary residence in the event of the incarceration of the mother. In my view, a number of variables militate against making such an order at this time. The orders which I will make are designed in part to prepare the children for such an outcome.
I certify that the preceding one hundred and ninety (190) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 31 July 2020.
Associate:
Date: 31 July 2020
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Costs
-
Remedies
-
Procedural Fairness
0