Russell & Brookes
[2022] FedCFamC2F 115
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Russell & Brookes [2022] FedCFamC2F 115
File number(s): ADC 2884 of 2017 Judgment of: JUDGE BROWN Date of judgment: 21 February 2022 Catchwords: FAMILY LAW – Children – parenting arrangements – where father alleges that the mother is engaging in conduct that is alienating the children from him – where the mother denies such conduct – where the children are experiencing dysregulated behaviour – where the father has narcolepsy – best interests of the children – assessment of risk – whether a dramatic change in care arrangements would be in the children’s best interests – where such a change would be traumatic for the children – application of the paramountcy principle. Legislation: Evidence Act1995 (Cth), ss.140
Family Law Act 1975 (Cth), Part VII, ss.4, 60B, 60CA, 60CC, 61DA, 64D 65C, 65D, 65DAA, 65DAC, 65DAECases cited: B v B: Family Law Reform Act 1995 (1997) 21 Fam LR 676
Bartel & Schmucker (No 3) [2012] FamCA 1094
Bright v Bright (1995) FLC 92-570
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) [2015] FamCAFC 104
Fox v Percy (2003) 214 CLR 118
Goode & Goode [2006] FamCA 1346
H v W (1995) 126 Fam LR 788
Mazorski v Albright (2007) 37 Fam LR 518
MRR v GR (2010) 240 CLR 461
R & R: Children’s Wishes (2000) 25 Fam LR 712
Russell & Russell & Anor [2009] FamCA 28
Slater & Light [2013] FamCAFC 4
Stevenson & Hughes (1993) 16 Fam LR 443Division: Division 2 Family Law Number of paragraphs: 458 Date of last submission/s: 25 October 2021 Date of hearing: 19, 20 & 21 April, 25 June, 12 & 25 October 2021 Place: Adelaide Solicitor for the Applicant: Adelaide Family Law Counsel for the Applicant: Mr Anderson Solicitor for the Respondent: Mahony’s Lawyers Counsel for the Respondent: Ms Horvat ORDERS
ADC 2884 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RUSSELL
Applicant
AND: MS BROOKES
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
21 FEBRUARY 2022
THE COURT ORDERS THAT:
Parental Responsibility
1.That the applicant father, Mr Russell (“the Father”) and the respondent mother, Ms Brookes (“the Mother”) have equal shared parental responsibility for the children, X born in 2011 and Y born in 2012 (“the children”).
Live with and time spending arrangements
2.That the children live with the Mother.
3.That the children spend time with the Father as follows:
(a)On each alternate weekend from the conclusion of dance class on Saturday (or 9.00am if dance class is not in session) to 5.00pm on the following Sunday; and
(b)At other times as may be agreed between the parties in writing.
4.In the event that time pursuant to order 3 hereof cannot occur due to serious illness or injury to the children (or either of them) then:
(a)The Mother is to provide a medical certificate to the Father within forty-eight (48) hours of the Mother notifying the Father that the time spending pursuant to order 3 cannot occur; and
(b)Makeup time must occur on either the Saturday or the Sunday from 9:00am to 5:00pm on the following weekend (unless otherwise agreed by the parties in writing).
Special Occasions
5.For the purpose of the Christmas Period (24 to 26 December) only, orders 3, 8 and 9 of these orders be suspended and the children shall spend time with each of the parties as follows:
(a)With the Father in 2022 and in each alternate year thereafter from 10.00am on Christmas Eve to 10.00am on Christmas Day;
(b)With the Mother in 2022 and in each alternate year thereafter from 10.00am on Christmas Day to 10.00am on Boxing Day;
(c)With the Mother in 2023 and in each alternate year thereafter from 10:00am on Christmas Eve until 10:00am on Christmas Day in 2023;
(d)With the Father in 2023 and in each alternate year thereafter from 10:00am on Christmas Day until 10:00am on Boxing Day.
6.That such times in orders 3, 8 and 9 be suspended in order to enable such special occasion time to be agreed between the Mother and Father in writing, and failing agreement, as follows:
(a)For Mother’s Day, if the children are in the Father’s care, the children are to spend time with the Mother from 10:00am to 5:00pm on Mother’s Day.
(b)For Father’s Day, if the children are in the Mother’s care, the children are to spend time with the Father from 10:00am to 5:00pm on Father’s Day.
Time spending from 1 January 2024
7.That not before 1 January 2024, at the Father’s discretion and election only and upon providing written notice to the Mother at least seven (7) days beforehand, order 3 herein shall be suspended and order 8 shall be implemented.
8.That the children spend time with the Father during school term time as follows:
(a)On each alternate weekend from the conclusion of school on Friday (or 5.00pm if a non-school day) until the commencement of school on Monday (or 9.00am if a non-school day); and
(b)At such further or other occasions as may be agreed between the parties in writing.
9.That in the event the father exercise the election conferred upon him by order 8 hereof and at any stage beforehand, he be a liberty to engage whatever suitably qualified therapist, including Ms B, to conduct re-unification therapy between him and the children as the therapist so engaged considers appropriate at the father’s sole expense.
School Holidays and Christmas from 2024
10.From 2024, the children spend time with each of the parties during the short and Christmas school holiday periods on a week about basis from the conclusion of school on Friday (or 5:00pm if a non-school day) until the following Friday at 5:00pm NOTING THAT if the children do not spend seven consecutive nights with the Father during school holiday periods, then the time prescribed by orders 3 or 8 shall continue in any event.
Handover
11.Unless otherwise agreed between the parties in writing, all handovers that do not occur at the children’s school do occur as follows:
(a)C Centre, D Street, Adelaide 5000 in the event that the children’s time with the Father commences at the conclusion of dance class;
(b)Otherwise, in the car park of the E Hotel located at F Street, Suburb G NOTING THAT either parent be at liberty to nominate a third party to effect handover.
Miscellaneous Orders
12.The Father and Mother each be identified as enrolling parents and emergency contacts at the children’s school and for the purposes of extracurricular activities.
13.The children’s school, and other care providers be authorised by operation of this order to provide all information and documents about the children to the Mother and Father, including but not limited to the children’s progress, newsletters, reports, photographs and details of any school activities.
14.That each parent be at liberty:
(a)To discuss matters relating to the care, welfare and development of the children (or either of them) with any representative of the children’s school and other care providers;
(b)To attend any school events, and extracurricular or sporting events to which parents are ordinarily invited;
(c)To obtain any information whatsoever from any medical practitioner treating the children (or either of them) or any hospital at which the children have been admitted or treated subject to the discretion of the treating practitioner at all times AND production of this order shall suffice as authority for each parent to obtain such information.
15.Each parent must advise the other of:
(a)Any significant illness, accident or injury suffered by the children (or either of them);
(b)Any significant medical or dental treatment provided to the children (or either of them);
(c)Any medication that the children are to take whilst the children in the other’s care including the dosage of such medication.
16.That the parties be restrained and an injunction granted restraining each of them from:
(a)Denigrating the other parent, or their respective partner, family or friends, directly or in the presence of or hearing of the children and each parent is to use their best endeavours to ensure that no-one else does so and they shall remove the children from any environment where such denigration is occurring;
(b)From passing information or messages through the children to the other parent.
17.The Father be at liberty to provide a copy of these orders to the following persons and/or entities:
(a)The children’s school;
(b)The children’s treating medical practitioners and allied health professionals (when and if applicable).
18.In the event the either party brings an application to the court as a result of non-compliance with these orders, then the Registrar of the court is requested to re-list the matter on an urgent basis.
19.That all extant applications be dismissed and the proceedings are finalised.
Note: The form of the order is subject to the entry in the court’s records.
Note: This copy of the court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Russell & Brookes has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION:
Mr Russell (“the father”) and Ms Brookes (“the mother”) are the parents of X born in 2011 and Y born in 2012. These reasons for judgment are directed towards resolving controversies regarding final parenting arrangements for X and Y.
The father wishes the children to come and live immediately with him and spend no time with their mother, in the short to medium term, whilst they are, in effect, compulsorily required to re-engage with him, away from what he would categorise as the negative and alienating influence of their mother, who is emotionally abusing them.
It his case that it is the court’s fundamental obligation to protect the children from this abuse and ensure their right to have a meaningful level of relationship, with him, is upheld. Underpinning his case is his view that the mother has been given ample opportunity to mend her ways and start being supportive of his relationship with X and Y but is incapable of doing so – hence the need for extreme action from the court.
For obvious reasons, the mother is vehemently opposed to such an outcome, which she contends can only result in the children suffering an inordinate and unacceptable level of trauma, with which they will not be able to cope or understand and which has the potential to stunt their emotional development with serious and long term consequences for each of them.
It is her case that the father is a compromised and un-insightful parent, who is not capable of managing the children’s complex needs. In these circumstances, she asserts that the children are responding to the understandable level of antipathy, which they hold for their father and which stems from their largely negative experience of him in recent years.
She denies that she has either consciously or unconsciously been engaged in any process of alienating the children from their father. She asserts that although the relationship between them is obviously fraught with difficulty, it can still be maintained, with some form of expert therapeutic assistance. In this regard, she promotes, Ms B, a child and adolescent psychologist, who in turn was recommended by the writer of the family report in this case, Ms R, a family consultant and social worker, by profession.
During the case, on numerous occasions, Ms Brookes has indicated to me that she strongly desires that X and Y have some form of relationship with their father and she is not the cause of the difficulty in this case. On the other hand, it is the father’s case that any logical analysis of what has occurred in the four years or so the case has been before the court indicates otherwise.
In these circumstances, he comes to his final position with a heavy heart. It being his case that it would be, by far, his preference that the court not take the extreme course currently advocated by him and remove the children from their mother. Rather, as was his position at the outset of the case, he would prefer to have a regime which saw X and Y continuing to live with their mother and spending regular periods of time, on weekends and school holidays, with him.
However it his positon that he has come to the sad realisation that unless extreme action is taken, it is inevitable that the children will have no viable form of relationship with him, during the remainder of their childhood, as the mother simply cannot be trusted to do what she promises to do in respect of restoring his relationship with the children. Rather, for reasons related to her antipathy for him or for some other factor or factors unknown to him, she will continue to do whatever is in her power to undermine his relationship with X and Y.
There is no controversy that the mother has been the children’s main provider of care for many years. The care of the children, particularly X, is not without its challenges. She has been diagnosed with Autism Spectrum Disorder (“ASD”), which renders her liable to have difficulties in social situations and to be highly reactive, when roused. A developmental disability psychiatrist, Dr J has opined that X’s special needs have the potential to cause her “some confusion and anxiety which has led to behaviour problems”.[1]
[1] See Annexure 4 to the Affidavit of Ms Brookes filed 1 April 2021.
Notwithstanding, these difficulties, the mother is able to secure the children’s attendance at a mainstream school and at various extramural and therapeutic activities. They also visit members of the maternal family and their friends, without apparent difficulty. The children’s reports, from K School, are positive in their tone.[2] The school is located in Suburb L.
[2] See Exhibit C.
However, the parties, with or without professional assistance, have encountered extreme and extraordinary difficulty in getting the children to go into their father’s care or enter his home and particularly his motor vehicle. A variety of intermediaries have been used, including the children’s school and trained social workers and psychologists, with little success.
At handovers and when the children do on occasion come into their father’s care, each child displays a range of dysregulated behaviour. This has included running away; undoing their seatbelts and attempting to exit his motor vehicle, whilst in motion; spitting and kicking at him; and abusing him. All this behaviour occurs in concert with both children vehemently asserting their apparently shared desire not to spend any time with him and dislike of him.
When the children have spent extended periods of time with their father, each has declined to eat any meals provided by their father or to sleep in the beds provided for them, preferring to sleep on the floor under the beds. It is the father’s evidence that he finds this behaviour deeply upsetting. He has deposed that he has no desire to further exacerbate the children’s distress but, at the same time, does not wish to abandon his relationship with them.
Accordingly, the case creates a dilemma. More the children from their parent, who has been their primary provider of care, over many years and run the risk that, at worst they will lose the possibility of having a relationship with their father, as they grow to maturity or, at best, that they have only a fraught and truncated relationship with him or place them in the care of their father, where there must be a significant risk that their oppositional behaviour will become worse and they become distraught at being separated from their mother.
It is an extremely difficult case, which provides no obvious solution. Clearly, the court must be guided by what it thinks will be the outcome, which best serves the interests of the children. Their interests are multifaceted and have both short and long term implications. The possibly short term trauma of being placed in the care of their father, balanced against the long term implications of possibly having no paternal relationship.
Whatever is the ultimate outcome it will create difficulties for the children. There are significant risks that the children will lose their relationship with their father and members of their paternal family, particularly their paternal grandmother, Ms M.
Given the vehemence of the children’s previous reactions to their father, placing the children in his care can only regarded as being fraught with significant and perhaps as yet inchoate perils. Then there are the difficulties of how and when the children are to be re-engaged with their mother and what will be the implications of this. Will the children again reject their father or will some other hitherto unseen problem or trauma emerge?
All these problems have to be considered in the context of what are the parties’ limited means. They will not be able to access skilled professional help easily, to assist with problems as they arise. In addition, it is hardly likely that they will be able to cope with these problems in a cooperative fashion. At present, the parties communicate with difficulty and their relationship is characterised by mutual antipathy and mistrust.
Having heard evidence from both Mr Russell and Ms M, I have no doubt that each of them loves X and Y deeply and therefore, for the children to lose these relationships with their paternal family, will be greatly detrimental for them as they grow to maturity. In essence the children will be deprived of an important ingredient of their individual identity through no fault of their own.
On the other hand, to ensure the children have some form of relationship with their father, the court may be compelled to take extreme steps, which have the potential to cause the children great emotional trauma and axiomatically will be fervently opposed by the children’s mother, who has provided the vast majority of the children’s nurture, in both a physical and emotional sense.
For obvious reasons, Ms Brookes is hardly likely to be cooperative in the implementation of any extreme measures directed towards the reinstatement of the children’s relationship with their father and, as a consequence, any regime directed to maintaining the children’s relationship with their mother, in these challenging circumstances, is also highly problematic.
In short, the case is an imbroglio of competing considerations. In such circumstances, it is somewhat misguided, in my view, to mouth platitudes about what is in X and Y’s best interests. There is nothing positive for them arising from the current proceedings. Rather, the court must choose between unpalatable options and consider of these what is the least bad one for the children.
BACKGROUND
The father was born in 1984. The mother was born in 1981. The parties have never married. They began to live together in 2008 and initially separated in February 2014, later unsuccessfully attempting to reconcile in the early part of 2015. Between the first date of separation and the commencement of the proceedings, the parties had an uneasy and muddled relationship with one another.
Each party asserts that the other was coercive, controlling and physically violent towards him or her, during their relationship. The father alleges that the mother pushed him into walls and hit him and on a few occasions threw kitchen utensils, including a knife at him and these heated arguments and fights took place in the presence of the children.
The mother deposes that these allegations are untrue and improbable because of the size differences between the parties. She asserts that when the parties did argue, which was frequently, the father would overpower her and hold her down. She alleges that the father threw the children’s meals on the ground, on one occasion in 2013, when he lost his temper.
These issues are difficult to resolve on the basis of an assessment of credit alone, as there is no corroborating evidence. The one exception relates to an incident after separation in January 2015, when the mother attended at Mr Russell’s sister’s home, where he was living at the time. She threw a brick through a window and climbed into the house at approximately 11.00pm. The children were with her.
The father described the mother as hysterical and demanding that he come and talk to her. It is his evidence that he attempted to disengage but the mother would not leave the scene, so police were called at about 1.00am the following early morning. Ultimately the mother was arrested and charged with aggravated criminal trespass. The mother ultimately pleaded guilty to the charge and an intervention order was made against her in the father’s favour.
In her trial affidavit, the mother deposes that she broke the window accidentally and the father then invited her into the house to help her clean blood off herself, where she had cut herself. Thereafter, due to the violence in the parties’ relationship, she asserts that she had no alternative other than to plead guilty to the charge against her and agree to the intervention order. This does not ring true to me.
After separation, X and Y continued to live with the mother, at the parties’ former family home in F Street, Suburb G. Mr Russell moved in with his mother and has lived with other relatives. It is the father’s case that, notwithstanding the intervention order, he moved back into the house for a few months in early 2016 to assist the mother and to be able to spend time with the children, as he asserts that the mother would not allow him to see the children without her supervision.
The parties agree that the father finally left the home in April 2016, although they disagree about the circumstances leading to his departure. Thereafter, it seems relatively uncontroversial that he did not see the children at all. This led him to institute proceedings in mid-July 2017. It is his case that he did not bring proceedings sooner because he had to save up to hire a lawyer to prepare the case for him.
The parties have been involved in tortuous and bitterly contested litigation in the four years which have followed. This litigation has involved input from several professionals but regrettably to no avail. Rather, as time has passed, the positions of the parties have become more and more polarised, until the court is left only with the unpalatable dichotomy described above, which seems incapable of compromise.
The parties are not wealthy individuals. During the parties’ relationship, the father was the family’s main bread winner. He worked as customer service officer and at an office and more recently, he has been employed as a tradesman. The mother has a congenital heart defect. As a result, she is entitled to a disability pension. She was not in paid employment during the parties’ relationship.
The father’s income is a modest one. He currently earns a salary of around $52,000.00 per annum. He has re-partnered. His current partner is Ms N. They commenced living together in October 2019 and are now engaged to be married. They are expecting their first child in early 2022. She is a professional, earning around $67,000.00 per annum. Mr Russell and Ms N have purchased a home in Suburb O, they have a mortgage.
Mr Russell is funding the current proceedings which have cost him well in excess of $30,000.00, which he has borrowed from his mother. The case has also left him emotionally worn out. As such, his counsel Mr Anderson contends that he cannot afford to continue on with the proceedings and he wants them to be finalised. This is relevant in the context of the mother’s proposal for some form of reunification counselling to be undertaken, which if ordered may lead to the case being adjourned.
Due to her limited means, Ms Brookes is legally aided in the proceedings. She is in favour of Ms B being engaged, prior to any change of residence being considered. In these circumstances, she is not opposed to the case being adjourned as this will not have any immediate financial implications for her. However, she is not in a position to make any contribution to the cost of Ms B’s involvement with the family and, in her evidence, Ms B has indicated that her fees are not capable of being claimed under a publically funded mental health care plan or subsidised by Medicare.
Mr Russell recognises that it will be extremely challenging for the children to be placed in his immediate care. He describes his current employer as being supportive of the familial responsibilities of its employees and, as such, prepared to offer him flexibility in his working hours. He could also take some leave but would have to return to work for financial reasons. Ms N is proposing to take extended maternity leave. How she and the father would cope with both a new baby and the responsibility of parenting X and Y in their new and challenging circumstances must be a matter of conjecture.
Ms Brookes submits that these combination of factors axiomatically can only have the potential to end in chaos for all concerned, particularly X and Y and therefore be destined to fail, particularly when other practical consideration relating to factoring travelling times between the children’s school in Suburb L and the father’s home in Suburb O and his place of employment in Suburb P are factored into the equation.
One major source of regret I have in the management of this case is the failure to appoint an independent children’s lawyer for X and Y. In a large part this omission is due to the manner in which the case has unfolded. Throughout the proceedings, Mr Russell has been prepared to act in an extremely gradual and patient manner. It being his position that, with time, the family would adjust the trauma arising from the separation.
In addition, at least during the early phase of the proceedings, Ms Brookes’ major concerns relating to the father centred on the fact that Mr Russell had been diagnosed with narcolepsy in November of 2013. He became consulting a respiratory medicine and sleep disorders physician Dr Q. It has been Mr Russell’s position that his condition poses no risks to the children and the mother has consistently over-stated her concerns.
In these circumstances, he was hopeful that if the court was provided satisfactory evidence in this regard, the parties would be able to work through the issue and his relationship with the children normalised. In this regard, his optimism has proved to be spectacularly misplaced. In her evidence, the mother has indicated that she believes that the father’s condition remains a potent threat to the children and the father himself has a cavalier disregard for its seriousness.
In this context, it is interesting to note that one significant aspect of the children’s dysregulated behaviour, as reported by the father and Ms N, relates to their refusal to get into his motor vehicle and their attempts to escape it, even when the vehicle is moving.
Obviously, the children themselves are incapable of making any rational or subjective assessment of the level of risk their father’s narcolepsy poses for them. The mother ostensibly remains convinced that it is a potent problem. Accordingly, it would seem probable that, in some way, either consciously or unconsciously, at least so far as Y is concerned, their behaviour stems from something relating to their mother.
Dr Q first provided a medical report in September of 2017, in which he indicated that he had no concerns regarding Mr Russell’s narcolepsy or his capacity to care for X overnight. Mr Russell has disclosed the condition to the driving licence authorities and holds a driver’s licence, which was issued after he undertook a maintenance of wakefulness test.
Ultimately, Dr Q was called to give evidence and I will comment on this evidence in due course. At this stage, it is the father’s position that the mother has seized on his narcolepsy as a pretext to interfere with his relationship with the children and has either consciously or irrationally exaggerated it as a risk to the children, which they, in turn, have either consciously or unconsciously taken up.
STANDARD OF PROOF
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[3] I have tried to reach my conclusions on credibility and reliability ‘on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events’.[4]
[3] See Evidence Act1995 (Cth) s 140.
[4] See Fox v Percy (2003) 214 CLR 118, 129 [31] (Gleeson CJ, Gummow and Kirby JJ).
In addition, I bear in mind section 140(2) of the Evidence Act 1995 (Cth), which indicates that in applying this standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged.
I found Mr Russell to be a gentle and unassuming person. He did not seem to me to be motivated by any feelings of ill-will for the mother. When he indicated his view that she was a good mother, I did not think that he did so in any attempt to ingratiate himself with the court or to create a good impression of himself to it. It was not a self-serving statement.
In these circumstances, I accept that he genuinely comes to his position – that the only mechanism through which he can have any semblance of a normal relationship with X and Y is if the children are immersed as quickly as possible in his care – with a heavy heart and not because of any ill-will he feels towards Ms Brookes. I also accept that he fervently loves the children.
Clearly, the evidence available in this case indicates that the behaviour of both children, but particularly X, is extremely challenging and necessarily has the patience to be trying for even the most level tempered of individuals. This is one of the central evidentiary issues in the case. It being Ms Brookes’ case that the father is essentially disinterested in the children and little capacity to engage with them in a patient and child-focussed manner.
Interestingly, in this case, I have two videos of the father interacting with the children on 1 September 2019 and 22 December 2019 taken by the children, whilst playing with Mr Russell’s phone. Accordingly, it cannot be said to have been staged. Rather both videos appeared to be spontaneous in nature. I also have a longer video, taken by either Mr Russell or Ms N at a handover on 15 August 2020.[5] I will refer to this latter video, when I come to it in the relevant sequence of events.
[5] See Exhibit B.
What strikes me about these videos, is the patience and love displayed by Mr Russell for the children and his obvious delight in being with them. More significantly, in my view, it shows the children having fun with their father, a phenomenon also observed by Ms R, a family consultant who has been engaged to oversee visits between the father and the children and more recently to compile two family reports.
The overall effect of Mr Russell’s evidence is of a person capable of enormous levels of forbearance and patience, which has been sustained over many years. This has not been helpful to him as his hope that the case will sort itself out has been misplaced and has led to it being greatly delayed.
Mr Russell does not strike me as a vindictive person. At this stage, I accept that he comes to the position that the children need to be removed from their mother genuinely believing that it is the best outcome for them. If I have any criticisms of him it is that he may have under-estimated the level of difficulty this will involve and the opposition that it will inevitably precipitate in Ms Brookes.
Regrettably, I did not find Ms Brookes to be an impressive witness. Rather, I was left with the impression that she would say whatever she considered would be helpful to her position. I do not accept her evidence that she wants the children to have a more normal relationship with their father. In my view, her actual conduct points in the exact opposite direction.
For reasons and motivations about which I can only conjecture, I assess that Ms Brookes will remain ill-disposed towards Mr Russell for the indefinite future. I have grave reservations, despite what she may say to the contrary, that she will ever change this view. More significantly, I am concerned that she is more than capable of manipulating the children in order to harm Mr Russell in the most immediate way she can.
Having indicated these things, I have no hesitation in writing that I have no doubts that Ms Brookes loves X and Y very much indeed and apart from her singular incapacity to support the children having a relationship with their father is a well-motivated and capable parent. The children are her life.
Mr Russell’s evidence that the mother is liable to sabotage interventions directed towards securing him having a more normal relationship with the children is support by the evidence of Ms N, Ms M, Ms R and her trainee, Ms S. Each of whom I assess to be a sensitive and considered witness.
The danger implicit in this case can be easily stated. It is the children’s best interests which are paramount, not the desires or aspirations of their parents. As such, the children are not to be awarded to one parent over the other, as a reward for good behaviour or to penalise bad. The outcomes in this case can be twisted, like the surface of a Rubik’s Cube, to achieve a perfect outcome. Some cases are incapable of having a satisfactory end.
SEQUENCE OF EVENTS
The father commenced these proceedings on 14 July 2017. He sought the parties be equally conferred with parental responsibility for X and Y. On a final basis, he proposed that the children continue living with their mother and spend time with him, during school terms, on alternate weekends, from after school on Friday until the commencement of school the following Monday and, in the other week of each fortnight, overnight on each Wednesday.
At the time, he conceded that he had not interacted with the children for a period of around 18 months. In these circumstances, on an interim basis, he proposed being reintroduced to the children on a gradual and incremental basis, commencing with 3 hours on each Saturday and Sunday.
Although it was not his preference, he did not oppose the time being supervised. In addition, on both an interim and final basis, he had proposals to spend time with the children on special occasions and during school holidays and for him to be involved in making decisions regarding their education and medical treatment.
In his initiating affidavit, Mr Russell indicated that his income at the time was $42,000.00 per annum. He had been assessed to pay child support on this income but was also paying the children’s private school fees to attend T School in an amount of $5,500.00 per year.
The children no longer attend this school, which from Mr Russell’s perspective was beyond his means. This remains a source of significant recrimination, so far as Ms Brookes is concerned. She was upset at what she perceives as the father’s high handed decision to end the children’s education at what she regards as an excellent school, to which both parents had committed during their relationship.
Mr Russell explained the delay in commencing these proceedings in the following terms:
After leaving the house in April 2016 I enquired with the Legal Services Commission regarding my eligibility for a grant of legal aid but unfortunately I was not eligible due to the means test as I was working full time.
I began enquiring with Family law firms around Adelaide and soon discovered that engaging a solicitor was a very expensive exercise and unfortunately I did not have the funds necessary to engage a solicitor nor did I have sufficient ability to engage in a payment arrangement due to my annual wage of $42,000.00 per annum.
I decided to save money over the past 12 months to come up with the funds necessary to engage a solicitor, hence why I am only initiating proceedings now.[6]
[6] See Affidavit of Mr Russell filed 14 July 2017 at [47]-[49].
In addition, attached to his affidavit, were copies of text messages, commencing in August 2016 from him to Ms Brookes, in which he requested to spend time with the children, along with her waspish replies, rebuffing his overtures. The correspondence confirms my impression of each of the parties, garnered as a consequence of my lengthy exposure to them, whilst being cross-examined in the witness box.
The father strikes me as an even-tempered and unassertive person, who is measured in his communication style; whilst the mother is querulous, self-absorbed and lacking in empathy and insight. She continues to be bitterly disposed towards Mr Russell for a variety of reasons but chief among them is her perception that his behaviour has disadvantaged her financially.
The mother responded to the father’s application on 14 August 2017. On both a final and interim basis, she proposed that she have sole parental responsibility for X and Y. On an interim basis, she proposed that the father have professionally supervised time, with the children, at a children’s contact service. Thereafter, on a final basis, she proposed that the children have only three hours on alternate Sundays, with their father, to be supervised by the maternal grandmother.
One of the main planks, of her case, at this stage, was her assertion that the father’s narcolepsy represented a significant danger to the children, particularly if he was driving a motor vehicle or fell into a deep sleep, from which he could not be roused, whilst the children were in his care, in the absence of another adult.
In support of her case, she asserted that Mr Russell had fallen asleep at the wheel on many occasions and his narcolepsy was so severe that he often could not be roused, once he was asleep, by either her or the children. In my view, Mr Russell has gone to significant lengths to dispel Ms Brookes’ anxieties in this regard. As already been noted, one of the significant features of this case is the apparent anxiety the children have displayed to enter or remain in Mr Russell’s motor vehicle.
In addition, in her responding affidavit, Ms Brookes also placed significant emphasis on her view that Mr Russell was not able to manage the behavioural manifestations of X’s ASD, particularly given the child’s propensity to have meltdowns and to become absorbed, for lengthy periods of time, in simple activities such as brushing her teeth. The implication of Ms Brookes’ evidence being Mr Russell lacked the patience and insight to calm X down and was likely to lose his temper with her.
X’s Autism
It seems clear that Mr Russell was not involved in the process leading to X being diagnosed with ASD. The diagnosis was made, after the parties separated, by Dr J in early 2016. Dr J considered that X met five of the ‘A’ criteria and three of the ‘B’ criteria for a diagnosis of ASD. The A criteria being as follows:
·Abnormal social approach, exhibited by difficulty with one on one play and more so in groups;
·A lack of initiating or response to social interaction. One of the consequence of this was that Y was more advanced in social interaction than her older sister;
·A failure to be able to hold back and forth conversation, manifested by a difficulty in comprehending social cues, a propensity for repetitious use of language and to become over excited in her communications. This had the potential to other children seeing her as odd;
·A reduced sharing of interests, emotions and responds with others. This led X to be difficult to calm down and to have protracted meltdowns over minor things;
·Difficulties in developing, maintaining and understanding social relationships.
In respect of the three B criteria, these can be summarised as follows:
·Repetitive patterns of behaviours, interests and activities;
·Highly restricted and fixated interests that are abnormal in their intensity and focus. In X’s case, this was manifested with pressing buttons on bank machines;
·Hyper or hypo-reactivity to sensory experience, such as having her hair or teeth brushed or her nails cut. She apparently feels uncomfortable, when a car seat belt is put over her body.
As a consequence of Dr J’s involvement, X was referred for an assessment as to the treatment, which would assist her. In October 2015, it was recommended that X have individual weekly speech pathology and occupational therapy sessions and she and her parents receive regular family therapy “to help them understand social emotional development and how best to support X in her social emotional journey”. From Mr Russell’s perspective, he has had limited, if any, involvement in this process.
The speech pathologist and occupational therapist, who provided this treatment plan, in October 2015, concluded their report with the following statement:
X needs a complex, and only by taking on a holistic, family based approach will we be able to facilitate her development so she feels safe, secure and competent in the world.[7]
[7] See Annexure -1 to the Affidavit of Ms Brookes filed 14 August 2017.
Ms Brookes has provided a brief report dated 27 August 2020 from Ms V, who is a senior occupational therapist, who has been providing fortnightly therapy to X since February 2019.[8] She noted the importance of routine for X as she was likely to be upset by changes which she would find difficult to process.
[8] See Exhibit E.
Ms V also recommended the use of positive reinforcement strategies to manage her disruptive behaviour as opposed to the use of punishments, which she characterised as restrictive practices, which included what she termed aversive restraint, which had the potential to do more harm than good. This section of the report is controversial in the light of a technique, known as the bear hug, which Mr Russell has utilised to restrain X when, in his view, her behaviour has put her at risk of suffering harm.
Significantly, in the context of the current issues in dispute between the parties, Ms V wrote as follows:
At X’s age and with her level of understanding and development, I believe X should have a right to voice where she wants to spend her time and what activities she engages in (within reason, i.e. attending school is non-negotiable). In an OT session, X reported to me that she does ‘naughty things’ because she doesn’t want to be somewhere or with that person because they are mean to her. If X is actively making bad and dangerous decisions, I do not believe this is beneficial for her emotional, mental and physical wellbeing and she should have a choice in the matter. If X is put in a position where she physically feels unsafe or doesn’t want to be there, then it is detrimental to her development and wellbeing.
If visitation is occurring in an environment or place where X feels unsafe and wants to abscond from, it should be considered being done instead in an neutral environment (i.e. park, playground, café) and remain there until X is comfortable moving elsewhere. It may also be beneficial to have minimal people present too.[9]
[9] Ibid on page 2.
Events after the instigation of proceedings
The case came into court, for the first time, on 21 August 2017. On this occasion, orders were made for Mr Russell to begin to spend time with X and Y, for two hours on alternate weekends, at the Suburb W Children’s Contact Service “CCS”.
Given the waiting time for this service, pending the implementation of this time, it was directed that the children spend time, with their father, at a children’s play café, from 1.00pm until 3.00pm, subject to the supervision of their maternal grandmother or another person, Mr Z, who was a nominee of the mother. Mr Russell was also directed to provide a medical report in respect of his narcolepsy.
Between August 2017 and early-December 2017, Mr Russell was only able to spend time with the children on five occasions. Difficulties were experienced by the nominated supervisors in getting the children to leave motor vehicles and enter the play café. Other problems arose when the maternal grandmother had to have surgery and Mr Z was unavailable.
Mr Russell deposed that, on the occasions when he was able to spend time with the children, his interaction with them was positive. However, he also complained that both children made comments, which he considered inappropriate and likely to have originated with their mother. In particular, Y mentioned that “Mummy has no money because [the father] took the money away [and] Mummy doesn’t have the money to replace broken toys” and X indicating as the reason why she withdrew from playing with her father “because Mummy says we’re not allowed to play with you”.[10]
[10] See Affidavit of Mr Russell filed 1 December 2017 at [10]-[18].
Overall, the effect of Mr Russell’s evidence is that after a first successful visit, with the children in late August 2017 the time gradually became more problematic. One visit was aborted because X refused to leave her mother’s car and Y would not go to her father without her older sister.
Concurrent with his updating affidavit, Mr Russell provided a report from Dr Q, which indicated that Mr Russell’s GP had proscribed him with Dexamphetamine – an amphetamine based wake promoting agent – to assist him with wakefulness. In addition, Dr Q had conducted a maintenance of wakefulness test on Mr Russell, which was found to be normal. In these circumstances, whilst Mr Russell maintained his medication, Dr Q had no concerns regarding Mr Russell’s ability to operate a motor vehicle or care for his children vis-à-vis any issue relating to his narcolepsy.
On 5 December 2017, the father time with the children was extended to a maximum of three hours. Again the time was at the neutral location of a children’s play café and subject to the supervision of the maternal grandmother. The father’s impression was that Y was excited to see him but X was more reserved until she saw Y playing enjoyably with her father.
In the lead up to Christmas, the parties fell into dispute as to what was an appropriate gift for the children. The mother contending that they had asked for a bicycle rack. The father contending this was unlikely to be the sort of gift children aged five and 6 would request. From the father’s perspective, the issue is reflective of the mother’s lack of child focus.
The involvement of professionals with handovers and supervision
The professionally supervised time ordered by the court to take place at a children’s contact service, was scheduled to begin on 28 January 2018. X did not separate from her mother on the first CCS visit, whilst Y did. However, at the conclusion of her time, Y indicated to the relevant supervisor that she had had a good time and wanted to see her father again.
On the second CCS visit, X again declined to spend time with her father, whilst Y was willing to engage with him. The same pattern followed on each of the subsequent visits. The final visit was on 22 April 2018. The relevant report concludes as follows:
The worker asked Y how the visit had gone and she said, “Good. Fun.”. The worker asked what she did not like about the visit and Y said, “None”, and talked about the cutting activity.
Y ran to Ms Brookes and they hugged. Ms Brookes said, “Did you have a good time”, and Y said, “No”. Ms Brookes asked Y did not respond.[11]
[11] See Annexure MO1 to the Affidavit of the father’s solicitor filed 23 April 2018.
It had been envisaged that the CCS time would proceed in tandem with the father spending periods of around three hours in duration, with the children, at the play café, to make up for time lost whilst the paternal grandfather had been indisposed. This time did not occur as the mother indicted the children did not want to go.
The case returned to court on 26 April 2018. From the father’s perspective the time in question had been far from problem free, particularly so far as X was concerned. In these circumstances, given the end of the CCS sessions, the parties agreed to engage either a social worker or psychologist to oversee at least three play sessions, of one hour in duration, between the children and their father. Initially, the expert agreed upon was Ms AA, an experienced social worker and child and family consultant. She engaged with the father and the children on 3 June, 10 June and 17 June 2018.
During the first visit, Y engaged with her father, albeit in a boisterous manner. X’s behaviour was more challenging. Ms AA reported her hitting her father and throwing Uno cards around. Y indicated to her father that your brain is broken…you fall asleep when you drive. She also questioned the suitability of his car seats.
During the second visit, X again displayed challenging behaviour. Her father asked her to desist from throwing toys and ripping up the playing cards. X responded that she didn’t care and left the playroom and returned to her mother outside. Y played with her father, at times in a rough house manner. X later returned to the playroom but was disruptive again. A similar pattern occurred on the third visit.
From the father’s perspective, the time with Ms AA was frustrating and inadequate. It is his view that the presence of the mother outside the playroom inevitably led to X, in particular, being distracted from engaging with him. The implication of his evidence being that the mother was well aware of the effect that she was having but was unwilling to leave Ms AA’s rooms for the short sessions involved.
After the end of Ms AA’s involvement, it had anticipated that the father would begin to have unsupervised time with the children for periods of three hours on alternate Sunday afternoons. The first scheduled visit did not occur as the mother indicated the children did not want to go to their father. Similar problems arose in respect of subsequent visits.
Ms AA was either unwilling or unable to continue to assist the family after her initial involvement. When the case returned to court in mid-August 2018, the parties agreed to engage another child and family consultant, Ms R, to assist them with handovers. Ms R has been significantly involved in the case thereafter.
Ms R’s initial brief was to supervise the exchange of the children between the parties at her office. The mother was directed to leave the office immediately she had delivered the children there and Ms R was authorised to give each of the parties’ directions, in order to facilitate the handover process. Thereafter, it was envisaged that the parties would then move to their own handover, either at a play café, with which the children were familiar, or at their music therapy class or on occasions when they were attending occupational or speech pathology.
At a later stage, when it became apparent that Ms R had not been able to alleviate the handover problems, it was agreed that she would be engaged to assist handover at a variety of neutral locations, including a park in Suburb L, the museum and the botanic gardens. She was also asked to report on her involvement with the family.
In the first session, as was the case with Ms AA, the father struggled to manage the children’s behaviour and Ms R had to intervene when the children were hitting and kicking their father. X consistently referred to her father as Mr Russell and indicated that he was not the children’s father, rather he was Mr Russell, a statement with which Y would agree.
For obvious reasons, Mr Russell is upset by how the children refer to him and believes that this appellation is more likely to originate with Ms Brookes than the children and be reflective of her deep-seated animosity for him. I agree.
The second session was broadly similar. X was reported to spit on her father and generally both children behaved poorly, shutting both Ms R and their father out of Ms R’s room. X said on a number of occasions that she wanted to go home. At the end of the session at Ms R’s rooms, both children declined to go to the park with their father.
On the third session, Ms R locked all the doors, at her rooms, apart from the waiting room, to avoid the children behaving in the same manner in which they had on the previous visit. During the visit, X was described as moving around the room, whilst engaging in defiant behaviours. Again, the children declined to go to the park with their father.
The fourth visit occurred at a park in Suburb L. The visit began with the mother handing the children over to Ms R, who walked hand in hand with them to the father. The children were not distressed by this process, in Ms R’s view. Thereafter, the visit, for the first time, appears to have been successful. In this context, Ms R reported as follows:
The Consultant observed the father to have warm and connected interactions with the children playing on the play equipment, playing with the ball the father brought and sitting and eating food that the father had packed for them. The children at no times were observed to demonstrate behaviours that indicated feelings of distress and discomfort. In fact, the children’s affect was animated, they often laughed, made eye contact with the father, ask for his help and were attentive and actively engaged in their interactions with their [father] and each other. The Consultant observed the father to be gentle and patient with the children. He either chose not to attend to certain behaviour or did not notice this behaviour.[12]
[12] See Ms R’s report dated 23 November 2018 at page 10, filed as Annexure MO1 to the Affidavit of the father’s solicitor filed 26 November 2018.
The next visit, at the Adelaide Botanic Gardens, was also reported by Ms R in positive terms. She described the father as being patient with the children and taking the lead in playing with them. The next visit, which Ms R oversaw, took place on 6 October 2018, at the Adelaide Zoo. Again, the visit went well, with Ms R reporting as follows:
The dynamic and interaction between the father and the children was not noticeably different from other family groupings moving through the zoo. What this means, is that the Consultant observed the interactions between the children and the father to be unremarkable. There was no evidence of distress in their speech or in their body language. The Consultant observed the children to laugh and seek contact with their father. The Consultant’s farewell, after an hour, caused no noticeable disruption to the dynamic between the children and the father. Furthermore, there was an absence of the children hitting, kicking, or talking negatively about the father as had been previously noted by the Consultant in the earlier appointments.[13]
[13] Ibid at page 12.
The next fortnightly visit occurred at a bowling alley. It was decided that Ms R would not be directly involved in handover and the required transition would occur between the parties themselves. In this context, Ms R observed a tense and awkward exchange between the parties, which Ms R regarded as potentially problematic insofar as future exchanges were concerned. Nonetheless, once again, the visit went well, with the children enjoying bowling with their father and often laughing animatedly with him.
The final visit, of this tranche, occurred at the South Australian Museum on 4 November 2018. At handover, the mother was reported to ignore the father. Y was observed to be reluctant to leave her mother. However, apart from handover, the visit again was reported in positive terms by Ms AA as follows:
At the time of the handover the children stayed close to their mother and avoided making eye contact with the father or move from the mother to the father. Although, the Consultant observed that the children separated from their mother with minimal behaviour that would indicate emotional distress, it is the opinion of the Consultant that the relationship between the parents continues to impact the children moving freely from the mother to the father.
During the session the Consultant observed that the children interacted with the father with positive and warm regard. Specifically, they sought physical contact with their father and engaged him in curious conversations about their environment…There was an absence of the children hitting, kicking, or talking negatively about the father as had been previously noted by the Consultant in the earlier sessions.[14]
[14] Ibid at page 14.
The import of this aspect of Ms R’s evidence is, in my view, readily apparent. The children are capable of having a positive interaction with their father and he is capable of managing their behaviour, albeit for limited periods of time. It also seems apparent to me that the mother remains highly antipathetic towards the father and the children are well aware of this and act out in response to it.
Against this more positive background, on 14 November 2019, orders were made for the father to begin to spend time with the children, on a fortnightly basis, on the Sunday of the first week from 9.00am until 4.00pm and in the other week from the conclusion of school on Friday until 5.00pm that evening. It was envisaged that, if all went well, the time would be extended in 2020.
In order to ensure that there were no glitches at handover, these were directed to occur at the paternal grandmother’s home, with the mother to exit her vehicle and remove the children from her car and then depart. The father was to remain 10 metres away, until this occurred. The location for other handover was either the regular play café or music therapy sessions. The aim of the orders was to remove the mother as having any emotional impact on the children at handover.
By this stage, proceedings had been on foot for a period of around eighteen months. In these circumstances, they were fixed for trial in the following June and Ms R was directed to prepare a family report, which was released to the parties in late February of 2019, after interviews and observed interactions which occurred in early February.
The first family report
In interview, Ms R described the father as earnest and amiable. Significantly, he described Ms Brookes as a great parent, who was child focussed. At this stage, he conceded that the children did not really know him. He identified as a significant problem, at the stage of the report, being the children’s unwillingness to get into his car. Ms R assessed Mr Russell as prioritising the children’s needs.
Ms Brookes was also assessed as being earnest and amiable. However, she was not similarly well disposed towards Mr Russell as he was apparently towards her. She described him as a terrible partner and father, significantly lacking in parenting and planning skills. She doubted to Ms R that Mr Russell was seriously interested in the children at all.
Ms Brookes raised issues of significant family violence to which both children had been exposed during the parties’ relationship. Both children reported some indication of being aware of conflict between their parents and Y reported that Mr Russell had slapped X when she was three years of age, when she had spat toothpaste on him.
In interview, Y expressed that she feared her father might take the children away from their mother. She also said she knew that her mother only wanted her to spend one or two minutes with her father. X was described as being wary. Ms R described the interaction she observed between the father and the children as follows:
The three sat in close proximity playing. Mr Russell rubbed Y’s back in comfort when she was upset at her sister changing the rules of the game and when Y hit her sister, Mr Russell held her hand gently and calmly said “you can’t hurt your sister”.
After packing up the game the[y] moved onto another. The Consultant observed X making eye contact and smiling at Mr Russell. The Consultant noticed Mr Russell responding in kind.
The Consultant noted that for most of the observed observation the children frequently laughed, had bright affects and were playful with Mr Russell. When there was rupture, due to teasing between the siblings, Mr Russell was observed to manage the situation calmly and was able to de-escalate the situation and assist the child to self-regulate. Y was observed to spontaneously sit in her father’s lap and both children demonstrated proximity seeking behaviour towards Mr Russell. However, when it came time for the children to leave, neither of them hugged their father good bye.[15]
[15] See Family Report of Ms R at page 24, filed as Annexure MO1 to the Affidavit of the father’s solicitor filed 14 June 2019.
In her evaluation of the family, Ms R noted the volatility of the parents’ relationship, with each of them accusing the other of being abusive. Ms Brookes was regarded as the children’s primary carer over the course of their lives to date, with Mr Russell having no opportunity to build a strong connected relationship with X and Y, given his lack of opportunity, up to this stage, to actively parent them.
Although concerned about Ms Brookes’ account of violence and the children exposure to abuse, Ms R viewed the children’s accounts of this behaviour to have a rehearsed quality to them, given the lack of emotionality attaching to them. She therefore doubted their reliability. It is clear that Ms R was significantly influenced by how she observed the children interacting with their father. She reported as follows:
Given that the children said they felt alright with the idea that both Ms Brookes and Mr Russell would know what they had spoken about with the Consultant, and that the children were observed to demonstrate proximity seeking behaviour towards Mr Russell; the Consultant’s concern regarding the children being at risk of physical abuse is low. The children did not demonstrate behaviour during the observation which indicated they were fearful of Mr Russell. Another indication that the children felt safe in the care of their Father is the fact that the children demonstrated non-compliant behaviour. Over compliance in children can be indicative of children who are afraid of the ramifications if they were to misbehave. Furthermore, Ms Brookes acknowledged that the transitions of the children to the care of Mr Russell were becoming easier with time and what that meant to her was that they were feeling more comfortable spending time with Mr Russell.[16]
[16] Ibid at page 27.
In summary, Ms R recommended that the father’s time with the children be increased so that their relationship with him might be strengthened, which would lead she hope to the children becoming more confident about spending time with their father. Of concern to Ms R was the mother’s consistent negative narrative concerning Mr Russell and the risk that he children were being, either inadvertently or indirectly influenced by their mother’s opinion of their father.
In all the circumstances, Ms R recommended a transition, over a period of six months, to the children spending a long weekend, each fortnight, with their father; as well as time, overnight, during the other school week, with him. With transitions to be managed by a family consultant. She further recommended a further family report prior to the final hearing.
Ms R’s view that transitions were becoming easier has not proved to be the case. However, in the aftermath of the report, the parties, ostensibly at least, were prepared to take her recommendations on board, after attending a family dispute resolution conference. In these circumstances, they agreed to postpone the final hearing and to move to the time recommended by Ms R, with Ms R to facilitate handovers, at the paternal grandmother’s home, at the father’s expense. Orders to this effect were made on 11 June 2019.
Following the vacation of the June 2019 trial, the case was called over and refixed for hearing in early May of 2020. No doubt the father hoped he could be able to build his relationship with the children over this period, as Ms R recommended. Regrettably this has not proven to be the case. Rather, the effect of his evidence is that the opposition of the children to spending tie with him has become more entrenched over this period.
Events between June 2019 and mid 2020
Ms M is a retired educator. She lives in Suburb BB. She is in her early 70’s and enjoys good health. Besides X and Y, she has two other grandchildren, whom she regularly babysits, including for sleep overs. I accept her evidence that her home is a child-friendly place with plenty of toys, books and games suitable for children.
As a consequence of X and Y’s refusal to get into Mr Russell’s motor vehicle, by default, Ms M’s home has become the location for many of the children’s visits with their father. In addition, prior to him and Ms N cohabiting, Mr Russell was staying at his mother’s home.
As previously indicated, I have found Ms M to be a truthful witness, who has the normal aspirations of most grandparents, namely to be involved with their grandchildren, whilst not taking over a parental function. She presented as being frustrated with what she perceived as being the mother’s ridiculous opposition to such an unexceptional outcome.
Clearly, as a consequence of the dynamic between the parties, there is no affection between Ms M and Ms Brookes. As such, there is no communication or trust between the two women. In these circumstance what the children say to their mother about their interactions with their father and paternal grandmother is capable of either conscious or malicious misreporting. It concerns me that the mother appears incapable of questioning the children or reframing them. Rather she will assume the worse.
Ms M was cross-examined about an allegation, raised by Ms Brookes, that she (Ms M) had chased the children around her home with a broom in December of 2020. The implication being that this had been done to terrorise them. As with all of the mother’s allegations that the children have been mistreated either by the father, Ms M or later by Ms N, the mother has no personal knowledge of what occurred but has relied on what X primarily has told her.
I am concerned that X may not be a reliable reporter and Ms Brookes may be inclined to overstate what she has said and disinclined to question X’s accounts. Ms M responded to the allegation put to her as follows:
It was in the garden, not in the house, and it was in response to the children’s behaviour towards me and in order to lighten the tense situation and make it into a game in which the children engaged immediately. The situation I refer to is the children yelling abusive words at me and using the word “witch”. So I spotted an outdoor broom leaning against a wall and played witch; we played chasey…..It was fun.
Ms M was also accused of having deliberately squirted the children with water from her hose. Ms M was vigorously cross-examined about this incident, in the following terms:
The children told their mother, specifically:
They squirted us with the hose and said “get inside”.
Do you remember that occasion occurring? --- I do not. I do remember that the garden hose was an object that the children would regularly try to get to, to the point where we needed to turn off the mains – and we did as a result of an incident involving the children having run out of the house and into the garden, grabbed the house, turned it on full blast, squirting it into my house and onto the direction of my bookcases.
And that made you cross? --- It made me turn the water off.
Yes. And it made you cross with the children for behaving that way? --- No.
Well, you sound cross? ---No. I’m telling you that there was a – a strong incident that required immediate strong action.
Yes. And that immediate strong action was, according to the children, squirting them with the house---? ---No.
The evidence available to me abundantly demonstrate that the children are capable of being extremely naughty, when in their father’s care. That certainly is the tenor of not only Mr Russell’s evidence but also that of Ms R and Ms N. Why the children behave in this way, in the context of spending time with their father, is a more complex issue.
I am satisfied that Ms M’s response to the episode of behaviour involving the children turning on the hose was both appropriate and measured. What is more concerning to me is that what appears to be a common place incident, which was dealt with appropriately, becomes a mechanism by which Ms Brookes criticises the father and those associated with him, a process in which the children appear also to being engaged.
I am concerned that, either consciously or unconsciously, the children have been led to believe that they have their mother’s imprimatur - or even direction – to misbehave, when in their father’s care. He has to deal with this behaviour on a perennial basis. Undoubtedly this is extremely challenging for him. He must continually resist being provoked into over-reacting to the children’s naughtiness and indeed their taunting of him and Ms N.
Of an aborted visit scheduled to occur in February of 2020, Ms N deposes as follows:
The girls were also volatile and destructive in their behaviour, including throwing their thongs, throwing dirt, spitting in our faces and calling us idiots.[17]
Clearly, this is extraordinary behaviour on the part of children of the ages of X and Y, notwithstanding X’s special needs.
[17] See affidavit of Ms N filed 26 March 2021 at [14].
As previously indicated, I have seen a brief vignette of how Mr Russell manages the challenging behaviour in the context of the video footage taken by one of the children with his mobile phone. He deals with it patiently and humorously, as Ms M did, when she elected to adopt the role of the witch.
However, necessarily, a possibly unguarded reaction to these types of behaviour creates a potentially volatile situation. No person has limitless stores of patience. Necessarily, there must be a risk that the children’s behaviour may become more extreme and indeed dangerous, if there is a change in their care, to which they are diametrically opposed and Mr Russell and Ms N will have to deal with it, whilst having a new born baby.
For obvious reasons, Mr Russell is not in a position to know what the mother tells the children, when they are in her household. However, I have grave reservations that she would be disinclined to discipline the children, for bad behaviour, with their father, if she became aware of it. Rather, her natural inclination is to believe whatever negative things the children say about their father and then magnify them.
One central finding, which I believe is open to me in the case, is that the children are extremely susceptible to being negatively influenced against their father by their mother and to act out accordingly. The mother is likely to view the father negatively for a number of reasons. These include financial ones and the fact that he initiated the separation between the two. What is striking is that there has been no diminution of the mother’s hostility for the father notwithstanding their lengthy separation.
Regrettably, I do not consider it beyond the bounds of possibility that the children consider that their mother wishes them to misbehave, when they are in their father’s care. In a legal context, this raises the issue as to whether this can be considered a species of abuse, to which the children are exposed. Ms R is of the view that it is.
It is the effect of Mr Russell’s evidence that Ms Brookes, whilst the parties were utilising Ms M’s home for handovers, made it as hard as possible for the children to leave her car and transition into his care. He deposes that she would park down the street away from the entrance and would wound up her windows, prior to texting him that the children “don’t want to go”.
In these circumstances, as he was entitled to do pursuant to the orders of June 2019, Mr Russell again engaged Ms R, at his expense, to assist with transitions. In this context, Ms R reported as follows:
The consultant has attended several handovers between Ms Brookes and Mr Russell. The mother was observed to verbally encourage the children to leave the car to go with their father. However, it was the opinion of the consultant that her efforts were lack lustre. She didn’t get out of the car and there was no boundary setting, consequences or minimal reassurances provided by the mother to the children.[18]
[18] See Family Report dated 20 November 2020.
Ms R has been engaged in handovers at Ms M’s house on eight occasions between June of 2019 and March of 2020. In a summary she prepared in March of 2021, Ms R summarised her experience of the mother as follows:
Typically, Ms Brookes would arrive at the paternal grandmother’s house. She would park across the road from the house and would remain in the driver’s seat. Ms Brookes generally appeared to struggle with Ms R’s friendly overtures, mostly giving one word responses. Ms Brookes, would, at times, make positive comments about spending time with the father, but these comments lacked context or conviction.
Notwithstanding Ms R’s criticisms of Ms Brookes, it is Mr Russell’s view that Ms Brookes is more resistant to the children spending time with him when she (Ms Brookes) is not subject to external scrutiny from her. It is his evidence that on the occasions Ms R was not available, on a number of occasions, neither he nor the mother were able to get the children to leave their mother’s car and Ms Brookes did nothing to assist.
In this context, it is his perception, from what the children have said to him, that the mother has informed the children that they will not be able to take part in a play date or outing because they have to spend time with their father. He also deposes that, when he has taken the initiative and opened the door of the mother’s car and has greeted the mother, Ms Brookes declines to respond to him but will look away and ignore him.
It is the effect of the father’s evidence that if he is able to extricate the children from their mother’s car and get them inside, he is able to engage with them in appropriate activities such as colouring in and playing games. They are frequently extremely boisterous in their behaviour. He denies ever having hit them or inappropriately disciplined them, particularly that he had locked them into a room. I accept his evidence in this regard.
The children do not eat, when they are in the care of their father. It is his evidence that this is not due to a lack of food provided by him. To the contrary, he provides fruit, vegetables sticks and biscuits, which the children refuse to touch. On one occasion, when the father produced a box of honey flavour weet-bix, X tipped up the box because Mr Russell had touched it. If the children did leave their mother’s car, they frequently run away from their father, up the street.
The father’s perception was that arrangements for him to spend time with the children were going backwards. In these circumstances, he amended his application on 15 March 2020 seeking the children live with him and not spend time with their mother for a period of approximately eight weeks. For obvious reasons, this application did nothing to reduce tensions between the parties or relief handover difficulties.
Unfortunately, due to the pandemic emergency which began in March of 2020, the trial scheduled to commence in the following June could not take place. Medical evidence indicated that, due to her congenital heart defect, Ms Brookes was at particular risk if she contracted Covid-19.
In these circumstances, time between the father and the children was suspended by mutual agreement and the father began to have telephone communication with the children. This was ineffective in Mr Russell’s view. To the mother’s great credit, she agreed to the father resume spending face to face time with the children on 15 May 2020
Mr Russell sought advice from Ms R as to how to cope with X’s incidents of extremely violent behaviour, when she would punch or kick out at him, Ms N and Ms M. Ms R recommended that the child be held immobile in a bear hug to the chest. The technique being devised to prevent a child from self-harm or injury by providing, in Ms R’s words: deep sensory pressure, which engages the vagus nerve which then counteracts the sympathetic nervous system and provides regulation and calmness.
It is Ms Brookes’ view that this is a barbaric practice and one which has been rejected by X’s occupational therapist, Ms V as inappropriate. Ms V did not give evidence and so what was not asked to specifically comment on the technique as delineated by Ms R.
A fair reading of Ms V’s report is that she rejected aversive restraint in the context of punishment being directed towards X. In this context, she recommended the use of rewards to shape the child’s behaviour. I suspect Ms R would be inclined to agree. It seems to me that the bear hug technique, although obviously restrictive in nature, is not a punishment per se.
Although Ms V did not give oral evidence, I value her opinion. However, I must be careful about placing undue weight on it. Certainly, she may well not be appraised with all the subtleties of this extremely challenging case. However, the notion that X does naughty things when she does not want to go somewhere struck a chord with me. Clearly, she frequently does behave poorly in the context of spending time with her father.
What is also interesting to note (and was an issue which could not be put to Ms V) was that she recognised that regardless of X’s opposition to them there were somethings which should be non-negotiable regardless of X’s idiosyncratic preferences. One such thing was attending school. This concept of non-negotiability in a parent/child relationship encapsulates the central dilemma in the case.
Ms Brookes recognises the non-negotiability of the children attending school and indeed a myriad of other activities. In fact, the children seem to have an extramural engagement on most days of the week. These include therapy-based piano; occupational therapy; horse-riding; music lessons; and play therapy.
In addition, Ms Brookes conceded that she was able to facilitate the children’s attendance at social occasions with their maternal family and friends, including attending birthday parties and the like, without disruption. Ms R agreed with the father’s counsel that, given the challenges incumbent in parenting X, a parent who was able to accomplish these things should be regarded as a relatively high-functioning parent. The evidence available to me does not indicate that Ms Brookes is of the view that the children having a relationship with their father is to be regarded as non-negotiable.
The evidence with which I have been provided does demonstrate that X is capable of extremely erratic and potential dangerous behaviour, both to herself and others. As such, I accept that it is likely to be necessary, from time to time, for her to be restrained to protect herself and others.
Accordingly, I do not consider that I am in a position to criticise the father for using the bear hug technique, which from his perspective, is not intended to punish the child but rather to protect her and is only utilised in extreme circumstances for short durations. Certainly, I do not think any such criticism can be justified on the basis of Ms V’s report.
It is the mother’s case that the children do not want to go to their father because he hurts them. I do not accept that there is any cogent evidence to indicate that this has occurred. In this context, the video record of the failed handover of 15 August 2020 is germane. It shows the mother and children walking up to the father’s front gate. X repeatedly says I’m not going before running off. She refers to her father as an idiot and asserts that he hurts her. Her tone is somewhat flat.
Mr Russell and Ms N, from inside the premises, offer surprises, food and games inside. They offer a trip to the park. Their tone is neutral and engaging. Ms Brookes, with her hands in her pockets, is essentially silent. She walks away. She does nothing to encourage or direct. She is passive in her behaviour. After viewing the video one cannot help but be reminded of the oft-quoted paragraph regarding the obligations of custodial parents provided in Stevenson & Hughes as follows:
…the implied obligation of the custodian to take reasonable steps to ensure that the access stipulated in an order takes place. Words and actions have meaning in context and affect. It is not a sufficient discharge of custodian’s obligations, express or implied, to point to words and actions and say, in effect: “You see I tried. But the child does not want to go” and thereafter to figuratively fold their arms as if they were an end of the matter.
Theirs is an active role with an obligation to positively encourage access. It is not a discharge of their duty to set up access to fail. That is to say, it is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with obligation.[19]
[19] In the Marriage ofStevenson & Hughes (1993) 16 Fam LR 443, 450 (Fogarty J).
As Mr Russell deposes, X and Y are children who refuse to eat or even sleep in beds provided for them. Their level of opposition to things which ostensibly displease them and their length to which they will go to align with their perception of what their mother wishes, can only described as extraordinary.
As a consequence the challenges Mr Russell will face in his household, from their probable behaviour, must in my view be characterised as extreme. These challenges will also coincide with him and Ms N having to accommodate the demands of a new baby. The possibility of some unforeseen crisis occurring cannot be underrated.
The level of the children’s emotional dependency on their mother is high. They will know of her distress at any separation and will respond to it in ways which are likely to be both volatile and unpredictable. Ms Brookes is unlikely to be cooperative in any process of de-escalating their behaviour. The children are also likely to internalise a sense of responsibility for letting their mother down, which is emotionally detrimental to them. They will simultaneously grieve at the apparent loss of their mother and feel guilty for it.
I acknowledge that such difficult transitions of children, between parents, do occur and cannot be regarded as unknown to the literature of child psychology, particularly in the field of child protection as Ms R indicated. However, any such transition requires extensive professional support to be successfully achieved.
In this context, the evidence of Ms B is central. From what she knew of the case, she was not sanguine about its prospects of success. In addition, I harbour significant doubts that the intensive therapeutic support required is beyond the means of the parties concerned and, for obvious reasons, Ms Brookes will not provide it.
Accordingly, I am of the view that, important as the benefits of the children having meaningful level of relationship with their father are, the potential risks of compulsorily putting into place a mechanism, which may or may not be successful, to secure such an outcome, is too great a risk for the court to contemplate, at this stage of the children’s development.
As is apparent, I have many criticisms of Ms Brookes, whom I have assessed as being incapable of supporting the children in having an appropriate level of relationship with their father. However, in all cases concerning children, it is their best interests which are paramount not those of their parents. A child is not to be stripped from one parent’s care as a consequence of such criticisms and awarded to the other parent because he or she is assessed to be the more deserving. Any cases involving endemic parental conflict, such as the present one, are rarely conducive to a happy ending.
Rather such cases, in my assessment, behove a cautious approach and the adoption of the outcome least likely to be detrimental to the children concerned. I accept that it is incontrovertibly the case that it will be detrimental for the children if they only have a cursory level of relationship with their father and such an outcome, in itself, entails the very real danger of their paternal relationship being entirely extinguished, which would be a calamitous outcome in terms of their long term development.
However, it is my assessment that the risk involved in the children being removed from their mother and this intervention miscarrying, resulting in the children losing their relationship with their father anyway, is a greater risk and one too great to contemplate at this stage. This case does not provide a happy ending.
The additional considerations
a) The children’s views
The applicable legislation requires me to consider any views expressed by the children concerned and any factors which may affect the weight to be given to those views, such as the children’s maturity or level of understanding. The legislation speaks of views rather than wishes. The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[46]
[46] See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth) at [56].
Accordingly, a child is not required to make a decision about what the appropriate outcome is in any particular case. Nor are they required to express an explicit wish as to which parent or other significant person they want to live with or spend time with.
However, it seems that the court is required to explore a child’s perception of what he or she feels is likely to be best for him or her. Very often these perceptions will be ambivalent and difficult to express or quantify. This is particularly so with younger children. This does not mean that a child’s view should be disregarded.
To the contrary, over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these. It is often said that children have a right to be heard. Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[47]
[47] See H v W (1995) 126 Fam LR 788, 797 (Fogarty, Baker and Kay JJ).
It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”.[48] What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.
[48] See R & R: Children’s Wishes (2000) 25 Fam LR 712, 724 [54] (Nicholson CJ, Finn & Guest JJ).
X and Y, on numerous occasions, have made it emphatically clear that they do not wish to engage with their father to any marked degree. They said as such to Ms R. They have often cut short their visits with their father and currently spend only the briefest of time with him.
Given their respective ages and the undoubted influence of their mother in shaping these views, in my assessment, they cannot be determinative of the case to any significant degree. However, the children’s currently entrenched views cannot be ignored. The reality is, if the children do perceive that there has been an outcome imposed upon them, of which they disapprove, they will, in the common jargon of family lawyers vote with their feet with the dangerous and unpredictable consequences to which I have already alluded.
From Mr Russell’s perspective, the children’s entrenched views may very well stem from their mother’s false indoctrination and negative portrayal of him. However, I have grave reservations that moving the children from their mother’s care alone will have any great effect in shifting their attitude towards him. In my view, it is equally possible that such a shift will result in the hardening of their attitude.
In this context, the court must consider what tools will be available to Mr Russell to effect such as shift in attitude. He has his decency and patience and obvious love for the children. He may also have the assistance of Ms B, although she is currently reluctant to commit to providing her services until she has more information on the ground. I am concerned that Mr Russell may not have sufficient resources to effect a long term change in the children’s attitudes towards him and Ms N.
b) The nature of the children’s relationship with each of her parents and significant others
The children’s most significant relationship is with their mother. She has been their principle provider of care since they were each born. It is noteworthy that, regardless of his many criticisms of her, Mr Russell shies away from negative attributions of her skills as a parent and her love and devotion to X and Y.
It is also readily apparent that both children in turn love their mother and have a deep sense of loyalty for her. Clearly, these are significant factors which militate against the children being removed from their mother’s care on either a temporary or longer term basis. There can be no doubt that Ms Brookes is and has always been X and Y’s primary carer and she is highly adept in this regard other than in her capacity to support them spending time with their father.
Mr Russell’s relationship with the children currently hangs by a thread. As a consequence of his efforts over the last four years or so, the children know him. They have seen him consistently, in extremely difficult circumstances, on a regular, if gradually diminishing basis. Most recently the time has occurred only in conjunction with their weekly dance class. Mr Russell’s recent evidence being that he is unwilling to subject the children to the possibly greater trauma of spending longer periods with him.
Whether there has been some advance since the case was last in court in October is unknown to me. However, when Mr Russell last gave evidence (on 25 June 2021), he deposed as to his great difficulties in getting the children to spend extended periods of time with him, particularly in respect of getting into his car, eating any food prepared in his household or sleeping in the beds allocated to them.
This may be a reaction to the escalating tension between the parties, given Mr Russell’s application for an immediate change of the children’s living arrangements, a matter about which the children be aware. Certainly, I have not been advised of any easing in arrangements or any significant breakthroughs in respect of the children’s opposition to spending extended periods of time with their father.
The evidence of Ms R which, given her independence and expertise, must be given significant weight, is that when the children are calm and receptive, they are capable of having warm and positive interactions with their father. Accordingly, in my view, all is not lost in this regard. It is question of how to remove the children from the consequence of becoming aligned in the endemic conflict between their parents.
The evidence also indicates that there have been some successful periods of overnight time interspersed with unsuccessful periods, marked by a refusal to eat or adopt normal sleeping patterns. The issue for the court being, if the court does not adopt Mr Russell’s preferred outcome, how it normalises the manner in which the children spend time with their father. It being the case that there have been brief glimpses, provided from time to time, that this is possible.
One possible scenario for achieving this outcome is a cessation of the court proceedings. Certainly, the proceedings do not seem to have assisted any resolution of the issues arising in the case, notwithstanding Mr Russell’s patient forbearance. Accordingly, it may be the case that a cessation of the court’s focus on her may result in Ms Brookes becoming more rather than less resistant to adherence to court orders.
In this context, it is noteworthy that Ms Brookes’ final position is that there should be made what many would categorise as standard contact orders for alternate weekend time and regularly during school holidays, albeit that this should occur only after the completion of therapy to be offered by Ms B.
I have also seen, in the form of the video-taped interactions recorded by the children on Mr Russell’s mobile phone, some direct evidence of the nature of the children’s relationship with their father, which is clearly, in my view, one characterised by love and patience on his part and a sense of some closeness and familiarly as demonstrated by X and Y. As such, I do consider that the children do have a paternal relationship, with Mr Russell, which will be beneficial for them, if is maintained.
On its face, this would appear to be a tacit recognition by Ms Brookes that X and Y do have a salvageable relationship with their father. Although it also echoes her earlier positions, which have been more honoured in the breach than the observance. In this context, it is noteworthy that Ms Brookes advocated the use of school as a handover location, following the first section of the proceedings, because she professed herself to have been impressed by what she had seen on the video-tape footage. As previously indicated, this did not provide any panacea to the difficulties in the case.
Similarly, Ms M has the type of love and interest in her grandchildren one would expect of her. X and Y are familiar with both her and her home. Grandparents are important to children. Not only are they a source of love but they are also able to provide family history to their grandchildren and give them a sense of self. The same can be said of cousins, uncles and aunts.[49]
[49] See Bright v Bright (1995) FLC 92-570.
What is the nature of the children’s relationship with Ms N is more difficult to assess. She has come onto the scene relatively recently in what can only be characterised as difficult circumstances. The children have been extremely oppositional to her, although, it is my view that she has behaved in a conciliatory and sensitive manner towards them and wants to support her fiancé in his efforts to extend his relationship with his children.
Again what will be the implications of introducing another child into this dynamic is also very unclear. In general terms, I would expect any child to be excited at the prospect of having a new born half-sibling to meet. However, to a large extent, how X and Y respond to the issue of this will depend on what they have been told about it and how they each perceive they are expected to behave by what they are told or intuit from each of their parents’ behaviour.
c) The extent to which each of the parents has taken or failed to take the opportunity to be involved in decision making and to spend time or communicate with the children
Ms Brookes is critical that Mr Russell withdrew from the children’s lives following the parties’ separation. I do not think that criticism is warranted. Mr Russell rightly anticipated that he would not be able to participate easily in the children’s lives given the circumstances surrounding their separation.
In addition Ms Brookes is critical that he has not been interested in issues to do with X’s ASD. It is true that, in theoretical terms, Mr Russell could have been more involved in making decisions regarding the children. However that would blithely ignore the reality of the situation which is that Ms Brookes has made it as difficult as possible for him to be involved in all aspects of the children’s lives.
ca) Provision of financial support for the children
Ms Brookes has also been critical of Mr Russell’s decision to withdraw the children from attending at T School. I accept that this was because he could not afford the fees. There is no other evidence to suggest that he has avoided child support.
d) The likely effect on the children of any changes in their circumstances
The effects of a major, if possibly confined, change of circumstances in how X and Y are to be parented is one of the major issues in the case. In this context, I have no doubt that the short to medium effects of the children being moved into their father’s sole care would be severe indeed.
X and Y are likely to resist the change in possibly dangerous and unpredictable ways. They are likely to be violent, obstructionist and oppositional in their behaviour. They may refuse nourishment. They may abscond. Certainly they will not be happy and will feel they have both abandoned and been abandoned by their mother. The situation would be extremely volatile if the children’s previous conduct is anything to go by.
The children’s relationship with their mother cannot be permanently severed. The process of the children being re-introduced to their mother is likely to be equally traumatic for all concerned. It seems improbable in the extreme that Ms Brookes will do anything constructive to support the process currently advocated by Mr Russell.
Such a process will require a great deal of external professional support, which Ms B has expressed significant reservations, at this stage, she will be able to provide. Mr Russell doubts he can afford to pay for such therapy and Ms Brookes is manifestly unable to provide the required level of financial support, even if she was inclined to do so.
In the past, when he has found the children’s behaviour challenging and when he has been asked by them for an early return, Mr Russell has returned the children earlier than obliged to. I accept that he has done so because he wishes to avoid the children being exposed to further emotional trauma. However, it must be the case that what he proposes will be far more challenging than what he has faced in the past and will occur in the context of him and Ms N having a new born child.
I must make some sort of assessment of the possibility that if the change of residence is accommodated cleanly and with professional assistance, X and Y will quickly settle down emotionally away from the influence of their mother and their relationship with their father will thus be able to be normalised. Although possible, I seriously doubt that this to be a probable outcome. More likely is that it will be emotionally bruising for all concerned, particularly X and Y.
On balance, I consider that there are too many potential pitfalls and too many potential risks to justify it as an outcome in X and Y’s best interests. I have no doubt that both Mr Russell and Ms N are well motivated but I am concerned that they may have under-estimated the degree of difficulty likely to arise, particularly in the context of their other commitments.
In this context, I am of the view that to adopt the course primarily advocated by Mr Russell would represent an unacceptable risk to the emotional and physical safety of the children, which cannot be currently justified.
e) The practical difficulties and expense of the children spending time and communicating with each of their parents
The parties live relatively close together in suburban Adelaide. Both have transport. However, the practical difficulties which have arisen so far have led to the children currently having an extremely circumscribed relationship with their father. The major difficulty with the father spending time with the children stems from their refusal to get into his car.
In objective terms, there can be significant level of risk associated with the children travelling in Mr Russell’s car referrable to his narcolepsy. The evidence indicates that in a suburban setting, during daylight, the stimulation available to Mr Russell will prevent him falling asleep with or without the prescription of dexamphetamine. I reject any submission that Mr Russell has down-played the risks of his condition or is cavalier in his disregard of it. In my view, the contrary is the position.
The issue in this case is that Ms Brookes has not provided any concrete solutions to these problems or those relating to the children’s behaviour when they are in the father’s care. In my view, her stance has been one of passive obstruction throughout. However, notwithstanding the serious criticism I have of Ms Brookes, I remain of the view that the peremptory removal of the children from her care will not create a solution to these problems.
Rather, in my view, a continued and gradual approach is more likely to furnish progress, in repairing the children’s relationship with their father, particularly if it occurs away from the polarising effects of litigation. In this context, the mother’s final position and the alternative position adopted by the father are not too far apart.
f) The capacity of each of the children’s parents and other persons to provide for the emotional and intellectual needs of the children
i) The attitude to the children and to the responsibilities of parenthood, demonstrated by each of the parties
The above two considerations are closely related and, as such, it is convenient to consider them together. I accept that Ms Brookes has many positive attributes as a parent. It is to her great credit that both X and Y currently attend a mainstream school and both are reported to be doing well. In addition, it is undoubtedly the case that she has arranged for the children to provide for all manner of extracurricular activities directed towards them being well developed children.
Mr Russell does not dispute that Ms Brookes has demonstrated a high degree of commitment to ensure that both children but X in particular receive the intellectual and physiological stimulation required to assist each of them to reach their full potential. Mr Russell has said on many occasions that he regards Ms Brookes to be a good parent. I accept that this is the case.
However, there is much to be concerned about given some aspects of the children’s current emotional presentation. Ms Brookes has deposed that X and Y are well behaved in her home, a state of affairs which Ms R doubts but is not in a position to categorically determine. They are not so well behaved in a large number of their interactions with their father and other professionals engaged by him, including Ms R herself, Ms AA and Ms S.
Clearly, if the children behave in the oppositional manner in which they have been described as interacting with their father, in other contexts of their lives, this will not be helpful to them in emotional terms. It is also concerning if Ms Brookes has given the children her tacit approval to behave, as they have, towards their father.
This is one of the central issues of the case. On the one hand, the evidence indicates that X and Y can regulate their behaviour appropriately in a wide variety of settings, particularly at school or in an extramural setting. It is only when they are engaged with their father that their behaviour becomes dysregulated. Mr Russell has been able to manage this conduct on some occasions but not on others. I remain concerned that Ms Brookes has been prepared to condone the children’s behaviour to some degree. I do not think such an attitude is conducive to the appropriate emotional or intellectual development of the children.
One of the more useful attributes for a parent, in a post separation context, is the capacity to support a relationship between the children concerned and the other parent. Clearly, such an attribute is likely to lead to a minimisation of the potential for parental conflict and so be helpful for the children involved. In my view, it is one of the central responsibilities entailed in being a parent.
Having said this, I appreciate that separation is invariably emotionally debilitating and it is rarely the case that it can be achieved without some level of discord. It is apparent to me that Ms Brookes did not adjust easily to the parties’ separation and has struggled to separate her own emotional needs from those of the children, particularly in respect of their entitlement to have a proper level of relationship with their father.
g) The children’s maturity, sex, lifestyle and background
There is no need for the court to address these matters on any individual basis. In my view, I have considered the salient features of the children’s background in these reasons as a whole.
h) Aboriginal Heritage
This is not a relevant consideration in the case.
j) Family violence
k) Any family violence order
Although each party has alleged that the other behaved in a coercive and controlling fashion towards the other during their relationship and afterwards, these were not issues which received a large degree of scrutiny during the hearing. The only relevant family violence order was made against Ms Brookes and, in my view, the incident leading up to the granting of the order and the police charge relating to it is the only established incident of family violence. I accept that the incident occurred at a difficult and volatile point in the parties’ separation and as such it is not typical of the parties’ relationship with one another.
However, the parties’ relationship is atrocious and likely to remain so for the indefinite future. As Ms R has opined, this state of affairs is likely to lead to the children become enmeshed in the conflict between the parents and this is not conducive to their emotional well-being. Regrettably, whatever is the outcome of the case, I doubt that the various factors likely to be conducive to the children becoming aligned with one of their parents against the other are likely to diminish any time soon.
l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
However, the issues in this case are both long-standing and powerful. As such the case presents the court with invidious options. As such, it would be naïve to think anything other than the prospect of further litigation remain high, given the polarising issues which it raises. The case is unlikely to have anything approaching a satisfactory outcome.
On balance, in my view, the father’s primary proposal is the one most likely to have within it the seeds of further protracted and acerbic litigation. Ms Brookes is not likely to accept it and its problematic nature are calculated to bring the parties back to court in a short timeframe. As such, the outcome which might conceivably avoid further litigation is one which sees the children continuing to live mainly with their mother and spending time with their father regularly with the possibility of the time being extended once the emotional sequelae of the current proceedings has diminished and all concerned adjust to what has been ordered.
CONCLUSIONS
This is the point in the judgment at which I must pull together the various conclusions I have reached in respect of both the primary and additional considerations and then put in to place, in concrete terms, the orders which I consider will best reflect the interests of X and Y. It is not an easy task.
The central conclusion I have reached is that it would not be in X or Y’s best interests for there to be a dramatic change in the arrangements for their care, given the centrality, for each of each of them, of their relationship with their mother. Such a change would be both dramatic and traumatic. I just do not think it would work. It has the potential to do untold emotional harm to the children. At the end of the day, it too extreme an outcome to be justifiable as the one in the best interests of the children.
Neither of the children would welcome such an outcome, and each is likely to resist it vehemently, as would Ms Brookes herself. In addition, the provision of expert therapeutic assistance to manage such a transition is problematic in the extreme. As a consequence of these considerations, I believe the risks inherent in such a change of care are too great for the court to countenance and therefore it cannot be justified.
At the same time, it is impossible not to feel an enormous amount of sympathy for Mr Russell and Ms M, who have patiently done their best to overcome the difficulties placed in their way by Ms Brookes and achieve a normalised relationship with the children. Given Mr Russell’s qualities and his undoubted love for X and Y, I am satisfied that each child will derive incalculable benefits from having a meaningful level of relationship with their father.
Necessarily, these reasons for judgment have taken some time to be prepared, after the court proceedings themselves have been much protracted, whilst solutions have been unsuccessfully sought to the seemingly intractable problems which the case throws up. During this period, the father’s relationship with the children has become even less secure and the difficulties more pronounced, notwithstanding Ms Brookes’ assertion that she had reassessed her position following the first component of the trial. This proved to be illusory.
However, Ms Brookes’ most recent proposal envisages the children spending overnight time and blocks of school holiday time, with the father, with handovers at the E Hotel carpark or their school. I have not been advised as to what has occurred since late October, particularly whether there has been any progress in the children being persuaded to leave the market/dance studio and journey, in Mr Russell’s car, to his home.
In my view, an end to the proceedings may assist to bring relations between the parties to a more stable equilibrium and ease the pressures on the children. The children have spent time with their father, including overnight, at his home in the past. I do not consider that either he or Ms N have exposed the children to any form of abuse, including when they have applied the bear hug technique referred to them by Ms R as means to prevent them coming to harm.
One thing which has been achieved over the long four years of this case is that the children know they have a father. They have met him on numerous occasions. If Ms R’s evidence and that of Mr Russell is to be accepted, which I have, the children have had some good times with him. Although the children persist in referring to him as Mr Russell, rather than Dad, it must be the case that each is aware of that Mr Russell is their father. Accordingly, in extraordinarily difficult circumstances, by dint of his patience and determination, Mr Russell does have some form of nascent relationship with the children.
The question is what should happen next. For obvious reasons each of the parties have concentrated on the major issue in the case and, in my assessment, have not given close consideration to be what should happen as an alternative to the change of primary care.
In addition, the court cannot keep these proceedings on foot indefinitely. Necessarily, it must withdraw and put in place the orders, which axiomatically cannot be perfect but with an expectation that something can be build upon the little which has been achieved thus far. This withdrawal being posited on the hope that the cessation of the litigation will allow some healing of the family to occur. In tandem with this, time may also play its part and once the children have achieved some greater maturity, the problems of their transition to their father will ease.
The mother’s proposal is that overnight weekend time should re-commence after Ms B has completed re-unification therapy. She is not able to pay for such therapy and Ms B is guarded as to whether it would assist, given she only knows of the family through reading documents and considering the opinion of Ms R.
Mr Russell is at the end of his tether, both financially and emotionally and is unwilling to commit to such a process, at his expense. In this context, it is the case that, in the past, Ms R, Ms AA and Ms S, each a skilled and child focussed intermediary, have experienced significant difficulty in supporting the children to interact with their father.
In these circumstances, I am concerned that Ms Brookes’ proposal may be viewed as cynical and disingenuous one. However, some orders must be made to reflect the fact that the proper service of the children’s best interests dictate that they have an on-going relationship with their father. In this regard, it is Ms Brookes’ legal obligation to facilitate these orders through a process of encouragement and then direction. The involvement or otherwise of any form of therapy does not absolve her of that obligation.
Significantly, Ms Brookes has demonstrated that she can discharge her parental responsibilities in a wide variety of context, particularly in regards to ensuring that X and Y attend school and all more of other activities and social interactions in a manner which does not entail their wholesale emotional dysregulation.
Ms B was an impressive, albeit a cautious professional witness. Whether Mr Russell wishes to involve her, in the family, at his expense, is a matter for him. I will make an order that he be entitled to engage the children in any re-unification therapy, with either Ms B or any other therapist as he considers appropriate, at both his sole election and expense. However, such therapy is not to be an essential prerequisite to orders mandating his on-going engagement with the children.
In my view, the father’s alternative proposal is a sensible and well calibrated one. It envisages overnight time now, in conjunction with dance class and an automatic move to the more normalised time, which is essentially in line with what Ms Brookes’ proposes, in a little under two years’ time, when it is to be hoped that the children will be more mature and their relationship with their father and other members of their paternal family will be more firmly consolidated.
At this stage, I hope that there will have been a process of sufficient consolidation to allow the father to start spending time with the children in school holidays. The mother has indicated, in her proposed orders that she, ostensibly at least, accepts the reality that the children must start spending time with their father for longer blocks in school holidays.
I concede that this approach is not without its risks. I also concede that the prospects of the case returning to court are high and the risks of the children becoming more aligned and enmeshed in the proceedings remain significantly heightened. However, in my view, it remains the least bad outcome in a case which provides no easy options and in which the long term stakes for the children are high.
The parties’ relationship as parents is atrocious and likely to remains so. These reasons for judgment and its conclusions will have do nothing to bring about some form of accommodation between them. However, at the end of the process, I remain convinced that both parties have much to offer the children. In particular, Mr Russell cannot be described as a disinterested parent. To the contrary, he is fervently interested in all aspect of the children’s care, welfare and development.
He has been prepared to defer to the significant decisions the mother has made about schooling and health issues since the parties separated. It would be naïve to think that there will ever be any easy process of consultation between the parties about major long-term issues pertaining to X and Y, let alone a consensual decision about such matters.
Notwithstanding these obvious and significant issues, I do not think that it would be helpful to the children if one parent is conferred with sole parental responsibility in respect of issues pertaining to their long term care, welfare and development. Such an outcome would only deepen the divide between their parents. Accordingly, I consider that it would be in the best interest of the children if their parents are conferred with equal shared parental responsibility.
Clearly, either an equal time or substantial time regime between the children and their father is one which cannot be considered to be reasonably practicable to implement given the reality of their deeply fissured family life. However, in my assessment, Mr Russell’s proposals for the parties being kept informed about educational and medical issues pertaining to the children are sensible ones as are the injunctive provisions proposed.
As I have said the prospects of the case returning to court must be considered high. This is a complex and multifaceted case that has no quick fix. Obviously, whether it does return must depend on the attitudes of each of the parties.
Firstly, whether Ms Brookes is genuine in her apparent wish that the children should have some form of relationship with their father and the actual steps she is prepared to take to facilitate it. Secondly, how Mr Russell interprets these reasons for judgment and what occurs in the next two years or so.
It is not a good thing that litigation concerning children becomes endemic. However, in some cases it is inevitable and the court cannot turn away litigation in such problematic cases. As such, it is not beyond the bounds of possibility that these reasons for judgment will have to be revisited, if fresh circumstances arise.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding four hundred and fifty-eight (458) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 21 February 2022
Johnson and Page (2007) FLC 93-344 at [68] (May, Boland and Stevenson JJ).
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