SALLARD & WARDLE

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALLARD & WARDLE

[2020] FCCA 1646

Catchwords:
FAMILY LAW – Parenting – high conflict between parents – best interests of children.

Legislation:

Family Law Act 1975 (Cth), pt.VII

Cases cited:

Goode & Goode (2006) FLC 93-286

MRR & GR (2010) FLC 93-424

Applicant:

MR SALLARD

Respondent:

MS WARDLE

File Number:

NCC 3833 of 2017

Judgment of:

Judge Betts

Hearing dates:

20 & 21 November, 16 December 2019

Date of Last Submission:

13 March 2020

Delivered at:

Newcastle

Delivered on:

26 June 2020

REPRESENTATION

Counsel for the Applicant:

Mr Bithrey

Solicitors for the Applicant:

Gillard Family Lawyers

Counsel for the Respondent:

Mr Mueller

Solicitors for the Respondent:	Fielden & Associates
Counsel for the Independent Children's Lawyer:	Mr Bates
Solicitors for the Independent Children's Lawyer:	Foat Roberts Lawyers

ORDERS

That the Mother have sole parental responsibility for the children X born in 2003 (X), Y born in 2004 (Y) and Z born in 2007 (Z).
That the children Y and Z live with the Mother.
That the children Y and Z spend time and communicate with the Father as follows:
(a)During school terms, each alternate weekend from the conclusion of school on Thursday until the start of school on Tuesday.
(i)If the children have spent the last weekend of the previous school holidays in the care of the Mother, then the alternate weekend time shall commence on the first Thursday in the school term.
(ii)If the children have spent the last weekend of the previous school holidays in the care of the Father, then the alternate weekend time shall commence on the second Thursday of the school term.
(b)During the terms 1, 2 and 3 school holidays from 5pm on the middle Saturday of the holidays until 5pm on the Sunday prior to the recommencement of school.
(c)During the term 4 school holidays:
(i)In even-numbered years, from 9am on the first Saturday until 9am on 2 January of the following year;
(ii)In odd-numbered years, from 9am on 2 January of the following year until 9am the day before the children return to school.
(d)On the weekend on which Father’s Day falls from 5pm on Saturday until commencement of school on Monday.
The children’s time with the Father is suspended on the weekend on which Mother’s Day falls from 5pm on Saturday.
Changeovers are to occur on school days at the children’s school and on non-school days at the carpark adjacent to the B Store.
The Mother shall promptly inform the Father of the details of any appointments with consulting specialists that she makes for any of the children and the Father is authorised by these orders and at his expense to obtain information about that child’s health, diagnosis and treatment from any consulting specialist or other treating health professional upon whom the children attend.
The Mother and the Father are each restrained by injunction from denigrating the other parent, or any member of the other parent’s family or household, whenever in the hearing or presence of the children. Each parent shall immediately remove the children from the hearing or presence of any other person engaging in such denigration.
The Mother and the Father each be restrained by injunction from possessing, consuming or being in any way affected by illicit drugs at any time the children are in their respective care.
Within three months of these orders, the Mother shall apply for passports for the children Y born in 2004 and Z born in 2007. Pursuant to section 11(1)(b) of the Australian Passports Act, the Father’s consent shall not be required for such applications.
The Mother shall be at liberty to renew any of the children’s passports and she shall retain the passports at all times they are not required for overseas travel by the children or any of them, save and except for in the circumstances set out in Order 11 below.
Upon receipt of a notification from the Father about his intention to take the children on an overseas holiday the Mother shall provide the travelling child/ren’s passport/s to the Father within seven (7) days; and within seven (7) days of the child/ren’s return to Australia after an overseas holiday with the Father, the Father shall return the child/ren’s passport/s to the Mother.
The parents shall each be at liberty to take the children or allow another family member to take the children on an overseas holiday during times that the children are due to be in their care, subject to the following conditions:
(a)The travelling parent shall provide at least 42 days written notice to the non-travelling parent including proposed dates of travel, detailed itinerary and contact details for the children whilst overseas;
(b)Not less than 14 days prior to the proposed travel, the travelling parent shall provide to the non-travelling parent a copy of a comprehensive travel insurance policy for each of the children who are travelling and which notes the non-travelling parent as a beneficiary of such policy;
These Orders authorise each of the children’s schools to provide each parent (at their expense) with any school-related document including School Reports, Photograph Order Forms and any other document normally provided to parents.
The parents shall keep each other informed of their current residential address, email address and mobile telephone number and will advise the other parent within 24 hours of any change in those details.
Each parent is to notify the other immediately in the event of any hospitalisation or medical emergency concerning the children.
The Independent Children’s Lawyer is directed to explain the orders to the children as soon as practicable, with both parents to facilitate any reasonable request by the Independent Children’s Lawyer for that purpose.
For the purposes of these orders, “writing” includes text message and email.
The Court will hear from the parties on the question of costs.

Notation:

(A)Notwithstanding these orders provide the Mother with sole parental responsibility in respect of X, no order is made in relation to X’s living arrangements as the parents are in agreement that he shall continue to reside with his Maternal Grandmother and Maternal Step-Grandfather.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3833 of 2017

MR SALLARD

Applicant

And

MR WARDLE

Respondent

REASONS FOR JUDGMENT

Introduction:

This case involves three (3) children who have been enormously damaged by their parents’ unremitting conflict.
The children are:
a)X - born in 2003, who is presently 17 years, 4 months of age. Asked to describe his parents’ relationship, he said: “I have no memory of them being nice to each other, never”.[1]
X has recently voted with his feet and elected to live with his Maternal Grandmother and Maternal Step-Grandfather (Mr C) in Sydney. One of his key reasons was to get away from the parental conflict.
b)Y - born in 2004, who is presently 15 years, 7 months of age. Y has ADHD, ODD, and displays reactive aggression. He has had numerous behavioural problems and has been suspended from school many times.
Y desperately wants his parents to just stop fighting.[2]
c)Z - born in 2007, who is presently 13 years, 2 months of age. If Z had a magic wand, he would want “for the court stuff to stop and dad and mum to get along”.[3]
[1] Letter from Dr D (Psychiatrist) to X’s GP dated 07/08/19. Exhibit “ICL-4”; pp 25-27/31
[2] Family Report, para 98. Exhibit “ICL-3”
[3] Ibid, para 104
The children’s parents are Mr Sallard (“the Father”) and Ms Wardle (“the Mother”). They commenced a relationship in the Region E in 2000 or 2001, separating when the children were all very young, either around 2007 (Father’s case) or around 2009 (Mother’s case).
It is common ground that, as their relationship spiralled downwards, the parties had a number of unpleasant altercations to which the children were exposed.
Since separation the children have always lived primarily with the Mother and spent substantial and significant time with the Father.
Initially this arrangement included the children’s older sister, Ms F, born in 2000. But despite having been Ms F’s only “father figure” throughout her life, the Father decided to stop spending time or communicating with Ms F when she was twelve or thirteen years old. Their relationship was a casualty of the family law dispute.
Ms F has since moved to Sydney where she lives with the Maternal Grandmother and Mr C and attends university.
The Father has re-partnered with Ms G. He lives with her in the Region E and they work together in the Father’s business.
The Mother initially re-partnered with Mr H in 2013 but they separated in 2017 following a violent altercation and she is now single again. She lives at a 25 acre rural property in the Region E and works as a customer service officer.
Neither parent seeks to disturb X’s living arrangements in Sydney. But they disagree as to who should have parental responsibility for him. This is an issue I have had to decide.
The major issue at trial related to the future parenting of Y and Z.
Those children do not want a change to the current living arrangements with the Mother. Notwithstanding, the Father sought to become their primary carer. He also sought that there be an initial 10 week “moratorium” period during which the children have no time and no communication with the Mother whatsoever. The Father also sought a substantial post-moratorium reduction in the Mother’s weekend time – so that she would have them from 10am Sunday to 9am Tuesday each alternate week.
While the Mother initially sought a reduction of the Father’s time, as the evidence unfolded she sensibly retreated from that position. She would be content for the existing living arrangements to continue, consistent with the children’s wishes.
Parental responsibility is also in issue for Y and Z. Each parent seeks sole parental responsibility.

These proceedings:

The Father first commenced these proceedings on 11 December 2017.
On 9 May 2018, interim orders were made by consent that the children live with the Mother and spend time with the Father each alternate Thursday from after school until before school the following Tuesday (5 nights per fortnight), and for half of the school holiday periods. There was a non-denigration restraint and the Father was also restrained from bringing Ms G to changeovers.
In the course of the proceedings, orders were made for a Child-Inclusive Conference, a Family Report and the appointment of an Independent Children’s Lawyer (“ICL”).
The matter finally proceeded to trial on 20 and 21 November 2019, concluding on 16 December 2019. Because there was insufficient hearing time available to complete the trial, I made directions for the filing of written submissions including the provision of a tender bundle.

Material and documents relied upon:

At trial the Father relied upon:
a)his Amended Initiating Application filed 19 November 2019;
b)his trial affidavit filed 15 November 2019;
c)the affidavit of Ms G filed 15 November 2019;
d)his Case Outline (exhibit “F-1”);
e)written submissions filed 6 March 2020 (exhibit “F-6”).
The Mother relied upon:
a)her Response filed 19 February 2018;
b)her trial affidavit filed 19 November 2019;
c)the affidavit of the Maternal Grandmother, Ms J, filed 20 November 2019;
d)the affidavit of the Maternal Step-Grandfather, Mr C, filed 18 November 2019;
e)her initial Proposed Orders and Chronology (exhibit “M-1”);
f)her Case Outline (exhibit “M-2”);
g)her Proposed Orders – final version (exhibit “M-11”);
h)written submissions filed 13 March 2020 (exhibit “M-13”).
The ICL relied upon:
a)a Case Outline (Exhibit “ICL-1”);
b)the Family Report of Family Consultant Mr K dated 1 November 2018 (Exhibit “ICL-3”);
c)written submissions filed 17 February 2020 (Exhibit “ICL-5”).
There were numerous other documentary exhibits which will be referred to as relevant.

Brief observations about the witnesses:

In the witness box the Father consistently came across as self-righteous, reluctant to admit to error, and strong-willed at times to the point of “bullishness”. He clearly considers himself to be superior to the Mother as a parent and has made this clear to her over the years.
Regrettably, the Father has a significant “blind spot” when it comes to acknowledging his own contribution to the adult conflict and its impact on the children. He cannot or will not accept that at times he has fanned the flames of the conflict and placed the children into a no-win situation. He also has a rather unfortunate tendency to give the children the “silent treatment” when they then displease him.
Ms G – like the Father - blames all of the conflict on the Mother’s actions. She is deeply immersed in it and similarly oblivious to the impact of her actions on the children. Like the Father, she clearly thinks that she is superior to the Mother in terms of parenting skills.
For her part, the Mother can be quite volatile, and at times she has behaved inappropriately angrily, aggressively or erratically towards the Father, towards Ms G and towards others. Her emotional reactivity has been a real problem throughout her life. She can also be very defensive and difficult to get along with - as the Maternal Grandmother and Maternal Step-Grandfather depose.
The Mother has in recent times been diagnosed with adult ADHD. She is now medicated and has some understanding of why she sometimes behaves as she does.
Unlike the Father, the Mother does seem to genuinely accept at least some of the responsibility for the parental conflict and its impacts on the children. Her trial affidavit made numerous concessions in this regard. Moreover, in the witness box she seemed genuinely ashamed of some of her behaviour. She seemed to have more insight into the destructive co-parenting dynamics than either the Father or Ms G did.
The Maternal Grandmother tended to minimise the Mother’s flaws and maximise the Father’s. That said, she is not blind to the Mother’s faults. I am satisfied that she is a loving grandmother who wants what is best for the children.
The Maternal Step-Grandfather is a health care worker. He formed a relationship with the Maternal Grandmother in 2013 and they married in 2015. While he had some negative commentary about the Father, this was largely based on his own observations, his own dealings, and comments made to him by the children. But having said this, Mr C was also the one who first identified that the Mother might have ADHD – so he was clearly not blind to her faults. Like the Maternal Grandmother, Mr C has been a source of support for these children in difficult times.
To the extent that the witnesses give different versions of events, I propose to focus only those matters that I consider relevant.
The last witness was the Family Consultant, Mr K. I found his Family Report to be thorough, insightful and balanced. Mr K was concerned about the attitudes and actions of both parents, their ongoing high conflict and its negative impacts on the children. He did not advocate any serious change to the existing arrangements for Y and Z. His evidence assisted me in my determination.

Chronology of relevant events:

During the relationship:

The Mother was the primary carer of the children, although the Father also played a significant role. I accept the evidence that the Father drank alcohol to excess on occasions, when he could behave in a verbally abusive manner towards the Mother and sometimes the children. I am also satisfied that the Mother was herself somewhat volatile on occasions and that the parties engaged in mutual verbal abuse.

Altercations between the parents during the initial post-separation period / children are exposed:

There was not a “clean break” between the parties. The Father wished to continue the relationship; the Mother was not interested. The Father also lost his mother around this timeframe, so he was struggling.
The Father would sometimes follow the Mother around town. The Father would also come to the Mother’s home without notice. On 26 April 2009 he turned up at her friend’s home looking for her. Her friends were so concerned that they told the Mother not to come around anymore.
Some specific incidents occurred during the January 2010 holidays. One evening, the Mother awoke to find the Father standing in her bedroom, very emotional and crying, saying “Please Ms Wardle just tell me the truth, who is it? Who are you sleeping with? I need to know”. The Mother told him to leave and she was understandably anxious thereafter.
On another occasion, the Father attended the Mother’s home after he had been drinking. He was distressed and emotional, slurring his words. She challenged him, saying:
“Boo hoo Mr Sallard you have to take responsibility for your actions. You can’t keep stalking me and harassing me. You can’t keep going on like this. I’m not getting back together with you and you can’t use your mum dying as an excuse!”
Those incendiary comments enraged the Father. He chased the Mother inside the home, throwing a hat stand at her, which hit her calf but caused her no serious injury. She locked herself in the laundry and the Father punched a hole in the fibro wall of the stairwell nearby.
There was another violent event towards the end of those holidays when the Father came to the home to collect some of his property and the Mother threw various items down the bottom of the stairs. Again, she locked herself inside the house. The Father was crying and banging on the door and the Mother moved the children to another part of the house until the Father left.
The Police later charged the Father with a series of offences, namely assault, stalking and wilful damage. The Father was initially convicted and an AVO was put in place to protect the Mother.
The Father appealed to the District Court and in the meantime he was involving the children. They would tell the Mother that “Dad says that you’re sending him to jail”.
The Father’s appeal was successful and the convictions and AVO set aside. He says the appeal succeeded because the Mother’s evidence was found to be unreliable. (At trial, it was clear that her “contemporaneous” diary records had been altered somewhat).
The Mother says that the Father’s behaviour improved after he was charged and that she spoke to the Prosecutor and told him she was not concerned about the criminal convictions but wanted to maintain the AVO. It seems the appeal was heard on the papers. For some reason the Maternal Grandmother was not called as a witness even though she had been present at the Mother’s home on the night that the Father attended unannounced in the Mother’s bedroom (the stalking charge).
In the end, I am satisfied that there was a violent altercation between the parents - more than once - which was witnessed by the children. The exact detail of those events is not so significant. Moreover, the Father did write a letter of apology to the Mother at Easter 2010 in which he was acknowledging, and apologising for, his own poor behaviour albeit that he did not go into specifics.

Father and Ms G commence a relationship:

Later in 2010 the Father and Ms G started living together.
At that stage the children were spending four (4) nights per fortnight with the Father, being every Wednesday night and each alternate weekend from Friday to Sunday.
The Mother soon noticed that the style of the Father’s emails and texts changed. Rather than being short and to the point, they became much lengthier and with different grammar. Ms G had started to involve herself.

Mother’s violent altercation with Ms L:

In 2011, the Mother was contacted by her old childhood friend, Ms L who had drug and alcohol problems and wanted to move back to the Region E area to make a fresh start. The Mother allowed her and her daughter M to stay at her home.
While Ms L was living there, the Mother witnessed her snorting dexamphetamine, abusing alcohol and smoking cannabis. It was a totally unsatisfactory situation for the children.
On 27 October 2011, while the older children were at school, the Mother and Ms L had an argument and the Mother asked her to leave. Z was at home at the time. The situation quickly escalated into a violent altercation. The Mother’s evidence is that Ms L slapped her in the face and that she then grabbed Ms L’s arms and pushed her outside. She admits that Ms L hit the doorway on her way out.
However, Ms L claimed the Mother was the aggressor. She complained to Police that the Mother slapped her, pulled her hair, grabbed at her and scratched her. Police photographed her injuries. Ms G also says that when she collected the children from school that day, she observed that Ms L looked “beaten up” and the children saw her and were upset by it.
The injuries Police observed were inconsistent with the Mother’s version. I therefore consider it more likely than not that the Mother was more forceful/violent then she has admitted to.
The Police charged the Mother with assault. Tragically Ms L committed suicide in 2012; the charges against the Mother were dropped.
The Father inappropriately involved the children in that matter. After a visit with the Father, X told the Mother that:
“Dad and Ms G would not stop talking about Ms L and how she committed suicide under the house. Dad kept saying that it was your fault mum and that if it wasn’t for you bashing her and kicking her out, Ms L would still be alive. Why did you kick her out? Why didn’t you just let her stay?”
Ms F told the Mother that the Father and Ms G had been “really mean about it. They didn’t stop until X screamed at them and ran outside”. The Father later apologised to X.
The Father “weaponised” Ms L’s tragic suicide against the Mother. Ms G was complicit.

Mother is using cannabis:

In 2012, Ms F disclosed to Ms G that she had seen the Mother smoking “a bong”. The Father confronted the Mother and she admitted using it as a coping mechanism. He told her that he would not tolerate drugs and she said that she would stop.
The Father’s evidence is that Ms F stopped visiting shortly thereafter because the Mother “permanently withheld her”. [4] By inference, the Mother did not want Ms F to inform on her.
[4] Paras 186 and 187 of Father’s trial affidavit.
In the witness box, the Mother admitted that at that time in her life she would sometimes smoke cannabis.
No doubt Ms F was in a difficult position after this disclosure. But in my view, the reason that Ms F stopped visiting the Father relates to a rather sad and completely avoidable incident concerning Y’s wallet, to which I now turn.

Altercation over Y’s wallet:

One particular day in 2012, the Mother had the children and Y wanted to get his wallet from the Father’s home. It had some birthday money in it ($50) that he wanted to spend.
The Mother should have contacted Ms G to let her know what Y wanted. She didn’t. Instead she went there unannounced. Her visit was unwelcome.
The Mother parked outside and waited in the car, sending the children in to get the wallet. Instead of giving it to Y – it was after all Y’s money - Ms G substantially escalated things.
She telephoned the Father, asking what she should do. For reasons best known to him and to Ms G, the Father told her that he would leave work and come home. Common sense was being eschewed.
In the meantime, the Mother had been sitting in the car waiting for what much have felt like an eternity given the simplicity of the task. She soon “snapped”, storming up to the home and confronting Ms G. The children were all witness to it, including Ms F.
There is some debate about exactly what happened but it is clear enough that the Mother went into the home over Ms G’s objection and grabbed the wallet from her by force. She then left with the children.
Ms G contemplated making a complaint to Police but, mercifully, she decided not to.
The Father was furious at Ms F, who supported her Mother on this occasion. He banned Ms F from his house. At the age of 12 or so, she became persona non grata.[5]

Y’s health:

[5] I accept the evidence of the Maternal Grandmother as to those matters, told to her by Ms F.

The parental conflict soon extended to Y’s health. He developed a tic in his eye, for which the Father arranged a specialist attendance. The Mother cancelled the appointment on the basis that she didn’t find out until it was too late. Each parent blamed the other.

Mother re-partners:

In 2013, the Mother re-partnered with Mr H, the brother of the late Ms L.

Father trespasses at Mother’s friend’s home:

In June 2013 the Father trespassed into the backyard of one of the Mother’s friend’s homes. He was drunk and evasive and challenging the occupants as to whether the Mother was there.
The Father was convicted of trespass and placed on a bond.
This event escalated the Mother’s anxieties; she was already struggling to regulate her own emotions and behaviours at times and this event, occurring years after separation, made her feel overwhelmed. She became more socially withdrawn, suffered from sleep disturbances and became more jumpy in general.
To be fair, the Mother had some inherent emotional volatility already, consistent with her later ADHD diagnosis. She had an established capacity to behave in combative, reactive, defensive and difficult ways. She was also suffering over the suicide of Ms L. She was struggling.

Conflict around the children’s sports:

Sports was another flashpoint for the parents. The Father considered that the Mother was not giving the children enough physical activities to do, so he unilaterally enrolled them in sports. He also acted as a coach. This meant that the Mother had to then transport the children to and from games on weekends, which sometimes involved travel to nearby towns.
The Father also insisted that the Mother meet with he and Ms G before each game so that the children could change into their sports clothes. They then had to change back out of the clothes again at the end of the games.
On 2 August 2013, an altercation occurred.
Ms G had to attend the changeover that day as the Father was unavailable; she and the Mother were each parked in their cars at the B Store.
The children had just attended sports presentation and been given trophies. They were about to go back into the Mother’s care. The children were all very excited and wanted to take the trophies home. They took them over to the Mother’s car.
Ms G was having none of that. She told them they could show the Mother the trophies, but that Ms G needed to take them home with her so they did not “get broken or lost”.
The children were not happy, especially Z, as he wanted to sleep with his trophy. Ms G told the children that the Father had paid for everything to do with sports and that the Mother had paid for nothing.
X got out of the Mother’s car and gave his trophy back to Ms G - but Z and Y refused.
At that point, the Mother “snapped”. She yelled at Ms G to get out of her car and face her. She also did a U-turn so that she was parked right next to Ms G’s car, yelling at her to get out and have some sort of physical altercation.
Ms G reported the incident to the Police. The Mother said that Ms G’s real complaint to Police related to the Mother’s alleged “theft” of the trophies.
As with Y’s wallet, this was an example of Ms G needlessly escalating the situation, the Mother “snapping” and the children being caught in the middle.

Y’s behavioural problems / the parents’ inability to cooperatively work together:

By 2014, Y was acting out in an increasingly aggressive way. The Mother spoke to Mr C about it, who suggested that he may have ADHD. He recommended a referral to Dr N or Dr O. The Mother advised the Father. He took the view this was none of Mr C’s business.
The parents jointly took Y to see Dr N in December 2014. But before attending, the Father first wanted to make sure that Dr N knew the “true story” about the Mother’s home environment. To that end, he wrote a ten (10) page letter replete with family law issues and criticisms of the Mother as a parent.[6]
[6] Exhibit “M-5”
The Mother asked to see the letter, but Dr N said he needed the Father’s permission. The Father refused. A more unhappy and dysfunctional interaction between parents and a paediatrician is difficult to imagine. Dr N found himself caught up in the conflict. In any event he was satisfied that Y warranted a diagnosis of ADHD, ODD and anxiety. He recommended a review in 2015. He did not suggest medicating Y at that stage.
There was then an unpleasant exchange concerning payment of Dr N’s fees afterwards. The Mother had borrowed her half share of the fee from the Maternal Grandmother. Although the Father was meant to pay the other half, he declined - telling her “your mother paid for yours so she can pay for mine”.
The Father later sent the Mother and the Maternal Grandmother an email at 1:07am(!). His email suggested that Y would benefit from long-term counselling and that his problems had been evident since he was 6. The Father accused the Mother of not being interested in committing to Y’s health, of previous “no shows at appointments” and of not being “so thoroughly honest” with the Maternal Grandmother.
Y’s problems continued throughout 2015; he was suspended from school 6 times.
Y’s follow up appointment with Dr N in September 2015 was a debacle. The Mother cancelled the appointment without reference to the Father, as she did not want to be left with the bill after what had happened last time.
The Father was angry and criticised her. The Mother responded defensively by asking whether the Father was going to pay half the fees this time, and pointing out that she considered his messages to her to constitute harassment. The Mother also defended herself from the Father’s allegations about her alleged previous disinterest in being involved in Y’s medical care. She accused the Father of “lying to” a previous psychologist and asked him to “please clarify your accusations. Or perhaps fuck off!”.
In the meantime, in August 2015 Y suffered a head injury at the Mother’s home. The Father took Y to a GP, armed with a letter of “his concerns” – likely to have been highly disparaging of the Mother. The GP, a mandatory reporter, made a referral to the NSW Department of Families and Communities (“FACS”) although notably the GP considered that “the father only sought medical attention in order for the reporter to make a FACS complaint.”[7] The complaint went nowhere.
[7] See also para 12 of the affidavit of Ms G.
The parents subsequently attended upon Dr O, as arranged by the Mother, on 27 October 2015. This visit also went badly, again demonstrating how poorly the parents could behave at a time when they needed to work cooperatively for their son’s sake.
The Father said that “the other party” arrived late - being a reference to the Mother (I note that Ms G had also used the very same expression to describe the Mother at one point during her oral evidence). The lack of respect for the Mother was obvious, but mutual.
Dr O recommended that Y be medicated with Ritalin. The Father flat-out refused to accept the prescription. His rationale was that he was:
“concerned about the doctor’s behaviour. During the appointment Dr O was taking other calls. For example, his assistant was holding his phone to him and he was typing and talking about another patient in front of us. I found the whole appointment bizarre.”
In my view, the more accurate position is that the Father was annoyed about the Mother cancelling Dr N’s appointment, and about Dr O being in some way “partisan” given Mr C had suggested him.
Poor Y was at an impasse. His behaviour was not being properly managed and he was not able to receive his prescribed medication.
Mr C asked the Maternal Grandmother to send the Father an email inviting discussion about Y’s condition and its management. The Father responded:
“your input is not required. We will not be proceeding with any proposed drug therapy through Dr O or anyone who works with you. We need an independent, unbiased approach. I’ll be arranging an appointment for Y with an independent specialist from P Hospital.” [8]
[8] Affidavit of Mr C, para 95.
The Father’s attitude was needlessly combative and unhelpful. It treated Y’s medical condition as a family law issue, not a health issue. While I do accept that the Father had some genuine reasons for not wanting to rush to medicate Y, his motivations and attitude were not entirely altruistic. For him, as was so often the case, family law issues were at play.
The Father subsequently arranged a referral to a Dr Q. The Mother contacted Dr Q and advised him that Y had already seen two paediatricians, at which point Dr Q said he would not see Y. From the Father’s viewpoint, it was just more sabotage by the Mother. (For what it is worth, I note that the Mother also alleged that Dr Q was a generalist, lacking the same level of expertise as Dr N or Dr O. The Father disagrees.)
As 2015 came to end, the parents found themselves locked in ongoing high conflict. The children’s interests were continuing to fall by the wayside. Y was getting into a lot of trouble at school, had been prescribed Ritalin but was not able to take it as the Father would not consent. The medical management of Y’s needs was a complete shambles.

Passport problems:

The parties were unable to even get passports signed without significant conflict.
The Father had invited the Mother to sign passport forms in 2015 for all three (3) children. The Mother was quite upset by the content of the passport applications as they had nominated the Father’s address as the primary address for the children - and Ms G as the emergency contact. These things were somewhat provocative and it didn’t take much to arouse the Mother’s defensiveness. Instead of ignoring those things she stewed on them, and in the end she returned them to the Father not having been properly executed. She did so either deliberately or in recklessly indifferent fashion. It was most unhelpful.
The problem was that the Maternal Grandmother and Mr C then wanted to take Ms F and X on a holiday to Country R. X had no passport. So in the end, the parties ended up meeting at a Police Station so that X’s passport forms could be signed.
Needlessly, the Mother brought all three children along on that occasion despite the Father’s objection. An emotional scene then unfolded in the presence of the children before X’s passport was finally signed and he was able to travel.
The Father legitimately blames the Mother for this. The Mother concedes that the children were acutely aware of the passport dispute, that she did not handle it well, and that she should have just signed the passport application forms that Ms G had prepared. I agree.

Y starts taking Ritalin / Father is concerned that the Mother is taking Y’s medication as well:

In February 2016, Dr N again reviewed Y and, like Dr O three months earlier, he recommended that Y start Ritalin. The Father accepted this advice. Y was thereafter medicated, although at times his medication and dosage were altered.
By that stage, the Mother was thinking that she too might have ADHD. Mr C thought so, having observed her to be easily distracted, disorganised, with a poor working memory and a tendency to a “fight or flight” response when under pressure. He also thought she seemed depressed and at times overwhelmed.
It is common ground that the Mother tried Y’s medication; she found it very helpful as it made her feel more organised. The Mother says this was a one-off event; the Father says it was part of a larger pattern.
This issue was the subject of much cross-examination at trial and an attempt was made at one point to try to reconcile the amount of tablets prescribed to Y with the amount that Y actually took, and the amount that remained in the Mother’s (or Father’s) possession. Ultimately no precise findings can be made.
There is evidence suggestive of the Mother potentially using Y’s medication more than once.
On 26 April 2016, the Mother contacted her GP complaining about hormonal problems and possibly having adult ADHD. On her own evidence the Mother had by that stage already tried one of Y’s leftover 10mg tablets.[9] It had afforded her noticeable relief. She was unhappy about a 5 month delay in getting a referral to a doctor who could treat ADHD. She started crying, swearing and getting extremely upset over the telephone to the receptionist – asking her “who the fuck she was to be giving her advice”. [10]
[9] Mother’s trial affidavit, para 110a.
[10] Exhibit “ICL-1”, page 6/24
Mr C says the Mother told him that she was diagnosed with ADHD around June 2016. But this date seems to be out by a year, as the letter from the Mother’s Psychiatrist Dr S indicates that the correct date is June 2017. According to her letter, the Mother admitted “recently” trying a 40mg tablet of Ritalin, contrary to her affidavit wherein she says she took a 10mg tablet only. [11]
[11] Letter forms part of exhibit “ICL-4”, pp 8-9/24
Although Dr S prescribed Ritalin for the Mother in June 2017, she contacted her GP in August saying she was taking an extra tablet. On a number of different dates after her 2017 diagnosis in 2017, the Mother was also chasing up earlier release of Ritalin scripts.[12]
[12] Exhibit “ICL-4”.
In October 2017 the Father says that the Mother’s neighbour Mr T told him the Mother was abusing Ritalin – including hearing her screaming at and abusing the children. According to the Father, the Mother had admitted to this neighbour that she had “connived” a doctor into thinking that she had mild ADHD and they had prescribed her with Ritalin and that if she needed to “get stuff done I just swap one of my 10mg tablets with one of Y’s 40mg tablets and I just zip through the day”.
The Father did not however call Mr T as a witness and I do not place weight on that hearsay statement.
The Father pointed to the Mother’s behaviour at the pharmacy. On 13 November 2017 the Mother rang her GP to seek an extra Ritalin script, saying she would run out the next day. She explained that the script provided to her had been 4-weekly when it should be 2-weekly.[13]
[13] Exhibit “ICL-4”, p 6/24
The next day, 14 November 2017, the Mother did have an unpleasant altercation with the pharmacist at U Pharmacy. The pharmacist knew the Father, and he had already arranged for Ms G to collect Y’s Ritalin that morning.
The Mother became quite agitated with the pharmacist. She was very unhappy about Ms G collecting the medication, accusing the Father of a “power play”.
I note here that the pharmacist did give the Mother her own Ritalin that day. So it is not the case that the Mother was out of her own medication, or that she needed to get hold of Y’s medication in order to satisfy her own need.
The pharmacist rang the Father afterwards and he told her that he suspected the Mother of withholding the tablets from Y and swapping his 20mg tablets for her 10mg tablets. He said he had told Dr N the same.
The Father clearly wanted to try to stop the Mother accessing Y’s scripts.[14] He ended up dropping the requisite number of tablets in the Mother’s mailbox later on – which she resented, particularly given her concern (corroborated by Mr C) that the medication should not be left in a hot mailbox during the day.
[14] Exhibit “ICL-4”, pp 15-16/24
The next fortnight when the medication was due to be dispensed, both parents wanted to collect it. The pharmacist, aware of the looming dispute, suggested splitting the tablets equally. This was superficially sensible but not really a good solution given that Y was primarily living with the Mother. The Mother rejected the idea out of hand, becoming upset over the telephone and making a litany of complaints about the Father. She accused him of manipulating the pharmacy and of being a drug abuser - a jarring accusation totally out of context in that situation. She criticised Ms G. In short, the Mother was once again being inappropriately reactive. The Mother also threatened to make a complaint.

But to be fair to the Mother, the situation was somewhat maddening. She did have primary care of Y; he was only with the Father about 35% of the time.
The pharmacist tried to enlist the paediatrician’s assistance, who understandably did not want to get involved.
On the afternoon of 3 December, the Father personally went to the pharmacist’s home to tell them to report any abuse from the Mother to Police, pointing out that the Mother had abused people before and this had resulted in a suicide. Like the Mother, he was also demonstrating a capacity to make inflammatory – and in this case callous – remarks.
The following day, the Mother attended the pharmacist first thing in the morning, behaved in an aggressive manner (for which she later apologised) and ultimately collected Y’s script. She then decided to take his scripts to a different pharmacy.
Thereafter the scripts have been collected by the Mother without incident. They give two thirds to the Mother and one third to the Father, a very sensible solution.
In conclusion, in relation to the Mother’s possible abuse of Y’s Ritalin medication:
a)the Mother admits she took Y’s medication in early 2016 on one occasion;
b)despite admitting to various instances of other “poor” behaviour on her part, the Mother adamantly denies taking Y’s medication on any other occasion;
c)the Mother’s erratic behaviour in this timeframe was not necessarily out of character, particularly given the ongoing parental conflict;
d)I accept her reasons for wanting to control Y’s scripts at the pharmacy;
e)the children, though aware of the Father’s concern, have never themselves made any disclosure about the Mother allegedly using Y’s medication;
f)the Mother did in the early days of her ADHD diagnosis consume Ritalin at a level that required extra scripts – which she chased up;
g)while there is an apparent inconsistency between her affidavit and the history she gave Dr S, I am not satisfied that the Mother was using Y’s medication as the Father suggests.

Mother separates from Mr H after a violent altercation:

In 2017 the Mother separated from Mr H. He attended at her home, behaving aggressively and yelling abuse. Ms F was present at the time but the children of these proceedings were not. Mr H advanced towards them with a piece of wood and smashed it into the side of the shed. The Mother and Ms F ran inside the house, locked themselves in and called Police.

Father commences proceedings:

The Father commenced these proceedings in December 2017. The Mother reacted extremely poorly, showing the children his court documents. In turn, when the Father found out about it, he then told the children there were “drugs involved” and that the Mother was not properly looking after them.
The children were upset by the action of both parents. Z reverted back to sleeping in the Mother’s bed.

Child-Inclusive Conference (CIC):

On 1 May 2018 a CIC took place. At interview, the children complained about the Father insisting that no items move between the households. There was a change of clothes at the start and the finish. Electronic equipment and sports gear had to stay with him. The Family Consultant recommended that the children be free to take all personal belongings between the households and that both parents fully encourage that, observing that this issue was causing:
“massive stress for the children and is seriously undermining the children’s relationship with the father (and Ms G). If the court considers that the father is unable or unwilling to implement such a change, it is recommended that consideration be given to substantially reducing the time that the children spend with the father.”

Consent interim orders:

Following release of the CIC Memorandum, on 9 May 2018 the parents consented to interim orders whereby the children spent each Thursday afternoon to Tuesday morning with the Father in alternate weeks, being five (5) nights per fortnight. They also agreed to share school holidays equally.

On 6 August 2018, the Father emailed the school, expressing concerns about Y’s social media use in the Mother’s home.[15] He essentially accused the Mother of being neglectful in this respect. In the witness box however, the Father had to admit that he had not even seen Y’s Semester 2 Report. He admitted that he felt “ashamed” about that – one of the very few concessions he made.
[15] Exhibit “M-7”
Y saw Dr V the same day, who wrote a letter of 6 August 2018 recommending an anti-psychotic medication, Risperidone, in order to better manage his aggression. [16] His letter pointedly referred to the unremitting family law conflict, observing:
“Y does not have an easy time in dealing with his two parents, who both love him and want good things for him, but neither of whom have good feelings for each other, and of course this will impact adversely on their son.”
[16] Letter forms part of Exhibit “ICL-4”; pp4-5/31
The Mother was willing to trial Risperidone; the Father was not. He declined that script for a further three (3) months, while continuing to blame the Mother’s home environment for Y’s problems.
Y continued to get into a lot of trouble at school. At his strong request, the Mother arranged for Y to be transferred from the W School to AA School as he wanted a “fresh start”. The Father reluctantly acquiesced but only after the Mother made it clear that she would no longer be sending the child to W School anyway.

Family Report:

Family Consultant Mr K conducted the Family Report interviews on 22 October 2018 and was most concerned about both parents exposing the children to the ongoing conflict. He was concerned about Z reverting back to sleeping in the Mother’s bed.
The interviews revealed that the children had well and truly had enough of their parents’ dispute and denigration. The children did not want a change; they just wanted the parents to stop fighting.
Mr K considered it imperative that the Mother facilitate family counselling upon the conclusion of the proceedings, particularly with Z who was exhibiting stress and anxiety.
Mr K ultimately recommended that the children should stay living with the Mother and spend time with the Father as per the current arrangements, save that X not be obliged to comply with any particular orders. Family therapy was specifically recommended as:
“a logical outcome of these proceedings, in order that the children view the parents moving forward in their respective lives and their ability to co-parent in a far more positive manner then what they have done historically”.

Mother acts on some of the Family Report recommendations:

The Mother managed to stop Z coming into her bed quite quickly; this behaviour had stopped by around Christmas 2018.
In January 2019, the Mother obtained a family therapy referral to Ms BB. She told the Father he had to attend. He did not understand why, but he went along. He ended up asking Ms BB why his attendance was required and she told him it wasn’t. He was confused by, and reluctant to participate in, the process. He remained firmly of the view that it was the Mother who was creating the problems.
In March 2019, the Mother obtained a referral to a new family therapist, Ms CC. The Father found out in May. He declined to participate. The Mother has, for her part, been seeing Ms CC with one or more of the children ever since. She says it has helped her better manage the family dynamics.

2019 – the tension is continuing to build:

2019 was another stressful year for this family; everyone knew that the trial was looming. The children remained in an impossible bind.
Z stopped seeing his Father for a while around March 2019 and, despite having always been a good student, he began misbehaving at school as well.
Y had further school suspensions, including being cautioned by Police for his violence towards another student.
But in the end it was X who came most dramatically off the rails.
Around May/June 2019 the Mother was very upset to discover that X had been using cannabis. He promised her that he wouldn’t use it again, but she caught him the very next day. She then grounded him.
The Mother wanted to tell the Father about his cannabis use, but X begged her not to, saying he was worried about how the Father would react. The Mother spoke to X’s GP and to Ms CC who advised that keeping X’s trust was the better choice at the time. The Mother therefore decided not to tell the Father.
Around that time, X started to express suicidal thoughts. He told the Father that the Mother was breaking down and crying in front of them at her place – which at trial she conceded had happened on occasions.
X told the Father that the Mother called him names including that he was “selfish”, “useless” and “an arsehole”. The Mother disputes this, but having regard to her own volatility, I accept that X’s disclosures were probably accurate. X also told the Father that the Mother was physically “laying into him”. I consider that an exaggeration; X was likely playing the parents off against each other and knew that the Father would be receptive to such comments.
Adding to his family law and drug use woes, X was also having difficulties with a girlfriend at school - who had apparently pretended to be pregnant to him. He had a lot going on in his life.

Mediation in June 2019 & subsequent meeting with the ICL:

The parties attended a mediation on 12 June 2019. Despite being eminently capable of resolution, the matter did not settle. It was a wasted opportunity.
On 16 June 2019 the ICL met with the children at the Father’s home. Exactly what she said to them is unclear. The Mother purported to give evidence of what the children had reported back to her, but the ICL objected to that evidence on the basis that it was said to be inaccurate or otherwise privileged.
I am not critical of the ICL for meeting with the children, nor do I propose to rely upon the Mother’s hearsay evidence. But things did escalate afterwards for the children.
X and Y got into an ugly physical altercation on 18 June 2019. X came into the Mother’s kitchen while she was preparing dinner, telling her that he wanted to live “50/50” between each parent. This did not go down well. The Mother admits that she became emotional, accusing him of “breaking up the family”, and asking him if he was “trying to destroy our relationship?”
She said she would talk about the subject after dinner. But X began swearing at her:
“I can do what I fucking want. It’s not up to you, you said that it would be decided after the mediation and that didn’t happen. The ICL said I can choose. You’re a fucking liar. You’re a fucking bitch. I’m telling dad I want 50/50”.
X went to his room and immediately rang the Father. Y listened in, becoming very angry. He told the Mother that X was telling the Father “all these lies about Z and I. He’s saying all this bullshit that didn’t happen.”
Y and X ended up fighting, hitting and punching each other. The Mother separated them. The Father could hear the fighting on the other end of the phone and told X to meet him in the laneway outside. He had Ms G call the Police.
The Husband collected X. He told the Father that Y had threatened him with a knife but I do not accept that. Police attended and spoke to the children. They took no action, despite the Father continuing to tell them that it was a sinister event.

X has a breakdown/psychosis:

X ended up staying with the Father for a few days after this event.
By that stage, his mental health was rapidly disintegrating. He began to act in a paranoid fashion.
One afternoon after school he exploded to the Father: “you are all fucked parents, you don’t know what’s going on, you don’t know about mum and what she’s been doing. She takes money off me to pay for court and the dogs.” These statements were simply untrue.
The Father took X to his GP, who prescribed a mood stabiliser. The Father was urged to contact a local Mental Health Unit if his condition worsened.
On 28 June 2019 the Father had to take X to the hospital. He had Ms G ring the Maternal Grandmother – he said “out of respect” but in my view it was a sign of desperation. During that call, Ms G advised that they had just discovered that X had been smoking cannabis, that he was now psychotic / manic and could not be left alone.
The Maternal Grandmother asked to speak to X who, tellingly, told her: “Everything’s fucked, I’m fucked, my parents are fucked but I’m the one who has to take the medication, they’ve fucked up my life.”
X then put the Father on the phone; he was inconsolable and largely incoherent. The Maternal Grandmother asked him to let the Mother know what was going on – and he assured her he would.
He only advised the Mother about two or three days later. The Mother was furious and immediately blamed him for X’s cannabis use. This was totally and utterly unreasonable; so too was the Father’s assumption that the Mother had been allowing him to smoke it. The most likely scenario was that X was hiding his cannabis use from both parents.
X went to visit the Maternal Grandmother and Mr C a few days later, telling told Mr C that he felt like he was a “pimple being squeezed”. He had a discussion with the Maternal Grandmother in which he said he loved his father but that he was immature and controlling and that he could communicate with him better if Ms G was not involved. He also complained that the Mother just kept fighting with the Father and getting upset “when he says mean shit to her. I just wish she would ignore him”. X was expressing hostility towards his family in general.
X saw Dr DD at Region E Community Mental Health and both parents attended the appointment on 10 July 2019. The Father complains that the Mother was behaving in a “very odd” manner at that appointment such that Dr DD wanted to talk to him about her behaviour afterwards.
I accept that the Mother probably presented poorly, but Dr DD had been given the false history that X had “witnessed a house guest’s suicide as a child” (Ms L) which the Mother was greatly upset by.
Dr DD referred the child to a new counsellor, Ms EE, which the Mother was unhappy about as he had consistently been seeing Ms CC.
The parents both attended another meeting with a GP on 24 July 2019 which also went poorly. The Mother had wanted to meet the GP separately but he would only meet the family collectively, including X. The Mother wanted to correct the record about Ms L’s suicide and the possible resultant diagnosis of PTSD. The Mother felt a wave of anxiety flood over her and she felt pressured and overwhelmed. She admits that in hindsight, she came across in an unhelpful and unproductive way and that she needed her own psychological support at the time.
The Mother also said that X had mentioned moving to Sydney. The Father then asked the doctor “could it be any more alienating?” X was again caught in the middle.
This whole appointment seems to be to have been a disaster for X and it probably cemented him in his decision to move away.

X moves to Sydney:

X decided that he wanted to live in Sydney. He spoke with the Maternal Grandmother and Mr C about it, who supported him. The Mother was initially offended but quickly came around to the idea given X’s age. The Maternal Grandmother explained that she was offering X “a lifeline. The constant fighting between you and Mr Sallard is stressing him out. He just wants to focus on his studies.”
In late July 2019, the Mother spoke to the Father about the child moving to Sydney. The Father objected. The Mother, the Maternal Grandmother and Mr C enrolled X at FF School over his objection. The Father then contacted the school advising that he did not consent to the enrolment. The school in turn informed him that they considered X old enough to make his own decisions.
In the midst of this further chaos, the Father stopped talking to X – giving him the “silent treatment”.
X’s first day at school was on 5 August and he had a good day. Regrettably, 6 August was a very bad day. When he came home from school his speech was rambling, incoherent and pressured. The Maternal Grandmother and Mr C took him to Dr GG who considered that he was suffering from acute psychosis and recommended that he be urgently assessed by the paediatric psychiatric registrar at P Hospital. They were advised to “try to limit the external triggers”.
They took him to the P hospital. There, he was actively texting the ICL. He was agitated. He got to see Dr D (psychiatrist) the next morning who resumed some Olanzapine medication that had been stopped shortly prior to the child relocating. Dr D advised that:
“The court case seems to be a trigger for him, you will need to ensure that he is not addressed by anyone about the court case. He needs a ‘brain rest’ and a complete break from all stressors.”
The next day the Father filed an urgent Application in a Case seeking for all three children to live with him and “spend no time with the Mother”. He also sought to restrain the Mother from contacting the children by any means save that they could have a telephone call each Sunday at 7pm “to be monitored by the Father”. The Father also sought an injunction against X being enrolled in a school in Sydney or from living there.
So much for de-escalating the dispute and preserving X’s mental health. In X’s moment of crisis, the Father took the view that the Mother was “winning” and I accept the Mother’s submission that he did not appreciate X’s agency as a sixteen and a half year old child.
The Father had still not contacted X. The next day, X rang him:
“Hey dad, my name is X and my job description is getting in better touch with my father because he doesn’t want to have any of my time, he just wanted to blame it on his mother Ms Wardle claiming negligence, that’s what you said in your big words with your big court case over everyone’s heads because you didn’t realise that its Z’s fault and its my fault and its Y’s fault when you put it all together when you fuck up.”
The Maternal Grandmother overheard X tell him that it was his decision to live there and go to FF School for his HSC, that he hadn’t been “brainwashed” and that the ICL, the doctors and the School Principal had all said that he was old enough to make his own decisions.
The Maternal Grandmother and Mr C later took X to the Region HH Psychiatric Early Intervention and Recovery Service (PIERS) and it emerged that he had been smoking marijuana for a whole year. Each parent blamed the other.
The Father did not press the application. He next saw X on Father’s Day 2019, being his first day with X in over a month.
Dr JJ advised the Maternal Grandmother and Mr C that when X went back to visit his parents, he should not stay more than two nights at either parent’s house.
By the time of trial, X was settled at the home of the Maternal Grandmother and Mr C. Their numerous emails updating the Father about X were never acknowledged or responded to. It was their turn for the “silent treatment”.
Yet he sought to have equal shared parental responsibility with them for X.
As for Y and Z, they remained living with the Mother and spending five nights per fortnight with the Father. Y still had problems with aggression at school.

Parenting proceedings - the law:

The court’s power to make parenting orders is found in Part VII of the Family Law Act (“the Act”).[17] Section 60B of the Act sets out a number of key objects and principles which underpin the operation of Part VII. I do not propose to restate those.
[17] The term “parenting orders” is statutorily defined in s 64B of the Act
When deciding whether or not to make a particular parenting order, the court must regard the best interests of the children as the paramount consideration: s 60CA, s 65AA.
In arriving at a best interests determination, s 60CC prescribes mandatory considerations for the court. There are two (2) so-called “primary considerations” in s 60CC(2)(a) and s 60CC(2)(b). There are fourteen (14) so-called “additional” considerations set out in s 60CC(3).

When a court is considering making a parenting order, s 61DA(1) of the Act imports a rebuttable statutory presumption that it would be in the best interests of the children for the parents to have equal shared parental responsibility.[18] Pursuant to s 61DA(2), this presumption is not to be applied if there are reasonable grounds to believe that a parent has engaged in “abuse” of the children, or “family violence”.[19]
[18] “parental responsibility” is defined as all the duties, powers, responsibilities and authority which, by law, parents have in relation to children: s 61B
[19] “abuse” is statutorily defined in s 4 of the Act, “family violence” in s 4AB
Where the presumption applies, s 61DA(4) provides that it can be otherwise rebutted by evidence which satisfies the court that the making of such an order would not in fact be in the children’s best interests in that particular case.
If the court makes an order that the parents are to have equal shared parental responsibility for children, then the court is obliged to follow the specific statutory pathway set out in s 65DAA: see Goode & Goode (2006) FLC 93-286. Put shortly, the court must consider, as the first option, making an order for the children to spend equal time with both parents provided that an equal time order is in the best interests of the children and “reasonably practicable”.
“Reasonable practicability” is defined in s 65DAA(5). It refers to practical matters such as how far apart the parents live, their capacity to communicate and resolve difficulties, and the impact that the making of such orders would have upon the children. The definition is inclusive and contains the familiar catch-all “such other matters as the court considers relevant”.
In MRR & GR (2010) FLC 93-424, the High Court of Australia explained that “reasonable practicability” required the court to consider the reality of the situation of the parents and the children. This involves a practical assessment. The High Court emphasised that the “reasonable practicability” requirement is in the nature of a jurisdictional fact.
If equal time is not in the best interests of the children or is not reasonably practicable, then the court must consider making an order for the children to live primarily with one parent but to spend “substantial and significant time” with the other parent. “Substantial and significant time” is statutorily defined as meaning that the children spend time with the other parent not merely on holidays and weekends but also in a way that allows that parent to be involved in the children’s day-to-day routine and on occasions of special significance: s 65DAA(3) of the Act. Once again though, such an order can only be made if in the children’s best interests and reasonably practicable.
If a “substantial and significant time” order is not in the best interests of the children, or is not reasonably practicable, then the question of the children’s time is simply to be determined by application of the best interests considerations in s 60CC.

Best interests findings:

Because I have already set out the chronology in some detail, I propose to address the various best interests considerations largely by way of summary.

Section 60CC(2)(a) benefit to children in having meaningful relationships with parents

The children would benefit from having a meaningful relationship with both parents.
The Mother’s proposed orders and the ICL’s proposed orders provide for a meaningful relationship to be maintained with both parents. I struggle to see that the Father’s proposed orders do so, by reason of his suggested 10 week moratorium where Y and Z do not see the Mother and then his subsequent substantial diminution of the Mother’s time on alternate weekends. His proposal reflects either an overestimation of the strength of his own case and an underestimation of the children’s need for a meaningful relationship with the Mother.

Section 60CC(2)(b) - protecting children from risk of harm from being exposed to abuse, neglect or family violence

Both parents have neglected the children’s emotional needs by allowing their family law dispute to infect every aspect of the children’s lives. Both parents have exposed the children to denigration of the other parent, both have discussed in appropriate adult issues with them and the Mother admits showing the children some of the court documents. The parents are as bad as each other.
The Father is running a “risk case” against the Mother.[20] His submissions focus almost exclusively on all of the Mother’s perceived faults, with scant reference to the Father or Ms G.
[20] Exhibit “F-6”; the Father’s written submissions
I accept that the Mother was involved in some physical altercations. She has been emotionally volatile.
It should be borne in mind that the Mother has been medicated for some time now and that she has also undertaken a number of parenting and other courses, as well as family counselling. While she has a past history of being volatile and defensive and easily angered, her circumstances seem to be improving.
Certainly there is a risk the children could potentially be caught in the proverbial “cross-fire” in the event that the Mother finds herself in a violent altercation in the future, but I do not regard that risk as being relevantly “unacceptable”. Nor do I accept that the Mother poses a risk by reason of having some form of inadequate conflict resolution approach. She certainly can be highly reactive at times but I do not consider that these matters give rise to an “unacceptable” risk in terms of the children remaining in her primary care.
The Mother has had some people staying at the back of her rural property from time to time. They may have smoked cannabis. But I do not regard that as a matter that the Mother approves of, nor do I see it giving rise to “unacceptable” risk. The Mother has herself used cannabis on occasion, but she has provided clean drug tests in the course of these proceedings and in my view her drug use does not give rise to an “unacceptable” risk of harm to the children.
In the witness box Ms G said that the Father did not have current safety concerns about the Mother and that his concerns were based on past events.
The Mother has used cannabis on occasions but there is, to adopt the words of the ICL “little cogent evidence to support a finding that the Mother poses a risk because of her involvement in marijuana use despite the Father’s allegations”.[21]
[21] Exhibit “ICL-5”, para 24
The Mother does not pose an “unacceptable” risk in terms of potential abuse of Y’s Ritalin medication.
I would add here that the Father also has been a perpetrator of family violence, has consumed alcohol to excess and has also used illicit drugs in the past. I do not regard any of those matters as giving rise to “unacceptable” risk on his part either. I merely note that there is an inherent hypocrisy in some of the Father’s complaints.
The fact that the Father may present in a more measured manner with professionals on occasion does not change the fact that he too has failed to properly support the children’s emotional needs. His “bullishness” and “silent treatment” approach to conflict resolution are hardly helpful either.
I accept the submission of the ICL in this case that:
“The evidence given by the parents in this case highlights the highly conflictual relationship which has existed between these parents for over 10 years.
In this case it is not so much an issue of where the children live and the time they spend with the other parent but for the children to obtain relief from the exposure to the constant acrimony between the parents”.
In my view, the ongoing parental conflict and the children’s immersion in it, are far and away the major risks in this case.

Section 60CC(3)(a) – views of children:

Y and Z clearly want to live with the Mother and they do not want any change to their living arrangements. The Father is aware of this.
Having regard to the children’s ages and life experience, their wishes must be given real weight. For many years the adults around them have not properly listened to them. It is time they did.

Section 60CC(3)(b) – nature of relationships:

The children love both parents. Z is particularly close to the Mother. They also have a loving relationship with the Maternal Grandmother and Mr C and in my view with Ms G as well.

Section 60C(3)(c) – extent of participation in children’s lives:

The Mother has always been actively involved in the children’s lives to the maximum extent. The Father has generally been involved to the maximum extent as well.

Section 60CC(3)(ca) – extent to which parents have maintained the children:

Both parents have financially supported the children. At times the Maternal Grandmother and Mr C have assisted the Mother with various expenses. The Father has consistently paid child support, albeit of a fairly modest amount.

Section 60CC(3)(d) – likely effect of change in circumstances:

The Mother’s proposed orders largely represent a continuation of the current arrangements, save that she would assume sole parental responsibility.
The Father’s proposed orders for X would result in an unworkable sharing of parental responsibility. X needs stability at this point in his life and he needs one of his parents to have the decision making role. It is only logical that it be the Mother given that he is living with the Maternal Grandmother and Mr C, particularly where the Father does not even respond to their emails.
In relation to Y and Z, the Father’s proposed orders would represent a dramatic change.
The Father’s proposed ten week moratorium is nothing short of cruel, and contrary to the evidence. Mr K strongly disavowed any such proposal. The Father’s explanation that it would be necessary to enable the children to adjust and block out “third party noise” spoke volumes. Z in particular is very close to his Mother and he would struggle enormously with the change and I have no doubt Y would also act out badly. The fact that the Father persisted in his ten week moratorium proposal at the conclusion of the trial, rather than re-thinking his position, reflects poorly upon him.
The Father concedes that it would “be tough” and that the children are “gonna need counselling…could be a tough couple of years”. His assertion that he was “an optimist” about his own capacity to handle the situation gave me little comfort, and only underscored my view that he sees himself as the superior parent.

Section 60CC(3)(e) – practical difficulties and expenses:

There are no real practical difficulties and expenses that arise.

Section 60CC(3)(f) – parental capacity:

In terms of the basics of parenting, both parents have adequate and proven capacity. The Father’s concerns about neglect are unwarranted.
The Mother’s parenting capacity has been at times diminished by her own volatility. She has however obtained a medical diagnosis and appropriate medication. She has also undertaken a number of courses since then, including substantial family therapy with the children. She is showing a genuine desire to do better as a parent.
She still has some difficulties, but overall, the Mother has the requisite parenting capacity.
The Father’s parenting capacity is adequate but it is disappointing that he failed to undertake family therapy. He seems to me to remain on a “war footing” with the Mother whereas she has, to some extent, moved on.

Section 60CC(3)(g) – maturity, sex, lifestyle and background of children:

The children are all teenagers and need to be protected first and foremost from the adult dispute. The parents need a clear set of orders that minimise the prospect of congoing conflict.

Section 60CC(3)(h) – Aboriginality or Torres Strait Islander heritage:

Not applicable.

Section 60CC(3)(i) – attitude to the children and to the responsibilities of adulthood:

The parents have both failed in their attitudes to the extent that they have allowed their conflict to trump the needs of the children time and again.
The Father’s approach remains that he is the superior parent. This grates on the Mother and leaves her feeling judged. But her volatile and at times defensive and aggressive responses to him have not helped.

Section 60CC(3)(j) and (k) – family violence related orders:

There has been some family violence involving both parents, but it is not a major issue in this case.

Section 60CC(3)(l) – orders least likely to lead to further proceedings:

This is an important consideration. Further proceedings between these parents would be highly destructive. The court needs to put in place clear orders that regulate the circumstances going forward.

Section 60CC(3)(m) – any other facts or circumstance:

The children in this case need for the parents to stop fighting. The orders I propose to make need to be adhered to by the parties and both of them need to draw the proverbial “line in the sand” going forward.

Weighing up the competing proposals:

Equal shared parental responsibility is not sought by either of the parents, nor would it be workable. Whoever has primary care of the children should have sole parental responsibility. I do not consider it appropriate that the Father share parental responsibility with the Maternal Grandmother and Mr C in respect of X. Furthermore they are not parties. I do not intend to join them. They are content for the Mother to have sole parental responsibility and I consider such an order to be appropriate and in X’s best interests.
In relation to Y and Z, the Father’s case is based on risk in the Mother’s care and on the general proposition that he is the more capable parent. I do not consider that the Mother’s care poses “unacceptable” risk to the children, nor do I consider that the children would cope well with this suggested change. I consider that they would be hurt and incensed. Both Y and Z would feel that they had not been listened to.
I see no good reason to change the residence of the children, nor do I see any good reason why the Father’s time should be reduced. The Mother should have sole parental responsibility as primary carer. These parents cannot share parental responsibility.
Accordingly, I am of the view that the appropriate orders to make are that the children continue to live with the Mother, that she have sole parental responsibility, and that there be a sharing of holidays, special days and the like. I have defined the Christmas holiday and created a more child-focussed, workable “block” of time. I have rejected the orders that Y choose where he lives from age 16, lest he be subject to parental pressure. I have not provided for telephone/electronic communication; it is going to happen anyway. The orders I make are largely based on the orders proposed by the ICL with various self-explanatory alterations.
In relation to passports, I propose to make orders as sought by the Mother and supported by the ICL. The orders include various machinery and injunctive orders which I consider to be “appropriate”.

Conclusion

I make the orders set out at the commencement for these Reasons.
I respectfully repeat paragraph 8 of the ICL’s written submissions:
“Mr K, the family consultant in his evidence clearly stated that the ongoing conflictual relationship to which the children have been exposed since separation is “akin to the children being retraumatised over a period of time” and that there has been “a lot of negativity, denigration and information leaked to these children by the parents”. He was not surprised when he was updated as to the present circumstances with X. In particular he referred to Z and said “this is likely to occur for Z as well. Unless there is a change with the parents the outcome for Z is likely to be the same”.
The parents should reflect on this warning as they move forward.

I certify that the preceding two hundred and fifty (250) paragraphs are a true copy of the reasons for judgment of Judge Betts

Associate:

Date: 26 June 2020

[2020] FCCA 1646

26 June 2020

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Costs