SEDLEY & CUTTER

[2018] FamCA 639

FAMILY COURT OF AUSTRALIA

SEDLEY & CUTTER [2018] FamCA 639

FAMILY LAW – CHILDREN – Parental Responsibility – Where the allocation of parental responsibility for the children was in dispute – Where both parties sought sole parental responsibility for the children – Where the evidence did not prove the children were at risk of any form of harm in either party’s household – Where no factual findings were made or required in respect of the contested evidence concerning family violence – Where the allocation of equal shared parental responsibility is not in the children’s best interests and the presumption was rebutted – Ordered the father have sole parental responsibility for the eldest child and mother have sole parental responsibility for the youngest child.

FAMILY LAW – CHILDREN – With whom a child lives – Separation of siblings – Where the mother proposed both children live with her and the father proposed both children live with him – Where the eldest child wishes to live with the father and the youngest child wishes to live with the mother in accordance with the interim residential arrangement – Where the views of the children should be given considerable weight due to their age and level of maturity – Where the proposals of the parties carried the risk of failure and were antithetical to the agreed interim residential arrangement and the children’s wishes – Where any change of residence for either child would likely be deleterious – Where neither party has demonstrated the parenting capacity to provide primary care for both children – Ordered the eldest child live with the father and the youngest child live with the mother.

FAMILY LAW – CHILDREN – With whom a child spends time – Ordered children spend time with non-residential parent on specified weekends during school terms and half of school holiday periods – Ordered siblings spend three weekends each school term and school holiday periods together, alternating between the party’s residences.

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

APPLICANT: Ms Sedley

RESPONDENT: Mr Cutter

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Newcastle

FILE NUMBER: NCC 738 of 2017

DATE DELIVERED: 24 August 2018

PLACE DELIVERED:	Newcastle
PLACE HEARD:	Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 16, 17 & 18 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms V Carty

SOLICITOR FOR THE APPLICANT: Tony Cox Lawyers

COUNSEL FOR THE RESPONDENT: Ms L Ticehurst

SOLICITOR FOR THE RESPONDENT: Todd Street Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr C Boyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Newcastle

Orders

1. All former orders in respect of the following children (“the children”) are discharged:

   (a)X, born … 2004 (“X”); and

   (b)Y, born … 2006 (“Y”).

2. The father shall have sole parental responsibility for X.

3. X shall live with the father.

4. The mother shall have sole parental responsibility for Y.

5. Y shall live with the mother.

6. The parties shall take all reasonable steps to ensure X spends time with the mother:

   (a)On the fifth weekend of each school term, from 5.00 pm Friday until 5.00 pm Sunday;

   (b)For the first portion of the Autumn, Winter and Spring school holidays, from 5.00 pm on the first Saturday until 5.00 pm on the second Saturday;

   (c)For the first portion of the Summer school holidays which commence in 2018 and each even-numbered year thereafter, from 5.00 pm on the first day of the holidays until 5.00 pm on 5 January; and

   (d)For the second portion of the Summer school holidays which commence in 2019 and each odd-numbered year thereafter, from 5.00 pm on 5 January until 5.00 pm on the last day of the holidays.

7. The parties shall take all reasonable steps to ensure Y spends time with the father:

   (a)On the third and seventh weekends of each school term, from 5.00 pm Friday until 5.00 pm Sunday;

   (b)For the second portion of the Autumn, Winter and Spring school holidays, from 5.00 pm on the second Saturday until 5.00 pm on the last Saturday;

   (c)For the second portion of the Summer school holidays which commence in 2018 and each even-numbered year thereafter, from 5.00 pm on 5 January until 5.00 pm on the last day of the holidays; and

   (d)For the first portion of the Summer school holidays which commence in 2019 and each odd-numbered year thereafter, from 5.00 pm on the first day of the holidays until 5.00 pm on 5 January.

8. For the purpose of implementing Orders 3, 5, 6, and 7, the parties (or their nominees) shall ensure the children are exchanged at B Town, NSW.

9. The parties shall take all reasonable steps to ensure Y communicates privately by telephone with:

   (a)The father each Wednesday at 6.00 pm, when he lives with the mother;

   (b)The mother each Wednesday at 6.00 pm, when he spends time with the father during school holidays;

   (c)The parent with whom he is not then living or spending time at 6.00 pm on Christmas Day, Mother’s Day (if spending time with the father); Father’s Day (if living with the mother); his birthday; and X’s birthday.

10. Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.

11. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

12. Each party shall forthwith notify the other in writing and keep the other informed in writing of all doctors, therapists, and other medical providers currently providing medical services to the children.

13. Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

14. Each party shall forthwith notify the other in writing and keep the other informed in writing of the schools at which the children are enrolled to attend.

15. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

16. The father shall authorise and request the principal of any school attended by X to provide to the mother, at her expense, copies of all school reports and school photograph order forms relating to X.

17. The mother shall authorise and request the principal of any school attended by Y to provide to the father, at his expense, copies of all school reports and school photograph order forms relating to Y.

18. Leave is granted to the parties to furnish a copy of these orders and reasons to any therapist engaged to provide counselling services to either child.

19. Leave is granted to the parties to furnish a copy of these orders (but not reasons) to the principal of any school attended by the children.

20. Within seven days hereof the parties shall cause the children to be delivered to the Independent Children’s Lawyer to have explained to them the effect of these orders and, if deemed appropriate by the Independent Children’s Lawyer, the reasons for such orders.

21. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

22. The Independent Children’s Lawyer is discharged upon compliance with Order 20 hereof or the expiration of any applicable appeal period, whichever is the latter.

23. Costs are reserved for 28 days.

24. Any and all other outstanding applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 738 of 2017

Ms Sedley

Applicant

And

Mr Cutter

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction  

1. These proceedings concern the living arrangements for the two adolescent children of the applicant mother and respondent mother. The children are now 13 and nearly 12 years of age.

2. Presently, in accordance with the parties’ agreement, the eldest child lives with the father and the youngest child lives with the mother. The parties live about 200 kilometres apart, which causes some modest expense and practical difficulty in ensuring the children are able to spend time with their non-residential parent and sibling.

3. Each party now contends that both children should live with him or her and that he or she should have exclusive parental responsibility for them, whereas the Independent Children’s Lawyer submitted for the perpetuation of the existing residential arrangements, which proved to be the better option.

Background

1. The parties separated in January 2008, after which time the children lived with the mother and spent substantial amounts of time with the father. For many years, the parties managed those arrangements flexibly without the need for any court orders.

2. In October 2016, the father moved to live in the Region C with his new partner. The road journey between the parties’ homes was then about two hours in duration and disputes began to emerge about how and when the children would be exchanged between them.[1]

   [1] Exhibit A, para 12

3. The children spent time with the father during the 2016/2017 summer school holidays but then, upon commencement of the new school term, the mother withheld them from him over a weekend in late February or early March 2017 and he then withheld them from her for nearly a fortnight soon afterwards in March 2017.[2]

   [2] Exhibit A, paras 16, 17

4. The mother commenced these proceedings in March 2017 in the Federal Circuit Court while the father was withholding the children. On her application, interim orders were made for the children to live with her and to spend time with the father on alternate weekends and during school holidays, pursuant to which orders the children were returned to her.[3]

   [3] Exhibit A, paras 18, 24-26

5. Upon the children’s return to the mother, the eldest child’s behaviour “rapidly deteriorated”. The mother conceded in cross-examination the eldest child only stayed with her “on and off” in the few months following the March 2017 orders. She instead went to live with the maternal grandparents and then later her maternal uncle and then the paternal grandparents. That was not an entirely new development because she had earlier stayed with the maternal grandparents, prior to her school holiday visit with the father.[4] Before the father withheld the children, the eldest child was sometimes enraged and uncontrollable in the mother’s care[5] and, after the children returned to live with her in March 2017, there was an escalation in the engagement of external agencies with the family. An ambulance was called to manage the eldest child’s histrionic behaviour when she was removed from the father’s care and returned to the mother[6] and, once back in the mother’s care, she required further admissions to hospital to quell her distress over ensuing days[7] and also on occasions over the next few months.[8] The police were also summoned in May 2017 when she threatened to harm herself, the mother, and her sibling with a knife.[9]

   [4] Exhibit A, paras 18, 38; Mother’s affidavit, paras 74-75, 81; Father’s affidavit, paras 92, 130, 138, 139

   [5] Exhibit A, para 54

   [6] Exhibit A, paras 57, 58

   [7] Exhibit A, paras 59, 60; Mother’s affidavit, paras 69-73

   [8] Exhibit A, paras 63, 66, 67

   [9] Exhibit A, para 65

6. The Federal Circuit Court immediately ordered a Family Report, which was released in July 2017. By then, the eldest child was apparently ensconced with the paternal grandparents and the youngest child was living with the mother. In September 2017, noting the separation of the siblings, the Federal Circuit Court transferred the proceedings to this Court for determination.

7. The mother conceded at trial that the eldest child began living with the father from early November 2017. At an interim hearing in December 2017, the interim orders formerly made in March 2017 were discharged. It was then determined the parties should have equal shared parental responsibility for the children but, with their consent, orders were made for the eldest child to continue living with the father and for the youngest child to continue living with the mother. The orders made provision for the youngest child to spend time with the father as regularly as the distance between the parties’ homes reasonably allowed but, because of the conflict between the eldest child and mother, no orders were made to prescribe their contact or communication. Since then, the eldest child has spent very little time with the mother; amounting to no more than a few hours on only a few occasions.[10]

   [10] Father’s affidavit, para 15

Proposals

1. The mother pressed for the orders set out in her Amended Initiating Application filed on 3 April 2018. She proposed that both children live with her and that she have sole parental responsibility for them. She proposed that the children spend time with the father on two weekends each school term and for block periods during school holidays.

2. The father pressed for the orders set out in his Amended Response filed on 10 April 2018, though before the trial commenced he announced his desire to seek sole parental responsibility for the children rather than for the parties to share parental responsibility. He proposed that both children live with him and that they spend time with the mother. For the youngest child, he specified that should comprise alternate weekends in each school term and block periods during school holidays, but for the eldest child he thought she should decide for herself.

Evidence

1. The mother relied upon:

   (a)Her affidavit filed on 11 May 2018 (subject to her correction of the error in paragraph 141); and

   (b)The affidavit of her partner, Mr D Sedley, filed on 14 May 2018 (subject to some minor typographical corrections).

2. The father relied upon:

   (a)His affidavit filed on 11 May 2018 (subject to his corrections of the errors in paragraphs 180 and 189);

   (b)The affidavit of his partner, Ms E, filed on 11 May 2018; and

   (c)The affidavit of the paternal grandmother, Ms F Cutter, which was tendered as an exhibit[11] because the copy which was filed electronically on 15 May 2018 was incomplete.

   [11] Exhibit F4

3. The father referred in his affidavit to an exhibit,[12] but he conceded the validity of the Independent Children’s Lawyer’s objection to the admissibility of that document and so it did not form part of the evidence.

   [12] Father’s affidavit, paras 116, 125, 150

4. The parties and Independent Children’s Lawyer relied upon the Family Report dated 7 July 2017, which was tendered.[13] During the trial it came to light a slightly different copy of the Family Report existed, from which counsel had been working, so it was tendered as a separate exhibit[14] so the references to paragraphs of the Family Report in the cross-examination of the witnesses before the anomaly was discovered could be properly interpreted.

   [13] Exhibit A

   [14] Exhibit B

Legal principles

1. Orders in respect of children are made under Part VII of the Family Law Act (“the Act”), where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

4. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Children’s best interests – primary considerations

Section 60CC(2)(a)

1. It was accepted the youngest child has meaningful relationships with both parties, from which he does and should continue to derive benefit.

2. Although the mother accepted the eldest child’s relationship with her has suffered some deterioration over the last 12 months, the relationship is not “broken down completely”, as the father apparently believed only a short while ago.[15] Importantly, he conceded in cross-examination he did not now believe the breakdown was complete and the eldest child does indeed wish to retain her contact with the mother.

   [15] Father’s affidavit, para 23(b)

3. When the Family Consultant conferred with the family in July 2017, she found the eldest child had “warm and loving relationships” with both parties,[16] but there have been significant changes since then. In July 2017, the eldest child’s change of residence to the paternal grandparents was a recent development and she was still seeing the mother reasonably regularly. Then, in November 2017, the eldest child moved further away to live with the father and, in December 2017, the mother agreed to interim orders which endorsed that arrangement. The mother and eldest child stay in regular electronic contact but they barely spend any time together. The eldest child’s frequent electronic contact with the mother – usually daily – is clear evidence of her desire to maintain her relationship with the mother, despite the conflict which has developed between them.

   [16] Exhibit A, paras 93, 94

4. In respect of her relationship with the eldest child, the mother deposed:

   …we…are in the process of building a relationship back up…due to the damage that has taken place over the last year.[17]

   [The eldest child] has not been home, but this is going to take time to restore the damage that has been done.[18]

   It will take time to rebuild and reconnect as a family due to all the drama and trauma over the past year.[19]

   [17] Mother’s affidavit, para 162

   [18] Mother’s affidavit, para 163

   [19] Mother’s affidavit, para 185

1. Self-evidently, even the mother feels her relationship with the eldest child has been damaged and is in need of repair. She attributes that damage to the father, which he denies, but that is another issue. For present purposes, the eldest child’s relationship with the mother remains meaningful, but she does not currently derive the same level of benefit from it as she derives from her intact relationship with the father.  

Section 60CC(2)(b)

1. At the commencement of the trial, the mother’s counsel asserted the Court should find the children are at unacceptable risk of harm in the father’s care due to his neglect of their developmental needs. The contention was apparently designed to engage s 60CC(2)(b) as an influential consideration in the determination of the children’s best interests, but the evidence fell well short of the mark.

2. The gist of the mother’s submission was that the father wrongly perpetuated the eldest child’s false belief she was abused by the mother and her partner, and further, she was abandoned by the mother.

3. The evidentiary basis for the part of the submission related to the allegation of the child’s abuse in the mother’s household was the father’s report to the eldest child’s therapist in April 2018 that there is a “known history of extreme violence against [the eldest child] by both [the mother’s partner] and her mother”.[20] It was uncontroversial the eldest child told the father she was assaulted by the mother and her partner on occasions in the past, but the father could not be fairly criticised for reporting her allegations and having them properly investigated. The failure of the investigations to result in any prosecution does not mean the eldest child was not assaulted; only that there was deemed insufficient evidence to sustain a prosecution. The eldest child maintained the truth of the allegations when she independently discussed them with the police[21] and with her counsellor.[22] Understandably, the father would not want to undermine his relationship of trust with the eldest child by confronting her and telling her he disbelieves her.

   [20] Exhibit M7

   [21] Father’s affidavit, Annex E

   [22] Exhibit M9

4. Perhaps he did make too much of the eldest child’s allegations of abuse in this litigation, because he ultimately abandoned any suggestion the children were at risk of harm in the mother’s care, but it cannot be reasonably contended he had no grounds for either his initial alarm or for taking seriously both the eldest child’s allegations of abuse and the independent reports he received from the mother’s neighbours about confrontations involving the eldest child in the mother’s home. His conduct did not have the quality of reinforcing in the child a false belief of her physical abuse, as the mother asserted.

5. As for the assertion the child was abandoned by the mother, the father still truly believes it. He openly said so. Although the mother denies she abandoned the eldest child, her behaviour towards the child on occasions over the past 12 months may well have left the child feeling that way, so it could not be said the father’s impression is entirely misconceived. For example:

   (a)At some point before the consultation with the Family Consultant in July 2017, the mother decided the eldest child was causing so much trouble in her household there was no option but for her to live, at least temporarily, with the maternal grandparents and then, in August 2017, the eldest child moved to live with the paternal grandparents. The mother did not say how those changes were explained to the eldest child,[23] but the paternal grandmother reported to the father that the maternal grandparents told her to “pack her bags and get out”.[24]

   (b)In August 2017, in separate conversations, the mother told the eldest child, the paternal grandmother, and the police that the eldest child was not welcome at her home. Even though the mother’s reason was the eldest child might upset the other children in her household, it still amounted to a refusal to let the eldest child visit her home.[25] The mother’s refusal occurred only shortly after the eldest child refused to go back and live with her,[26] which plausibly gave the mother’s refusal a retributive flavour.

   (c)In September 2017, the eldest child told the mother she wanted to return home, but the mother told her the decision was up to her.[27] The mother explained in cross-examination how, by her answer, she meant the child could return to live with her, but only on condition her behaviour changed for the better. The child did not return to the mother’s care so either the mother did not allow it, the child perceived the mother would not allow it, or the child changed her mind about moving back.

   (d)Police were called to an incident involving the eldest child, the mother, and the mother’s partner in October 2017. The child was apparently threatened with arrest and ran away from the mother’s home. She has never since been back to her home.[28]

   (e)In November 2017, the children spent the weekend with the father and when he tried to return them to the mother she would only accept the youngest child. She refused to let the eldest child go with her.[29] The mother did not agree with that version of the incident in all respects during her cross-examination, but she did admit she refused to take the eldest child with her and she did not separately adduce any evidence-in-chief about the incident.

   (f)Since November 2017, the eldest child has spent very little time with the mother.[30] The mother has been offered time with the eldest child, but it has sometimes not been accepted.[31]

   (g)In his cross-examination, the father said the eldest child spent several days staying with the paternal grandparents on the mid-north coast near the mother’s home in May and June 2018 and, in advance of both those visits, the eldest child contacted the mother and asked to see her and, on each occasion, the mother refused. The mother did not call evidence-in-reply to refute his evidence.

   [23] Mother’s affidavit, paras 74-75, 81-83

   [24] Father’s affidavit, para 130

   [25] Paternal grandmother’s affidavit, paras 26-28; Mother’s affidavit, para 87; Exhibit M4

   [26] Mother’s affidavit, para 85

   [27] Mother’s affidavit, paras 95-96

   [28] Mother’s affidavit, paras 107-111; Father’s affidavit, paras 144-155

   [29] Father’s affidavit, paras 165-169

   [30] Father’s affidavit, para 15

   [31] Exhibits F2, F3; Mother’s aff, para 154, Annex S; Father’s aff, para 15; Ms E’s aff, para 69

6. The evidence revealed the eldest child is interested in restoring her relationship with the mother, but the mother is reluctant unless and until she can be satisfied the restoration of their relationship will not trigger the resumption of the anarchy which prevailed during 2017. While her attitude is understandable, the eldest child could perceive the mother’s reluctance as abandonment. She told her counsellor in April 2018 the trigger for her stress was that “her mother no longer has any contact with her”,[32] which implies her desire for restoration of their relationship. The mother said they communicate electronically most days – sometimes more than once – so the child is not avoidant of her.

   [32] Exhibit M8

7. As for the father, given the way in which he was told the eldest child was ejected from the homes of both the mother and maternal grandparents, how he witnessed the mother refuse to take the eldest child home in November 2017, and his belief the mother refused to see the child on two recent occasions in May and June 2018 when she was asked, his impression of the eldest child’s abandonment by the mother is not illogical.

8. In final submissions, while the mother did not jettison her contention about the risk of the eldest child’s sufferance of emotional harm in the father’s care, she accepted there was a more pronounced risk of harm in trying to force the eldest child’s return to her primary care. Her concession was tantamount to acceptance that her application for the eldest child’s residence could not succeed.

9. For the purposes of s 60CC(2)(b) of the Act, the evidence did not prove that either child is at risk of any form of harm in either party’s household by reason of subjection or exposure to neglect, abuse, or family violence.

Children’s best interests – additional considerations

1. Not every feature of s 60CC(3) of the Act was addressed by the parties or the Independent Children’s Lawyer so only those aspects of the evidence they considered were material are the subject of discussion.

Section 60CC(3)(a)

1. Although the mother contended the eldest child’s expressed views are “susceptible to emotional pressure”, one thing is certain: she has repeatedly expressed the firm view she wants to live with the father rather than the mother. Moreover, it is a view she has independently expressed to the mother, the father, the Family Consultant,[33] and the police.[34]

   [33] Exhibit A, paras 85, 87

   [34] Father’s affidavit, Annex E

2. Occasionally, she has made statements which implied the contrary – for example, to the mother several times between December 2017 and April 2018[35] and perhaps to the school counsellor on one occasion in May 2018 – but they have been the exception rather than the rule. The mother cannot repose much weight in those expressed sentiments because the eldest child has shown no inclination to act on them. The mother admitted to the Family Consultant “she wasn’t always sure where the truth laid with [the eldest child] so she was cautious as to how to interpret [what she says]”.[36] The surest way to gauge the eldest child’s genuine views is by her conduct and, almost uniformly over more than the last 16 months, her conduct has demonstrated her desire to live with the father.

   [35] Mother’s affidavit, paras 142-149, 155

   [36] Exhibit A, para 69

3. The Family Consultant believed the eldest child’s aberrant behaviour is a “representation” of the emotional pressure she is under[37] and therefore thought the child’s stated views must be considered in the context of such pressure, but still advised her views should be given “serious consideration”.[38]

   [37] Exhibit A, para 72

   [38] Exhibit A, para 90

4. Although the Family Consultant suggested the eldest child was “under the misconception” she can choose where she wants to live and that the parties will accede to her voluble demands,[39] it is no longer a misconception. The Family Consultant made that observation over a year ago and there have been many changes since. The parties subsequently acceded to the eldest child’s demands by allowing her to move away from the mother to live with the maternal grandparents, then the paternal grandparents, and then the father. She has lived with the father since November 2017, with whom she says she wishes to stay. The eldest child has not spent time with the mother since, save for a few short visits of only a few hours at most. She has not even been to the mother’s home since October 2017.[40] She misses her brother,[41] but that does not convince her it is best to return and live with him and the mother. Her expressed view to remain living with the father is most probably genuine, though it is also probable she would like to resurrect her relationship with the mother.

   [39] Exhibit A, para 72

   [40] Mother’s affidavit, para 111

   [41] Exhibit A, para 88

5. Unlike the eldest child, who can be melodramatic, the youngest child is quiet and withdrawn. The Family Consultant described him as “shut down”. He avoided answering any of her questions about his preferred living arrangements.[42] However, he told the mother in an unguarded moment he did not want the eldest child to return to live with them, even though he missed her. He obviously wants to remain living with the mother and she thinks he has flourished since the eldest child moved away to live elsewhere.[43] The view he expressed to the mother, which implied his desire to remain living with her, is most probably genuine.

   [42] Exhibit A, paras 91-92

   [43] Mother’s affidavit, paras 168, 170-171

6. The Family Consultant concluded both children were under “considerable emotional pressure”,[44] though they react to it in different ways. The eldest child is demonstrative to attract attention,[45] while the youngest child is avoidant to deflect attention. The Family Consultant concluded both children were at the limits of their ability to cope with the parental conflict.[46] Their best interests would obviously be served by the alleviation of the stress they feel and the best way to achieve that outcome is to make orders which accord with their expressed views. Both are now at an age and level of maturity where considerable weight should be accorded to their views.

   [44] Exhibit A, paras 72, 91, 99

   [45] Exhibit A, para 72

   [46] Exhibit A, para 98

Section 60CC(3)(d)

1. In December 2017, both parties agreed the children’s best interests warranted interim orders requiring the eldest child to live with the father and the youngest child to live with the mother. Their agreement coincided with the views individually expressed – then and since – by the children.

2. Now, both parties resile from the agreement. The mother wants both children to live with her and the father wants both children to live with him.

3. By all accounts, the eldest child has fared much better living with the father and the youngest child has thrived living with the mother, which begs the questions of why the mother wants to uproot the eldest child and why the father wants to uproot the youngest child. In each case, the answer is most likely that the parties simply desire it, but their respective applications are antithetical to the proven success of the agreed interim residential arrangement and the children’s wishes. It is relatively clear from the evidence that any change of residence for either child would likely be deleterious for them.

4. The youngest child is settled and happy in the mother’s primary care. He prefers his own space away from the chaos which was created by the eldest child when she lived with him and the mother. During cross-examination, the father conceded the youngest child “does seem to be doing quite well at the moment [in the mother’s care]”. The father initially posited numerous reasons for why the youngest child should live with him,[47] but by final submissions the reasons were whittled to only two: first, the siblings should preferably live together and that should be with him rather than the mother; and second, his academic performance has slipped during 2018 while living with the mother in the absence of the eldest child. Neither argument advanced by the father could reasonably justify the enforced movement of the youngest child to live with him.

   [47] Father’s affidavit, para 23

5. The parties and the Family Consultant were cross-examined about the permanent separation of the siblings. None of them thought it was ideal, but the mother said their separation was preferable to the youngest child living with the father and the father said it was more important for the eldest child to live with him. The Family Consultant said she had “difficulty” accepting the idea that the eldest child should move back to live with the mother. She thought it would be best for the eldest child to remain with the father and for the youngest child to remain with the mother. She did not think the sibling relationship should be prioritised over the two filial relationships, in circumstances where each parent was meeting the individual needs of the child in their residential care. Of course, the residential separation of siblings is not imposed without due caution, but it is the regime the parties saw fit to introduce when they jointly proposed interim orders to that effect in December 2017. The regime has worked and the alternate residential arrangements they each posited at trial carried the real risk of failure. The father’s suggestion that the youngest child’s school reports over the last 18 months betrayed some form of scholastic regression, which could be attributed to some defect in the mother’s primary care of him was fatuous because it flatly contradicted his admission about how well the child seems to be fairing in the mother’s care.

6. As for the eldest child, she is happier in the father’s primary care. She is still prone to misbehaviour, but she is much more settled with the father than she was with the mother. No argument advanced by the mother could reasonably justify the enforced movement of the eldest child back to live with her. An order to that effect would most probably lead to resumption of the chaos endured by the mother and her family in late 2016 and most of 2017. The description of “chaos” is not hyperbole. It was a description of past events the mother embraced as being accurate during cross-examination. She agreed her household had functioned better in the eldest child’s absence and her return would risk regression.

7. The mother euphemistically conceded in cross-examination it would be a “significant change” for the eldest child to move back and live with her and, when asked how she could cope with such a change, she said she had “no clear-cut answer”. The mother would need to have clear-cut answers before any such change could be seriously contemplated. The illusory nature of the mother’s plan for reversal of the eldest child’s residence was starkly exposed when she was impelled to admit it was only her wish for the eldest child to ultimately return and live with her. She admitted it was a transitional plan which would take time to implement and would probably entail the successful fulfilment of several pre-conditions: the eldest child first living with the maternal grandparents in a transitional phase, the implementation of “solid supports” for her (the meaning of which she did not satisfactorily clarify), and her not being exposed to the “contaminations” of the father (even though the mother proposed the seamless continuation of interaction between her and the father). Eventually, she was pressed to concede it was only possible the plan would work. She agreed an abrupt change of the eldest child’s residence would be difficult to manage. She also conceded she may be prioritising the ideal of the eldest child’s return to her primary care at the expense of the youngest child’s interests, though that was not her intention.

8. The mother’s partner also said they could jointly meet the challenge of the eldest child’s return to live with them, provided “the correct supports” were in place, which he then elaborated to mean her continued therapeutic counselling, the vigilant supervision of her medical conditions, and her return to a familiar school with supportive staff and her friendship network. Those are precisely the supports the mother had in place for the eldest child during 2016 and 2017 when the situation became chaotic and untenable.

9. The mother interrogated the Family Consultant in cross-examination about how the eldest child’s transition to residence with her could be managed, but the Family Consultant replied that could only be guided by the eldest child’s mental health professionals. It was the only answer logically open to her but, of course, the decision about the eldest child’s residence is a judicial decision and judicial power cannot be abdicated in favour of treating therapists. The decision at hand was therefore binary: either the eldest child lives with the father or with the mother and the orders specifying the residential parent must apply immediately. There were no other options.

10. Although the mother did not abandon her application for the eldest child’s residence, her counsel commendably conceded the application could not be made good on the evidence.

Section 60CC(3)(e)

1. If the current residential regime is maintained, some modest difficulty and expense is involved in transporting the children between the parties’ homes, which are some 200 kilometres apart.

2. Due to the distance, the parties conceded the children should only be exchanged on two or three weekends each school term and the school holidays should be shared. The father and Independent Children’s Lawyer proposed that the parties meet halfway to exchange the children.[48] The mother neither agreed nor objected, but she previously consented to use of that venue in December 2017 and its continued use is not the subject of any complaint by her.[49]

   [48] Amended Response filed 10/4/18, Order 5; Exhibit ICL1, Order 8

   [49] Order 3.4 made on 18/12/17

Section 60CC(3)(f)

1. Neither party has demonstrated the parenting capacity to provide primary care for both children.

2. The father has never cared for both children alone for more than holiday periods. He is doing a fine job caring for the eldest child, but she presents a parenting challenge which has brought the relationship he enjoys with his partner to the brink of destruction. With his partner’s children also living in their household, the prospect of him successfully integrating the youngest child into their household is remote. Contrary to the finding sought by the father’s counsel, he does not have the capacity to meet both children’s needs as their primary carer.

3. While the mother successfully cared for both children up until 2016, the conflict which crept into the parties’ parental relationship caused the eldest child so much emotional turbulence that the mother could not cope with her reactive and oppositional behaviour. The chaos she caused in their household during 2017 almost destroyed her relationship with her partner too. The mother felt she had no option but to allow the eldest child to live with the maternal grandparents for respite. The following synopsis of the evidence illustrates the problem with which the mother was confronted.

4. Throughout 2017, she was unable to ensure the eldest child regularly attended school, which was of “significant concern” to the Family Consultant.[50] In cross-examination, the mother conceded her school attendance in 2017 was atrocious.

   [50] Exhibit A, para 52

5. In March 2017, the eldest child flew into a rage when in the car with the mother. She deliberately bashed her head against the dashboard, causing herself abrasions and swelling, which the mother was seemingly powerless to prevent.[51]

   [51] Exhibit A, para 54; Mother’s affidavit, para 79

6. Later in March 2017, upon the children’s return to the mother after nearly two weeks in the father’s care, the eldest child was enraged and could not be calmed without the mother summoning help from an ambulance and the police.[52] Then, only hours later on their way home from the hospital, the eldest child threatened the mother with physical violence and attempted to jump out of the moving vehicle. The mother again had to summon the police for help.[53]

   [52] Exhibit A, paras 57-58

   [53] Exhibit A, para 59

7. The next day, the mother again had to present the eldest child to the emergency department of the hospital because she could not manage her defiant behaviour.[54]

   [54] Exhibit A, para 60

8. In May 2017, the mother took the eldest child to the hospital because of her “worsening behavioural issues”, though it is difficult to conceive how they could be much worse than they had been. The mother reported her behaviour had even “escalated” since earlier in the year.[55] The mother was at the “end of her tether”,[56] which implied she was operating at the very limits of her parenting capacity.

   [55] Exhibit A, paras 62-63

   [56] Exhibit A, para 64

9. About a week later, the mother called the police when the eldest child was armed with a knife and threatened to harm herself and others.[57] She was taken to hospital, where the mother described the eldest child’s behaviour (apparently to the hospital staff) as “vile” and the mother was observed to be unable to regulate herself or the child. The records inspected by the Family Consultant describe the mother’s behaviour as contributing to the child’s misbehaviour, in particular by yelling at and denigrating her.[58] Such evidence is consistent with the eldest child’s report to the Family Consultant that the mother yells at her and does not listen to her[59] and that the father’s home is calmer.[60] It is also consistent with the father’s evidence of hearing the mother denigrate the eldest child, including by calling her “delusional”,[61] which was coincidentally the word the mother used in cross-examination to describe some of the child’s behaviour and also the word the child used in a note she wrote at the hospital in May 2017 when describing how “everyone” feels about her.[62]

   [57] Exhibit A, para 65

   [58] Exhibit A, para 37

   [59] Exhibit A, para 82

   [60] Exhibit A, para 85

   [61] Father’s affidavit, paras 115, 121, 218, 219

   [62] Exhibit A, para 63

10. Only a day or so later, the mother took the eldest child back to the hospital after she was contacted by the school counsellor and told she was threatening to kill herself.[63]

    [63] Exhibit A, para 66

11. In June 2017 the mother summoned an ambulance when the child ran away, stood on the road, and asked the mother to run her over.[64]

    [64] Exhibit A, para 67

12. It was around then that the eldest child left the mother’s home to live with the maternal grandparents and, after that, with the paternal grandparents, because she was apparently living with the paternal grandparents by the time the Family Consultant conferred with the family in July 2017.

13. In July 2017, the mother told the father she had to physically defend herself against the eldest child.[65]

    [65] Father’s affidavit, para 118

14. In August 2017, the mother broke down with the stress. An ambulance was called and she was admitted to hospital.[66] Her condition was described as “almost catatonic” and she admitted her “significant difficulty in managing”.[67]

    [66] Father’s affidavit, paras 127-128

    [67] Exhibits F6, F7

15. The eldest child continued to spend time with the mother, but that ceased after two separate incidents several days apart in October 2017. The police were summoned to both those incidents and neighbours became involved.[68]

    [68] Mother’s affidavit, paras 106-111; Father’s affidavit, paras 141, 144-155

16. The eldest child’s behaviour would certainly test any parent’s capacity but the mother’s parenting capacity was completely exhausted. That is not a criticism; merely an objective observation. She described the events during 2017 as “very difficult and traumatic”,[69] as indeed they must have been. She admitted in cross-examination she had difficulty coping with the eldest child at that time. It is unlikely she has the fortitude to endure another parental test like that. At the commencement of the trial the mother’s counsel asserted the Court would find the mother has the capacity to manage both children, but such a finding cannot be made on the evidence.

    [69] Mother’s affidavit, para 134

Section 60CC(3)(i)

1. The Family Consultant’s unchallenged opinion was that the parties blame one another for their conflict and the children’s emotional distress.[70] So much was evident from the way in which they instructed their lawyers to conduct the trial. Their mutual blame is especially regrettable in this case because the children were described as having “special needs”,[71] which deprive them of resilience and make them vulnerable to the stress of the parental conflict.[72] The Family Consultant warned the parties of the obvious link between their conflict and the children’s misery and misbehaviour,[73] which could easily cause “very significant …ramifications” for them,[74] but her warning was not heeded.

   [70] Exhibit A, para 19

   [71] Exhibit A, para 3

   [72] Exhibit A, para 98

   [73] Exhibit A, para 99

   [74] Exhibit A, para 97

2. Despite the parties’ sniping during cross-examination, the Family Consultant said “both parents” have failed to act in a “child-focussed” way at times. She agreed the father had, in some respects, displayed his lack of insight, but she said the mother also “struggled with insight” and lacked empathy for the eldest child at times.

3. The parties criticised one another for their lack of co-operation, inattention to the children’s medical needs, and lack of parenting capacity, but most of their criticisms fell away as the trial progressed because several overwhelming features of the evidence became increasingly obvious to them, namely: the children’s genuine wishes to maintain their current residences; the inability to force changes upon the eldest child in the face of her objection; the mother’s knowledge she is unable to immediately manage the eldest child’s residence with her anyway; and the settlement of the youngest child with the mother. As a consequence, it is unnecessary to delve into the detail of the myriad factual disputes which eventually make no difference to the resolution of the dispute over the children’s residence.

Section 60CC(3)(j)

1. The mother adduced some evidence about past family violence committed by the father, which he denied. Both parties were challenged in cross-examination about the evidence briefly, but it was sensibly not pursued as a material issue for several obvious reasons:

   (a)Any family violence within their relationship, which ended in 2008, made no difference at all to their decisions about the children thereafter. For the next eight to nine years they co-operatively arranged for the children to live with the mother and spend substantial time with the father.

   (b)Once these proceedings started, although they contested the children’s residence, they both accepted the children should spend substantial amounts of time with the non-residential parent.

   (c)They agreed upon interim orders in December 2017, which means the mother must have thought it was in the eldest child’s best interests to then live with the father and in the youngest child’s best interests to spend substantial amounts of time with the father.

   (d)Although they both rejected the notion of them having equal shared parental responsibility for the children, that was because they both acknowledged their communication has completely broken down (s 61DA(4)), not because the mother contended she was frightened to communicate or negotiate with the father because she was the victim of his family violence (s 61DA(2)(b))

2. No factual findings are made in respect of the contested evidence about family violence. None is required to determine the dispute, given the parameters of the issues constructed by the parties.

Conclusions and orders

1. The presumption that the parties should have equal shared parental responsibility for the children is rebutted, since an order to that effect would not be in the children’s best interests (s 61DA(4)). That was the consistent view of the mother, father, Independent Children’s Lawyer, and Family Consultant.[75] The parties’ demonstrated inability to communicate effectively and to co-operate in respect of the children leaves no viable option but for the residential parent to be conferred with exclusive parental responsibility. Consequently, s 65DAA of the Act is not engaged and may be disregarded.

   [75] Exhibit A, paras 107, 108

2. In cross-examination, the Family Consultant emphasised the desirability of “practicability and stability” for the children. It is a practical and stable solution for the eldest child to live with the father and for the youngest child to live with the mother, as the Family Consultant advised. Such an arrangement enjoys the additional benefits of being consistent with the children’s genuine wishes and is commensurately suited to the parties’ capacity to cope with the primary care of only one child. Given the residential arrangement, the father should have sole parental responsibility for the eldest child and the mother should have sole parental responsibility for the youngest child.

3. While the father maintained his proposal for the eldest child to only spend time with the mother when she expressed the wish to do so, consistently with the interim orders upon which the parties’ agreed,[76] that is no longer viable. Whether it is due to the mother’s or the child’s resistance, she has spent very little time with the mother since the interim orders were made in December 2017. The Family Consultant strongly advised against the perpetuation of an order in those terms because it places too much pressure upon the child to handle the expectations of both parents, whom she knows are in deep conflict. It will be easier for both her and them if orders designate the times at which she must spend time with the mother and her brother. That was the Independent Children’s Lawyer’s wise proposal.

   [76] Notation A made on 18/12/17

4. The mother acknowledged the orders should designate the times at which the youngest child should spend time with the father and his sister. While she proposed it would be for two weekends each school term (if both children live with her),[77] in final submissions she contended it should only be once per term if the eldest child continues to live with the father and, similarly, only once per term that the eldest child would visit her. Despite the valiant attempt by the mother’s counsel to explain her rationale for the change, it remains utterly illogical. The mother originally thought the youngest child could travel to see the father twice each term and that is what the orders now require.

   [77] Amended Application filed 3/4/18, Order 5(a)

5. The Independent Children’s Lawyer’s proposal for the children to spend three weekends together in each school term, alternating between the parties’ homes, was very sensible. The youngest child should travel to the father’s home twice each term and the eldest child to the mother’s home only once, as the eldest child’s relationship with the mother still requires rejuvenation but the youngest child’s relationship with the father does not.

6. School holiday time should be shared by the children with the parties equally. There was no need to confine the children’s visits in the Summer holidays to fortnights, as the mother proposed.[78] Again, the reason she advanced for her proposal was unconvincing. If the children can cope with visits of two weeks duration with either party in the Summer holidays, it is likely they can cope with visits of up to three weeks. One-half of the Summer holidays would never likely exceed three contiguous weeks and it only occurs once each year. All other holiday visits will approximate one week in duration. Although the mother’s proposal for fortnightly visits in the Summer holidays was known in advance of trial, it was raised for the first time in final submissions. It was not the subject of any evidence-in-chief or cross-examination, either of or by the mother, father, or Independent Children’s Lawyer, which lack of attention reflects the lack of importance which should be accorded the distinction between two or three weeks during the Summer holidays.

   [78] Amended Application filed 3/4/18, Order 5(c)

7. No separate provision is made for special occasions. Every effort should be made to keep the parties apart. Minimising the number of changeovers is one way of achieving that aim. The long distance between the parties’ homes also militates against changeovers for visits of short duration – like Christmas Day, Mother’s Day, Father’s Day, birthdays, and the like.

8. The children should be exchanged between the parties (or their nominees) at the same public venue they previously chose, which is approximately equidistant between their homes, for the reasons already given under s 60CC(3)(e).

9. The orders make provision for the youngest child to communicate by telephone with the father once each week when he is living with the mother and, in addition, with the mother once each week when he spends time with the father in school holidays. That is enough. There is no need for him to communicate with the mother by telephone on the two weekends each school term he spends with the father because those visits are short. The telephone communication will also occur on special occasions because the children will not be exchanged for personal contact on those days. The father’s proposal for unregulated telephone communication,[79] the mother’s proposal for no telephone communication,[80] and the Independent Children’s Lawyer’s proposal for two telephone calls each week for an hour at a time[81] are all rejected.

   [79] Amended Response filed 10/4/18, Order 7

   [80] Amended Application filed 3/4/18

   [81] Exhibit ICL1, Order 9

10. No similar telephone communication orders are made in respect of the eldest child. That is because she is not a child who can be forced to do much at all against her will and, even without such prescriptive orders, the mother said in cross-examination she and the eldest child already communicate by facetime, text message, or telephone every day – sometimes more than once. The father said in cross-examination he knows they communicate that frequently by those means and he is content with it, so it will probably continue. It is also likely the eldest child will, similarly, voluntarily and frequently communicate with the father by similar methods when she spends time with the mother.

11. The orders impose numerous injunctions upon the parties which are designed to ensure they are each able to keep abreast of information relevant to the child who lives with the other. More injunctions preclude them from administering corporal punishment to the children and from exposing the children to any denigration of the other. Orders to that effect reflect orders mutually sought by the parties and the Independent Children’s Lawyer. To the extent they may go beyond what was proposed, no reasoned argument could be put in opposition. None of the minor differences between the orders of that type proposed were the subject of any cross-examination or submission, so the differences could not have been too important.

12. The parties and Independent Children’s Lawyer all sought, or at least acceded to, an order which would enable these reasons to be furnished to any therapist engaged to provide counselling services to either child. An order to that effect is made. Another order enables the parties to provide a copy of the orders (but not the reasons) to the children’s school principals so there can be no dispute about the residential parent holding exclusive responsibility for the child who lives with them and the entitlement of the non-residential parent to procure information about that child.

13. Finally, the orders require the parties to present the children to the Independent Children’s Lawyer promptly for an independent explanation of the orders made and, if deemed appropriate, the reasons for such orders. Such an order is warranted because the orders largely reflect those proposed by the Independent Children’s Lawyer, for the reasons she advanced, and her explanation of the orders to the children will avoid the prospect of them receiving distorted versions from the parties.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 24 August 2018.

Associate: 

Date:  24 August 2018