Selby and Selby

[2019] FamCA 144

FAMILY COURT OF AUSTRALIA

SELBY & SELBY [2019] FamCA 144

FAMILY LAW – CHILDREN – Where there is a 17 year old child of the marriage – Where the mother has a 10 year old child – Where the applicant father is not the biological father of the youngest child – Where the child regards the applicant as her father in the ordinary sense of the word – Where the mother has a lack of capacity to place the needs of the children ahead of her own wishes – Where the mother has a history of impulsive behaviour – Where the eldest child has no contact or communication with the mother – Where the youngest child has developmental difficulties and a need for a stable household – Where the father is given sole parental responsibility – Where the youngest is the live with the father during the school term and spend time with the mother during the school holidays.

Family Law Act 1975 (Cth)

APPLICANT: Mr Selby

RESPONDENT: Ms Selby

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 278 of 2015

DATE DELIVERED: 12 March 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 5, 6 and 21 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Spain

SOLICITOR FOR THE APPLICANT: Goldrick Farrell Mullan

SOLICITOR FOR THE RESPONDENT: Ms Thompson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Shea

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

Orders

1. All existing Orders in relation to the children C, born … 2002, and B, born … 2008 are discharged.

2. The father has sole parental responsibility for C and B.

3. C lives with either party according to her wishes from time to time.

4. B lives with the father.

5. B has telephone contact with the mother at 7.00 pm each Wednesday and Sunday.

6. B spends time with the mother for one-half of the Terms 1, 2 and 3 school holidays, being the first half of the holidays unless otherwise agreed in writing.

7. 7.1      B spends time with each of the parents on a week-about basis during the Christmas school holidays, being with the father during the first week and each alternate week and otherwise with the mother unless the parties agree to different arrangements in writing.

   7.2In the event that B spends time with the mother during the week immediately prior to the commencement of Term 1, the mother will return her to the father at 6.00 pm on the day which falls two days before the resumption of school.

8. Unless otherwise agreed in writing:

   8.1B spends time with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in even-numbered years and from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd-numbered years

   8.2Notwithstanding the provisions of Order 7.1, B's time with the mother is suspended from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in even-numbered years and 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in odd-numbered years.

9. All changeovers are to take place at McDonalds in Suburb B, unless otherwise agreed in writing.

10. Each of the parties is restrained from:

    10.1    discussing parenting issues with or in the presence of the children and

    10.2discussing the court proceedings with or in the presence of the children and

    10.3denigrating the other parent or members of his and her family with or in the presence of the children.

11. The mother is restrained from:

    11.1referring to the father by any term other than "dad" or "daddy" in all communications with B

    11.2referring to Mr Veloce by any term other than "N" in the presence or hearing of B

    11.3referring or permitting any other person to refer to B as "Little Veloce" or similar terms which relate to Mr Veloce

    11.4discussing or bringing Mr Veloce into contact with B.

12. Each of the parties is restrained from removing or causing the removal of C and B from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this Order by placing the names of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the names of the children on the Watch List until further order.

13. Within 28 days the mother pay to the father a sum of $1,720 by way of reimbursement of Setting Down fees and Hearing fees.

14. Within three calendar months the mother pay to the Legal Aid Commission of New South Wales a sum of $1,485, being one-half of the fees for the attendance of the single expert Dr L for cross-examination.

15. By his consent, the father pay to the Legal Aid Commission of New South Wales a sum of $5,999.25 on account of the fees of the Independent Children's Lawyer.

16. Leave is granted to the Independent Children's Lawyer to provide a copy of these Orders to the principal of B's school.

17. Leave is granted to the father to provide a copy of these Orders to the counsellors and/or psychologists who provide treatment to C and/or B from time to time.

18. The father facilitate the attendance of C and B at a meeting with the Independent Children's Lawyer for the purpose of an explanation of these Orders.

19. Otherwise, all outstanding applications and responses herein 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 Selby & Selby has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 278 of 2015

Mr Selby

Applicant

And

Ms Selby

Respondent

And

Legal Aid NSW

Independent Children's Lawyer

REASONS FOR JUDGMENT

The proceedings

1. These proceedings concern parenting orders in relation to the children C, who was born in 2002, and B, who was born in 2008.  C is the biological child of the parties to these proceedings, Mr Selby and Ms Selby (“the mother”).  B is the biological child of the mother and Mr Veloce, with whom she has no relationship.  B has lived with Mr Selby throughout most of her life and, in the opinion of the single expert Dr L, she "regards [him] as her father in the ordinary sense of the word."  For convenience, I will refer to Mr Selby as "the father" in these reasons.

2. The applicant father sought the following orders:

   "1.The Applicant Father have sole parental responsibility for the children [C] born … 2002 and [B] born … 2008 ("the children").

   2.The child [C] live with either party in accordance with her wishes.

   3.The child [B] live with the Applicant Father.

   4.Unless otherwise agreed, and subject to Orders 9 and 10 herein, the Mother have telephone contact with [B] each Wednesday and Sunday at 7.00 pm when the child is not otherwise spending time with the Mother.

   5.Unless otherwise agreed, and subject to Orders 9 and 10 herein, the Mother spend time with the child [B] for half of each school holidays period at the end of Terms 1, 2 and 3 as agreed, or failing agreement for the first half of same.

   6.Unless otherwise agreed, and subject to Orders 9 and 10 herein, the Mother spend time with the child [B] over the Christmas/New Year school holiday period on a week about basis with the child to reside with the Applicant Father for the first week of that school holiday period.  In the event that the child is spending time with the Mother in the week immediately preceding Term 1, then her time with the child shall conclude at 6.00 pm on the day 2 days prior to the commencement of Term 1.

   7.Unless otherwise agreed, and subject to Orders 9 and 10 herein, notwithstanding any other Order, the child [B] spend time with the Mother from 3.00 pm Christmas Eve until 3.00 pm Christmas Day in even numbered years and from 3.00 pm Christmas Day until 3.00 pm Boxing Day in odd numbered years and the Mother's time with the child shall be suspended from 3.00 pm Christmas Day until 3.00 pm Boxing Day in even numbered years and from 3.00 pm Christmas Eve until 3.00 pm Christmas Day in odd numbered years.

   8.Unless otherwise agreed, changeover shall occur at the McDonalds restaurant at [Suburb D], New South Wales.

   9.The Mother and Father are restrained from, and shall do all things possible to ensure no other person does the following:

   (a)Discussing the parenting issues with, in the presence of or within hearing of the children; and

   (b)Discussing the court proceedings with, in the presence of, or within hearing of the children;

   (c)Denigrating the other parent or members of the other parent's family in the presence, or within hearing of the children.

   10.(a)      The Mother shall not, when having communications with [B] refer to the Applicant Father by any other term other than "Dad" or "Daddy";

   (b)The Mother is restrained from and shall not allow or permit any third party, to refer to the Second Respondent, [Mr Veloce], in any other term other than "[Veloce]" in the presence or hearing of the child [B].

   (c)The Mother is restrained from, and shall not allow or permit any third party, to refer to the child [B] by any other name other than "[B]" and is particularly restrained from referring to [B] as "Little [Veloce]".

   11.Each party is restrained from removing and/or causing or allowing, by their agents or otherwise, the removal of [C] born ... 2002 (female) and [B] born … 2008 (female) ("the children") from the Commonwealth of Australia, and it is requested that the Australian Federal Police give effect to this Order by placing the name of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the children's names on the Watch List until further Order of the Family Court of Australia.

   12.The Mother within 28 days' pay to the Applicant Father the sum of $1,720.00 by way of reimbursement of the Setting Down fee and Hearing fees.

   13.The Mother pay the whole of the Independent Children's Lawyer's costs of and incidental to the Final Hearing.

   14.The Mother pay the Applicant Father's costs of and incidental to the proceedings on an indemnity basis from 24^th August 2018, being the date upon which the Report of [Dr L] was received by the Applicant Father.

   Additional Order sought by the father

   10.(d)      That the mother be restrained from discussing with Mr [Veloce] with [B] and from causing [B] to come into contact with Mr [Veloce]."

1. The respondent mother sought the following orders:

   "Parenting Orders in respect of C

   1.That the parties have equal shared parental responsibility for [C]  born … 2002 ("C").

   2.That there be no orders in relation to the party with whom [C] lives.

   3.That [C] spend time with the Mother and the Father in accord with [C's] wishes.

   4.That, provided [C's] treating practitioners are in agreement and consider that it would be of assistance to her, [C] and the Mother attend a family counselling program for adolescents and parents or such other program or service that [C's] practitioners consider would be beneficial.

   5.That the name [C Selby] be removed from the Airport Watch List.

   Parenting Orders in respect of [B]

   1.That the parties have equal shared parental responsibility for [B]  born …2008 ([B]).

   2.That [B] live or in the alternative spend time with the Mother as follows:

   a.During school terms, each week from Thursday after the commencement of school to Monday until the end of the school day (or Tuesday before school if Monday is a public holiday) or

   b.In the alternative, during school terms on a fortnightly basis, in week 1 each Wednesday after the start of school to after school on Friday and in week 2 from after the start of school on Wednesday to before school on Monday (or Tuesday before school should Monday be a public holiday); and

   c.For the second half the Autumn, Winter and Spring school holidays; and

   d.During the summer school holidays, on an alternating week-about basis, commencing in the first week of the holidays in even years and the second week in odd years; and

   e.On Mother's Day from 9am to the following Monday before school if she would not otherwise be with the Mother.

   3.For the purposes of implementation of Order 2. above, the school holidays are deemed to commence at the conclusion of school on the last day of term, the holidays are deemed to end at the commencement of school on the first day of the new term, and the mid-point is midday on the day halfway between those first and last days.

   4.Order 2 is suspended during the following periods:

   a.From 3:00 p.m. on Christmas Day until 3:00 p.m. on Boxing Day, when the children [B] shall spend time with the father in even years and with the Mother in odd years.

   b.Between 9:00 a.m. and 5:00 p.m. on each Father's Day, during which periods the children [B] shall spend time with the Father.

   5.That [B] otherwise spend time with the Father.

   6.For the purposes of implementing Orders 2, 4 and 5 above, the parties shall respectively ensure [B's]:

   a.Collection from school, whenever the children's [B's] residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;

   b.Return to school, whenever the children's residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise;

   c.Collection from and return to the McDonald's carpark at [Suburb D] at other times.

   7.That the Mother and the Father be at liberty to attend all of [B's] extra-curricular activities, including swimming and school performances.

   8.That each party be at liberty to communicate with [B] without interference by the other parent, and each of the parties is hereby restrained from interfering with communication between [B] and the other party.

   9.That, to assist in dealing with [B's] learning difficulties, the parties organise a growth and development assessment and comply with recommendations of the assessor and educational personnel for regular tutoring and routine homework.

   10.That, to assist [B] in dealing with anxiety, the parties attend upon [Ms E], Child Psychologist, and follow her recommendations in regard to frequency of consultations and the party whose care [B] is in take her to such appointments.

   11.That the parties continue to take [B] for appointment with the Speech Pathologist and comply with her recommendations.

   12.That the name [B Selby] be removed from the Airport Watch List.

   Costs

   13.That the Father pay the Mother's costs of and incidental to this application on an indemnity basis."

1. The Independent Children's Lawyer ("ICL") supported the proposals of the father and sought the following additional orders:

   "ORDERS:

   1.That the Court dispense with any requirement for service on Mr [Veloce].

   2.That all prior parenting orders be discharged.

   PARENTAL RESPONSIBILITY

   3.That the father have sole parental responsibility for the children [C SELBY] born … 2002 and [B SELBY] born … 2008 ("the children").

   4.Notwithstanding order three (3) hereof:

   4.1.The father is to notify the mother of his intention to make any major decision in relation to the child/ren with such notification to be provided to the mother in writing including text message and/or email; and

   4.2.The father is to notify the mother in the event of a serious illness, or hospitalisation or emergency in relation to the child/ren.

   EXPLANATION OF FINAL ORDERS TO THE CHILDREN:

   5.In the event that the Court deems appropriate then the Independent Children's Lawyer shall meet with and explain the final orders to the children and the father shall facilitate such meeting occurring.

   6.Both the mother and father shall be restrained by injunction from discussing or informing the children of the final orders and/or the reasons for judgment.

   PAYMENT OF FEES TO THE INDEPENDENT CHILDREN'S LAWYER

   7.Within twenty one (21) days from the date of these orders or in a timeframe deemed appropriate by Legal Aid NSW the father shall pay to Legal Aid NSW the sum of $5,999.25 being payment of the fees for the Independent Children's Lawyer unless a waiver is granted by Legal Aid NSW.

   8.Within twenty one (21) days from the date of these orders or in a timeframe deemed appropriate by Legal Aid NSW the mother shall pay to Legal Aid NSW the sum of $7,484.25 being payment of the fees for the Independent Children's Lawyer unless a waiver is granted by Legal Aid NSW.

   OTHER ORDERS:

   9.That leave be granted to the Independent Children's Lawyer to provide a copy of these orders to [B's] school.

   10.Leave be granted to the father to provide a copy of these orders to the child/ren's counsellors, psychologists and other treatment providers."

Background

1. The father was born in 1968 in Australia and is currently aged 50 years.  The mother was born in 1979 in Country K.  The mother is presently 39 years of age.  The mother moved to Australia with her mother and step-father when she was approximately 12 years old.

2. The parties commenced cohabitation in January 2000 and married on 25 March 2001.  In January 2006 the mother left the matrimonial home at Suburb H and moved into rented accommodation at Suburb T.  The mother returned to the father's home in 2008.

3. During this period of separation the mother entered into a relationship with Mr Veloce and subsequently gave birth to the child B.  From the time of the mother's return to the father's home, B has lived as a member of his household.

4. It was common ground the parties lived separately under one roof during the period from 2008 until January 2015.  Over the objection of the father, the mother left the home with the children on 7 January 2015.

5. When the mother left the home in January 2015 she took the children to the Central Coast and they spent no time with the father between 7 January 2015 and 12 February 2015.  On that date, interim orders were made which provided for the children to return to the care of the father and spend time with the mother each week from Thursday afternoon until Monday evening.  These orders provided also that the parties cause the children to be re-enrolled at their previous schools.

6. In 2014 the parties decided that the father would adopt B and they gave instructions to a solicitor for that purpose.  The necessary documents were prepared but the application did not proceed, as the mother withdrew her consent.

7. On 17 September 2015 further interim orders were made, to the effect that the children live with the father and spend time with the mother from 3.00 pm on Wednesday until 9.00 am on Sunday and in a week-about arrangement with each parent during school holidays.  Contrary to these orders, the mother retained the children between 14 September 2015 and 20 October 2015.

8. The mother filed an Application in a Case on 12 October 2015, by which she sought inter alia an order that the children live with her.  A Senior Registrar dismissed the mother's application on 20 October 2015 and C was returned to the care of the father at approximately 10.30 pm that night.  On 20 October 2015 a further order was made, by which the mother was restrained from taking C to any further consultations with a clinical psychologist Ms Q.

9. After the making of the orders of 20 October 2015, the mother left B in the care of Mr Veloce.  On 21 October 2015 Mr Veloce contacted the father and he collected B.  The mother left a note to Mr Veloce which read as follows:

   "As your B father.  I'm suspending my legal right until I could afford to keep fighting for her.  As you are her father you have the same legal right.  If you don't want her you could return her to [Mr Selby] [sic] yourself.  Then pls explain to her why you are doing this as I have tried everything – [Ms Selby]."

1. On 21 October 2015 the mother left Sydney and travelled to Town M, Victoria.  On 23 October 2015 the father filed an Application in a Case, by which he sought a suspension of the orders that the children spend time with the mother.  On 2 November 2015 interim orders were made to the effect that the father have sole parental responsibility; the children live with him and spend time with the mother on each alternate weekend and during school holidays.

2. In November 2015 the mother moved to Town M and lived there until August 2017.  Commencing in December 2015, the children spent time with the mother in Town M during school holidays.

3. While the mother lived in Town M she undertook a course at TAFE and purchased a house.  She obtained full-time employment and managed to the meet the cost of the children's airfares between Sydney and Town M.

4. While she lived in Town M, the mother was involved in a 16-month relationship with Mr S.  Following a dispute with Mr S on 30 January 2016, the mother made threats of suicide and was taken to hospital by police officers.  At the same time she was involved in an altercation at the home of Mr S with his son and daughter-in-law.  The mother applied for an Apprehended Violence Order against the son of Mr S.

5. In January 2015 the mother informed B that Mr Selby was not her biological father.  The mother asserted that C told B about her biological parentage initially, thus she "had no choice" but to discuss this issue with the child.  When interviewed by Dr L, C indicated that she "thought that she had always been told about it" in regard to B's biological parentage.

6. On 9 October 2017 C was admitted to hospital following an attempt at suicide by paracetamol overdose while in the care of the mother.  C wrote a note to the mother, which read as follows:

   "Mum → I am sorry I failed you, I'm sorry I couldn't bring B home.  Hopefully this will do the trick.  Then you can both be happy.  I was the one who made both of you miserable – Are you happy you have you’re [sic] daughter back."

   C remained in hospital until 8 November 2017, when she was discharged into the care of the father.

7. On 11 December 2017 C was admitted to an adolescent mental health ward at V Hospital, apparently after having made threats of suicide.  She was discharged into the care of the father on 22 December 2017.

8. On 18 December 2017 interim orders were made by consent, which provided inter alia that the mother was restrained from referring to the father by any term other than "dad" or "daddy";  referring to Mr Veloce by any term other than "Frank" and from calling B any other name including "little Veloce".  These orders provided also that the parties participate in counselling and that they cause B to engage in a program for adolescents.

9. Since December 2017 C has seen the mother on three occasions, the most recent being 18 February 2018.  She told Dr L in June 2018 that she has made a choice not to see the mother.

The evidence and witnesses

1. The applicant father relied upon his affidavit affirmed on 15 January 2019.  The respondent mother relied upon her affidavit affirmed on 5 February 2019 and an affidavit of a psychologist Ms Q of 12 October 2015.  I indicated that I considered the evidence of Ms Q to be of very limited assistance because of its antiquity.  Additionally, Ms Q was not made available by the mother for cross-examination by counsel for the father and the ICL.

2. I had the benefit of a report by a single expert psychologist, Dr L.  Dr L gave very helpful oral evidence in addition to her report.

Approach To These Proceedings

1. In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings.  Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in a child’s best interests. 

2. The Court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2).  Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.

3. Section 61DA requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility.  This presumption does not apply if there are reasonable grounds for the Court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence.  The presumption may be rebutted by evidence which satisfies the Court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.

4. If a parenting order provides for equal shared parental responsibility the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (s 65DAA(1)).  If there is no order for equal time, the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent.  The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5) of the Act. There is no temporal definition of “substantial and significant time”. 

5. In MRR v GR (2010) 240 CLR 461 the High Court of Australia said:

   "8.Sub-section (1) of s 65DAA is headed “Equal time” and provides:

   “If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”

   Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:

   (c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   Subsection (3) explains what is meant by the phrase “substantial and significant time.”

   9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question.  
   Sub-section (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.

   …

   13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences (“if it is”) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind.  It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made,
   sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

   …

   15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. …"

   (footnotes omitted)

The best interests of the children:  section 60CC considerations

Primary considerations

1. Dr L identified very concerning aspects to B's relationship with the mother.  In her oral evidence she described the parents as "polar opposites".  Dr  L contrasted the nature of B's relationship with her mother and father in her report.

2. Dr L opined as follows:

   "163.In my view there would be a significant and deleterious impact on [B] if she were to be separated from [Mr Selby].  Despite the limitations in terms of emotional connection, the reality is that B feels safe, secure and loved in the care of [Mr Selby].  She certainly experiences a predictable and calm home environment and her needs are broadly addressed.  I think that she would suffer enormously if she were to be separated from [Mr Selby], would grieve this relationship and would feel anxious and unsettled.  [B] is an anxious child and such a further disruption to a relationship that she considers reliable and predictable would be a psychological risk for her.

   164.At the same time, I think that [B] needs and desires ongoing and frequent contact with [Ms Selby].  As mentioned previously, B feels emotionally connected to her mother and relishes the time that they spend together, particularly the fact that such time gives [B] exclusive one-on-one attention from her mother.  I think that previously [B] has felt anxious and possibly abandoned by the mother and so such time represents the best chance of restoring [B's] sense of security and stability in this relationship.  However, I have enormous concerns about the quality of this relationship and the degree to which the mother will continue to place [B] at psychological risk.  If the mother is unable or unwilling to moderate her parenting behaviour, then this will place [B] at enormous psychological risk, in much the same way as her sister has been exposed to.  The delicate balance, therefore, is ensuring that [B] has enough time with her mother to satisfy her own need for emotional connection, without exposing her to the sort of risks that would represent psychological harm for her."

3. In her oral evidence Dr L elaborated on these assessments and opinions as follows:

   "[B] has experienced very stable and predictable parenting with the father, he has kept routines going, he has a level of calmness and evenness and that assists [B].

   In the mother's care [B] would be likely to be exposed to very emotionally intense interaction, she would feel rejected and punished if [something upset the mother]."

Additional considerations

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

1. As noted above, C has elected to have no contact with the mother since February 2018.  C told Dr L that she has made a choice to sever contact and communication with the mother because "mum ruins my mental health" and that the mother blames her for the fact that B lives with the father.

2. Dr L reported as follows in relation to her interview with C:

   "118.With respect to her relationships with her parents [C] told me that she has chosen not to see her mother.  She said that the reason for this is that she and her mother have "too intense" a relationship.  She said that having contact with her mother is not good for her mental health because it always results in fights and clashes.  [C] said that her mother "blames me for everything" particularly with respect to the situation with [B] and as a result she has become "scared" to have contact with her mother."

3. B expressed no clear view to Dr L in relation to her living arrangements, other than to convey a general dislike of being required to "swap" households.  Dr L assessed that B is immature for a child of her chronological age and may experience difficulty in coping with schedules and timetables.

(b)  the nature of the relationship of the child with:  (i)  each of the child’s parents; and (ii)  other persons (including any grandparent or other relative of the child)

1. I have referred above to certain of the expert evidence as to the nature of the relationship of B with both her mother and her father.  Dr L noted "with great concern, the degree to which the mother has drawn B into the conflict between the parents and has inappropriately treated her at times."

2. Dr L observed on interview that B "had a strong sense of a structured and child focused routine with [the father] and presented as quite confident that [he] would address her needs and concerns".  Dr L opined that the father and B are "quite socially isolated" and observed that he "presents as a very introverted person with limited or no social contact with other adults or children".

3. Dr L referred to the "very complex situation" in relation to C's relationship with the mother.  She reported:

   "159.With respect to [C's] relationship with her mother, the situation is very complex.  [C] was insightful and articulate when describing the complex relationship dynamics with her mother.  On the one hand she described the relationship as "too intense" and felt that she was very close to her mother.  On the other hand, she attributed her relationship with her mother as the cause of her poor mental health.  She has formed the view that having contact with her mother precipitates her own mental health decline and has elected to have no contact with her mother.  The rationale for her decision was her mother's emotional demands, manipulation and involvement of her in the dispute with [B].

   160.There are extremely disturbing accounts from the records and from my interview with [C] that indicate that, in part, [C's] suicidal behaviour was in response to the pressure that [Ms Selby] had placed her under.  [C] had the misguided belief that if she died whilst in the care or watch of her father, then this would mean that [B] would be placed in the care of the mother.  [C] thought that this outcome would resolve the pressure and was what [Ms Selby] had wanted.  In my mind, this represents a level of intense pressure that this depressed adolescent had been placed under by [Ms Selby].  I think that [Ms Selby] has an extraordinarily poor degree of insight into the way that her behaviour has affected both children, and particularly [C].  She blames others, and particularly the father, for [C's] current stance and for her mental health outcomes."

4. Dr L assessed that C regards [the father] as a "stable, reliable and practical person who loves and cares for her".  She was of the view, however, that C "does not feel emotionally close to [the father]".

5. Overall, it thus appears that the father has provided security and predictability to both children albeit without affording to them much emotional closeness.  The mother, on the other hand, has subjected the children to volatile, unpredictable behaviour and emotional manipulation.

(ca)  the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. There was no specific evidence in relation to arrangements for the financial support of the children at present or during the period since the parties' separation.  It seems likely that the father has shouldered the bulk of responsibility for their financial support.

(d)  the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:  (i)  either of his or her parents; or (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. I have set out above much of the evidence of Dr L as to the "significant and deleterious impact" upon B, in the event that she were to be separated from the father.  In her oral evidence, Dr L said these concerns apply also to the current proposals of the mother.  She opined that the arrangements proposed by the mother would place B at a psychological risk.

2. Additionally, Dr L assessed that B suffers from a generalised anxiety disorder and developmental difficulties.  In her view, B "struggles with some aspects of cognition" and "could not cope with complex arrangements".  Dr L considered that B functions at the cognitive level of a child of chronological age five to six years.

3. C is 17 years old and, effectively, she has decided upon and implemented her own living arrangements.  The father deposed that she is undertaking a course at TAFE and attends regular appointments with staff of a youth mental health service.  As noted above, C has elected that she has no contact or communication with the mother.

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

1. The parties live in relatively close proximity to each other in the northern suburbs of Sydney.  Accordingly, no difficulties arise in terms of practical difficulty and expense of the children spending time and communicating with each parent.

(f)  the capacity of:  (i)  each of the child’s parents; and (ii)  any other person (including any grandparent or other relative of the child);  to provide for the needs of the child, including emotional and intellectual needs

1. I have set out above much of the expert evidence of Dr L in relation to the very concerning impairments in the parental capacity of the mother.  In my view the mother has a serious lack of capacity to place the needs of the children ahead of her own wishes and requirements.  I accept the submission by counsel for the ICL that the mother "has a history of impulsive behaviour", which has had a damaging impact upon both children.

2. The first of these impulsive incidents occurred in 2006, when the mother threw a brick through a window of the former matrimonial home.  The police took out an Apprehended Violence Order against the mother for protection of the father.  The mother said that she threw the brick because she experienced difficulties in spending time with C.

3. The second impulsive act on the part of the mother was her informing B that her biological father was Mr Veloce only two days after the parties' separation.  As noted above the mother attempted to sheet home responsibility to C, claiming that she asked her (the mother) when she intended to tell B about her biological parentage.  The mother provided the same account in her affidavits of 5 February 2019 and 5 August 2015.  Dr L, however, reported that the mother said to her "I told her the truth" and "I made the decision".  The mother conceded that the account which she gave to Dr L was inconsistent with the contents of her two affidavits.

1. The mother did not say that B raised the issue with her before she elected to tell her of her parentage.  She said only that C asked her when she intended to tell B that Mr Selby is not her biological father.

2. In my view it is more probable than not that the mother elected to tell C the facts of her biological parents in the context of an acrimonious separation between the parties.  In cross-examination by counsel for the ICL, the mother agreed that "it is possible that I decided to tell B impulsively at a time of high conflict with the father".  In any event, I consider that the mother should have involved the father in this decision and the process by which B was informed of this highly sensitive and significant piece of information.

3. The third impulsive decision of the mother was her decision to leave B with Mr Veloce, following the Orders of 20 October 2015.  In cross-examination the mother said that she took B to Mr Veloce's office and asserted that B "knew she was going to spend time with her dad – I made it sound like fun".

4. I agree with the view expressed by Dr L that the mother "effectively abandoned B and placed her in the care of Mr Veloce, whom she had never met and had no attachment or connection to".  In my assessment B most likely experienced great emotional upset by this experience, when she was left by the mother in the care of a stranger and effectively rescued by the father.

5. The fourth impulsive act by the mother, to which counsel for the ICL drew attention, was her decision to move to Town M and live interstate for two years.  The mother's explanation, as set out in her affidavit, was focused entirely upon her reaction to the Orders of 2 November 2015.  Nothing in the evidence indicated that the mother gave any consideration to the impact upon the children of her decision to leave them and see them only during school holidays for two years.

6. The final impulsive decision of the mother, to which counsel for the ICL drew attention, was the incident which involved Mr S and his son and daughter-in-law.  The intake summary of Town M Health Psychiatric Services read in part as follows:

   "Met fellow ([Mr S]) within first week who formed a friendship/relationship with [Ms Selby].  [Ms Selby] stated that she felt somewhat pressured by a relationship but went with it.  Was planning on moving into a shed that Stephen has due to her own financial constraints however yesterday was advised by [Mr S] that he is having a relationship with his ex-girlfriend.  Feeling betrayed & hurt, [Ms Selby] made the decision to end relationship and relocated back to Sydney.  Tonight was out drinking with some new friends, contacted [Mr S] who advised he was unavailable.  [Ms Selby] went to his house where she was confronted by [Mr S'] son & daughter in law who according to [Ms Selby] berated her with abused [sic] and accusations.  [Ms Selby] in a distressed state made attempts to contact family who in turn contacted police.  [Ms Selby] acknowledges that she did make threats to kill herself however denies having any plan or intent to act on these stating she only did it to get police there to witness what [Mr S'] son was saying to her ..."

1. It should be noted that the mother denied that she entered into a relationship with Mr S within one week of her moving to Town M.  Nonetheless, it seems abundantly clear that the mother made threats of suicide and acted in a very impulsive manner on this occasion.

2. Dr L expressed these opinions:

   "195. …there is a high likelihood that the mother suffers from a personality disorder most likely Borderline Personality Disorder.  It is notoriously difficult to diagnose such disorders in a one-off instance.  However, I have had the benefit of reviewing the mother's medical records, the police records and the records from other services which suggest that at a minimum the mother has a high degree of emotional volatility particularly at times of stress.  At the same time, the mother appears to minimise her own actions, seeks sympathy and support for her position and considers herself to be a victim."

3. I have referred above to the assessment of Dr L that both children lack a close emotional attachment with the father.  On the other hand, the father has been their source of stability and predictability for approximately four years.  I accept that both parties love and have a genuine commitment to the children.  Regrettably, however, the mother lacks the capacity to prioritise their needs over her own and thus constitutes a risk to their psychological stability.

(j)  any family violence involving the child or a member of the child’s family

1. Each of the parties made allegations that the other has subjected him and her to family violence.  Each party admitted to conduct which could be construed as "family violence" within the statutory definition.

2. These allegations, however, were largely historical and neither party has made recent complaints of family violence on the part of the other.  I see no utility, therefore, in my attempting to make findings of fact in relation to these competing allegations in order to determine what parenting orders are in the best interests of the children.

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

1. Given C's age, it can be predicted with a considerable degree of confidence that there will be no further litigation concerning parenting orders in relation to her.  She will turn 18 years of age in approximately ten months.  The mother's unpredictable and erratic behaviour history means that there can be no degree of confidence that she will refrain from future litigation concerning B.

(m)  any other fact or circumstance that the court thinks is relevant

1. No relevant considerations arise pursuant to this subsection.

Parental responsibility

1. I can see no realistic prospect that the parties could share parental responsibility.  The mother appears to have little respect for the father, in particular in the context of his significant role in B's life.  Dr L said in her oral evidence:

   "I find it difficult to accept that the mother thinks it is really great for [B] to be living with the father.  She strongly believed he was not a real father when I saw her."

1. Since C has elected to have no contact or communication with the mother, her proposal that she and the father share parental responsibility seems unrealistic at best and self-focused at worst.  This lack of contact has the practical result that the mother knows very little of C's current needs and day-to-day life.  In practical terms, I doubt that the mother could offer useful input into any major decisions.  Additionally, it is likely that C may well regard as unwelcome and intrusive any intervention on the part of the mother.  For these reasons I am comfortably satisfied that equal shared parental responsibility would be contrary to the best interests of C and that there is evidence which rebuts the presumption.  As to B, I am similarly satisfied that the presumption of equal shared parental responsibility is rebutted by evidence that such an outcome would be contrary to her best interests.  The mother has placed her own needs ahead of those of B in the past, most strikingly when she left her with Mr Veloce and moved to Town M.

2. Similarly, the mother's recent attempts to involve B in securing a resumption of her relationship with C are of great concern and in my view constitute a clear contraindication to equal shared parental responsibility.  The father gave the following uncontradicted evidence:

   '147.The Mother has tried to use [B] as an intermediary to influence [C].  For example:

   (a)On 16^th October 2018 I overheard the Mother say to [B] "You should make your sister come home, you can tell her let's go home to Mummy's house this weekend ... if they say no talk to your sister and tell her to bring you home to Mummy's house.";

   (b)On 18^th October 2018 I overheard the Mother say to [B] "You need to tell your sister to come home, if she doesn't come home you don't come home." and "You need to get your sister to come home, talk to your sister, that's the only step, ok?";

   (c)On 19^th October 2018 I overheard the Mother say to [B] "Talk to your sister tell her Mummy doesn't care as long as she comes home.";

   (d)On 21^st October 2018 I overheard the Mother say to [B] "Tell [C] she needs to come home next weekend" and "Talk to [C] please get her to come home, please talk to her, I love you.";

   (e)On 22^nd October 2018 I overheard the Mother say to [B] "Beg [C] to come, say please, please, please, try whatever you can to make it happen.";'

3. For these reasons, I am comfortably satisfied that the presumption of equal shared parental responsibility is rebutted in relation to both C and B.  I will order that the father have sole parental responsibility, on condition that he keep the mother advised at all times of major decisions in relation to each of the children.

Conclusion

1. As there will be no order for equal shared parental responsibility, I am at liberty to determine directly what parenting orders are in the best interests of the children.  I am not required to consider whether their best interests, and reasonably practicable, that she spend equal or substantial and significant time with each parent.

2. I will not make the order proposed by the mother, to the effect that she and C attend counselling as recommended by the child's treating health practitioners.  There was no evidence that C would accept such counselling with the mother.  Given that she has elected to sever all contact with the mother, I doubt strongly that she would co-operate with any such orders.  In my view, C is likely to be resistant to any suggestion for counselling with the mother.

3. The "delicate balance" described by Dr L involves a balancing of B's wish for an enjoyment of time with the mother, against the risks to her psychological stability as a result of her psychological manipulation and highly compromised capacity to prioritise the emotional needs of B.  Ultimately, Dr L considered that time with the mother in school holidays would be sufficient to "maintain the connection with the mother that I saw." She considered that a visit to the mother mid-term would be enjoyable for B but would expose her to psychological risk.

4. Dr L considered that "the transition period back to the father would be quite difficult but then she would have a ten-week block to focus on being a child and have routine parenting."  Dr L was asked by counsel for the ICL about the advisability of an arrangement whereby B spent time with the mother between school holiday periods.  She said that B would "enjoy" such visits but added:

   "It is also very stressful for her because she is immediately embroiled in the mother's emotional manipulation.  I am not sure if the benefits outweigh the risk."

5. For these reasons, I will accede to the application of the father.  I will make the additional orders sought by the ICL, with the exception of the proposal that the mother pay one-half of her costs.  In my view, more frequent time with the mother would create too great a risk to B's psychological stability.

6. I will order that the mother pay a sum of $1,485 on account of the fees for the attendance of Dr L for cross-examination.

7. I decline to make an order that the mother pay a sum of $5,999.25 on account of the costs of the ICL.  In my view she simply lacks the financial capacity to do so.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 12 March 2019.

Associate: 

Date:  12 March 2019