Sharlow & Nance

[2024] FedCFamC2F 683

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Sharlow & Nance [2024] FedCFamC2F 683

File number(s):	NCC 1605 of 2020
Judgment of:	JUDGE BETTS
Date of judgment:	30 May 2024
Catchwords:	FAMILY LAW – Parenting – two children, aged 15 and 13 – where the co-parenting relationship has been highly conflictual – where the children’s medical needs have been a large portion of the conflict – where each parent seeks sole parental responsibility – where the Court considers the mother should have sole parental responsibility and with the father to provide his input before the mother makes a decision – where the Court considers an equal time, week-about arrangement would be in the best interests of the children – best interests outcome.
Legislation:	Family Law Act 1975 (Cth), Pt VII
Division:	Division 2 Family Law
Number of paragraphs:	132
Date of last submission/s:	23 February 2024
Date of hearing:	28, 29 & 30 August 2023 and 22 & 23 February 2024
Place:	Newcastle
Counsel for the Applicant:	Mr Willoughby
Solicitors for the Applicant:	Bryant McKinnon Lawyers
Counsel for the Respondent:	Mr Cummings, Senior Counsel Mr Bithrey, Junior Counsel
Solicitors for the Respondent:	Powe & White Family Lawyers

ORDERS

NCC 1605 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS SHARLOW

Applicant

AND:

MR NANCE

Respondent

ORDER MADE BY:	JUDGE BETTS
DATE OF ORDER:	30 MAY 2024

THE COURT ORDERS THAT:

1.All prior parenting orders be discharged.

2.The Mother will have sole parental responsibility for X born in 2009 and Y born in 2011 (collectively “the children”).  In the exercise of parental responsibility pursuant to this order, the Mother will:

(a)whenever practicable, prior to making any decisions about a major long-term issue for the children, notify the Father of the issue and provide the Father with fourteen (14) days to give his input;

(b)promptly notify the Father upon making the decision.

3.In the exercise of the Mother’s sole parental responsibility, she is authorised to initiate and manage NDIS applications and plans for Y, and the Mother must ensure the Father is listed as a parent and contact for the purposes of the NDIS.

4.These orders authorise any of the children’s medical or allied health practitioners, including any practitioner engaged by the NDIS, to communicate with the Father, at his expense, about the children’s treatment and any associated recommendations and to provide the Father, at his expense, with any documents, information or updates from those practitioners in relation to the children’s treatment.  To facilitate the operation of these orders, the parents may provide a copy to the children’s treating practitioners and to the NDIS.

5.These orders authorise the children’s school to communicate with the Father about the children’s education and to provide him with any information or documents normally provided by the school to parents (including but not limited to school reports, school photographs and associated order forms).  To facilitate the operation of these orders, the parents may provide a copy to the children’s school.

6.Notwithstanding any other orders, the following will apply unless the parents agree to the contrary:

(a)the children’s General Medical Practitioner will be Dr H.  If she is not available within an appropriate timeframe, the children will attend upon one of the other doctors at J Medical Centre;

(b)the children’s Paediatrician will be Dr K.  If he is not available within an appropriate timeframe, the children will attend upon Dr L;

(c)Ms E will be Y’s psychologist;

(d)Dr M will be X’s specialist; and

(e)The parents shall do all acts and things necessary for the children to continue to attend upon N School, Town B.

7.Wherever possible and unless impracticable, the parties will take the children to medical and/or allied health appointments on a ‘turn for turn’ basis.

8.The children’s primary mailing address is the address of the Mother, currently O Street, Town P. If the Mother is to change address her new address will be the children’s primary mailing address.

9.From the making of these Orders, the children shall live with their Mother and Father as agreed between the parties but failing agreement as follows:

During school terms and school holidays at the end of Terms 1, 2 and 3:

(a)with the Mother, in each alternate week from 3pm Friday until 3pm on the following Friday commencing on the first Friday after these orders are made; and

(b)with the Father, in each alternate week from 3pm Friday until 3pm on the following Friday commencing on the second Friday after these Orders are made.

During the school holidays at the end of Term 4:

(c)with the Mother:

A.in even numbered years, from the conclusion of school or otherwise 3pm on Y’s last day of school term until 3pm on 7 January; and

B.in odd numbered years, from 3pm on 7 January until before school or otherwise 9am on Y’s first day of school in the following school term following which the children will return to the Father’s care until 3pm on the first Friday of term at which time they will go to the Mother in accordance with order 8(a);

(d)with the Father:

A.In odd numbered years, from the conclusion of school or otherwise 3pm on Y’s last day of school term until 3pm on 7 January; and

B.In even numbered years, from 3pm on 7 January until before school or otherwise 9am on Y’s first day of school in the following school term following which the children will return to the Mother’s care until 3pm on the first Friday of term at which time they will go to the Father in accordance with order 8(b).

10.The Mother and Father’s respective time with the children is suspended to accommodate the children spending time as follows:

(a)On the Mother’s Day weekend, the children will spend time with the Mother from the conclusion of school or otherwise 3pm on the Friday before Mother’s Day until before school or otherwise 9am on the Monday after Mother’s Day.

(b)On the Father’s Day weekend, the children will spend time with the Father from the conclusion of school or otherwise 3pm on the Friday before Father’s Day until before school or otherwise 9am on the Monday after Father’s Day.

11.Unless otherwise agreed and provided that the changeover does not occur at the children's school, each parent will collect the children from the other parent’s residence at the start of their time, with that parent to remain in their vehicle where practicable.

12.Each parent is at liberty to contact the children by phone, Facetime or other such application between 5:00pm and 5:30pm on Wednesdays that the contacting parent is not spending time with the children.  The parents will otherwise permit the children to communicate with the other parent at any other reasonable time that the children express a wish to do so.

13.The Mother is at liberty to contact the children (if she is not otherwise spending time with them on that day) between 5:00pm and 5:30pm (or any other time as agreed) on:

(a)The Mother’s birthday;

(b)X’s birthday;

(c)Y’s birthday;

(d)Mother’s Day;

(e)Easter Sunday;

(f)Christmas Day.

14.The Father is at liberty to contact the children (if he is not otherwise spending time with them on that day) between 5:00pm and 5:30pm (or any other time as agreed) on:

(a)The Father’s birthday;

(b)X’s birthday;

(c)Y’s birthday;

(d)Father’s Day;

(e)Easter Sunday;

(f)Christmas Day.

15.Communication between parents, unless otherwise agreed, or in emergencies, will occur in the Our Family Wizard Application.

16.The parties will do all acts and things, including signing all documents necessary to ensure the children’s Passports stay valid, within seven (7) days of any written request by the other parent to do so.

17.Each parent is permitted to take the children out of the Commonwealth of Australia during the time they spend with the children.

18.Any party proposing to travel internationally with the children must give the other party at least thirty (30) days’ notice of the intended travel setting out dates of departure and return flight numbers and details of where the child will be residing outside of the Commonwealth of Australia, unless the travel is due to a family emergency, such as a death of a family member in which case the notice shall be given as soon as reasonably practicable.

19.That the Mother hold the children’s passports and not less than fourteen (14) days prior to any overseas travel, the Mother will provide the Father with the children’s passports. Within fourteen (14) days of return to Australia the Father will return the children’s passports to the Mother.

20.Any party proposing weekly extracurricular activities for the children must advise the other party via Our Family Wizard before enrolling the children in activities that occur on a weekly basis i.e. extracurricular activities (noting the Mother will still have the final say in the decision made if agreement cannot be reached) and the other party will use their best endeavours to ensure the children attend those weekly activities.

21.That each party is restrained from denigrating the other party in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person engaging in such denigration.

22.Each party is to contact the other as soon as reasonably practicable upon either of the children being admitted to a hospital or receiving urgent medical attention while the child or children are in their care.

23.Each parent is to notify the other of any change to their address or telephone number within forty-eight (48) hours of such change.

24.Each party is at liberty to attend the children’s school and any school functions.

25.The Mother is to provide a copy of these orders, the reasons for judgment and the Single Expert Report of Dr Q to Ms E, and to Dr H.

26.The Mother may provide a copy of these orders, the reasons for judgment and the Single Expert Report of Dr Q to the children’s psychologist or psychiatrist by whom they are being treated.

27.The legal representatives of the parties are to provide a copy of these orders and the reasons for judgment to Dr Q.

28.If either party wishes to apply for costs, that party is to file and serve an Application in a Proceeding, supporting Affidavit and written Submission by close of Registry filing on 27 June 2024.

29.In the event that a party has brought such an Application, the other party is to file and serve a Response, Affidavit and any Submissions in reply by close of Registry filing on 25 July 2024.

30.If no party files an Application in a Proceeding seeking costs, the proceedings are to be removed from the list of active pending cases and in the event that an application for costs is pressed, the Court will list the matter for further oral hearing on a date to be advised.

NOTATION

A.Whichever parent has the children as at the date of these orders is to retain them until commencement of the Mother’s time in accordance with order 8(a).

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE BETTS

OVERVIEW

1. These proceedings concern the future parenting of two children:

   ·X born in 2009 who is presently fifteen years and in Year 10 at school; and

   ·Y born in 2011 who is presently thirteen and in year 7 at school.

2. The parties to the proceedings are the children’s parents Ms Sharlow aged 57 (“the Mother”) and Mr Nance aged 54 (“the Father”).  The Mother owns and is a director of a business at Town R; she also works part-time as a professional.  She is in good health.  The Father owns and is a director of a business at Town B.  He has a medical condition.

3. The parents commenced cohabitation in 2006, separated under one roof in May 2017 and in August 2017 the Mother moved out of the home, taking the children with her.  Since then, the children have lived with the Mother, initially spending four and later five nights per fortnight with the Father.  With difficulty, school holiday time has been shared. 

4. Regrettably, the co-parenting relationship has remained highly conflictual with each parent blaming the other for it.  The children, particularly X, have been caught in the crossfire.

5. There are two major issues which require judicial determination:

   ·Each parent seeks sole parental responsibility on the basis that equal shared parental responsibility is unworkable.  This is so even though the only real dispute concerns the children’s future medical treatment; [1]

   ·The Mother wants to retain primary care of the children in the current 9/5 fortnightly arrangement whereas the Father wants to move an equal time, week-about arrangement.

6. The children do have higher-than-average medical needs.  X has several medical conditions; orthodontic issues; she also suffers from asthma.  Y is on the Autism Spectrum.  He suffers from a medical condition and also has orthodontic issues.  Both children are under the regular care of a GP and are periodically reviewed by a Paediatrician and in X’s case, a specialist.  Both have had psychological counselling; in Y’s case the counselling is ongoing.  X takes medication each day.

7. When it comes to medical treatment, the parents are on different pages.  The Mother is more vigilant about the children’s medical concerns. She would willingly pull them out of school for medical and allied health appointments.   The Father strongly opposes over-pathologising the children; he expects the children to be more stoic and is resistant to them missing school.  If he disagrees with certain treatment, then he won’t support it, meaning that the Mother takes the children for such treatment during “her” time.  Post-separation, the Mother has in fact taken the children to the bulk of their appointments.

8. As to whether the children should live primarily with the Mother or spend equal time with the Father, this has been a long-term source of conflict.

   THE HEARING

9. Mr Willoughby of counsel appeared for the Mother.  Mr Cummings SC appeared for the Father, assisted by Mr Bithrey of counsel.

10. The Mother relied upon a Case Outline Document filed 12/02/23 and her trial affidavit filed 04/08/23.  The Father relied upon a Case Outline Document filed 24/08/23 and his trial affidavit filed 07/08/23.  Some fifty-six (56) exhibits were tendered, including a single expert report of Dr Q (Psychiatrist), many parental communications via the Our Family Wizard App (“OFW”), various medical reports and business records.  In addition to this voluminous material, Mr Cummings SC also provided the Court with written submissions and a transcript.   

11. Though listed for three days, the hearing took five.  In part this was because each parent descended into tedious levels of detail in an effort to tarnish the other.  

12. I was assisted by seeing each parent in the witness box. [2]  The Mother was tense and already crying when she took the affirmation.  She came across as exhausted by the parental dispute, but also reluctant to make concessions and somewhat oblivious to her own contribution.  The Father was much more composed and, when pressed, willing to make some limited concessions.  But he had an unmistakable air of superiority, both as a parent and as to medical decisions for the children.  The Father does not genuinely value the Mother’s opinions on medical matters.  When the Mother has engaged a medical or allied health professional, his instinctive reaction seems to be to ‘second guess’ their opinion by suggesting the children are over-pathologised and the children’s symptoms exaggerated.  He can be dismissive and at times needlessly rude in his communications.  He seems only to value opinions which mirror his. 

13. Dr Q’s report and oral evidence were comprehensive and of significant assistance.  His strong recommendation, unshaken in cross-examination, was for equal time, with the Mother to have sole parental responsibility.  For the reasons which follow, I have come to the same view. 

    CHRONOLOGY

14. I do not consider it necessary or appropriate to try to resolve every disputed fact, but given the way the case was run it is unavoidable that I go into some detail.

15. When the parents commenced their relationship, the Mother already had two older children, her son Mr S and daughter Ms T.  The parents lived in different locations to support the Father’s career, ultimately settling in Town B in 2011.

16. Both parents were motivated and intelligent; together they established the two businesses.  They were very busy, the Mother managing administration and the Father the operational aspects.  To help them care for the children they hired a nanny for around three years.

17. The Father’s attitude of superiority sometimes manifested in demeaning commentary about the Mother’s qualifications; he suggested to her that her University was “second rate”.  At times the Father had a volatile temper and could be verbally abusive when he felt the Mother had ‘fallen short’.  When he was angry the Mother felt intimidated and tried to placate him. [3] 

18. It is unnecessary to make positive findings as to various physical acts of family violence alleged by the Mother. [4] They are historical and were not the subject of cross-examination.  It suffices to note that there was however a power imbalance, the Father being the more dominant.

19. In mid-2017 the parents attended some gruelling family dispute resolution without success.  The Mother and children then moved out of the home while the Father was away on a short holiday.  Upon his return, at his suggestion the parents implemented a four nights per fortnight arrangement.

20. Unbeknownst to the Mother, the Father had met “Ms C” while on holiday.  Ms C and her estranged husband had an equal time arrangement in place for their daughter D who was several months older than Y.  The Father and Ms C soon formed a long-distance relationship.

21. The co-parenting arrangements were challenging.  The Father often returned the children late.  But the Mother was also difficult.  Prior to separation the parents had alternated taking X to Sydney for her specialist reviews but the Mother now insisted on taking X every time.  Now, when it was the Father’s turn to take X, both parents drove there.  The Mother also ‘updated’ X’s contact details at U Hospital resulting in the Father being removed from her records.  (He later rectified this by providing them with proof of his identity.)

22. On 30 October 2017 the parents agreed upon a Parenting Plan [5] whereby the children were to spend five nights per fortnight with the Father during school terms – being one night in the first week and four nights in the second.  School holidays were to be shared equally.  Once X started high school (2022), there was to be equal time.  There was provision for time with the children on each parent’s birthday and for overseas travel.  The Mother was never happy with the Parenting Plan, but insisted the Father sign it before she next sent the children to him. He willingly signed it.[6]

1. In early 2018, X started to struggle emotionally.  The Mother asked her what was wrong, and X said “Dad and I have a secret.”  X would not elaborate.  Alarmed and upset, in early 2018 the Mother messaged the Father demanding to know what was going on. [7]  The Father responded the next day.  Taking the approach that the best method of defence was attack, he accused the Mother of trying to hurt the children by limiting their time with him.  He revealed that he was in an intimate relationship, that X knew and that they had concealed it from her.  The Father agreed that secrets were not good and the situation was unfortunate but justified not telling the Mother about the relationship:

   out of fear that you would become even more resentful and angry towards me, and increase your abuse of the children in an effort to hurt me.  This was discussed with mutual friends who agreed that it would be best if you didn’t know.  

   The Father separately admitted that X had recently overheard him telling someone over the phone that D would see more of the Father than X would.

2. Beyond labelling the situation “unfortunate” the Father’s message was anything but apologetic.  It showed a real lack of empathy for having placed X in an emotionally impossible position.  His reference to “mutual friends” was coercive and disdainful. [8]

3. In early 2018 X’s then GP, Dr G, diagnosed X with mental health conditions.  She put X on a Mental Health Plan,[9] following which X started to see a psychologist, Ms E.  (Y followed a few months later.)

4. In late 2018 the parents had an unpleasant incident at a school event.  Ms C and D had recently moved in with the Father and Ms C and the Father attended together.  As a ‘new partner’ of the Father, Ms C’s attendance was, prima facie, a breach of the Parenting Plan. [10]  The Mother sat at the office and refused to participate until Ms C left.  D was by that time a student at the school and Ms C had every right to attend.

5. In early 2019, Ms E assessed Y as being on the Autism Spectrum.  She suggested that the parents pursue NDIS funding.  The Mother was supportive, the Father more resistant.  

6. In 2019 the Father messaged the Mother to complain about her trying to arrange a birthday party for Y during the Father’s time, observing that:[11]

   I cancelled [X]’s sleepover party last year after discussion with sensible people because I was a single man looking after a bunch of young girls.  They, and I, believe that you may have taken the opportunity of calling me a paedophile – to destroy both my career and my relationship with the kids.  Your behaviour around that time made this a distinct possibility.  It is slightly better now but far from reasonable.  I can only encourage you to be reasonable and cooperative with the kids.  Sadly for them I fear you have no intention of doing so.

   In the witness box, the Father remained unapologetic about this message.  He maintained it was reasonable even though the Mother never accused him of being a paedophile.

7. In the meantime, the parents (and their former business partner Mr V) had been embroiled in acrimonious litigation in Court, with the Father on one side, the Mother and Mr V on the other.  They entered into an agreement whereby the Father would retain the Town R Business and the former matrimonial home and the Wife and Mr V would retain the Town B Business.  But the Father later reneged; he wanted the opposite.  The dispute was finally resolved in late 2019 when the parents (and Mr V) agreed to what the Father wanted. When he later vacated the former matrimonial home, the Father left it in an untidy and dilapidated state. [12]  He had even removed a built-in appliance.

8. In late 2019 the Father was speaking to the children on the telephone when the Mother walked by.  After hearing him say “Your mother won’t let that happen” she interjected and the parents immediately got into an argument in front of the children.  X became distressed and screaming at both of them to “just stop it, just stop it!”  

9. In 2020 the Father refused to agree to update the children’s passports so that the Mother could take them to the UK. 

10. In early 2020 the Mother messaged the Father about a flare-up of Y’s medical condition.  Emphasising his superiority, his response included:

    Whenever I see him he is a happy child…

    Either you have made this up entirely or [Y] simply does not cope when under your care.  Only you will know which is true…[13]

    The Father also conveyed his concerns to the Mother about Dr G continuing as the children’s GP.  His concern was not her clinical skills – which he had praised when she was first selected for the children in early 2018. [14]  His concern was that the Mother and Dr G had become ‘friends’ such that Dr G was no longer independent. 

11. When the Covid pandemic was declared in March 2020, the Mother messaged the Father suggesting that X and Y self-isolate with her for two weeks.  The Father rejected her proposal.  On 15 March at a time when the children were with him, he suggested a six week isolation period with X to isolate with him and Y to isolate with her.  He warned the Mother not to approach his house or he would call Police; he had by then fenced off his driveway to bar access to the home. [15]  The Mother rejected his proposal; the parents argued on the phone; the Mother relented and suggested that they just continue as per the Parenting Plan. [16] But the Father refused, saying that neither he, Ms C or the children themselves thought the Mother would return the children once he handed them back.  He said he wanted a Court order, suggesting that her solicitor work on it quickly so that there could be a handover back to the Mother in two weeks’ time. [17]

12. The children were due to be returned to the Mother on 17 March.  On that day, with the children still in his care, the Father proposed a week-about arrangement.  This was coercive.  The Mother thought about seeking a recovery order but instead attended upon Dr G, complaining that X had been “kidnapped”, expressing concerns about X not having her medication, and making family violence allegations.  Concerned about the risk of psychological harm to the children because of the alleged family violence and parental conflict, Dr G later made a mandatory notification to the NSW child welfare authorities. [18] 

13. Only after securing her consent that his five nights per fortnight be consolidated into one block, on 20 March 2020 the Father finally returned the children to the Mother.

14. In mid-2020, with the assistance of Ms E, the Mother completed an application for NDIS funding for Y, sending a copy to the Father. [19] 

    Events since commencement of these proceedings:

15. On 20 May 2020 the Mother commenced these proceedings.  She sought sole parental responsibility simpliciter and that the Father’s time with the children be reduced to four nights per fortnight.  His Response, filed 25 June 2020, sought equal shared parental responsibility and equal time.

16. By then children were returning to school but the Mother wanting X to continue being home‑schooled.  The Mother spoke to Dr G, whose letter of 21 May 2020 supported home schooling, apparently based on paediatric advice (from Dr L).  In response, the Father approached another paediatrician, Dr AA, whose letter of 25 May 2020 supported X’s return to school provided appropriate health guidelines were followed. [20]  The Father also spoke to Dr L who said he did not tell Dr G that X should be home schooled.  The Father contacted Dr M who also supported X’s return.  On that basis, the Father asked the Mother to immediately send the children back to school. [21]  He separately wrote to Dr G, asking that she amend her “factually incorrect” letter. [22]  Dr G demurred; she responded that Dr L’s advice to her had been that X staying home was the safest option from a Covid perspective – which is probably true. [23] 

17. The Mother backed down, drawing up a detailed “back to school plan” which Dr G then endorsed and sent to the school. [24]  Within days both children were back at school again.

18. On 4 June 2020 the Mother took X to see Dr G where they discussed a possible change of GP.[25]  At that stage Dr G stayed on, although she was “concerned about the impact of not having the trust of both parents” and worried this might “affect care coordination and the therapeutic relationship.”

19. With the children back at school, the Father wanted to revert back to the original four night, one night blocks whereas the Mother wanted to continue the five night block.  The Father prevailed.  A Child-Inclusive Conference was held on 22 September.  The Family Consultant recommended restoring the five night block but the Father was unmoved.

20. On the Mother’s birthday in 2021.  Contrary to the Parenting Plan, the Father kept the children until 5pm rather than returning them the day before. The Mother was upset, messaging the Father.  From the content of her message, which I accept to be true, it is clear that the Father and X had pre-planned that X would be away.  X told the Mother it was “only fair” as the Father had not seen X on X’s birthday the year before.  Notably, this was only because the Father had chosen to go on an overseas holiday. [26]

21. In early 2021, the NDIS formally approved Y’s Plan.  The Mother sent the Father a copy.  It included funding for an occupational therapist (“OT”). [27]  Ms E recommended Ms W, so the Mother got Y onto Ms W’s waiting list.

22. The matter went to an interim hearing before a visiting Judge on 24 March 2020.  On 25 March 2021 interim orders were handed down which provided for a return to the five night block.  Regrettably however there was a ‘slip’ in the orders insofar as Christmas holidays were concerned.  On a strict reading of the orders, in even years the Father only had two nights with the children, together with four hours on X’s birthday.  There was ambiguity in how these holiday orders were meant to operate, each parent asserting a different ‘understanding’ of what had apparently been agreed.  No-one sought to correct the orders.

23. In early 2021 the Father emailed the NDIS suggesting that they had been misled; he did not want Y to be over-pathologised; he wanted input into Y’s Plan failing which his email should be viewed as a formal complaint. [28]  They replied that he was not an authorised representative and invited him to provide one hundred points of identification. [29]  (When the plan was later reviewed, the Mother told the NDIS that the Father’s input was not needed as she had primary care.) [30] 

24. In late 2021 with the Christmas holidays approaching, the parents exchanged holiday proposals via their solicitors.  The Father and Ms C were engaged and were planning to marry in 2022 and the Mother agreed to his request that he have the children for the last two weeks. 

25. In early 2022 a vacancy unexpectedly emerged in Ms W’s books and the Mother got Y in to see her.  Ms W recommended intensive early intervention.  This included ‘physical therapy’ twice per week during school hours (at 2.30pm, near the end of the day).  The Mother messaged the Father with those recommendations.  She said she presumed that “you will take him to whatever falls on days when he is spending time with you.” [31] 

26. The Father was unhappy with the recommendations.  He emailed Ms W complaining about the NDIS Plan and asking for a meeting or phone call with her so he could give his input. [32]  Four days later he again emailed Ms W, this time including some attachments he had accidentally omitted.  She promptly responded by email, asking him to complete a ‘sensory processing measure’ form as the Mother had done.  Her email to the Father stated that:

    I am preparing a report of my initial assessment of [Y] for your records.  Once my report is completed, I would be happy to meet with you to discuss the therapy plans for [Y]. [33]

27. That same day the Mother sent the Father a copy of a letter from Ms W to the school seeking permission for Y to attend ‘physical therapy’ in school hours.  The Father rang the Principal who criticised Ms W’s methodologies and recommended a second opinion. Concerned, the Father also rang Ms E.

28. In early 2022 the Father returned his completed ‘sensory processing measure’ to Ms W, telling her that the NDIS Plan exaggerated Y’s problems and seeking further information about the proposed therapy and Y missing school. [34]  In the meantime he declined to take Y to his first physical therapy session which fell on ‘his’ day with Y.

29. The following day, Ms W emailed the Father acknowledging receipt and advising that she would be happy to meet after her initial assessment report was complete. [35]  A week later, Ms W sent the Father her initial assessment report.  Notably, it was dated before he had even returned his ‘sensory processing measure’ form to her.  Moreover, the report stated that Ms W had communicated with the Father by email when – as at the date of that report – this was incorrect.  At that point the Father’s scepticism about Ms W hardened into outright rejection.  He emailed Ms W challenging her recommendations.  She responded that Y would not now be missing school for physical therapy while separately complaining to Ms E about the Father’s communication style and suggesting that it was negatively impacting Y’s treatment. [36] 

30. In the meantime, over the Mother’s objections, the Father decided to get a second opinion from a different OT, Ms Z, who had been recommended by the Principal.  Her opinion was more conservative and did not support physical therapy.  Emboldened, the Father emailed Ms W objecting to Y missing school and to any therapy “that financially benefitted [Ms W]”.  He was essentially accusing Ms W of over-servicing Y for her own financial gain – a direct attack on her professional ethics.  He followed up with a complaint to the Health Care Complaints Commission, accusing her of “inadequate/negligent probably fraudulent assessment.”[37]  Ms W promptly withdrew her services. 

31. In the meantime, in early 2022 X had a ‘funny turn’ at home which was potentially a medical episode.  The Mother took X to see Dr AA who recommended a medical assessment which was inconclusive.

32. In mid-2022 the Father and Ms C separated; she and D moved into alternative accommodation in Town B. 

33. That same month, Ms W responded to the HCCC complaint.  She denied any impropriety, observing that: [38]

    I must emphasise that my decision to withdraw [Y] from my [physical] Therapy programme was based solely on the risk of psychological harm to me and my staff by continued communication/interaction with [Mr Nance].  I am very concerned that [Mr Nance]’s hostility towards my service has resulted in [Y] not receiving much needed occupational therapy.  I consulted with [Ms Sharlow] after receiving the email from [Mr Nance] dated [early] 2022.  [Ms Sharlow] determined that [Mr Nance] was making the situation very hard for all of us, especially [Y], so decided to cease occupational therapy at this time.

34. In mid-2022 the HCCC ‘cleared’ Ms W in respect of her clinical decisions and supported her decision to cease being Y’s therapist. [39]  The Father promptly sought a review, citing the date of her initial assessment report.  This time he was successful but the HCCC could not find it to be more than an administrative oversight; they made no adverse finding about Ms W’s clinical decisions or ethics. [40]

35. On 8 August 2022, Dr Dr Q interviewed the family.  The Father told him that Dr G was a “good GP”.  While he was concerned that Dr G was a friend of the Mother and that the two of them went to the same hobby club – which he smilingly described as “the cabal” – he said that he was keen to sit down with Dr G; things were not beyond repair. [41]  In her interview, X was resolute in her desire to implement an equal time arrangement. [42]  But some alignment was also evident; specifically asked if she had kept the Father’s relationship with Ms C a secret early on, X denied it, instead ‘covering for’ the Father. [43] Y also wanted equal time.

36. In September/October 2022 the parents were negotiating the upcoming Christmas holidays.  The Mother initially proposed that the Father have the children for the two nights strictly provided for in the orders.  This was entirely unreasonable but also a ‘bluff’.  When the Father called her bluff [44] she quickly ‘folded’, suggesting he have an additional fourteen nights, or “any reasonable proposal he came back with”. [45] The Father’s solicitor responded that the Father had booked a trip and that he wanted the children for seventeen nights from Christmas Day up to and including X’s birthday.  This arrangement was inconsistent with the interim orders and with the Parenting Plan.  The Mother agreed, so as not to disappoint the children. [46]

37. On 19 January 2023 Dr Q finalised his report.  The Mother promptly amended her Initiating Application to seek a detailed order for her exercise of sole parental responsibility, while maintaining her four nights per fortnight position.  At the same time, Ms C (and D) moved back in with the Father and he and Ms C soon resumed their relationship.  Y was by then doing much better at school; he had not needed the more intensive OT assistance.

38. In early 2023 the Mother took X for a long consultation with Dr G in relation to her mental health issues.  Dr G diagnosed X with a medical condition and prescribed medication.  That night the Mother messaged the Father to advise that Dr G would review X in eight weeks following her visit to Dr M and that the review would discuss “the new medication” Dr G would like X to try.  The Mother did not specifically tell him that X had been prescribed medication.  She was likely trying to avoid argument. [47] In early 2023, the Father messaged the Mother to say that it was “great and appropriate” to let X express herself to her GP about her mental health condition.  He asked for more details and said he’d like to be involved.  He said that taking a child from school for acute issues such as X’s moods “is fine” but that the children were well and should not otherwise be taken out of school for general GP management which had no benefit to the children, “merely a financial benefit to [Dr G].”  Though the Father denied it in the witness box, this was an attack on Dr G’s professional ethics in much the same language as he had used about Ms W. 

39. His message to the Mother went on to attack Dr G who he described as:

    a total captive of yours, and unable to put the interests of the children above unquestioning support of you due to your lies to her about me.  She is not competent to provide medical advice regarding our children, as she clearly does not apply reasonable or competent scepticism to history provided.

    The Father was essentially looking at Dr G through a family law lens.  Rather than calling Dr G himself to discuss these matters, he preferred to keep her at arms’ length with the Mother stuck in the disempowered role of ‘go-between’. [48]

40. In early 2023 the Mother sent the Father a copy of X’s GP management plan, inviting him to speak directly to Dr G.  The plan referred to the prescribed medication.  The Father had told X that she no longer needed to take asthma medication; but the plan stated that Dr G wanted to discuss X’s use of medication with Dr M.  Later that day, following a telehealth appointment with Dr G, the Mother again messaged the Father to advise that Dr G had undertaken further research and was going to change medications.  She gave the details of the new medications to the Father and said X would be bringing it to his home. [49]

41. But by then the Father had become aware from subpoenaed material that Dr G had made the mandatory notification.  Whatever Dr G’s clinical skills, whatever the children’s longstanding relationship with her, and whatever her own professional obligations as a mandatory reporter, the Father now saw her as part of the ‘enemy team’.  He was determined to get the children a new GP.  His solicitors wrote to the Mother’s solicitors objecting to Dr G’s continued involvement based on “subpoenaed records”. [50]

1. In early 2023 the Father also messaged the Mother saying:

   I am shocked and appalled that you have deliberately hidden from me your plan to start our 13 year old daughter [on prescribed medication].  [51] 

2. On 28 February the Mother’s solicitors wrote to the Father’s solicitors asking them to particularise the Father’s concerns arising from the subpoenaed records.  The letter also referred to X’s upcoming attendance upon Dr M and invited the Father to give his views as to various matters concerning X’s health, including her possible illness, her prescription and whether X’s illness might potentially be due to a medical condition which the Mother wanted to investigate. [52] 

3. In early 2023 the Father messaged the Mother, suggesting alternating appointments with Dr M. (He has suggested, and the Mother had agreed, to alternating appointments with Ms E.)  The Father complained about Dr G’s clinical decision to prescribe medication given X’s unresolved illness; he was unhappy about ‘medical condition’ being included as part of X’s medical history.  Referencing his fear of over-pathologising the children, he said that:

   It is absolutely clear that [Dr G] will do and write whatever you want her to, with balanced fact finding and objective assessment being secondary.  She is negligent and dangerous for our kids.  I will not be taking them to her again.  She has absolutely no interest in any observation of mine about the children and does not even record them in her notes. [53]

4. As for the medication, the Father said in the witness box that:

   The first thing, it’s extremely unusual practice for a doctor to prescribe [this medication] where there’s equal parenting rights.  Very very unusual without giving them a call.

   The Father’s complaints are made against the backdrop that he was himself unwilling to call Dr G.  In the witness box he said, with indignation, that doing so would have been “a total and utter waste of time”.

5. On 10 March, the Father’s solicitors wrote to the Mother’s solicitors reiterating the Father’s concerns about Dr G, complaining that she was not consulting him.  On 15 March 2023 the Mother’s solicitors provided a lengthy response, again asking for particulars.  The Mother agreed to alternating medical appointments provided the Father took them to all appointments that were made. [54]

6. On 21 March 2020 the Mother took X to Dr M for review.  On 23 March she messaged the Father to advise that Dr M wanted Dr K’s advice about the medication, and that X told Dr M that she had stopped asthma medication on the Father’s advice but that Dr M wanted X to keep taking it as a preventative (to keep her lungs dry). [55] The Father disagreed with Dr M about asthma medication.  He believed X should take an alternate asthma medication instead, and only on an ‘as-needed’ basis consistent with some advice he had received from Dr K.  So the Father had a GP that he knew undertake a lung function test on X.  When it was normal, he messaged both the Mother and Dr M disputing the need for the medication.

7. On 29 March 2023, the Father wrote directly to Dr G.  He challenged her records about X’s alleged ‘medical condition’, challenged her about prescribing medication, and concluded by observing that he did not accept her independence or competence and asking that she remove herself from the children’s care in their best interests.  Despite its personal nature, he wrote it on his business letterhead - emphasising his professional seniority. [56]

8. Dr G promptly called both Dr AA and Dr K, the latter confirming that the medication she prescribed was safe when kept at a low dose. [57]  On 6 April 2023 Dr G initiated a telephone call with the Father to discuss his concerns.  He was not expecting the call.  She told him Dr K’s advice while offering to give a referral to a paediatric neurologist if the Father wanted it.  He demurred, saying that the children had “too many people” involved in their care and reiterated that she had not adequately consulted him.  She offered to meet with the Father and X, but he refused.  Eventually his frustration got the better of him and he told her she should not be the children’s GP “because she had reported him to the child welfare authorities”.  He accused her of being “captured” by the Mother and over-pathologising the children, becoming increasingly loud and forceful before abruptly ending the call. [58] 

9. Later that day the Father wrote to Dr G, again on his business letterhead:

   As I stated this afternoon: I do not believe you are able to put the care of [X] (or [Y]) ahead of misguided advocacy for their mother.  I have recently become aware of your reporting of me to DCJ in 2020.  This was done without any attempt to ascertain if the children were actually safe, or asking the children or me why they did not want to go back to their mother, or talking to me.  I find your actions distressing and perplexing.  This could have been resolved with a simply phone call from you to me…

   Today, I found receiving a phone call from you distressing.  I am still distressed about it.  I will not be communicating with you in any way other than in writing unless it is an emergency.  I do not trust you at all to be able to put the interests of [X] and [Y] first and will not be bringing them to see you.  You do not have my consent to continue their treatment.

10. Criticised for not consulting him, then criticised when she did, Dr G was in a ‘no win’ situation.  So were the children.  His consent to treat the children having been formally withdrawn, Dr G wrote to the parents withdrawing as the children’s GP. 

11. On 28 April 2023 the Mother’s solicitors again wrote to the Father’s solicitors about X taking asthma medication.  They also complained about the lung function test effectively ‘second‑guessing’ Dr M. [59]  The Father’s solicitors responded that Dr M’s recommendation was “incorrect”.  The Father also disputed the need to investigate another medical condition, saying that X’s medical condition should continue to be treated conservatively.  He suggested that the parents take the children to alternating medical appointments and that both parents be consulted before any treatment is administered or any prescription given.  (Ironically, earlier that month the Father had unilaterally given X an antibiotic cream when she had a skin infection.) [60] 

12. In early 2023, Y sustained an injury requiring a trip to the Hospital Emergency Department for suturing.  On the way there, Y texted the Father a photograph of the wound.  The Father sent a reassuring text, while separately texting the Mother to say that the injury appeared serious and warranted treatment by a senior doctor.  But he accidentally sent that text to Y, making Y anxious.  When he saw the sutures, the Father thought they were “average” at best and he told the Mother that if Y had problems on his upcoming school camp she should contact him as his doctor friend would be happy to see Y. [61]The Mother was unhappy with the Father for making Y anxious, messaging him to complain.  Her affidavit made no mention of his offer to get Y in to see his doctor friend. 

13. Given Y’s injury, in mid-2023 the Mother filled out a ‘new patient form’ for Y with a new GP, Dr BB.  She did not mention the Father in that document at all.  The form acknowledged that there were parenting orders which she unreasonably ‘summarised’ as “Children live with the mother.  Waiting on sole parental responsibility order in August 2023.” 

14. When Y returned from school camp his sutures had failed.  They were removed by a nurse at the practice. [62]  The Father’s concern about the quality of the suturing was justified.

15. In mid-2023, two of X’s friend’s mothers (Ms CC and Ms DD) reached out to the Mother to express concern about a text message X had sent to her friendship group at school.  At 7.55pm, Ms CC messaged the Father:

    I’m not really wanting to get involved.  But just so everyone is in the loop.  [X] has just sent a text message tonight [to the children] which I feel is a bit of a cry for help.

16. At 9.45pm the Father messaged the Mother.  He specifically asked the Mother if she had been told the content of X’s message.  Conceding that the parental conflict was not helpful, he suggested X speak to an independent counselling organisation without either parent’s input, such as EE Organisation. [63]  The Mother responded at 10.28pm, confirming she had spoken to both mothers but giving no further details. She suggested that X see Ms E, objecting to EE Organisation as someone she knew was working there.

17. At 12.02am, the Father again messaged the Mother to ask if she knew what X’s message had said.  The Mother responded at 9.30am saying that:

    …[Ms CC] is concerned about [X]’s well-being.  [X] has been getting support from her girlfriends.  However there seems to be a problem with this.  I suspect that [X] is under so much pressure given what has been going on for her in the last few months that some of her friends may have met their limit of support for [X].

    The message went on to refer to X’s mental health issues and the ongoing issues concerning her health care, particularly the Father’s decision not to agree to Dr G continuing as her GP. 

18. The Father responded that, when he spoke to X, she said she did not want to see Ms E.  He again suggesting EE Organisation - if X wanted to go there.  He said that a friend would be leaving EE Organisation next week.  He emphasised X’s independence.

19. In the circumstances the Mother - unhappily - cancelled an appointment she had made for X to see Ms E. [64]  In mid-2023 the Father messaged her to ask two specific questions:

    Do you think forcing [X] out of school to see a psychologist, both against her will would be good or bad for her?

    Do you think forcing on her things she doesn’t want would make it less likely that she talks to issues in her life with us?

    The Mother did not respond.

20. The Mother agreed to the Father’s suggestion that the children’s new GP be Dr H.  Though Dr H’s patient books were full, the Father was able to secure her services.  [65]

21. As agreed, in mid-2023 the Father took X to her first appointment with Dr H. [66]  X told her that she was “stressing” about the Court hearing and wanted to spend half of her time with each parent.  Dr H’s notes go on to record that X was:

    …very upset at that fact that mum has made allegations that dad was sexually abusing [X] and physically abusing her brother [Y] which is ‘completely untrue and bullshit’.  Also upset at the fact that during medical appointments [especially with [Dr M]] mum is doing most of the talking that might be over exaggerating the severity of her symptoms…

22. The Mother had never accused the Father of sexually abusing X, but the Father had told X she did.  The Father knew this could potentially be emotionally damaging for X and could adversely affect the Mother/daughter relationship.  Yet he still said it.  It then became another ‘secret’ between he and X.

23. In mid-2023 the Mother messaged the Father asking that he reconsider his opposition to X seeing Ms E.  The Father again asked her the content of X’s original message, while asking a series of other questions akin to cross-examination.  He continued his opposition to Ms E, saying it would be disempowering for X and emphasising the risk of over-pathologising her. [67] In mid-2023 he again messaged the Mother about supporting X’s preferences and views, including “her well established parenting preferences”, ie. equal time. [68]

24. X was struggling academically at that stage and on 14 June the Mother unilaterally contacted the school to seek that X’s workload be temporarily reduced.  The school was supportive.  When the Mother messaged the Father about this, she said that X described herself as “overwhelmed, unable to concentrate unable to think like she normally does, unable to function and described herself feeling numb.” [69]The Father responded that she should have consulted him beforehand, downplaying X’s symptoms:

    I’m surprised: when [X] left my place last Wednesday she was in very good spirits.  When I saw her on Monday afternoon to drop her shoes off at your place she was playing outside with visitors and was very happy.  While I appreciate you may think differently, I think the approach of pulling [X] out of exams and required tasks, rather than supporting her through them and dealing with imperfections that may occur along the way, does her harm long term.  In my view this disempowers her and does not allow her to develop resilience necessary for progression to adulthood.

25. In the meantime the Mother kept pushing X to take asthma medication; she resisted based on the Father’s advice and sometimes telling the Mother that she “is not a fucking doctor!”

26. In mid-2023, the Father took the children for an overseas holiday.  The Mother cooperated in getting the children’s passports. 

27. Upon their return to Australia, the Mother was keen to see the children.  The Father messaged the Mother to propose that she see the children on a Sunday for few hours.  The Mother responded agreeing to this proposal – but as Ms T was going to hospital in Sydney, the Mother asked that he do the handovers given her potential need to travel there ASAP.  He declined and asked her to confirm that she would collect the children at 10am and return them at 3pm. [70]

28. The Mother did not confirm until 8.08am a day later, which message the Father did not read until 9.17am.  He messaged her at 9.37am at a time when she was driving in to collect the children, pushing the collection time back to 12pm as X was tired and Y asleep.  He blamed her for not confirming earlier.[71]  She took the lesser time and did the handovers.

29. In August 2023, Dr K reviewed the children and confirmed that Y no longer needed occupational therapy. [72] 

30. On Father’s Day 2023, just after the first tranche of the final hearing, the Father messaged the Mother to say how upset X was that her living arrangements were unresolved.  He suggested that an equal time arrangement would do her relationship with X a lot of good. 

31. In late 2023 the Mother messaged the Father in relation to X having had some injuries and asking him to agree to X having physiotherapy. [73] He refused, saying X first needed to be reviewed by Dr FF, a specialist, as recommended by Dr H.  He did not think X had suffered the several “injuries” at the level the Mother was alleging.  The Father took X to Dr FF later that month, where X told her about having had several injuries – more in accordance with the Mother’s understanding than the Father’s.  Dr FF did not think X had a related medical condition. (X also said the medication gave her good relief.)

32. In the leadup to the Christmas holidays there was the usual tension about how the time was to be split.  The Father asked for most of the holiday period and the Mother agreed. 

    THE LAW

33. These parenting proceedings are governed by the former provisions of Part VII of the Family Law Act 1975 (Cwlth) (“the Act”).  Section 60CA of the Act provides that, when making a parenting order for children, the Court must regard the ‘best interests’ of the children concerned as the paramount consideration.  Section 60CC of the Act prescribes the mandatory considerations to which the Court must have regard in arriving at a ‘best interests’ outcome. 

    Primary considerations

    (2)       The primary considerations are:

    (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

    (2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

    Additional considerations

    (3)       Additional considerations are:

    (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;

    (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);

    (c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

    (i)to participate in making decisions about major long-term issues in relation to the child; and

    (ii)       to spend time with the child; and

    (iii)      to communicate with the child;

    (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;

    (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;

    (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;

    (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;

    (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

    (h)if the child is an Aboriginal child or a Torres Strait Islander child:

    (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

    (ii)the likely impact any proposed parenting order under this Part will have on that right;

    (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

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

    (k)if a family violence order applies, or has applied, to the child or a member of the child’s family--any relevant inferences that can be drawn from the order, taking into account the following:

    (i)        the nature of the order;

    (ii)       the circumstances in which the order was made;

    (iii)      any evidence admitted in proceedings for the order;

    (iv)any findings made by the court in, or in proceedings for, the order;

    (v)       any other relevant matter;

    (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;

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

34. The ‘best interests’ considerations in s 60CC govern the contentious issues. [74]  Section 68B of the Act separately empowers the Court to make such orders or injunctions as it considers ‘appropriate’ for the welfare of the children.

    WEIGHING UP THE CHILDREN’S BEST INTERESTS

35. I have had regard to each of the ‘best interests’ considerations set out above but do not propose to slavishly set out my findings for each individual consideration.  Rather, I will discuss them holistically and with reference to how the case was argued. 

36. Before turning to the competing proposals, I make the following general observations:

    (a)both children are doing reasonably well at school, socially and in other aspects of their life.  This is in no small part due to each parent’s love, guidance and input.  Though they have different attitudes, each is an invested and very competent parent;

    (b)the parents’ difficulty concerns their capacity to co-parent where each has fallen short in various ways.  For instance each of them has triangulated Ms E. [75]  The Mother triangulated Dr G. [76] The Father triangulated Ms W.  At her very first appointment with X, Dr H was triangulated when X repeated the Father’s false sexual abuse allegations;[77]

    (c)in spite of the parental conflict, the children have developed strong relationships with both parents, as well as good relationships with Ms C and D, and with extended family and friends;

    (d)the children will not be at an unacceptable risk of harm on either parent’s proposal, but there are distinct advantages and disadvantages of each parent’s proposal from a ‘best interests’ perspective.

    Weighing the children’s best interests: parental responsibility

1. As a professional, the Father has ‘connections’ which can be valuable for the children, as evidenced by his ability to get them onto Dr H’s books. 

2. More fundamentally, the Father’s knowledge enable him to critically weigh up competing medical opinions and treatment recommendations for the children.  The children have benefitted from his input, as evidenced by Y’s improved state of functioning which was achieved without him having to miss school for physical therapy. 

3. The children both trust the Father’s medical judgment.  When Y had an injury, unprompted, he texted a photograph to the Father.  X stopped taking asthma medication because the Father said so, even though Dr M disagreed.  Moreover, if the Mother makes medical comments to X that X disagrees with, she can sometimes be met with the rejoinder that she is “not a fucking doctor”.

4. Vesting sole parental responsibility in the Father would be more consistent with the children’s views.  X told Dr Q that she wants both parents to have input into her medical decisions,[78] but when pressed to choose between one or the other, she would pick the Father as she thought he would be more consultative. [79] Dr Q elaborated in oral evidence by saying that X would be “more comfortable” if the Father made the medical decisions.  (Y did not express a preference; he wanted both parents to agree.)

5. On medical matters, the Father has a stoic, “push through it” approach which can help the children to build resilience.[80]  He also has a more robust approach to school attendance than the Mother, who struggled to get the children to school, especially in 2020 and 2021 when Y had behavioural issues and was less ‘functional’ than he is now. [81]

6. However, I agree with Dr Q’s assessment that the Mother is more empathetically attuned to the children’s needs than the Father is, that the Father lacks some reflective functioning and shows a propensity to project onto the children his own views that they are ‘fine’.[82]  But while the Father’s ‘push through’ approach no doubt helps the children in some situations, it is not a complete answer to all the issues they may encounter.  Not everything can be ‘pushed through’.  For instance, when X was struggling with health issues, the Mother was the only parent who noticed, taking her to see Dr G who in turn prescribed medication.  X was more comfortable showing her vulnerability to the Mother than to the Father.  Even in the Father’s oral evidence at trial, he maintained that the prescribed medication was a “heavy duty” response to a problem that a lot of women “put up with”. [83]  The Mother was also much more aware of the number of times X has suffered injuries.  And while the Father does accept that Y has autism, he told Dr Q that he would not himself have come to that diagnosis based on his own observations. [84] 

7. I respectfully agree with Dr Q’s view that the children are ultimately more likely to show their more functional and resilient selves to the Father, and to bring or show their needs or problems to the Mother who has greater capacity to provide for their emotional and relational needs. [85]

8. The Mother is much more open to accepting and acting upon medical advice than the Father is.  Unlike the Father, she has no formal professional training and less reason to doubt what she is told.  This no doubt makes her a more ‘pliable’ parent for a medical practitioner to deal with, which can be advantageous for the children.  The Father on the other hand can be extremely difficult for practitioners to deal with, especially if he perceives that:

   ·the children have been over-pathologised, about which he is highly sensitive; or

   ·the practitioner has failed to properly consult him about proposed treatment, or worse, is in any way ‘favouring’ the Mother’s views and input over his own.  Again, this is something about which he is highly sensitive.

9. If the Father forms one or more of the above perceptions, he can be difficult, hostile and even bullying to such practitioners – as Ms W and Dr G found out.  I respectfully agree with Dr Q’s observations that the Father’s email to Ms W of early 2022 was unreasonable insofar as it referred to ‘financial benefits’, misleading about the second opinion he had obtained, and intimidating. [86]  The overall outcome may have worked to Y’s advantage, but it was only achieved by the Father scuttling the treatment recommendations and in the process undermining both Ms W and the Mother.  Likewise, the children may now have a ‘fine GP’ in Dr H, but this is only because the Father had undermined Dr G, ultimately withdrawing his consent to her continuing to treat them.  Moreover, I respectfully agree with Dr Q’s evidence that, given her age, it was less than ideal for X to change GPs.

10. The parents have each developed maladaptive co-parenting behaviours which can bear on the question of parental responsibility.  In the Mother’s case, at times she fails to consult the Father, preferring to take action or make decisions herself in an effort to avoid argument or criticism.  In the Father’s case, he does have a propensity to at times be rude and dismissive towards her, and to undermine her decisions. [87] It is a dynamic in which each parent’s maladaptive behaviours drive the other’s.    

11. I respectfully agree with Dr Q’s observation that the parental conflict has not been symmetrical, with the Father showing the more disrespectful, expectant, coercive and aggressive behaviour towards the Mother, and the Mother pre-emptively or reactively accommodating or de‑escalating behaviour towards the Father over time. [88] 

12. While both parents have no doubt exposed the children to conflict, particularly X, the Father has positively shared ‘secrets’ with X that have placed her in a loyalty bind and caused distress.  This includes making a knowingly false allegation that the Mother had accused the Father of sexually abusing X.  In my view this was a form of emotional abuse, though fortunately Dr Q did not think that it would have a negative impact on the Mother/daughter relationship.  (Ironically Dr Q thought that, if anything, it could negatively impact X’s relationship with him by potentially planting a seed in her mind to the effect of – did he do something to me?)

13. I respectfully agree with Dr Q that each parent’s perspective of the other has been negatively distorted, but the Father’s perspective is the more distorted.  As observed earlier, he has a clear superiority complex.  He also holds a measure of genuine contempt for the Mother, as evidenced by his text of mid-2020 disparagingly referring to her as “psycho killer”, in various other messages he sent her, and in his sharing of the false sexual abuse allegation. 

14. At this stage, the Mother only seems to achieve her desired outcomes where she acts unilaterally. [89]  Whenever she and the Father have consulted about matters, the Father has prevailed in just about every issue where the parents have found themselves in conflict.  He was successful in relation to Dr G, Ms W and Ms E (when X refused to see her).  When Covid struck, he retained the children in his care until the Mother ‘agreed’ to his time being consolidated into one (1) x five (5) night block.  He was successful on the issue of returning the children to school again and prevailed when he wanted to revert back to the four (4) night, one (1) night blocks (up until the Court made contrary orders).  The Father succeeded in having an overseas holiday with the children himself (including renewing their passports) despite having earlier scuttled the Mother’s plans to take them overseas.  By and large, where their views have been in conflict, the Father has gotten his way.

15. Ultimately, I have come to the view that the Mother should have sole parental responsibility because it provides the best opportunity for both parents to have input into medical decisions.  Mr Cummings SC submitted that the Father is the parent who is more likely to consult than the Mother – pointing, quite properly, to various unilateral actions on her part.  But while there is potentially some merit in that point, the problem for the Father is that, put shortly, he simply does not genuinely value or respect the Mother’s views on medical issues to the extent they conflict with his own.  This is highly unlikely to change and cannot be ‘cured’ by any safeguards that might be included in the orders.  To vest the Father with sole parental responsibility is to effectively remove the Mother’s input (as it will be overridden) with the loss of all the empathetic advantages to the children that the Mother’s input would otherwise bring to the table. [90] 

16. In contrast, vesting the Mother with sole parental responsibility does not relegate the Father to a merely tokenistic role.  His knowledge can still be shared with the Mother, and with other medical and allied health professionals treating the children.  He can still offer up his ‘contacts’ Mr Cummings SC submitted, and I accept, that the Father is likely to continue to critically appraise and engage with the Mother’s choices.  I am satisfied that the Mother will take the Father’s views into account; the treating medical and allied health professionals will do likewise.  The orders will contain appropriate safeguards to secure the Mother’s obligation to consult, and the Father’s opportunity to have input.  The Mother is agreeable to safeguards and nothing turns on her earlier proposed orders for sole parental responsibility simpliciter.  Her change of position in relation to the drafting of the sole parental responsibility order was not disingenuous or opportunistic; I am satisfied that the Mother will comply with Court-ordered obligations.

17. I respectfully agree with and endorse Dr Q’s view that, while the Father’s medical knowledge is an asset to the children, on balance the Mother is better able to make the decisions in a way that is child-focused, hears the signals from the child and others and shows reasonable respect for the input and concerns of the other parent. [91]  In the witness box, Dr Q described both parents having input into decisions as a healthy ‘push/pull’ situation for the children, describing such an outcome as ‘win/win’ for them.  I also accept Dr Q’s oral evidence that an order in the Mother’s favour can mitigate potential disruptive impacts and secondary harm to the Mother and the children.  That is, if the Father is aware that the Mother has the ‘final say’ on medical decisions, it may modulate his coercive or intimidatory behaviour and encourage him to instead adopt a more helpful approach - persuasion.

18. While the children, especially X, may have more confidence in the Father about medical decisions, X is now of an age where she would likely refuse treatment she disagrees with.  That is, the Mother is not going to be able to force X into a treatment regime that X doesn’t want. 

19. Mr Cummings SC submitted that if the Father does have a superiority complex – which was not admitted – then an order in his favour would work best for the children.  He also submitted that the Father’s input has led to good medical outcomes for the children and that he can be ‘trusted’ to keep making the right decisions.  He also submitted that removing the Mother’s decision-making role about medical matters would be a relief to her in the long run, given that she has been somewhat exhausted by the dispute.  Superficially these submissions have merit as there may be less risk of dispute in the future – but to effectively remove the Mother’s input into medical decisions is too high a cost for the children.

    Weighing up the children’s best interests: equal time -v- the existing 9/5 arrangement

20. This is a more straightforward issue.

21. In her interview with Dr Q, X very strongly expressed a desire for equal time, albeit in a different configuration.[92]  She said that she had discussed proposed changeovers with the Father.  Her reasoning displayed a strong focus on being ‘fair’ to each parent.  According to Dr Q:

    To [X] it is self-evident that time should be equal, and ridiculous to think otherwise.

22. Dr Q said that an equal time arrangement would “resolve something” for X whereas a 9/5 outcome may cause X to be “outraged”.   And while it is true that X has been somewhat aligned by the Father since separation, X’s preference for equal time has been longstanding.[93] 

23. Y also told Dr Q that he wanted equal time.  Interestingly he did not know what the Mother wanted but he knew this was what the Father wanted. [94]

24. No-one suggests that the siblings should be separated; X’s views ring loud given her age.  And while I accept Mr Willoughby’s submission that there is no evidence that X has ever ‘voted with her feet’ – or threatened to do so – I consider that she would be deeply upset about a 9/5 outcome and would feel disempowered and unheard.  She would also be resentful and in my view would take her resentment out on the Mother.  (The Father would be similarly outraged and highly likely to fan the flames of X’s resentment.)

25. Mr Willoughby submitted that a 9/5 arrangement was nonetheless better for the children in the long term.  Essentially he submits that:

    ·given the Father’s negativity and disrespect towards the Mother, and his past aligning behaviours with X, an equal time arrangement would place the children’s relationship with the Mother under pressure and may even be seen as validation of the false sexual abuse allegation, ie. X might think that the Mother did make a false accusation against the Father;

    ·The children are doing well in the current time configuration, so why change it?

26. I have addressed the false sexual abuse allegation earlier; it is not a significant matter vis-à-vis the Mother’s relationship with X.  In any event, at some point the parents will have to tell X the truth – namely that the Mother never made the allegation.  How they do that is beyond the scope of this judgment and neither party seeks specific orders given the sensitivity of what is involved.  (The Father was particularly sensitive about the subject.)

27. While the children are doing well at present, I have already set out what the impact on X would be of maintaining the 9/5 arrangement.  In my view X’s relationship with the Mother would be adversely affected by continuing a 9/5 order rather than moving to equal time.  The latter will ensure a more balanced and meaningful relationship between the children and each of the parents.

28. Dr Q had some concerns about an equal time order given the Father’s idealised view of self, his tendency to inappropriately ‘lash out’ when challenged, and consequent deficits in his reflective functioning and empathic attunement (all of which concerns I accept).  He was concerned about the children having to mirror back the Father’s positive view of self, which over time could increase the risk of the children experiencing anxiety or depression.  He was also concerned about the (albeit small) risk of poor conflict management by the Father in the event of difficult ‘adolescent issues’ arising, or the Father exposing the children to a negative relational cycle between he and a future partner or in a work or community setting.  To that end, he recommended that the children’s “dose” of the Father be no more than fifty percent (50%).  [95]  He also advocated that the children have a ‘safety valve’ whereby they could elect to return to a 9/5 arrangement in that event. [96]  But though well-intentioned, I consider that such a ‘safety valve’ would be highly problematic and likely to increase rather than decrease the stress on the children.  They need a ‘break’; X has already been somewhat parentified and empowered in the dispute.

29. One thing that Dr Q was clear about was that, if an equal time order was made, the Mother needed to have sole parental responsibility to remove that source of parental conflict, and its potential adverse impact on the Mother.  The orders I am making will provide for that, and other necessary safeguards to address the risks associated with a symmetrical time arrangement.

30. Ultimately I am persuaded that equal time – with such safeguards - is in the best interests of the children and in that respect I agree with Dr Q’s week-about recommendation. [97]

    CONCLUSION & ORDERS

31. Unhelpfully, the parents did not present the Court with one (1) coherent document setting out the orders which were agreed, and those which were in dispute.  Instead, each presented detailed but different orders (sometimes only subtly).

32. Ultimately, for the reasons set out herein, I will make the orders set out at the commencement of the judgment.  The orders represent an amalgam of the competing proposals and should be self-explanatory.  To the extent that any further explanation is thought necessary in relation to the minutiae I observe that:

    (a)The treating practitioners are agreed.  It is also agreed that the parents will take them on a ‘turn for turn’ basis where practicable;

    (b)I prefer a set handover date during the Christmas holidays (7 January) as it is unambiguous;

    (c)The passport and overseas travel orders reflect the Mother’s proposal but without her specific proposal to take the children on a six (6) week holiday overseas which I regard as being in the nature of “tit for tat”.  The parties need to start with a fresh slate;

    (d)Orders 25 and 26 may cause a degree of embarrassment to the parents but it is critical that these practitioners have the benefit of the Court’s findings given their treatment roles.  It will also help avoid triangulation.

33. In closing I express my regret that these two well-educated and intelligent parents, each with the benefit of experienced legal representatives and a comprehensive report of Dr Q, were unable to arrive at this outcome on their own.   

I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts.

Associate:

Dated:       30 May 2024

[1] There is no dispute about the children’s names, the children’s school or religion and neither parent seeks to relocate the children away from the other parent.  As for the children’s extra-curricular activities, the parents agree that these will be largely driven by the children themselves.

[2] Dr Q gave evidence by videolink

[3] Exhibit 1, paragraph 32.  Note that in 2014 the Father travelled overseas to attend an anger management programme

[4] Both parents seek sole parental responsibility. The statutory presumption in favour of equal shared parental responsibility provided for in s 61DA(1) of the Family Law Act, or its rebuttal by reason of family violence as provided for in s 61DA(2), are otiose

[5] Exhibit 23

[6] Exhibit 7

[7] Exhibit 50

[8] Ibid.

[9] Exhibit 8

[10] Exhibit 23, clause 6.6

[11] Exhibit 50

[12] Wife’s affidavit, paragraphs 190 & 191 

[13] Exhibit 50.  The Father’s attitude in this respect was noted in paragraph 516 of Dr Q’s report (exhibit 1)

[14] Father’s message to the Mother of Early 2018 (Exhibit 50)

[15] Exhibit 50

[16] The Mother messaged the Father in this respect, as well as having her solicitors write to him

[17] Ibid.

[18] Exhibit 26

[19] Exhibit 37

[20] Dr AA’s letter is exhibit 28

[21] Exhibit 29

[22] Exhibit 30

[23] Exhibit 30

[24] Exhibits 9 & 10

[25] Exhibit 53

[26] Exhibit 50

[27] Exhibit 50

[28] Exhibit 27

[29] Ibid.  The Father provided them with the necessary identification in September 2021.

[30] Ibid.

[31] Exhibit 50

[32] Exhibit 31.  He had initially sent the email in early 2023 – but to the wrong address

[33] Exhibit 32, sent in response to the Father’s email which was exhibit 31

[34] Exhibit 33

[35] Exhibit 34

[36] Exhibit 49

[37] Ibid.

[38] Ibid.

[39] Ibid.

[40] Exhibit 49.  The HCCC review decision was handed down in late 2022

[41] Exhibit 1, paragraphs 311 & 312

[42] Ibid, paragraph 409

[43] Ibid, paragraph 394

[44] Exhibit 39

[45] Exhibit 40

[46] Exhibits 41 & 42.  The Mother still had the children for 33 nights of the holidays to the Father’s 20 nights.

[47] The Mother’s evidence was that she did tell the Father about it; her recollection is wrong

[48] Dr Q was also concerned about this ‘entitled’ dynamic; see Exhibit 1, paragraph 626.

[49] Exhibit 14

[50] Exhibit 43

[51] Exhibit 14

[52] Exhibit 44

[53] Exhibit 14

[54] Exhibit 18

[55] Exhibit 14

[56] Exhibit 49

[57] Ibid.

[58] Exhibit 49

[59] Exhibit 46

[60] See exhibits 24 & 49

[61] Exhibit 16

[62] Exhibit 17

[63] Exhibit 19

[64] Ibid.

[65] Exhibit 48

[66] Exhibit 52

[67] Exhibit 19

[68] Ibid.

[69] Ibid.

[70] Exhibit 50

[71] Exhibit 20

[72] Exhibit 12

[73] Exhibit 52

[74] Given the way the case was conducted, I do not propose to address s 61C, s 61D, s 61DA or s 65DAA of the Act.  See also Endnote 4

[75] The Mother raised family law issues and allegations with her (see exhibits 2, 3 and 4).  The Father asked Ms E to try to convince the Mother of the benefits of his ‘pocket money’ system which the Mother had rejected

[76] See exhibit 1, paragraph 495

[77] See also paragraphs 400 & 401, ibid

[78] Ibid, paragraph 415

[79] Ibid, paragraph 416

[80] See exhibit 1, paragraphs 547 & 548

[81] Ibid, paragraph 283

[82] Ibid, paragraphs 38 & 39 (Mother); and 192 & 193 (Father)

[83] See also paragraph 289 of the Father’s affidavit, which downplays the issue

[84] Exhibit 1, paragraph 300

[85] Ibid, paragraph 554

[86] Ibid, paragraph 127

[87] Ibid, paragraph 572

[88] Ibid, paragraph 540

[89] Such as occurred with the NDIS and with reducing X’s workload at school

[90] Ibid, paragraph 594

[91] Ibid, paragraph 602

[92] Ibid, paragraphs 407 - 414

[93] She expressed the same views to Ms E in 2019.  Ibid, paragraph 410.  See also paragraphs 616 & 617, ibid

[94] Ibid, paragraphs 475 - 477

[95] Ibid, paragraphs 570 - 581

[96] See particularly paragraphs 630 & 636, ibid

[97] Ibid, paragraph 635