SIEKERT & GLEASON

FAMILY COURT OF AUSTRALIA

SIEKERT & GLEASON

[2015] FamCA 482

FAMILY LAW – CHILDREN – FINAL ORDERS – Best interests – where the children of the relationship suffer from anxiety and other medical issues – whether the mother should have sole parental responsibility for one of the children’s health and medical treatment in circumstances where the parents disagree as to the approach to be taken – where the parties have disparate parenting styles – where the mother alleges that the father undermines her decisions with respect to the children –order that the parties have equal shared parental responsibility for the children save and except that the mother have sole parental responsibility for a child’s health and medical treatment – whether the father should have equal or substantial and significant time with the children – finding that the mother is best able to provide stability for the children – order that the father have substantial and significant time with the children

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Harridge & Harridge [2010] FamCA 445

APPLICANT:

Ms Siekert

RESPONDENT:

Mr Gleason

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

7711

2013

DATE DELIVERED:

29 May 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATES:

19 – 22 January 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr O’Shannessy

SOLICITOR FOR THE APPLICANT:

Nicholes Family Lawyers

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Piekarski, Victoria Legal Aid

ORDERS

IT IS ORDERED THAT

(1)The parents have equal shared parental responsibility for B born … 2002 (“B”).
(2)Subject to paragraph 3 hereof, the parents have equal shared parental responsibility for C born … 1998 (“C”).
(3)The mother have sole parental responsibility with respect to C’s health and medical treatment.
(4)In exercising parental responsibility pursuant to paragraph 3 hereof, the mother shall:
(a)keep the father informed of all major health developments, emergency (if practical to do so) or regular medical appointments, treatment plans and medical advice received in relation to C;
(b)advise the father of any proposed decision to be made and invite his response allowing at least 14 days before the decision has to be made (except in the case of a health emergency);
(c)if the father offers a response, consider it; and
(d)notify the father of her decision, and, if her decision departs from the father’s preferred decision, the basis for such departure.

(5)The children live with the mother.
(6)The children spend time and communicate with the father as follows:
(a)each alternate week provided the father is in Melbourne, from the conclusion of school on Wednesday until 6.00 pm on Sunday (or 6.00 pm on Monday if Monday is a public holiday);
(b)when the father is in Sydney, by telephone, SMS and Skype and/or FaceTime at all reasonable times;
(c)during the school term holidays:
(i)if the holidays are two weeks in duration, from noon on the first Saturday of the holidays until 4.00 pm on the middle Saturday of the holidays;
(ii)if the holidays are three weeks in duration, from noon on the first Saturday of the holidays until 4.00 pm on the middle Wednesday of the holidays;

(d)during the long summer holidays:
(i)in 2015/2016 and each alternate year thereafter, from noon on 3 January until 4.00 pm on 25 January;
(ii)in 2016/2017 and each alternate year thereafter, from the conclusion of school until 4.00 pm on 6 January, save that such time be suspended from 5.00 pm on Christmas Eve until 5.00 pm on Christmas Day;

(e)if the father is in Melbourne:
(i)from 6.00 pm on the Saturday preceding Father’s Day until 6.00 pm on Father’s Day;
(ii)if the father’s birthday falls on a school day, from the conclusion of school until 8.30 pm;
(iii)if the father’s birthday does not fall on a school day, from noon until 8.30 pm;

(f)during the Christmas period from 5.00 pm on Christmas Day until 5.00 pm on Boxing Day if requested by either the father or the children; and
(g)as may be otherwise agreed by the parents.

(7)The children’s time with the father be suspended as follows:
(a)from 6.00 pm on the Saturday preceding Mother’s Day until 6.00 pm on Mother’s Day;
(b)if the mother’s birthday falls on a school day, from the conclusion of school until 8.30 pm;
(c)if the mother’s birthday does not fall on a school day, from noon until 8.30 pm; and
(d)as may be otherwise agreed by the parents.

(8)The children be at liberty to communicate with the mother by telephone, SMS, Skype and/or FaceTime at all reasonable times whilst spending time with the father.
(9)Changeovers take place as follows:
(a)when the children are spending time with the father in Melbourne, with the father to collect the children from school (if a school day) or from the mother’s home (if a non-school day) at the commencement of time, and deliver the children to the mother’s home at the conclusion of time;
(b)when the children are spending time with the father in Sydney (or other interstate location), at Melbourne Airport (Tullamarine); and
(c)as may be otherwise agreed by the parents.

(10)The father be restrained from:
(a)making arrangements to spend time with the children or either of them directly with the children or either of them; and
(b)other than as provided for in these orders, removing or causing the children or either of them to be removed from the State of Victoria without the mother’s prior written consent.

(11)Each parent do all such things as may be required to:
(a)ensure the children attend school each day save and except that, in the case of a genuine medical reason for non-attendance, the parent with whom the child who is not attending school is with shall:
(i)notify the school promptly;
(ii)notify the other promptly;
(iii)provide a copy of any medical certificate obtained to each of the child’s school and the other parent.

(b)ensure C attends upon Dr D;
(c)comply with all reasonable directions of Dr D, including, but not limited to, directions with respect to C’s medication, treatment and / or referral to other health professionals;
(d)ensure C attends upon any other health professional directed by Dr D;
(e)ensure that B attends upon his treating health professionals from time to time and comply with all reasonable directions of such professionals including, but not limited to, directions with respect to medication, treatment and/or referral to other health professionals;
(f)keep each other informed as to any serious illness or injury suffered by the children or either of them;
(g)keep each other informed as to any medication prescribed to the children or either of them, including the purpose of the medication and the prescribed dosage of any such medication;
(h)ensure that each parent is able to receive, at their expense, copies of all reports, notices, newsletters and the like from the children’s school; and
(i)ensure that each parent has the current contact address, telephone number and email address of the other.

(12) Each parent is restrained from:
(a)abusing, insulting, belittling or otherwise denigrating the other parent in the presence or hearing of the children or either of them, or allowing any other person to do so; and
(b)discussing the proceedings with, or showing any document associated with the proceedings to, the children or either of them, or allowing any other person to do so, save and except that each party may provide to each child a copy of these orders.

(13)It is requested that the Independent Children’s Lawyer provide a copy of the reasons for judgment delivered and orders made this day to Dr D, C’s psychiatrist, and to Ms E, B’s psychologist.
(14)Upon compliance with paragraph 13 of these orders the order for the appointment of the Independent Children’s Lawyer thereafter be discharged.
(15)All extant applications be otherwise dismissed and the matter be removed from the list of cases awaiting hearing.

IT IS DIRECTED THAT
All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

IT IS CERTIFIED THAT
Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7711 of 2013

Ms Siekert

Applicant

And

Mr Gleason

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

The two children the subject of these proceedings have, since the separation of their parents in 2005, lived primarily with the mother while spending time with the father, without there being any orders made with respect to the arrangements for their care until September 2013. The father’s mental health issues and the children’s physical and particularly their mental health issues are a feature of this case. It is the father and the mother’s different views as to the cause of the children’s mental health issues and how they should be addressed which are pivotal to the determination of this case. The mother initially proposed the continuation of the current arrangements, albeit she amended her proposal over the course of the hearing, whereas the father proposes an equal time arrangement on a week about basis. The children, C born in 1998 (“C”) and B born in 2002 (“B”) who are now 17 and 13 years of age respectively, have both expressed a wish to live with their parents on a week about basis. What lies at the heart of this case is the strength of those wishes, given the children’s ages, and the weight that should be afforded to those wishes in all of the circumstances, particularly in the context of the physical and psychological needs of the children.
The father and the mother agreed that they should have equal shared parental responsibility for the children save that it is the mother’s case that, in circumstances where she said the father had undermined C’s treatment for severe anxiety, she should have sole parental responsibility with respect to C’s health and medical treatment. This was opposed by the father.

Documents Relied Upon

The mother relied upon the following documents:
·Amended Initiating Application filed 8 July 2014;
·Her affidavit filed 14 November 2014;
·Affidavit of Mr F filed 14 November 2014;
·Affidavit of Ms G filed 14 November 2014; and
·Her affidavit filed 19 December 2014.
The father relied upon the following documents:
·Amended Response to Initiating Application filed 24 July 2014;
·His affidavit filed 5 December 2014; and
·Affidavit of Ms H filed 5 December 2014.
The Independent Children’s Lawyer (“the ICL”) relied upon the following documents:
·Family Report of Mr I dated 24 September 2013; and
·Updated Family Report of Mr I dated 3 November 2014.

The Evidence

The standard of proof is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) sets out the matters the court must take into account in applying that standard as follows:
(a)    the nature of the cause of action or defence; and
(b)    the nature of the subject-matter of the proceeding; and
(c)    the gravity of the matters alleged.
In his first report, Mr I, the single expert witness, described the father as “a man who struggles with very high levels of anxiety. He told me that he has been diagnosed with [Attention Deficit Hyperactivity Disorder]. His presentation was certainly in accordance with that diagnosis”. It is my observation that whilst the father’s speech was at times somewhat pressured and he appeared to have some difficulty marshalling his thoughts and putting them together in coherent questions and submissions, he generally presented his case quite competently.
Although the father did not always agree with the mother’s version of events, that disagreement seemed largely in relation to historical events. Having heard the evidence of both the father and the mother, it was my impression that the differences in their evidence with respect to the more recent history were largely a matter of their different interpretations of the same events, rather than a factual dispute. I am satisfied that both the father and the mother were doing their best to tell the truth and that this is not a case that turns on the credit of either of them.
That being said, the mother’s evidence was clear and succinct and I am satisfied that her recall of events is better than the father’s. In those circumstances I am satisfied that where there is a dispute between the mother’s evidence and that of the father’s, her evidence is generally speaking more accurate and reliable.

Background

The mother in this case is aged 40 and is a professional. The father is aged 46 and is in receipt of a disability pension.
The father has a significant psychiatric history, which the mother says includes depression, bipolar disorder and Attention Deficit Hyperactivity Disorder (“ADHD”). It is the mother’s evidence that the father suffered from his first major depressive episode in 1997 when she was pregnant with C and that he was diagnosed with chronic depression in or around 1997/1998. She further deposed that the father was diagnosed with bipolar disorder in late 2000/early 2001 and that he was diagnosed with ADHD in or around 2009. The father did not respond in detail to the mother’s evidence in relation to his mental health issues. Although at times the father did imply that the mother’s description of his mental health issues might be somewhat exaggerated, he also acknowledged his mental health issues in general terms and the impact of these issues upon his life, both personally and professionally. The father filed and relied upon the affidavit of his psychologist Ms H who has been treating the father since 2010. Her evidence is generally consistent with the mother’s evidence of the father’s mental health issues.
The parties commenced cohabitation in 1995 and separated finally in December 2005. Although there was some dispute as to exactly how much time the children may have spent with the father, particularly prior to 2011 when the father started spending time in Sydney on a regular basis, I am satisfied that since separation they have lived primarily in the mother’s care.
The father lives between Melbourne and Sydney. In Sydney he lives at the home of his friend Mr J in Suburb K and in Melbourne he lives in a property in Suburb L owned by Mr J’s mother. It is the Suburb L property where the father lives each alternate weekend when he has the children in his care pursuant to the orders made by Senior Registrar FitzGibbon on 26 September 2013. It is the mother’s case that the father has spent time with the children in addition to the ordered time by making arrangements to do so directly with the children rather than by discussing the matter with her. The mother says that this leaves her in the position of having to agree to the additional time requested by the children or risk causing the children stress and creating the impression that she is not supportive of their relationship with the father. It is issues such as these that highlight the mother and the father’s different approaches to parenting identified by Mr I as the mother’s “benevolent autocracy” as against the father’s “more democratic” approach.
In 2010 the father applied for public housing and in March 2014 he was allocated a three-bedroom property in Suburb M, Victoria. The father deposed that the “property is currently in the process of being renovated” and that once the renovations have been completed it will “be a comfortable residence for me and the children”. During cross-examination by counsel for the mother the father said that he was required to have two-sevenths or three-fourteenths care of the children (what he said was approximately 22 per cent) in order to be entitled to public housing. He further gave evidence that in August 2010, when he initially applied for housing, he had 40 per cent care of the children as set out in Annexure WGG5 to his affidavit filed 5 December 2014. The father was cross-examined by counsel for the mother as to how he calculated that percentage and part of the father's evidence in that respect was that the time the children spent at school should be regarded as, in the words of counsel for the mother, "fifty-fifty care". I found the father’s evidence as to his method of calculation of what constituted 22 per cent care to be confusing and unclear. In closing submissions, the father then said that the children would have to spend four overnights with him each fortnight in order for him to still be entitled to the house at Suburb M. There is no evidence before the Court to support this submission. It is not clear based upon the evidence before me if the Suburb M property is in fact in a liveable condition and, more importantly, whether the father will be able to retain the property in the event that the children do not live with him on a week about basis as he proposes.
The children live with the mother and her new partner Mr N. At the time of the hearing they were preparing to move to their new home in Suburb O.
Both children have had problems with their physical and mental health. C had glandular fever in 2010 when she was in Year 7 that negatively affected her school attendance. As a result of her ill health, C left P School, which was approximately one hour from the mother’s home, and was enrolled at Q School, which was only five minutes from the mother’s home. This was done to allow C extra time before and after school to rest and recover from her illness. C also suffered significant grief following the suicide of her aunt, the father’s sister Ms R. It is the mother’s evidence that despite taking her to a counsellor to help her cope with her grief, C’s health deteriorated throughout Year 9 to the point that the mother says that she was only attending half of her classes. The mother says that she was advised by C’s treating paediatrician that the deterioration in C’s health was likely due to a post-viral syndrome as a result of the glandular fever C had contracted in Year 7. Both C and B continue to have health problems. They both have a rare blood condition which makes them more susceptible to infection and have both had their spleens removed.
Although the father’s evidence is that C has been exhibiting symptoms of anxiety for many years, the mother deposes that it was in early 2013 that it became clear to her that C was suffering from severe anxiety most frequently in the mornings before she was due to attend school. This anxiety was related to C’s concerns about the fact that she had missed so much school which in turn resulted in C missing even more school. As a result of the mother’s concerns, C was referred to Dr D, psychiatrist. She started seeing Dr D in early June 2013. In July 2013 Dr D diagnosed C with an anxiety disorder and in that same month prescribed Sertraline, which is an anti-depressant, for her. C has continued to take Sertraline and sees Dr D on a weekly basis. In his letter to both the father and the mother dated 2 September 2013, Dr D said that he believed that:
[C’s] primary diagnosis is one of anxiety which leads her to avoid anxiety provoking situations – most notably to avoid schoolwork (because of internalised pressure to do it “perfectly”) and school itself (because of both the schoolwork and also the associated peer relationships involved). My preferred treatment of anxiety disorders is to confront the anxiety (by minimising avoidance) and to help manage that anxiety when it does occur.

The proceedings in this case commenced following what the mother says were the father’s attempts to undermine both the treatment plans suggested by Dr D and her relationship with C in an attempt to fulfil his desire to have C live with him in Sydney. It was Dr D’s recommendation that C attend school every day for a period of two weeks to confront her anxiety. The mother’s case is that not only did the father not provide a united approach to addressing C’s anxiety based upon the recommendations of Dr D, but he actively undermined that approach by encouraging C to abandon her schooling in Melbourne and move to Sydney. It is what followed that led to the commencement of these proceedings.
The mother said that concurrently with the onset of C’s anxiety and panic attacks, the father began suggesting to her that she did not understand C’s condition and that, because of the mother’s work commitments, she did not have enough time to give C the assistance she needed with her school work whereas the father said that not only did he have the time to give that assistance to C but that he also better understood C’s condition. The mother also deposes that the father began travelling to Melbourne more frequently and staying in Melbourne for longer periods, spending the majority of his time with C and using that time, she says, to encourage C to relocate to Sydney with him. The mother’s evidence is that, despite a number of discussions with the father in relation to the recommendations of Dr D, it was the father’s view that it would be better for C to relocate to Sydney and he provided the mother with a draft plan to that effect. This is consistent with the emails annexed to the mother’s affidavit filed 4 November 2014 and I am satisfied that that is the case.
It is also clear from the text messages passing between the father and C that he was discussing the option of moving to Sydney with C and was encouraging her to do so. The mother said that during this period C ended many of her friendships in Melbourne, ceased attending school and told her that the father was “the only person who can help her get better and that she could not be successfully treated in Melbourne”.
At approximately 5.15 pm on 2 September 2013, C attempted to leave the mother’s home and take a taxi to the airport so that she could fly to Sydney. The mother said that she and Mr N physically restrained C to prevent her from leaving. She said that shortly thereafter she had a telephone discussion with the father during which he denied all knowledge of C’s plan to travel to Sydney. The mother said that the father said words to the effect of “have you ever thought that it might be you causing all this? You made me sick … now you are making [C] sick”. The mother says that C told her later that the paternal grandparents had booked the flight for her.
The mother sought clarification from the father as to whether there was any other plan for C to travel to Sydney. The father’s responses were at best evasive, but more significantly demonstrated what Mr I described as the enmeshment of the father and C and his inability to separate his needs from C’s needs. The responses included the father’s text message to the mother at 10.50 pm on 2 September 2013 which read as follows:
I cannot know this. I can only keep saying: that I will be here for her if she asks, come to her if she asks, do my best to help her become free of her anxiety, catch up on school and resume normal life. I *do* know that she does not want to leave without saying goodbye, and that she needs her mother to believe in her. You wrote once: “the person pushed does not fall towards the pusher”. What wisdom in that. I am not pushing, believe me. You keep saying I’m crazy - but my actions are moderate. You claim sanity, yet there is such reactive chaos at [your home]. That “crisis cloud” is not from me.
It was following the events of 2 September 2013 that Dr D wrote his letter to the father and the mother dated 3 September 2013 in which he said to them as follows:
I am well aware that [C] herself is clear that she wishes to move to Sydney. I worry that her judgement may be impaired because of her underlying anxiety and her close relationship with [the father]. I have no doubt that [the father] is being driven by the clear motive of wanting to help his daughter, but to recognise that we ([the father] and I…) have different models of understanding her condition. ….
I therefore am writing in the hope that you can both be aware of my position-that I do actually have significant concerns with her longer-term avoidance of anxiety and of ongoing school avoidance (as I believe would occur with a move to Sydney) …
The mother said that she had a number of discussions with the father following the receipt of Dr D’s letter, none of which suggested that the father accepted Dr D’s recommendations and which generally led her to conclude that the father was still in favour of C relocating to Sydney. As a result, on 10 September 2013 the mother filed an Initiating Application seeking orders that C continue to live with her and that the father be restrained from facilitating, or arranging for, C to relocate to Sydney without her express written consent. That application, which was returnable on 26 September 2013, was served on the father on 11 September 2013.
On 15 September 2013 C ran away and took a flight to Sydney. C told the mother that she was going to a friend’s house. When the mother rang the friend’s parents to make sure that C had arrived safely, she was advised by the friend’s mother that C had not arrived and that she knew nothing about her visit. When the mother rang the father to tell him that C had gone missing, he told her that he knew nothing about it. The mother annexed to her affidavit an exchange of text messages between the father and C. Those text messages make it clear that not only did the father know that C intended to fly to Sydney, but that he had given her his credit card details so that she could pay for her flight and had advised her to say that her dad had given her permission to fly in the event that any attempt was made to remove her from her flight.
At approximately 4.30 pm on 15 September 2013, the mother received a text message from the father advising her that C would be staying with his friend Ms S in Suburb T, a suburb of Sydney, until she was allowed to come to his home in Suburb K.
On 16 September 2013 the mother filed an urgent application seeking a recovery order. On that date Senior Registrar FitzGibbon made orders that by no later than 4.00 pm on 18 September 2013 the father, his servants or agents and in particular his friend Ms S, do all acts and things necessary to return C to Melbourne to the mother’s care. That order was served upon the father the same day. What followed was an exchange of messages in which the father attempted to shift responsibility for the implications of his actions to the mother and to avoid either returning C or taking responsibility for C’s return to Melbourne. Although the father returned to Melbourne on 18 September 2013, he was not accompanied by C. It was not until a further hearing before Senior Registrar FitzGibbon on 19 September 2013 that the father consented to orders for C’s return to Melbourne and an order was made for the parties to attend upon Mr I for the preparation of a report.
Mr I interviewed the parties and the children on 24 September 2013 and prepared an urgent report on that same day. On 26 September 2013, orders were made by consent that the children live with the mother and spend time with the father in Melbourne on each alternate weekend from 10.00 am Saturday until 5.00 pm Sunday. The orders also required the parties to adhere to Dr D’s recommended treatment for C. Those orders have remained in force since that hearing.
B appeared to be somewhat peripheral to these events and he had only a brief interview with Mr I for the purposes of Mr I’s urgent report. However there is no dispute between the parties that B has similarly suffered from what the mother described in her affidavit filed 14 November 2014 as “some signs of stress and has had some angry outbursts”. The mother also deposed to B attending upon Ms E, psychologist, since May 2014 which she says has been of benefit to him. Although there was little mention of B in Mr I’s first report, in his updated report Mr I described B’s level of anxiety as “almost overwhelming”. Whilst clearly, as put to him by the father, that was his observations of B on the day of the interviews, it was Mr I’s evidence that B’s anxiety, when compared to all of the children he sees during interviews, was “extraordinarily high”.
The mother reported to Mr I that C was angry with her about the orders that were made on 26 September 2013, notwithstanding those orders were made by consent, and initially did not return to school. However, the mother also reported to Mr I that the school was incredibly supportive, offering C assistance both academically and socially to reconnect with the school and to return to regular school attendance.
In late 2013, C met with the Year 11 coordinator to discuss her transition into Year 11 and decided that she would take on a full subject load that year, including Year 12 biology. She then attended work experience and shortly after attended Year 11 orientation, which was the first time she had entered the school grounds since August 2013. On 13 December 2013 C sat the exam for Year 11 Biology, the Year 11 subject she had been taking during Year 10. The mother negotiated with the school to obtain permission for C to sit the exam notwithstanding that she had not been attending classes. C not only passed the exam, but her mark was the top mark for Year 11 Biology at the school that year.
The mother’s evidence, which is not disputed by the father, is that C’s attendance at school during Terms 1 and 2 of 2014 was high. The mother deposed that on 9 May 2014, shortly before C’s exams, the father not only told the children that his sister’s suicide note had been found but showed the children the note without first consulting the mother or either Dr D or B’s psychologist Ms E. The mother said that not only did the father not consult her but that he left it to the children as to whether they wanted to show her the note. The father sent her an email on 10 May 2014 as follows:
[C] and [B] have each said that: 1. they are ok with you seeing the note 2. they do not wish to discuss it with you.
The mother’s evidence is that reading the suicide note was very distressing for both C and B.
The mother deposed that C found the mid-year exam period very difficult. She further deposed that C’s exam results did not match the marks she had been receiving during the term, which affected her confidence and exacerbated her anxiety at which time her school attendance started to drop off.
It was at about this time that the parties received notification of the hearing to take place on 5 August 2014. It was the mother’s case that the father had again begun discussing the proceedings with the children when the parties received notification of the hearing on 5 August 2014. The mother deposed that her initial concerns that the father was discussing the proceedings with the children, and in particular C, arose shortly after the filing of her Initiating Application in September 2013 when the mother said she received a text message from C referring to “court stuff”. The mother said that it was evident to her from her conversations with the children that the father had been discussing both the proceedings and the appointment with Mr I with the children. This is consistent with Mr I’s evidence that the father shares matters with the children which are beyond their understanding and awareness, and does not differentiate his feeling from those of the children. An example of this, according to the mother, included the father asking the children, while they were still at Mr I’s rooms, what they had shared with Mr I and later that day sending a text to B which read as follows:
I thought you carried yourself well, [B]. Was proud for my part. But: sense that you did not feel properly heard…
The mother deposed that, following the notification of the hearing on 5 August 2014, C started to fall significantly behind in her Semester 2 subjects which added to her anxiety about attending school and led to a deterioration in her health. The mother said that C failed to attend school for most of the start of Term 3 as she was experiencing symptoms of fatigue, hot flushes and headaches because of her anxiety. The mother said that both children stopped attending school regularly as of the week of the hearing on 5 August 2014. It was agreed between the parties that B attended school infrequently for the remainder of the term while C did not return to school in Term 4, with their anxiety being increased by the upcoming proceedings. The mother also said that the children were anxious about the forthcoming appointment with Mr I on 14 October 2014. At this time, both children were exhibiting physical symptoms of illness, which in B’s case were attributed to a virus. The mother said that throughout this period she “communicated regularly with B’s home tutor and year seven coordinator, and also with Ms G [the Head of Senior School at Q School] to keep the school informed of B’s illness, C’s struggle with attendance, homework requirements and strategies to support both children getting back to school”.
It was the mother’s evidence that the children remained highly stressed following this period but that they returned to school the week commencing 20 October 2014. At 14 November 2014, the date the mother swore her trial affidavit, the mother’s evidence was that the children had been attending school on most days. Although the attendance of both children in Term 4 was not optimal, C has committed to completing her VCE in Melbourne with a view to undertaking tertiary study. The mother also reported that B was engaged in his circle of friends in Melbourne.
The father’s cross-examination of the mother and of Mr I suggested some criticism of the mother’s efforts to improve the children’s school attendance on the basis that he has more time available and could do better than the mother if the children were in his care. However, I am satisfied that the mother has done everything she could have done in extremely difficult circumstances to address the children’s issues with school attendance and their health generally. The mother’s partner Mr N stopped working from June 2013 until May 2014 to be at home with C and the mother says she blocked out each morning in her diary for the duration of 2014 to ensure that she could be present on most days to drive the children to school and provide them with the emotional support they need to get them to school. The mother’s evidence is that she currently starts work late on three to five occasions per week in order to drive the children to school.
As previously referred to, Mr I, in his first report dated 9 October 2013, identifies the mother’s parenting style as “benevolently autocratic”, and the father’s style as “democratic”. Both parents take issue with the other’s parenting style, particularly in the case of the mother, who considers that the father’s relationship with the children is more akin to a “friendship”, a word which both children have used to describe it. Indeed, Mr I expressed significant concern that both children were enmeshed in the parenting dispute to the extent that B’s mental health had declined considerably between the first report and the updated report dated 17 November 2014. C, too, purportedly displayed signs of significant alignment with the father against the mother.

Proposals

At the commencement of the case the ICL’s preliminary position, based upon the understanding that the father would be spending each alternate week in Melbourne and travelling between Sydney and Melbourne each Monday, was as follows:
(1)Parental responsibility:
(a)The parents have equal shared parental responsibility for B;
(b)The parents have equal shared parental responsibility for C, save and except
(c)The mother have sole parental responsibility with respect to C’s health and medical treatment.
(2)The children live with the mother.
(3)The children spend time and communicate with the father as follows:
(a)For the week the father is in Melbourne:
(i)From the conclusion of school Thursday until 6.00 pm Sunday (or 6.00 pm Monday if Monday is a public holiday);
(ii)From the conclusion of school until 8.30 pm on Monday, Tuesday and Wednesday;
(b)When the father is in Sydney, by telephone, SMS and Skype and/or FaceTime at all reasonable times;
(c)During the school term holidays:
(i)If the holidays are two weeks in duration, from noon on the first Saturday of the holidays until 4.00 pm on the middle Saturday of the holidays;
(ii)If the holidays are three weeks in duration, from noon on the first Saturday of the holidays until 4.00 pm on the middle Wednesday of the holidays;
(d)During the long summer holidays:
(i)In 2015 and each alternate year thereafter, from noon on 23 December until 4.00 pm on 13 January;
(ii)In 2016 and each alternate year thereafter, from noon on 1 January until 4.00 pm on 22 January;
(e)If the father is in Melbourne:
(i)From 6.00 pm on the Saturday preceding Father’s Day until 6.00 pm Father’s Day;
(ii)If the father’s birthday falls on a school day, from the conclusion of school until 8.30 pm;
(iii)If the father’s birthday does not fall on a school day, from noon until 8.30 pm;
(f)As otherwise agreed between the parents.
(4)All references to the times children spend with each of their parents during the school holiday periods are subject to the convenience of, and with regard to, the availability of flights between Sydney and Melbourne.
(5)The children’s time with the father be suspended as follows:
(a)From 6.00 pm on the Saturday preceding Mother’s Day until 6.00 pm Mother’s Day;
(b)If the mother’s birthday falls on a school day, from the conclusion of school until 8.30 pm;
(c)If the mother’s birthday does not fall on a school day, from noon until 8.30 pm;
(d)As otherwise agreed between the parents.
(6)The children be at liberty to communicate with the mother by telephone, SMS, Skype and/or FaceTime at all reasonable times whilst spending time with the father.
(7)Changeovers take place as follows:
(a)On school days, with the father to collect the children from school at the commencement of time, and deliver the children to the mother’s home at the conclusion of time;
(b)On non-school days in Melbourne, with the father to collect the children from the mother’s home at the commencement of time, and the mother to collect the children from the father’s home at the conclusion of time;
(c)When the children are spending time with the father in Sydney (or other interstate location), at Melbourne Airport (Tullamarine);
(d)As otherwise agreed between the parents.
(8)The father be restrained from:
(a)Making arrangements to spend time with the children or either of them directly with the children or either of them;
(b)Other than as provided for in these orders, removing or causing the children or either of them to be removed from the State of Victoria without the mother’s prior consent.
(9)Each parent do all such things as may be required to:
(a)Ensure that the children attend school each day save and except that, in the case of a genuine medical reason for non-attendance, the parent with whom the child who is not attending school is with shall:
(i)Notify the school promptly;
(ii)Notify the other parent promptly;
(iii)Take the child to the child’s general practitioner to obtain a medical certificate attesting to the child’s genuine medical reason for not attending at school;
(iv)Provide a copy of that medical certificate to each of the child’s school and the other parent.
(b)Ensure C attends upon Dr D;
(c)Comply with all reasonable directions of Dr D, including, but not limited to, directions with respect to C’s medication, treatment and/or referral to other health professionals;
(d)Ensure C attends upon any other health professional directed by Dr D;
(e)Ensure that B attends upon his treating health practitioners from time to time and comply with all reasonable directions of such professionals including, but not limited to, directions with respect to medication, treatment and/or referral to other health professionals;
(f)Keep each other informed as to any serious illness or injury suffered by the children or either of them;
(g)Keep each other informed as to any medication prescribed to the children or either of them, including the purpose of the medication and the prescribed dosage of any medication;
(h)Ensure that each parent is able to receive, at their expense, copies of all reports notices, newsletters and the like from the children’s schools; and
(i)Ensure that each parent has the current contact address, telephone number and email address of the other.
(10) Each parent is restrained from:
(a)Abusing, insulting, belittling or otherwise denigrating the other parent in the presence or hearing of the children or either of them, or allowing any other person to do so;
(b)Discussing the proceedings with, or showing any documents associated with the proceedings to, the children or either of them, or allowing any other person to do so, save and except that each party may provide to each child a copy of these orders.

In her amended Initiating Application filed 8 July 2014, the mother sought orders which would continue the regime put in place by the orders made by consent on 26 September 2013. The orders of 26 September 2013 provide that the children spend time with the father from 10.00 am Saturday until 5.00 pm on Sunday each alternate weekend. The mother also sought orders in her amended Initiating Application that the children spend time with the father for half of the school term holidays, approximately half of the Christmas holidays and other special days. In her Outline of Case, the mother amended her proposal to include Friday from the conclusion of school, extending the father’s time with the children from one night to two nights each alternate weekend. When counsel for the mother opened his case, he adopted the recommendations of the ICL (as outlined above) with certain minor exceptions and adjustments that:
·The children spend from after school on Thursday until 6.00 pm Sunday “in each alternate week, provided the father is in Melbourne”;
·The children’s time with the father from after school on the Monday, Tuesday and Wednesday following the children’s weekend with the father conclude at 7.30 pm not 8.30 pm;
·The parties share time during Christmas Day so that the children would spend time with the father from 5.00 pm on Christmas Day until 5.00 pm on Boxing Day in each year;
·Paragraph 3(d) be altered so that sub-paragraph (i) is in relation to the long summer holiday period in 2016 and sub-paragraph (ii) is in relation to the long summer holiday period in 2015;
·The dates in paragraph 3(d)(ii) be altered to read from 3 January until 25 January;
·Paragraph 9(a)(iii) be deleted due to its purported impracticality; and
·The order sought in paragraph 1(c) that the mother have sole parental responsibility with respect to C’s health and medical treatment be qualified with an obligation to consult the father.
Ultimately the ICL, having heard the evidence, proposed that the children spend from after school on Thursday until 6.00 pm on Sunday (or Monday if it is a Public Holiday) and from after school on Thursday until 7.30 pm each alternate week. The mother did not adopt the ICL’s proposal for time after school on the Thursday of each alternate week.
The father’s proposal was that the children spend time with him in accordance with the orders sought in his amended Response filed 24 July 2014 which included that the children live with him each alternate week from 5.00 pm on Monday to 5.00 pm on the following Monday. He sought equal shared parental responsibility and opposed the mother having responsibility for C’s health and medical treatment. This remained the father’s position at the conclusion of the hearing.

Legal Principles

The paramount consideration for the Court in making a particular parenting order is the best interests of the child or children the subject of the proceedings (s 60CA of the Family Law Act 1975 (Cth) (“the Act”)). In determining what is in a child or children’s best interests the Court must have regard to the primary and additional considerations in s 60CC of the Act (s 60CC(1) of the Act). As Murphy J said in Harridge & Harridge [2010] FamCA 445 at paragraph 35 “the s 60CC considerations are signposts or touchstones within which the broad enquiry as to best interests must be conducted”. That analysis of the primary and additional consideration must be conducted having regard to the objectives of the Act and the principles underlying those objectives.
When the Court is asked to make a parenting order, as it is in this case, there is a statutory presumption that it is in the child or children’s best interests that the parents have equal shared parental responsibility, unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption is rebutted if the Court is satisfied that it is not in the best interests of the child or children for the parents to have equal shared parental responsibility. The child or children’s best interests are ascertained by reference to the primary and additional considerations in s 60CC of the Act.
If the presumption applies and is not rebutted, the Court is required to consider firstly whether it is in the child or children’s best interests to spend equal time with both parents, which is the father’s proposal in this case, and, if not, whether it is in that child or those children’s best interests to spend substantial time with both parents. I am satisfied that the proposals of both the ICL and the mother amount to “substantial time” as defined in the Act.
The Act does not require the primary and additional considerations to be considered in any particular order, nor does it require that particular weight be given to particular considerations, save and except that in considering the primary considerations the Court must give greater weight to the need to protect the child or children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
I will first consider the primary considerations under s 60CC(2) of the Act.
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
Notwithstanding the criticisms the mother and the father make of each other’s parenting and the problems this creates for the children, they do agree and I am satisfied that the children would benefit from a meaningful relationship with both of their parents. Their respective proposals acknowledge that this is the case and make provision for and facilitate that relationship.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The father in this case suggests that the mother or her partner may have used excessive force to prevent C leaving her home to travel to Sydney. The mother denies this allegation and I am not satisfied on the balance of probabilities that either the mother or her partner used excessive force to prevent C leaving.
In any event, as opined by Mr I, the real issue in this case is the parents’ personalities and their different parenting styles and how the children’s relationships with them can be managed in those circumstances, rather than any need to protect the children from physical or psychological harm or family violence.
The parties have also each made allegations of family violence against the other, albeit those allegations are historical. There are also allegations made by the mother, in particular with respect to what she says is the father’s manipulation of the children, which certainly give rise to the question of whether the children may have been psychologically abused which I will refer to in more detail later in these reasons.
I will turn now to the 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;
(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);
(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;
There is, in my view, a strong connection between all of these considerations and the decision I must make in this case. I am satisfied that both of the children have expressed a wish to spend equal time with the father and the mother. This is clearly a significant issue in this case, particularly in light of the age of the children. It is the father’s case that it is important for the children to know that they have been listened to. As Mr I said in his updated report, it is not unreasonable that C “should not be told what to do or when to do it by her parents in relation to her parents. Her view, in one sense, reasonably states that she should be able to choose when she wants to spend time with her father and when she does not, that she is almost an adult, and in twelve months will be able to make that decision anyway”. Mr I also said that “[B] also wants the same flexibility, and given his age he should have a say” and that “[a]t one level the wish by both children to spend equal time with their parents is reasonable, makes sense and is developmentally appropriate”.
However it is the mother’s case, supported by the ICL, that the children’s wishes should, in all of the circumstances of this case, be viewed with some caution. In my view it is important in assessing what weight should be given to the children’s wishes to consider the nature of the children’s relationship with each of the parents and how that might impact upon those wishes.
I have no doubt that the father loves the children and wants what is best for them and that they equally love him, a view which accords with Mr I’s evidence and that of the mother. The father described himself to Mr I as having “a special and close relationship with the children, that he knows them well and does everything with them, that his time with them is slower and that they communicate easily and confidently with him. He described a much more intimate relationship with his children and that they are wonderful together”. (Original emphasis). That does not surprise me. The father has a certain, almost raffish charm, which was evident during the hearing before me. I can see, even leaving aside the father’s much more permissive parenting style, why the children would love him and enjoy their time with him. In cross-examination, Mr I suggested that C would be likely to find her father’s unequivocal support and their special and close bond “alluring”. However, Mr I also pointed out that whether a child’s expressed wish coincides with their best interests is a whole different question.
In his first report, Mr I described the father and mother’s very different parenting styles as follows:
[The mother’s] approach falls more down the end of the continuum of parenting being “a benevolent autocracy,” that is, that there need [sic] to be clear rules and limits, parents who are in control, clear expectations and consequences, whereas [the father’s] parenting style is more democratic. His view is that the children should be involved in discussions, their views should be heard, respected, given equal support and sentiment, and that his responsibility as a parent is to support and actuate the children’s wishes.
(Original emphasis)
It is reasonably easy to understand why children of the ages of the children in this case would prefer the more democratic approach particularly when their parents do not support each other’s style of parenting. It was Mr I’s evidence that the father set himself up to be the “good guy” and the mother to always be the “bad guy”.
Mr I expressed concern about the tone of the email and text communication between C and the father, which he said conveyed a “much more negative, critical and manipulative approach in his dealings with C. Whereas he portrays himself as having simply been there to support and assist his daughter, that is, to support her as needed and to be there when wanted, any objective consideration of their communication must raise some questions about the integrity of his neutrality”. That accords with my reading of the communication between the father and C. The father was critical of the mother for not having annexed all of the email and text communication passing between him and C however the emails tendered by the father in my view only added weight to the concerns expressed by Mr I regarding the father’s communication with the children as well as my own concerns.
There are other points of difference in this case which would be likely to engender the children’s sympathy in favour of the father and be likely to make them feel responsible for the father. The father clearly shares information with the children about his life and they are no doubt aware of the hurdles he has faced in his life. The children are also no doubt acutely aware of the significant differences in the lives of their parents. The mother is a successful professional whereas the father clearly has some difficulty managing his life on a day-to-day basis. It is almost inevitable, in my view, that the children would in these circumstances feel some sympathy and responsibility for the father.
Mr I referring to what he said was the children’s enmeshment with the father, said, when asked about what he meant by that, as follows:
I would say as just as a matter of observation parents should be parents not friends, that parents need to make parental decisions and there needs to be a clear boundary, not do what is popular or friendly, or what their children want and say because their children want and say it. Now, I would argue that competent, capable parenting, regardless of the child’s age, is about creating an illusion of choice. That when children are very young their choices are to do what you ask or what you ask (sic), but when they get older that – that range becomes significantly greater so that they are given a range of choices and a range of options, and parents hopefully will provide clear guidelines of those extremes so children can measure their own behaviour against the expectations of their parents and then that way make informed decisions. Even if those kids make bad choices, if their parent’s position is clear, they understand what their parent’s views, attitudes and values are, they can then start to measure their behaviour against those. One of the difficulties in this family situation is I think you have very different expectation, values and opinions and so the children don’t measure and don’t internalise a stable sense, and I think that they – they see the very permissive – my term – and more indulgent approach of their father as being supportive of them.
Mr I said in his updated report and confirmed in cross-examination that the children were triangulated by their parents’ dispute and that the father’s democratic style of parenting places enormous stress on the children, and B in particular, because there are simply too many choices and B feels very responsible for everyone. Mr I, when asked in cross-examination by the father how he thought the children had become enmeshed with him, said as follows:
I think that the boundaries between you and the children are a bit too diffuse… I think that you share too much with them. I think that the boundaries emotionally between you are a bit too open and so they start to feel like you and start to talk about things from your perspective because I’m not sure the filters are that great… how you feel and how his mum feels are different and he’s caught in the middle of that and he knows it and that’s why he’s so anxious because of the conflicting views of reality.
Another clear example of the father’s blurred boundaries is the arrangements he made for C to attend a music festival in Canberra in 2013. Although the mother expressed her opposition to C attending, the father had already made the arrangements directly with C leaving the mother in a virtually impossible situation. Even after the mother told the father that C had an exam on the Monday morning following the festival and that she did not consent to C attending in circumstances where she would not be able to study for the exam and would be flying back on the morning of the exam, the father ignored her concerns. It was his plan that C would go straight from the airport to her exam on the Monday morning. The mother says C’s flight was delayed on the Monday morning and was further delayed by a traffic jam on the way to school, which resulted in C missing the exam and having a severe panic attack. The father in his evidence took no responsibility for what had occurred, relying upon the fact that C had wanted to go and trying to place the blame for what occurred upon the mother and her partner. I am satisfied that the father was unable to reflect appropriately on C’s best interests and was unable to separate his needs from hers. I can see no other explanation for why the father would put C, by that time knowing of her difficulties at school, in the position he put her in, almost certainly setting her up to fail or even if she did not do so, placing enormous stress upon her to perform in those circumstances. I am sure he did not mean or want to harm C in any way, he just did not see the risk. This example also demonstrates the father’s clear lack of regard for the mother’s views and any decisions she might make with respect to the children.
I am satisfied, having heard and considered all of the evidence, that the father’s enmeshment is not passive. Insofar as the father says that he discusses the children’s options with them and thereafter supports their choices, he is unable to differentiate his needs from those of the children and the options he gives them reflect his needs. This creates enormous difficulty for the children and in my view their wishes, notwithstanding their ages, must be viewed in that light.
These are children who both have severe anxiety. I accept Mr I’s evidence that they are burdened by having to make a choice and that this escalates the level of their anxiety. Having regard to the children’s anxiety and their enmeshment with the father I am satisfied that, notwithstanding their ages and the strength of their wishes, I should place only limited weight upon those wishes. I am also not satisfied in any event that their wishes coincide with their best interests, which I will discuss in more detail later in these reasons.
(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; …
Although there is a dispute as to the level of the father’s involvement with the children prior to his move to Sydney, it is clear that since moving to Sydney he spent time with the children on an irregular basis until after the orders were made on 26 September 2013. Since those orders were made, the father made the not insignificant commitment of travelling to Melbourne to spend time with the children on each alternate weekend.
Although the mother has been primarily responsible for making decisions with respect to both major long-term issues and the children’s day-to-day care, the father has also taken the opportunity, subject to his availability and his capacity to do so, to participate in making decisions about major long-term issues albeit that the father has not always accepted the advice of medical and other professionals assisting the children or supported the mother’s decision making.
(ca) the extent to which each of the child’s parents has fulfilled, or failed parent’s obligations to maintain the child;
Although the father supports the children when they are in his care, his only income is a disability pension. The mother in all other respects financially supports the children. This is a fact of life in this case given the father’s own health issues, rather than a criticism.
(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;
Even if the Court does not accede to the father’s application for equal time, the orders proposed by both the ICL and the mother will make provision for the children to spend significantly more time with the father than they are currently doing.
(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;

The father has been travelling between Melbourne and Sydney for many years, notwithstanding his only income appears to be a disability pension. The father appears to have had significant support from friends and family which has provided him with somewhere to stay with the children, albeit there seems to be some question as to whether he will be able to continue staying indefinitely in Suburb L at the home owned by Mr J’s mother and whether, if the children are not living with him on a week about basis, he will continue to have the use of the property he has been allocated in Suburb M. The husband submitted that the Suburb L property will be sold soon but qualified that statement by saying words to the effect of it being maybe in a year or two. I am not able to make conclusive findings with respect to these matters on the basis of the evidence before me however it appears likely that even if the father and the children cannot live at the Suburb M property they will at least for the foreseeable future be able to continue spending time at the Suburb L property. In any event it is the mother’s proposal that the children spend three nights per fortnight with the father.
There would otherwise not appear to be any barrier to the father spending time with the children in Melbourne, spending holiday time with them in Sydney or otherwise communicating with them.
(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;
I am satisfied that the mother has the capacity to provide for the children’s needs, including their emotional and intellectual needs. She has demonstrated a capacity to do so in extremely difficult circumstances, including against the background of the father’s longstanding mental health issues. I am satisfied, based upon the history of this matter, that the mother has always promoted and facilitated the children’s relationship with the father and that she will continue to do so. The mother’s commitment to the children and her acting in their best interests is clearly demonstrated by her decision to seek orders for C’s return to her care in circumstances where she knew C would be angry and that she would have to deal with that anger. I am satisfied that the mother is able to separate her needs from those of the children and make decisions based upon what she considers will be in their best interests, rather than taking what would, particularly in C’s case, be the easy decision. Moreover, notwithstanding what would no doubt be significant frustration with the father and his actions, the mother is still able to reflect upon the importance of his relationship to the children.
The mother questions the father’s capacity to provide appropriate physical care for the children, however it is also the case that some of her concerns are historical. It is her concern that the father has a history of hoarding, is not particularly organised and that these factors coupled, together with his more democratic style of parenting, mean that he will either not be sufficiently motivated or capable of ensuring that the children either complete their homework or go to school each day. It is for this reason that she seeks orders requiring the children to be returned to her care on Sunday rather than being taken to school by the father so that she can ensure that they are prepared for the school week and attend school on the first day of the week in the hopes of setting the pattern for the balance of the week. Although Mr I pointed out that this was meaningless if C was not attending school, I have some sympathy with the mother’s position and propose to accede to this aspect of her application.
The issue in this case, however, is not so much that the father cannot physically care for the children but rather his capacity to provide for their intellectual and emotional needs in circumstances where he sees their relationship as one of friendship and has difficulty differentiating the children’s needs from his own.
When it was put to Mr I by the father that both the benevolent autocratic and the democratic styles of parenting are legitimate, Mr I said that he thought benevolent autocracy was the better option. I am satisfied that that certainly appears to be the case with respect to these children. Benevolent autocracy places the decision making for these children in the hands of the mother and does not leave the children to make decisions, which I am satisfied, based upon the evidence of Mr I, places an enormous burden upon the children.
(g)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;
(h)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
In my view the father’s inability to separate his needs from those of the children impact upon his capacity to parent responsibly. I have otherwise dealt with this issue in the context of other considerations.
(i)any family violence involving the child or a member of the child’s family;
(j)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;
Although both the father and the mother make allegations of family violence, they are largely historical. Without dismissing or disregarding those concerns, there are currently no applications for family violence orders and no extant family violence orders. I am satisfied, particularly in circumstances where the Court is being asked to choose between proposals that provide for either equal or substantial time, that the issue of family violence does not play a significant part in the decision I must make in this case.
(k)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;
I am satisfied that it would be preferable in this case to make orders that would be the least likely to lead to the institution of further proceedings. As C will be turning 18 in January next year and thereafter no longer the subject of orders of this Court, it is unlikely that she will be the subject of further proceedings. Although B is only 13, I am somewhat comforted in making these orders by the fact that although C in particular was not happy about the outcome of the interim proceedings, there have been no further proceedings. The parents in this case also managed the arrangements for the children for many years without the benefit of any orders.
(l)any other fact or circumstance that the court thinks is relevant.
Whilst the father has taken the opportunity to participate in making decisions about major long-term issues with respect to the children, he has on occasion refused to accept or follow the recommendations of the medical professionals treating the children, particularly C, thereby undermining the mother. There have also been occasions when the father has acted unilaterally and without any consultation with the mother. There are a number of examples of the father doing so, including: the father taking C for counselling with Dr U, the children’s general practitioner, without the mother’s knowledge or consent when C was already being treated on a regular basis by Dr D; his questioning of Dr D’s decision to treat C with Sertraline; and his blatant disregard of Dr D’s recommendations, including those contained in his letter to the parties in September 2013 when C wanted to go to Sydney. This, combined with the father’s democratic model of parenting and his inability to separate the children’s needs from his own, leads me to conclude that the mother should be responsible for making the decisions with respect to C’s health and medical treatment.
The health issues C has faced and continues to face are very serious and have significant implications for her well-being in the long-term. In those circumstances, I am satisfied that the mother has acted responsibly and in C’s best interests and will continue to do so. I am also satisfied that it is not in C’s best interests to have the father second guessing the mother’s decisions or for him to allow C to make those decisions herself, informed by his views of what is in her best interests. I am satisfied that the mother will keep the father informed of the decision-making process, especially in light of the mother’s own proposal to include an order to that effect in her orders sought at trial.

Equal or Substantial Time

Although I am satisfied, subject to the fact that there is some uncertainty about the father’s accommodation, that it would be reasonably practical for the children to spend either equal or substantial time with the father, I am not satisfied that it would be in their best interests to spend equal time with him.
My observations of the mother and her evidence is that she is a competent and caring parent and that she has coped well in what can only be described as extremely difficult circumstances.
Although in his updated report Mr I said that the options were limited and that there may be no answer to this immensely complex and difficult situation, he also said in cross-examination that:
·He was not suggesting that the children should not be seeing either their father or their mother;
·There is a danger in believing that one course of action will be better than another;
·In this case no-one is going to be happy whichever proposal is adopted;
·There needs to be a decision and closure and the children need to be told what is going to happen;
·He took some comfort from the fact that when C was told what was going to happen following the interim proceedings and notwithstanding that there have been ongoing problems with her and her brother’s attendance at school, C did seem to settle down;
·His inclination was less change not more change, more stability not less stability and more continuity not less continuity;
·When you have very anxious people in a state of flux you want to change less not more; and
·It would probably be less complicating and less confusing for the children if they lived predominantly with one or the other of their parents, but the reality being that they have spent the majority of their time with the mother, he would err on the side of the known rather than the unknown.
Whether I accede to the father’s proposal for equal time, the mother’s proposal, or the proposal of the ICL, the children will be spending more time with the father than they do at the present. Hopefully this will address to some extent their desire to spend more time with the father. However that being said, I am also satisfied that less change, not more change; more stability, not less stability; and more continuity, not less continuity is in the children’s best interests and that it would not be in their best interests to move between two households on a week about basis with such disparate parenting styles. In all of the circumstances, I propose to make orders that provide for the children to spend substantial time with the father, not equal time.
At the commencement of the hearing, I expressed my reservations about the ICL’s proposals that the children spend time with the father from after school on the Monday, Tuesday and Wednesday immediately following their weekend with the father, notwithstanding that the mother had adopted that proposal. This proposal was obviously framed in a way that would accommodate the fact that the father would be spending alternate weeks in Melbourne and to enable him to spend more than just alternate weekends with the children. At the conclusion of the hearing, the ICL amended his proposal to provide that the father spend time with the children after school on a Thursday. The mother did not adopt this proposal. Although it is now only one evening that is proposed, I still have reservations about this proposal. The mother complains of the father unilaterally changing arrangements; the father would no doubt say this is because it is what the children want, and I can see this as being an issue with this proposal. I am of the view that one block of time is more likely to limit the possibility of the parties having to negotiate arrangements for the children. However, mindful of Mr I’s evidence as to whether any particular proposal should be preferred and the need for certainty but also having regard to the children’s strong wish to spend more time with the father, I am also of the view that rather than an extra evening after school, the children should spend four nights per fortnight with the father and not three as proposed by the mother and the ICL, that time to commence on Wednesday after school and conclude at 6.00 pm on the following Sunday. This will mean that the children will continue to spend the night before school starts each week with the mother in her home.
I will make the orders the mother proposes with respect to ensuring the children attend school, although I am mindful of the fact that this may be a significant challenge for both the parents and the children. C should be completing her secondary education at the end of this year. Although all of the evidence suggests she is a very intelligent girl, there is no doubt that the last few years are likely to have harmed her academic prospects. Hopefully it is not too late for C and that turns out not to be the case. B is younger and has many years to go before he completes his secondary education. Although the focus of the interim proceedings was on C’s problems, it is now clear that B may also have significant problems with anxiety and it is essential that whatever can be done to address these issues is done.
Mr I’s evidence was that these children need their parents to have a united stance. Mr I went to great lengths during cross-examination by the father to highlight this and to encourage the father to present a united front with the mother to the children. Although the father said he understood what Mr I was saying, I am not optimistic, given that the father has difficulty separating his needs from those of the children, that the parties will be able to present a united front. I hope I am wrong, but in an excess of caution I propose to make an order that the ICL provide a copy of my reasons and the orders that I make to C’s psychiatrist, Dr D and to B’s psychologist, Ms E. I do not expect them to explain the orders to the children but am hopeful that it may inform them as to the basis upon which I have made my decision so that they can assist the children to come to terms with that decision.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered 29 May 2015.

Associate:

Date: 29 May 2015

[2015] FamCA 482

29 May 2015

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Family Law

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Procedural Fairness

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