Skelton and Skelton

[2017] FCCA 2027

FEDERAL CIRCUIT COURT OF AUSTRALIA

SKELTON & SKELTON [2017] FCCA 2027

Catchwords:
FAMILY LAW – Bitter parenting dispute about spend-time regime – whether 5/9 with mother or equal time – mother always primary carer – both parents holding demonised views of the other – both parents incorrect in their primary suspicions – children’s best interests met by living 5/9 with the mother.

Legislation:

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

Goode v Goode [2006] FamCA 1346

Applicant: MS SKELTON

Respondent: MR SKELTON

File Number: DGC 278 of 2015

Judgment of: Judge Burchardt

Hearing dates: 3 & 4 August 2017

Date of Last Submission: 4 August 2017

Delivered at: Melbourne

Delivered on: 15 September 2017

REPRESENTATION

Counsel for the Applicant: Ms Johnson

Solicitors for the Applicant: Perry Weston Lawyers

Counsel for the Respondent: Ms Dwyer

Solicitors for the Respondent: Pentana Stanton Lawyers

Counsel for the Independent Children’s Lawyer: Mr Kiernan

Solicitors for the Independent Children’s Lawyer: Robert Halliday & Associates

ORDERS

1. The Mother and Father have equal shared parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2011 (“the children”).

2. The children live with the Father as follows:

   (a)During the school term, each alternate week from the conclusion of school, or 3.30pm if a non-school day, on Thursday until the commencement of school, or 9.00am if a non-school day, the following Tuesday, commencing Thursday 5 October 2017.

   (b)For one half of school term holidays at times to be agreed and in default of agreement from the conclusion of school, or 3.30pm if a non-school day on the last day of term to 12.00pm on the middle Saturday of the holidays in odd-numbered years, and from 12.00pm on the middle Saturday of the holidays to the recommencement of school, or 9.00am if a non-school day, in even-numbered years;

   (c)For one half of the long summer vacation in one-week blocks by agreement and in default of agreement the first, third and fifth weeks in odd-numbered years and the second, fourth and sixth weeks or part thereof in even-numbered years;

   (d)From 3.00pm Christmas Eve to 3.00pm Christmas Day in odd-numbered years and from 3.00pm Christmas Day to 3.00pm Boxing Day in even-numbered years;

   (e)For the Easter break from 3.00pm Easter Thursday to 3.00pm Easter Saturday in odd-numbered years and from 3.00pm Easter Saturday to 3.00pm Easter Monday in even-numbered years;

   (f)In the event the children’s birthdays or the Father’s birthday falls on a day the children are in the Mother’s care, for a minimum of 2 hours on the children’s and the Father’s birthdays and in default of agreement from 4.00pm to 6.00pm or if any of the birthdays fall on a non-school day for a minimum of 4 hours and in default of agreement from 12.00pm to 4.00pm;

   (g)From 5.00pm the Saturday immediately preceding Father’s Day to 5.00pm Father’s Day;

   (h)Such other times as agreed in writing.

3. The children live with the Mother at all other times.

4. The Father’s time with the children be suspended as follows:

   (a)For one half of school term holidays at times to be agreed and in default of agreement from 12.00pm on the middle Saturday of the holidays to the recommencement of school, or 9.00 am if a non-school day, in odd-numbered years, and from the conclusion of school, or 3.30pm if a non-school day, on the last day of term to 12.00pm on the middle Saturday of the holidays in even-numbered years;

   (b)For one half of the long summer vacation in one-week blocks by agreement and in default of agreement the second, fourth and sixth weeks in odd-numbered years and the first, third and fifth weeks or part thereof in even-numbered years;

   (c)From 3.00pm Christmas Day to 3.00pm Boxing Day in odd-numbered years and from 3.00pm Christmas Eve to 3.00pm Christmas Day in even-numbered years;

   (d)For the Easter break from 3.00pm Easter Saturday to 3.00pm Easter Monday in odd-numbered years and from 3.00pm Easter Thursday to 3.00pm Easter Saturday in even-numbered years;

   (e)In the event the children’s birthdays or the Mother’s birthday falls on a day the children are in the Father’s care, for a minimum of 2 hours and in default of agreement from 4.00pm to 6.00pm or if any of the birthdays fall on a non-school day for a minimum of 4 hours and in default of agreement from 12.00pm to 4.00pm;

   (f)From 5.00pm the Saturday immediately preceding Mother’s Day to 5.00pm Mother’s Day;

   (g)Such other times as agreed between the parties in writing.

5. All changeovers occur at school, or if a non-school day, changeover take place in a public place such as McDonald's (omitted) or such other place as greed between the parties in writing or via text message.

6. The Mother attend upon her General Practitioner and obtain a referral to a suitably qualified Clinical Psychologist or Psychiatrist to obtain support in relation to the changes in parenting arrangements, and the Mother provide to that professional a copy of the following:

   (a)Family Report prepared by Family Consultant Ms A dated 19 May 2017;

   (b)Psychological Report prepared by Dr C in relation to the Mother dated 19 July 2017.

7. The Father obtain support from Relationships Australia or similar organisation to assist him to support the children with the changes to parenting arrangements.

8. The Mother and Father do all acts and things necessary to facilitate the children’s attendance upon their General Practitioner to determine a catch-up schedule for any missed immunisations usually administered to children, and the Mother and Father shall ensure the children receive all immunisations as directed by their General Practitioner.

9. The Mother forthwith provide to the Father a list of all current treating medical or other health professionals in relation to the children and the Mother shall authorise the treating health professional to confer directly with the Father on all questions relating to the children’s health and welfare.

10. In the event that the children or either of them suffers injury or accident, the relevant parent as soon as practicable advise the other parent of the incident, identify the treatment health professionals and authorise the treating health professional to confer directly with the other parent on all questions relating to the children’s health and welfare.

11. Both the Mother and Father be at liberty to attend all school and extracurricular functions and activities to which parents are usually invited.

12. The parties each hereby be restrained by injunction from:

    (a)Denigrating, belittling, rebuking or otherwise insulting the other party or any member of their family or any person they are in a relationship with in the presence or hearing of the children or either of them;

    (b)Discussing family law matters in the presence or hearing of the children or either of them.

13. The Mother and Father each keep the other informed of their emergency contact phone number and current address and notify the other parent within 24 hours of any change to these details.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 278 of 2015

MS SKELTON

Applicant

And

MR SKELTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a parenting dispute about the best interests of the two children of the parties, namely X, born (omitted) 2009, and Y, born (omitted) 2011. The mother seeks that the children live predominantly with her but spend five nights per fortnight with the father. The father seeks a shared care arrangement and is supported in that regard by the Independent Children’s Lawyer and the recommendations of the family report writer.  Other matters are agreed between the parties.

2. For the reasons that follow, I am going to make the orders sought by the mother which are, in my view, in the best interests of the two children. 

Affidavits

1. When you have a court file with 88 items entered on it in a dispute in which the only difference between the parties is two days of time in a fortnight, it is readily apparent that the parties are passionate about their case and intractably divided. The parties have filed copious affidavit material and put on affidavits not only by themselves but by numerous supporting players.  Some of these additional witnesses were not required to, or for whatever reason did not, give evidence. 

2. I have, of course, carefully read and paid proper regard to the affidavit material filed.  Nonetheless, in the particular circumstances of this case, it will be more appropriate to concentrate upon the independent evidence of the report writer, the consultant psychologist and the evidence given at trial. Putting the matter broadly, the mother’s affidavit material is strongly critical of the father’s alleged controlling, aggressive and domineering behaviour. The mother also deposes to disclosures allegedly made to her by X, in particular, of certain acts of violence committed on him by his father. 

3. The father strongly denies any assaults on the child and all other misconduct alleged against him. By way of contrast, his affidavits demonise the mother and accuse her, in plain terms, of deliberately and knowingly fabricating the alleged disclosures, and that in reliance upon these fabricated disclosures she habitually and vexatiously seeks Intervention Orders to effectively cease his time with the children.  The father has a vexatious litigant application before the Magistrate’s Court of Victoria, which is due for hearing in January 2018.

Agreed or Uncontested Facts

1. The father was born on (omitted) 1974.  He has a number of health difficulties of which the most significant is fibromyalgia, a condition exacerbated by stress. The mother was born on (omitted) 1976. The father is in receipt of a disability pension and the mother is on Centrelink benefits.  The parties commenced cohabitation in (omitted) 2000 and married on (omitted) 2005.  As earlier indicated X was born on (omitted) 2009 and Y on (omitted) 2011. The parties separated in either January 2014 (mother’s version) or March 2014 (father’s version).  Nothing turns on that latter dispute.

2. X has had a number of difficulties, including bed wetting, but has been diagnosed with attention deficit hyper-activity disorder (“ADHD”).  He is under treatment for this condition.

3. It is common cause that the mother is totally estranged from her own family who are strongly aligned with the father.  A number of the mother’s own close family members, including a brother, were actually called to give evidence for the father.  I will return to this aspect of the matter in due course.  There have been numerous Intervention Order proceedings (the total is disputed but on any view of the matter there have been multiple such applications) and the mother has certainly not attended a number of them.  This, doubtless, explains the origins of the father’s application to have her declared a vexatious litigant.  Plainly, I express no view about the possible outcome of those proceedings but I would express my sympathy to whoever has to hear and determine it. 

4. It is clear that at least a number of the Intervention Orders followed relatively closely upon the alleged disclosures made by X of assaults by his father.  They were plainly used, and wittingly so, by the mother to cease this Court’s spend time regime as previously ordered.

5. The children have been living with the father on a 5/9 arrangement since orders made on 29 April 2015.  A section 11F child inclusive conference memorandum dated 8 August 2016 recommended up to five nights per fortnight with the father, but as earlier indicated the extant family report recommends equal time. 

6. The mother’s formal position until the commencement of trial was a reduction in the father’s time, but the mother made it clear at an early point in her evidence that a 5/9 arrangement was what she was really seeking.

The Family Report of Ms A

1. Ms A’s report dated 19 May 2017 was formally received as exhibit ICL1 when Ms A was eventually called.  I do not, of course, intend to refer to all the matters contained in it as it runs to some 33 pages of text.  Having noted the parties competing assertions about one another and the history of Intervention Orders, Ms A noted an instant when X took a bullet case to childcare and told the persons at childcare that the father had given it to him despite the father’s denials.  The report also noted the alleged incident in which X said he was pushed over a fence, something the father strongly denied. 

2. Ms A noted the current arrangements for the children.  They live with their mother who has a partner of two years, Mr W, who does not, however, live full-time with them. Ms A noted that the mother is not presently working because of ongoing family law matters and the need to focus on X’s disability but is a qualified (occupation omitted) and hopes to return to work once her family law matters are finalised.  The father lives in a property in (omitted) of which the maternal grandfather and uncle are the landlords.  He works part-time, self-employed, as a (occupation omitted).  He has been assessed by the Child Support Agency to pay nil dollars in child support. 

3. At interview, the mother proposed that the current spend time regime be as it were consolidated from every Wednesday and alternate weekends to one block of time consecutive nights.

4. The father’s proposal was the children live with him in a reverse arrangement and spend time with their mother each alternate weekend and each Wednesday night.  He expressed at paragraph 19:

   he said he was at a loss to know what to do because he was most worried that Ms Skelton will breach orders regardless of what they are and he was concerned about the impact on the children.

5. He was open, however, to a shared care arrangement week about but remained concerned that the mother would make false allegations about him if she did not get what she wanted.

6. The interview with the mother recorded at paragraphs 21 to 28 of the report is unremarkable.  I note that an Intervention Order taken out against her brother, Mr N, had lapsed following the death of the maternal grandmother.  At paragraph 28, the report records:

   Ms Skelton said that when the relationship with Mr Skelton ended she had a “falling out” with her family.  She said she had previously been close with her family but that Mr Skelton told them she had an affair and she came under some pressure from them to return to the marriage.  She said words to the effect that “everyone got involved in the relationship breakup” and that she decided in the end to walk away from her family because they appeared to be taking sides with Mr Skelton.  She said her father had recently said he did not want to take sides but she believed he had already done so by providing a supportive Affidavit to Mr Skelton.

7. The interview with Mr W is recorded at paragraphs 29 to 33 and in my view is generally unremarkable. 

8. The interview with Mr Skelton is recorded at paragraphs 34 to 39.  The father strenuously denied being controlling or emotionally abusive as alleged by the mother.  At paragraph 38, the report recorded:

   Mr Skelton was concerned about the allegedly false allegations about him made by Ms Skelton and how the children had said things at times which were completely false.  He said he had concerns about whether Ms Skelton uses her professional skills to manipulate the children.

9. At paragraph 39, the report recorded:

   Mr Skelton denied misuse of prescribed medication as alleged by Ms Skelton and he also denied that he was suicidal to the extent of planning.  He said his mental health, in terms of stress, had been most impacted by the litigation and Ms Skelton’s alleged false allegations since the separation, and that there had been 17 Court events in the last year.

10. The paternal grandmother was interviewed but her account of events were generally unremarkable.  I note that she said that there had been a falling out between the mother and her family, “because of her behaviour towards her mother while she was dying.”

11. The report writer spoke with the mother’s brother, Mr N.  His interview was completely negative about his own sister.  Inter alia, he accused the mother of being a liar.  At paragraph 51, the report states:

    Mr N said he does not know what to make of Ms Skelton’s behaviour over the last two years in the Courts.  He said she had told him when they were children that something is not a lie if you believe it to be true.  He said he believes that she believes her own lies.

12. Like the father, he expressed a concern that the mother might use her (occupation omitted) skills with the children.

13. Ms A saw both of the children with each of the parents.  She noted that X behaved quite differently in the presence of each parent and noted that the mother’s parenting style was “mainly invitational”.  I note that at paragraph 60, Y recorded that she wanted to see her mother more than her father because the mother was going to buy another dog if the fighting stops and for various other reasons which one might regard as inconsequential.

14. X ran to his father when the father came into the playroom, as did Y.  At paragraph 67, the report recorded:

    Mr Skelton displayed a more flexible parenting style being invitational at times and somewhat directive with X as appropriate.

15. The report went on to detail the all too numerous Intervention Order proceedings between the parties.  In particular, I note that there was an alleged incident on 13 September 2015 in which X disclosed to his childcare centre that his father pushed him into a fence and a wall and locked him under the house.  I also note a report from October 2016 in which X disclosed to his mother that Mr Skelton had hit and punched him to the head.  The father denied the allegations and said that the mother had fabricated them.  There are other alleged incidents of violence giving rise to Court proceedings but they are not significant for present purposes. 

16. The report traversed records from the Department of Health and Human Services, (omitted) Childhood Psychology and consultant paediatrician, Dr W, but these do not take the matter much further as the matters recorded are dealt with elsewhere in this judgment.  I note that in addition to ADHD, X has an anxiety disorder and behavioural problems with low average full scale IQ on a cognitive assessment. 

17. Records from the (omitted) Early Learning Centre (X’s childcare centre) disclose that on 1 July 2015, the bullet casing incident occurred.

18. The report traverses material from the (omitted) Clinic about both the parents and (omitted) Primary School which X attends.  X has been absent from school for a relatively large number of days in 2016 to 2017, but the medication has now assisted X and his concentration and attention span has improved and likewise, his work output.

19. Under the heading Evaluation at paragraphs 104 and following the report asserted:

    The parties’ level of conflict is clearly the most significant negative factor impacting the children.  Both children expressed a wish for the conflict to stop.  The question of what live with and spend time arrangements can be made that would be most likely to reduce the conflict or at least the children’s awareness of it, is of high importance for their well being. 

    Ms Skelton impressed as having difficulty distinguishing between emotional violence which is an indicator of interpartner family violence, and assertive communication from Mr Skelton about his reasonable needs in a relationship. Differences in needs is common in couples who may also use different communication styles and have different what is sometimes referred to as “love languages”.  That means the behaviours they interpret as loving.  For some people talking deeply is considered loving behaviour, for some it is gift giving and for some it is various forms of physical affection. 

    Ms Skelton portrayed Mr Skelton as almost magical in his ability to manipulate people to the extent that he had alienated all her family including her mother who was on her death bed, from her. There is a possibility that if Mr Skelton has a sociopathic personality profile he is capable of deluding everyone with whom he comes in contact.  However, there did not seem to be support for that hypothesis amongst affidavits from people who have known him for over ten years.  Ms Skelton’s family had provided affidavits, and the interview with her brother indicated that she was perceived as “wilful and difficult” and perhaps prone to misconstrue facts which she then believed, indicating a possible tendency to compulsive or pathological lying. Certainly, her brother’s information supported that she had that tendency since childhood and her mother’s letter attached to her Great Aunt’s affidavit deposed 22 August 2016 supports the idea she is focussed on her needs rather than primarily on the children’s best interests.

    At interview Ms Skelton appeared focused on the children’s best interest to the extent she seemed motivated to reduce the conflict and to reduce the number of changes for the children.  However, the subpoenaed documents from Victoria Police indicated there had been several Court Hearings that were not heard due to her failure to attend. Ms Skelton minimised the number at interview and appeared dismissive of the importance of attending Court and the implications of her allegations.  There is little confidence Ms Skelton will comply in the future with Orders made or with the need to appear at Court to prosecute allegations she makes about Mr Skelton. 

1. The report continued at paragraph 108:

   … The children showed no indicators that Mr Skelton uses inappropriate discipline or that they are fearful of him.  If anything, X responded very positively to his father and was warm and affectionate with him.  It appeared that X may have been less anxious in his father’s presence than he appeared in his mother’s presence.  He may experience less anxiety with his father because Mr Skelton is able to use a more flexible parenting style than Ms Skelton.  Mr Skelton displayed authoritative parenting, which makes children feel secure.  Ms Skelton’s style appeared more permissive and ineffectual when she was directive with X which may contribute to him appearing anxious and displaying separation anxiety…

2. At paragraphs 109 - 110, the report continued:

   In relation to Y, she appears a more robust child than X, but she may also suffer concerns due to the conflict and has developed a compliant approach to maintain a degree of neutrality from the conflict.  Her responses at interview strongly suggest she does not wish to be involved in the decision making and she loves both parties.  Y is currently adjusting developmentally to her Prep Year at school and any decision which will effectively reduce the level of conflict can only assist her development. 

   Whether Ms Skelton has made false allegations is a question for the Court, however she did impress as anxious and ineffectual at interview.  If she also confabulates as a pattern of behaviour as indicated by at least two of her family members in addition to Mr Skelton, there are concerns about how that behaviour will impact the children as they develop.

3. At paragraph 111, the report continued:

   There is an argument that the conflict is more likely to reduce and the number of changes is also likely to reduce if the children live in an equal shared care arrangement between the parties, whereby changeovers always take place at school and in the event the changeover day is a public holiday that they are effected by an agreed agent at a public place such as McDonalds.  Given that Ms Skelton is not on good terms with any of her family it is unlikely that a family member would be an acceptable agent. 

4. Having commented on the father’s position about vaccinations and noting that he was not opposed as the mother suggested, the report highlighted the importance of assessments and diagnosis of the children occurring in the context of information from both parents and not just one, and continued at paragraphs 112 - 117:

   … There is a possibility that X behaves differently in his father’s care than either at school or with his mother which might be important collateral information to the diagnosis of ADHD and anxiety.  There are concerns that medical decisions have been made unilaterally by Ms Skelton and possibly as a result of misinformation about Mr Skelton’s alleged violence. 

   It is my opinion that if the current Orders remain in full force and effect the children will continue to be highly aware of and feel under pressure to be involved in the parties’ conflict. It is also my opinion the number of changes do not allow them to settle into each home for long enough to benefit from that stability.    

   It is my opinion that the conflict is likely to continue to bring the matter to the attention of the Court if the children remain primarily in their mother’s care and contraventions will continue to be lodged. 

   It is my opinion that the children’s well-being would be better served by an equal shared care week about arrangement, whereby the opportunity for X to express his anxiety about changeover is reduced and there is an opportunity to assess the impact of him attending school more regularly because of being at least 50 percent of the time in his father’s care. 

   It is my opinion the children benefit from having relationships with extended family members on both sides of their family and that Mr Skelton will continue to facilitate those relationships whereas Ms Skelton was clear she would not.  She did not allege any family violence by her family members other than her brother, and it appeared her previous Interim IVO against him had been withdrawn from a final hearing due to her belief the incidents related only to their mother before she died. 

   There are concerns that changes to the current Orders may escalate the allegations of family violence, child abuse and contraventions of Orders in attempts to change back to current Orders.  If that was to occur and the allegations be found wanting in terms of substance, Mr Skelton should be aware he is at liberty to apply for the children to live primarily with him for their emotional and psychological well being.

5. The report made recommendations consistent with those observations and included that the mother attend a suitably qualified psychologist or clinical social worker for support in relation to the changes that are to be introduced. The report also recommended independent psychological assessment and that was conducted by Dr C.

The Reports of Dr C

1. Dr C is a clinical psychologist and he has assessed both the mother and the father.  The mother’s report noted the mother’s distress that her family has sided with Mr Skelton following separation and Mr Skelton telling them that she had had an affair (page 3).  I note that at page 4, the report asserts:

   Ms Skelton feels that the family consultant evaluation on 19 May 2017 was unfair due to her observations of the children, in which case they had not seen their father in seven days and had been with her for seven days prior. 

2. I note that the mother told Dr C that:

   She presently pays for most things that the children need and that her income would be adversely affected by changing parenting arrangements.  She indicated that she was very eager for the fighting with the husband to end.

3. It should be noted that Dr C was aware of earlier assessments of the mother made during the currency of a WorkCover claim but for present purposes, the most important part of the report is on pages 9 to 10 under the heading Summary and Opinion as follows:

   Ms Skelton is a 41 year old separated mother of two, currently in receipt of single parent payments and involved in family court proceedings. This appears to be occurring in the context of paranoid personality features with strong persecutory themes, estrangement and lack of support from her family, and managing a child with psychological difficulty.

4. Further, on the same page, the report continued:

   Based on Ms Skelton’s personality structure, it is easier for her to attribute the cause of problems to unfairness, hostility, and ill-intent of others than other possible contributing factors.  In addition, she will find it difficult to trust and work with others she feels affronted or hard done by, and as such, work on mending relationships will represent a challenge.  The inconsistency in some aspects of information provided in this assessment and others I believe relates to a more general sense of suspiciousness, guardedness and fear of mistreatment, than a conscious attempt to mislead. The anxiety and insecurities experienced by her son is likely impacted by ongoing stress of Family Court proceedings and conflict between the parties.    

   The ongoing nature of family court proceedings is likely to perpetuate Ms Skelton’s distress and make her more likely to respond in a manner whereby she feels persecuted.  She has limited family support and heightened parental stress associated with the needs of her son, X.  There is the added stress related to unpredictable finances. 

   It is positive that Ms Skelton is attentive to the psychological and medical needs of the children, and herself has accepted treatment for mental health concerns. However, she is likely to find it difficult engaging in therapy with someone who challenges her views and responds to issues in the manner that she is likely to benefit most from.  It is also positive that she seems to have been reasonably forthright in the present evaluation, and is in a serious romantic relationship that is likely to provide her with support, containment and perspective.  She also doesn’t appear to be experiencing any severe mental health or substance abuse/alcohol misuse problems.  She has expressed a desire to work and further herself in training as a (occupation omitted).

5. Under the heading Recommendations, Dr C went on:

   with respect to the wellbeing of Ms Skelton, and her children, she would benefit from the services of an experienced clinical psychologist or psychiatrist experienced in schema therapy or other evidence based longer term therapy, whereby her tendency towards suspiciousness, feelings of unfairness and persecution, and repairing/maintaining relationships can we worked through in a respectful, compassionate and confidential manner.  This will be particularly important if there is ongoing hostility and legal proceedings between Mr and Ms Skelton.

6. The assessment of the father noted an initial brusqueness which dissipated.  Page 2 of the report noted:

   There was a sense of seriousness in his demeanour.  His observed emotion was appropriate for content of thought, and was generally flat, however he became visibly angered when discussing the recent history with his ex-partner…His content of thought revolved heavily around the stress associated with family court litigation, and some degree of persecution from his ex-partner, Ms Skelton.  He seemed to have sound insight into his current circumstances. 

7. On page 4, the report recorded:

   Mr Skelton stated that he has good relationships with all of Ms Skelton’s family, and that she doesn’t speak to anyone in her family.  He stated that she has never had any close friends, but more acquaintances.  He stated at one point Ms Skelton was keeping the children from him as it was likely to have an impact on her Centrelink benefits if he saw them more regularly.  He is agreeable to a 50/50 care arrangement continuing if Ms Skelton is accepting of this and does not try to obstruct and noted that, “my children are everything to me”.  He believes his son is significantly affected by the constant legal processes, predominantly with respect to anxiety, but he believes his daughter is less affected.

8. The assessment noted Mr Skelton’s ongoing health difficulties of lower back pain, fibromyalgia and migraines for which he takes medication.  The report noted various applications for Intervention Orders and the like and noted the father’s concern that false allegations were made against him by the children perhaps due to the mother’s use of her professional skills. 

9. Once again, it is probably appropriate to concentrate on the summary and opinions at pages 9 and 10.  At page 9, the report noted:

   Mr Skelton is a 42-year-old father of three currently on disability support pension and referred for psychological opinion.  He appears to be experiencing symptoms consistent with an Adjustment Disorder (with mixed anxiety and depressed mood) with a differential diagnosis of Somatic Symptom Disorder, with predominant pain.  This seems to be occurring in the context of long-standing physical health concerns such as pain, and high levels of stress associated with family court proceedings.

10. On page 10, the report continues:

    He seems to have done well in trade oriented professions, developing several skills and being interpersonally effective in developing professional networks.  However, his physical injuries have interrupted his career, and caused a cascade of effects in terms of pain, periodic bouts of depression, financial and relationship problems, for which he has sought professional assistance.  The birth of his children appears to have resulted in further stressing the household through a change in expectations, a possible deterioration in his wife’s mental health, and subsequent worsening of the marriage.  The process of separation, conflict with Ms Skelton and her family, family court proceedings and the stress that this has engendered has likely exacerbated Mr Skelton’s pain and resulting mental health issues. Having a son with higher than normal needs at present is further likely to add to his stress.   

    In terms of protective factors, Mr Skelton seemed to possess excellent insight into his present issues and is very proactive about seeking assistance through various means.  He seemed open and honest with the present evaluation.  He appears to have sound social supports, and to have work to maintain positive and workable relationships with a number of people over the years, including his adult daughter, family of his ex-wife, and father.  He does not appear to be experiencing any issues with alcohol or drugs, or have any evidence of a forensic history.  He also wants to be involved as a father in raising his children.

11. Under the heading Recommendations, the report continued:

    With respect to the wellbeing of Mr Skelton, and his children, I believe that the ongoing conflict with his ex-partner, and expression of this through the legal system is causing significant stress to Mr Skelton and exacerbating his somatic symptoms, thus making him prone to experience other mental issues.  This may, at times, impact his available energy for parenting, however this is likely to be buffered by his extent of social support.  In the absence of ongoing stress associated with family court matters, Mr Skelton appears to have enough insight, motivation, acceptability to treatment, availability of treatment providers, and self-management strategies to maintain sound health.

The Evidence Given at Court

1. What follows is taken from my notes. It is, of course, not a transcript, but records the matters that seemed significant in the evidence.

The Mother

1. Counsel opened the mother’s case on the footing that she was seeking a three/eleven arrangement, but the mother rapidly clarified that she would accept a continuation of the five/nine arrangement, albeit consolidated into one block.  In evidence, she adopted her affidavits as true and correct in evidence-in-chief.

2. In cross-examination, she was taken to the Dr C report.  She did not agree that she needed counselling.  She admitted she had some mental health issues in the past, but said the father had an adjustment disorder.  She said that she did not think a week-about arrangement could possibly work.  Her son is disabled.  If it was ordered she would try to get help.  She conceded that the children love their father.  While the relationship with the father was important, there were problems.

3. She conceded she had made two applications for Intervention Orders which included the children as affected parties.  This was because of physical violence.  She said the Department of Health and Human Services (“DHHS”) instructed her to include the children on the applications while they were investigating.  Time was eventually reinstated.  She conceded that she had said at one point that she would just have to take the kids and move away.

4. The mother referred to X's ADHD and possibly attention deficit disorder.  She said the father could not help.  She noted that the family report writer only spent five minutes with X and X was very upset.  The report said that X was better with his father, but he had not seen him for seven days.

5. When Y was in hospital, the mother had told the staff about the extant Intervention Order.  Nonetheless, the hospital visit took place during the father’s time with the children.  She had not coached the child but had discussed the Court case with the children.

6. She said there were problems when the children do not want to go to the father.  She also described issues over the question of vaccination.  She said the father did not wish to be involved in medical issues.  She denied that the father had been prohibited access to the psychologist at (omitted).  She said the father had done nothing about X’s diagnosis with which he did not agree originally although he does now.

7. There are problems at changeover when items get lost and the father blames the mother for this.  She said X needs a routine.  The father did not pay child support as he did not pay for school fees and related payments.  He does not agree with X’s medical condition, and this might stem from his (religion omitted) background.  She repeated the children do not want to go to him.

8. The mother conceded that she had missed one or two medical appointments, but there are very frequent such appointments.  She conceded that the father took Y to a check-up recently.  She denied withholding Ritalin from the father.  Rather, she accused him of not wanting to medicate the children.  The mother said she had paid for all school fees this year and the father paid only half of the swimming lessons last year and has not paid child support this year.  She buys all school uniforms.  She said her benefits would reduce if equal time was introduced, and this would severely affect her.

9. The mother plans to be married in the future but is not engaged to Mr W at the moment.  She is in a relationship and they intend to marry.

10. There would be problems if equal time was spent with the father.  Seven nights is too much.  The children do not wish to go.  There are no benefits to week-about.  The father has provided only two per cent of what she has provided for the children.  Wednesday nights have been going for nine months now and are starting to work.  Less changeovers would, however, be good. 

11. The children are very young and X is disabled.  The father cannot handle him and has only just accepted that he is, indeed, disabled.  X has made allegations against the father in the past.  He alleged that the father has struck him.  There were no marks or bruising on the child at the time.  The children do not wish to go and time is school to school. 

12. She does not get on with the father.  He sends her up to 30 text messages.  If he wanted to be an effective father, he would be more involved with the school (I infer what she meant was that he would contribute financially).  She wants the litigation to end and would do her best to make orders work.  (omitted) shows the children want to live with her and spend time with the father.  The father is not involved in (omitted).  He said he did not want to spend his precious time with doctors.  She has authorised (omitted) to talk to the father recently when she was asked to do so.  She has been at (omitted) for several years and the father has only recently contacted (omitted).  She is very worried.  The father has a history of depression.  She will not accept that the father has not got mental problems no matter what anyone says.

The Mother Under Cross-Examination by Counsel for the Independent Children’s Lawyer

1. The mother agreed with Counsel that the conflict affects the children and must stop.  The children feel that it is necessary to align with one parent or the other.  The father asked X to ask for another night.  X was uncomfortable with the report writer, Ms A.  The last nine months have been a five/nine arrangement and the final orders in 2015 were made by consent. 

2. In October 2015, the mother sought to include the children in her Intervention Order application.  This was because of disclosures X made to child care.  On 18 December 2015, the application was struck out.  She had missed that date.  She went back on 21 October 2015.  The police and DHHS investigated but took no action.  She went to Court on 21 December 2015 because the father over held the children on 20 December 2015.

3. The mother was cross-examined about the outcome of some of the all too numerous Intervention Order applications she had made.  In March 2016, a magistrate had found that there was no case to answer and that matter was appealed to the County Court.  She had made two other applications which included the children and said she had done what she was told by the duty lawyer.  She denied that she was concerned to initiate court proceedings and said she was trying to follow the right procedure.

4. I should interpolate and say that the mother’s answers about this subject were evasive and non-responsive and self‑serving.

1. The mother said she tried to negotiate with the father and said she might be open to a five night block of time with him.  In re-examination, the mother confirmed that she had been diagnosed with an adjustment disorder in 2010 to 2011 but was well now.  She confirmed further that she had conceded to an invention order without admissions approximately a month ago.

The Evidence of Ms R

1. Ms R adopted her affidavit as true and correct.  She is a friend of the mother’s who attended court with the mother in June 2017 at the hearing to which I have just referred.  She said she heard the father say “fuck this” in the presence of the mother and herself.

The Evidence of Mr W

1. Mr W adopted his affidavit as true and correct.  He also attended the Ringwood Court.  He saw the father who was on the other side of the Court, but he came and sat directly behind him and the mother.  Under cross-examination by Counsel for the father, Mr W confirmed that the children do not always want to go to visit the father.  The subject comes up in conversation and leads to the children being agitated, X especially.

The Evidence of the Father In-Chief

1. The father adopted his affidavits as true and correct.  He confirmed that fibromyalgia is pain in your body.  This is muscular pain.  He uses meditation, yoga and gym activities to control the pain and sometimes takes medication if needed.  Sometimes it is Panadol and sometimes prescription medicine.  This does not affect his capacity to look after children.  He has never abused X.  He has no mental health issues at present, but would see a doctor if he did have a problem.  He has a network of friends and family for support.  He said that seven nights would involve less pick ups and drop off and would make everything easier.  This has already been trialled in school holidays.

2. He now accepts that X has ADHD.  He just spoke to the paediatrician recently.  The child is better with the Ritalin that he is prescribed.  However, he had not been told that X was taking Ritalin, nor given the drug.  The doctor refused to give him a script for it.  He denied that there were any problems on his part with immunisation, although he referred to allergic reactions in his family.  He sends numerous SMS’ to the mother but gets no response.  He paid for swimming lessons and for extracurricular activities.  He buys clothes and shoes for the children and has kept a large volume of receipts.

3. He would try to support any orders the Court made and supports the mother having a positive relationship with the children.  He says he has tried to contact the child psychologist but was refused.  He tried last year and again this year and is now on a waiting list.  When X is difficult he just calms him down.  The children are happy in his care and are always happy to see him.  He found it hard to believe the children do not wish to come and they never say they wish to go back to their mother when they are with him.

4. Before turning to cross-examination, I should interpolate again and say that even in evidence-in-chief, when presumably less stressed, the father’s observations about the mother were entirely accusatory of her.  He presented as having an extremely domineering manner, and if there was one thing that was clear, even at this stage, it was the terrible communication difficulties experienced between the parties.  He was combative and aggressive, even in evidence-in-chief.

The Father Under Cross-Examination by Counsel for the Mother

1. The father said that fibromyalgia can be painful, and this happens quite often.  He is okay in school holidays.  He has migraines from time to time and more so recently, these being related to the pressure of Court proceedings.  He has migraines once or twice a week when stressed and usually manages to stop them at an early stage with medication. 

2. He has disc problems also, but has worked part-time.  He said he last worked two to three months ago on a (omitted) job for one week.  He works for himself.  He had no other recent work but constructed a carport earlier in the year.  He said this took three to four days, but of the $3,000 - $4,000 he was paid, he made possibly $1,000, this being income he had declared.  His answers in this regard were palpably evasive.  It did not occur to him to offer the mother any of this amount of money or any of his other earnings.  He said he was struggling financially also.

3. There was cross-examination about proceedings in the Administrative Appeals Tribunal in the previous year (something the mother had also addressed) over what appears to have been a minor amount of money in dispute in relation to child support.  The father’s answers were lengthy but self-serving.  The father said he hoped to work more in the future, but had not declared the income he has made more recently because his tax return is not completed.

4. He has sought to have the mother declared a vexatious litigant.  He admitted he sat behind the mother in the Ringwood Court.  He complained that the mother booked the children into doctor’s appointments during their time with him time after time when this was not necessary.  The father was cross-examined about the occasion in March 2017 when Y developed difficulties with her legs on a camping trip.  The father conceded that she had developed HSP.  He had not taken her for treatment.  His answer was extremely lengthy but non-responsive.  He agreed that Y spent a couple of days in hospital as a result of the HSP.

5. The father was cross-examined about the shotgun case issue.  The allegation was made by X in the presence of a caseworker.  The father said that the mother was a (occupation omitted) and caused the child to say untrue things.  He was cross-examined about X’s allegation that he had hit him.  He said that X had wanted a butterfly at a birthday party and he had got him one.  He denied hitting the child.

6. The father said he could work one week on and one week off.  He denied taking Tramadol or Valium.  He did concede that more stress would lead to greater mental problems for him.  He complained that the clothes he has bought either do not come back from the mother or come back wrecked.  He said he spent $1,000 on lawyers at the last Intervention Order proceeding.  He is no longer concerned about depression, which ceased when he stopped living with the mother.  He said he possessed seven rifles when the Intervention Orders were taken out as he used to do deer hunting.

The Father Under Cross-Examination by Counsel for the Independent Children’s Lawyer

1. The father conceded that conflict between the parents is the biggest problem for the children.  He has not taken them to a psychologist.  He has not involved them in conflict.  He said shared care would be less changeovers.  He said there would be more access to extended family members.  Some of the answers given during this phase of his evidence were simply not coherent.

2. In re-examination, the father said that the mother does not want contact with either his family or her own.  He was not aware of who the children’s doctors were other than their GPs.  He had thought originally that X’s behaviour was due to stress and said X was okay with him.

The Evidence of Ms L

1. Ms L adopted her affidavit as true and correct.  She is the paternal grandmother.  She said she had seen the father with the children and he manages them very well.  X can be hyper.  The children are very close to the father.  School holidays have not been a problem, but stress is a problem for all.  Under cross-examination Ms L confirmed that she knew X has ADHD.  He is very boisterous and always has been.  She confirmed in answer to a question from the Independent Children’s Lawyer’s Counsel that X is big and strong.

The Evidence of Ms C

1. Ms C confirmed her affidavit as true and correct.  She is the maternal aunt of Ms Skelton, the mother.  She confirmed her three affidavits were true and correct and said she has seen the children five to six times in the last year.

2. Under cross-examination by Counsel for the mother, Ms C confirmed that she is estranged from the mother but had a close relationship with her prior to that estrangement.  She tendered as exhibit A1 an undated letter (of which only an extract appears to have been tendered), by the now deceased maternal grandmother.  This exhibit speaks in less flattering terms about the father than other correspondence appended to the affidavit material.

The Evidence of Mr N

1. Mr N is a brother of the mother who has a good relationship with the father.  He adopted his affidavits as true and correct. In evidence-in-chief he said words to this effect, “The family would like this to end.  It is a vindictive act by my sister to make Mr Skelton’s life a misery”. Under cross-examination, it emerged that despite the closeness of his relationship with the father, he was not aware that the father was on a disability pension.

The Evidence of Ms D

1. Ms D is an adult child of the father by a previous relationship.  The only matter of any note I take from her evidence is that she asserted that her father has a job in (omitted).  It is clear from the evidence of this witness, and indeed taking the evidence generally, that the father is undertaking more paid work than he admits.

The Evidence of Dr C

1. Dr C is a senior lecturer at (omitted) and he adopted his affidavit as true and correct.  Under cross-examination by Counsel for the mother, he said that the mother feels persecuted by her family.  This is a feature of her personality.  She feels persecuted more than normal people would.  In this condition, you think that people are out to get you.  The WorkCover doctors (whose earlier affidavits are before the Court) were independent. 

2. Psychological testing is important and has supported the findings that he made.  The mother is very high on the paranoid scale and there are persecutory themes.  He was not aware that the mother was seeing Mr D, forensic psychologist, but was aware that the father is on a disability pension.

3. Under cross-examination by Counsel for the mother, Dr C confirmed that there is no evidence that the mother’s mental state impacts in any way on her capacity to care for the children.  She is very attentive to X’s needs and there are no concerns as to neglect.  The children might side with the father and other members of the family when they are older.  Adjustment disorder is a stressor.  For example, it can occur when you lose a job.  All mental health issues can impact on parenting. When questioned by Counsel for the Independent Children’s Lawyer, Dr C said the mother would be alright if she was not stressed.  The tests he has conducted, he conceded, are not gospel.

The Evidence of Ms A

1. Ms A’s family report was adopted by her and tendered as exhibit ICL1. Counsel for the Independent Children’s Lawyer took Ms A to paragraphs 104 and 111 of her report.  These paragraphs note that the parties’ level of conflict is the most significant negative factor affecting the children, and that conflict would be more likely to reduce if the children lived in an equal shared care arrangement.  Ms A said it is about reducing changeovers.  The emphasis is on reducing the children’s awareness of conflict.  She initially asserted that there would be no difference between five/nine or seven/seven arrangements.

2. Under cross-examination by Counsel for the father, Ms A confirmed that she had not read the most recent affidavits or subpoenaed documents.  She would only be concerned if the father’s mental health problems were continuing.  She confirmed that Y is robust. Under cross-examination by Counsel for the father, Ms A confirmed that the child might think equal time was fairer.  If there was a week-about arrangement, the children would settle into the respective households better.

Some Brief Observations About the Credit of the Witnesses

1. I have already commented in passing on some aspects of the mother’s evidence.  It is clear that despite her denials that she does coach her children to say things to third parties.  It is equally clear, as I indicated before the end of the proceeding, that she has genuinely believed the disclosures made to her from time to time by X.  She was by no means an entirely satisfactory witness.  A number of her answers were self-serving and she was at times evasive.  Nonetheless, on the whole I formed the impression that she was a witness of truth.

2. The father presented more strikingly and less impressively than the mother.  He came across, as earlier indicated, as being very accusatory of the mother, domineering in his personality, and combative and aggressive.  He was evasive in relation to how much he earned and his non‑provision of financial assistance to the mother.  I regret to say that overall, he was an unimpressive witness who was both arrogant and aggressive. 

3. Ms R’s evidence was within short compass but was given in a composed and clearly truthful manner. The family members called to support the father were inevitably partisan.  I was particularly struck by Mr N’s remark earlier recorded to the effect that the entire trial process was simply an endeavour to make the father’s life a misery.  From what he said and the way that he said it (he impressed as extremely annoyed with his sister) it is plain that he is completely aligned, as is the rest of the mother’s remaining family, with the father.

4. Dr C was an excellent witness who responded entirely directly and appropriately to all questions.  He is clearly an expert in his field and I accept the force of his evidence in its entirety.  The same can be said in short form about Ms E.

Findings on the Facts

1. I think I made it clear even during the currency of the hearing that I would be finding that the mother had not invented the disclosures made to her from time to time by X, but that I would also be finding that the father had not hit his child. I will return to this matter when I deal with section 60CC of the Family Law Act (“the Act”), but it is important to make these two clear findings right at the beginning.  It is clear that X did make the disclosures alleged, and it is clear that they are untrue.

2. It follows from this that the outlandish theory plainly embraced by the father and all in his camp that the mother is simply litigating to stress the father, is absolutely absurd.  Likewise, the construct that underpins the mother’s case, namely that the father assaults X, is equally farfetched.  I note that the mother is prone to being suspicious of people and would all too readily accept any assertions made to her by X or, were it to occur, her other child, but despite the comments I have had to make about the father and from which I do not obviously in any way resile, I am completely convinced that he loves his son and does not hit him.

3. X has made these disclosures up.  He has done this, no doubt, because he thinks his mother would like to hear it.  An objective examination of the disclosures themselves would show that they are plainly absurd.  The alleged assault involving a butterfly made no sense, even on the mother’s version of it.

4. What is obvious is the appalling incapacity of the parents to communicate and the entirely set views that each has of the other.  The evidence of Mr N I have no doubt whatsoever reflects a view held by the father and all those in his camp.  I envisage them all sitting around together mutually reinforcing their contempt for the mother and her perceived motives in litigation.  The mother has, undoubtedly, litigated extensively.  She has used Intervention Order applications simply to suspend the father’s time when disclosures are made.  This is reprehensible and must cease.  If she has concerns for the children’s wellbeing in the father’s care, the proper course is to come to this Court, not to lodge what in the ultimate appear to be applications she does not pursue to finality.

The Statutory Pathway

1. Having thus, hopefully, totally debunked the ways in which the parties primarily ran their cases, it is appropriate to turn to the statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65]:

   “Summary

   [65]  In summary, the amendments to Pt VII have the following effect:

   1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6.  The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of“reasonable practicability”
   (s 65DAA(5)).

   7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends and holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.    The child’s best interests remain the overriding consideration.”

Shared Parental Responsibility

1. The mother seeks sole parental responsibility but this is opposed by the father and by the Independent Children’s Lawyer. The family report does not specifically make a recommendation one way or the other. The fact is that the children will be spending no less than five and possibly as much as seven nights each fortnight with their father. There has not been family violence from which it is necessary to protect the children, so the cautionary considerations in s 61DA(2) of the Act simply do not apply.

2. The mother’s desire to have sole parental responsibility clearly emanates from her difficulties of interrelating with the father.  This is a matter better addressed by the counselling process that the family report has recommended.  In my view, it is clear that the presumption in favour of equal shared parental responsibility should be applied.

The Children’s Best Interests – The Primary Considerations

1. In this case given the findings I have made, the primary consideration that springs to the forefront is the benefit to the children of having a meaningful relationship with both of their parents.  It will be given appropriate weight.

The Additional Considerations –

Section 60CC(3)(a)

1. The children, in my view, have not expressed any coherent views about what they want.  Their remarks to the family report writer were extremely qualified and limited, and given their young age it would be inappropriate to give excessive weight to their views, even if they had been more clearly expressed.

Section 60CC(3)(b)

1. The children have good relationships with both of their parents.  Accepting, as one must, that the family report writer’s observations were necessarily relatively brief, there is simply nothing in the materials as a whole that suggests the children do not have a warm and developed relationship with each parent.  What the parents do have, of course, is different parenting styles and the family report writer’s observations about this are consistent with my own more limited observations of the parents when they were giving evidence, a matter to which I emphasise I would not in this regard give excessive weight.

2. It should be noted that the children have lived with the mother as their primary carer all their lives.  It should further be noted that this is not a matter addressed in any meaningful way in the family report or otherwise by any independent assessor.  There is little direct evidence of the children’s relationship with their extended families on both sides.  It appears that they see the mother’s relatives reasonably regularly at their father’s home.  Given the overt hostility to the mother that would obtain with all of the extended family including, as I find, the paternal grandmother, there must be concern as to the extent to which the otherwise beneficent interaction with the extended family may carry with it negative implications for the children’s relationship with their mother.

Section 60CC(3)(c)

1. In my opinion, both parents have done what they reasonably could be expected to do to participate in making decisions about the major long term issues in relation to the children and to spend time and communicate with them. 

2. Some concern must, nonetheless, be expressed as to the father’s lack of insight into X’s condition.  His position for quite an extended period of time, it would appear, was essentially that X seemed okay to him, and that he therefore did not have ADHD.  The mother has, self-evidently, unilaterally made decisions in relation to the children’s condition, and it is to be hoped that one thing that will emerge following the punctuation mark that I hope this decision will provide, that cooperation in this regard will improve.

Section 60CC(3)(ca)

1. Both of the parents have taken proper efforts to maintain the children when in their care.  The father, as I have indicated earlier, works much more than he has been prepared to indicate.  It is telling that his brother‑in‑law, Mr N, with whom he is clearly close, and his daughter, do not even know that he is in receipt of statutory benefits.  They were both under the impression, one would infer, that he was working full-time.  The father is not generous in his approach towards supporting the mother.  This, of course, has an effect upon the wellbeing of the children, and I note that the mother is herself concerned that a diminution in her time will affect her statutory benefits and her financial position accordingly.  This is almost certainly a correct assumption, and the reduction in her household finances is not, by any means, entirely irrelevant.

Section 60CC(3)(d)

1. The materials filed in the proceeding do not go so far as to indicate whether or not the children would definitely or would definitely not be affected by moving to an equal shared time arrangement.  The emphasis in the family report writer’s opinion is clearly to the effect that an equal shared care arrangement would benefit the children because it would cut down the number of changeovers, which would be always from school to school (apart from holidays) and would give the children longer, so to speak, to immerse themselves in each of the homes.

2. What has not been considered is what the effect on the children of longer separation from their mother would be.  Indeed, this matter was not explored in any meaningful way with the report writer, although one must infer that she regards the children as being able to sustain the proposed seven/seven arrangement. 

3. I remain sceptical as to the extent to which two children, both sensitive and not by any means free of stress, would adapt to a change of the sort now proposed.  A five/nine arrangement is living with one parent and spending time with the other.  It is not qualitatively the same as equal time.  In truth, one can only speculate as to whether it would or would not be likely to distress or disturb the children.

Section 60CC(3)(e)

1. I have already referred to the possible financial effects of introduction of an equal time arrangement.  The mother’s position on statutory benefits is already strained and would become more so in the event that seven/seven is adopted.  The father does not assist the mother, although as I find, he has more money than he is prepared to admit, and is simply not providing any of it to the mother.

2. Nonetheless, it should be noted that either a block of five nights or a block of seven nights is more practicable than the current arrangements because it reduces the number of changeovers and obviates the need for the parents to meet.  It is very regrettable that grown adults like the parents are insufficiently insightful and mature to be able to be respectful of the other because of their demonisation of each other, and, thus, that their coming into contact is so fraught.

Section 60CC(3)(f)

1. The evidence suggests that each of these parents has the capacity to provide for the needs of the children.  The weaknesses in each of the parents are really their obsessive view of the other.  In the mother’s case, this is heightened by her tendency to think that people are out to get her, and in the father, it is fuelled by his anger at what he perceives the mother’s conniving, dishonest conduct.  It is to be hoped that when they confront these reasons for judgment and realise that the Court at least does not accept either of them, that they will be able to ameliorate their behaviour and to remove from the children the stressors associated with their hostility.

Section 60CC(3)(g)

1. I have already referred to the mother’s mental health difficulties.  The father likewise is in a rage (this is not too strong a phrase) against the mother, and has the full support of her family in doing so.  I will return in due course to this latter matter.

2. Neither of the parents struck me as being persons of any great maturity for their years.  They both struck me as being totally lacking in insight.  On the father’s part, it simply has never been able to occur to him to imagine that X might make disclosures and that the mother was not maliciously fabricating them.  On her part, she lacked the insight to imagine that her own anxieties provoked X to make disclosures to her that are not only untrue but, in some instances, patently absurd.  Each leaps to blame the other and, in short compass, that is where the difficulties between both them and for their children come from.

Section 60CC(3)(h)

1. This is not relevant.

Section 60CC(3)(j)

1. Although it would seem historically without a doubt there has been arguments and disagreements between the parents, the significant assertions as to family violence made by the mother are simply not substantiated.  There is no meaningful suggestion of family violence that I am able to sustain.

Subsection 60CC(3)(k)

1. It is quite apparent that these parties have been embroiled in all too frequent litigation about Intervention Orders.  Indeed, the father’s application to have the mother declared a vexatious litigant is still before the Magistrates’ Court in Victoria and, as I understand it, will be heard in January of next year.

2. The father clearly has a temper.  I have no doubt he sought to intimidate the mother at the recent court hearing in Ringwood and used offensive language while doing so.  Nonetheless, the mother has undoubtedly lodged applications which she has then let lapse.  These must have been lodged for tactical reasons and this does her no credit whatsoever.  The parties should cease litigation in the Intervention Order sphere from now on.

Section 60CC(3)(l)

1. It is obvious in this case that the parties desperately need an end to their fighting, and hopefully the orders to be made will facilitate this.

Section 60CC(3)(m)

1. There is another matter that requires attention.  That is the alignment of the mother’s family with the father.  Doubtless, he and his advisors thought it would assist the case to call the mother’s aunt and brother to give evidence.  It achieved the reverse result.

2. The hearing of the evidence of close relatives speaking in the most negative terms about you in an endeavour to reduce your time with the children must have been incredibly hurtful for the mother.  Anyone with any insight would have realised that this would be so.  All that calling these witnesses showed me was that the father would do anything to get his own way and was utterly unconcerned, putting the matter at its lowest, with distressing the mother.  Given that on his own proposal the mother would have the children half the time, it is concerning to see that this forensic course was adopted.

3. There is a further aspect to the matter.  The father’s household is one in which the mother is demonised at every turn by every adult.  The more time the children spend in this environment, the more likely they are to pick up on the thesis that their mother is an undesirable.  One cannot avoid the impression that the parties would be sitting around the kitchen table unanimous in their criticism of the mother, which extends in the case of the father and Mr N, at least, to the ridiculous thesis that the mother uses her (occupation omitted) skills to cause the children to confabulate untrue allegations against the father.  Hopefully they will stop after this judgment, but one could scarcely be certain given the rigidity of their views.

Conclusion

1. After this relatively extensive trawl through the various competing considerations, there are a number of points to be made.

2. First of all, the family report writer, Ms A, was lukewarm at best about the difference between the two parties’ competing proposals.  Her assessment that a shared time arrangement would be preferable sprang from her concern to reduce changeovers and the possibility that equal time might seem fair to the children and longer time with each household would give them an opportunity to settle in.  As I earlier indicated, very little has been said about the children’s primary attachment to their mother.

3. In my view, the children have always lived with the mother as their primary carer and should continue to do so.  Despite her limitations as a mother in her somewhat permissive parenting style, there is nothing to suggest that the children in the mother’s care will not be properly looked after.  Indeed, Dr C was clear that the mother’s mental health difficulties did not impact upon her capacity to be a carer. Her role as the children’s primary carer for the whole of their lives is an important factor to which significant weight should be given.

4. Second, although it is not a matter to which excessive weight should be given, the proposed alteration would leave the mother significantly financially worse off.  This already concerns her and she was candid about it.  It is understandable.  While in theory having the children for less time would reduce her expenses, the reality is that she would still have to run her house, buy clothes for the children and do all the other things that the regime would involve.

5. Third, as earlier indicated, if the children spend half their time with their father they will be more exposed to the kind of relentless criticism that so obviously is made of the mother in that household.  This is an important matter to which I give weight, bearing in mind the complete alignment of the mother’s own family with the father’s position, including some of its more outlandish components.

6. The notion advanced, in truth, only somewhat faintly and in passing by Ms A that the equal shared time arrangement would seem fair is scarcely one to which I can give any weight.  It was merely a speculation.  Likewise, the notion that the children would, as it were, be better because they would have more time to settle into each household is, in my view, entirely speculative.  The main emphasis of both the written report and the oral evidence of Ms A was that what was really needed was to reduce the number of changeovers and to avoid the parents meeting.  Five/nine is just as effective in this regard if taken in one block as seven/seven, and that is what I am going to order.

7. Although she does not see the need for it, the mother clearly does need psychological assistance, and I will be making the order sought as recommended by Ms A.  The ancillary orders sought by the Independent Children’s Lawyer as recommended by Ms A are obviously appropriate and will be made.

I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  15 September 2017