Stubbs and Stubbs (No 2)

[2011] FamCA 316

FAMILY COURT OF AUSTRALIA

STUBBS & STUBBS (NO 2) [2011] FamCA 316

FAMILY LAW – CHILDREN – BEST INTERESTS – Conflicted parenting relationship and parenting styles – Family violence – Determination that children’s best interests will be met by living with mother and spending time with father

Family Law Act 1975 (Cth) ss 4(1), 60B, 60CA, 60CC, 61B, 61C, 61D, 61DA, 65DAA
Evidence Act 1995 (Cth) s 140

Briginshaw v Briginshaw (1938) 60 CLR 336
Frome & Frome (No 2) [2010] FamCA 1104
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
H & H (2003) FLC 93-168
H v W (1995) FLC 92-598
Hilton v Allen (1940) 63 CLR 691
Johnson & Page (2007) FLC 93-344
Korban & Korban [2009] FamCAFC 143
Lindsay & Baker (2007) FLC 93-347
M & M (1998) 166 CLR 69
Mazorski & Albright [2007] 37 FamLR 518
McCall & Clark (2009) FLC 93-405
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
R & R: Children’s wishes (2000) FLC 93-000
R v R (Children’s wishes) (2002) FLC 93-108
Reifek v McElroy (1965) 112 CLR 517
T v N (2003) FamCA 1129
T & N [2001] FMCAfam 222

JE McIntosh and CM Long, Children Beyond Dispute: A Prospective Study of Outcomes from Child Focused and Child Inclusive Post-Separation Family Dispute Resolution, Attorney-General’s Department, October 2006
JE McIntosh and R Chisholm, Shared Care and Children’s Best Interests In Conflicted Separation, 20 Australian Family Lawyer 1

APPLICANT: Mr Stubbs

RESPONDENT: Ms Stubbs

FILE NUMBER: ADC 1974 of 2009

DATE DELIVERED: 9 May 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Adelaide

JUDGMENT OF: O'Reilly J

HEARING DATE: 15, 16, 17, 18, 22, 23 and 24 March 2011 and 11, 12, 13, 14 and 15 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITORS FOR THE APPLICANT: Norman Waterhouse Lawyers

COUNSEL FOR THE RESPONDENT: Mr McQuade

SOLICITORS FOR THE RESPONDENT: Caldicott & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Horvat

THE INDEPENDENT CHILDREN’S LAWYER: Mr Stephen
Legal Services Commission of SA

Orders

IT IS ORDERED

Parental responsibility

1. Subject to orders 3-8, the mother have sole parental responsibility for D born … September 2002 and N born … April 2007 (the children) in relation to their education and health.

2. The parties have day to day responsibility for the children when with each of them, including in relation to their extra curricular activities and attendance at church.

3. The parties use their best endeavours to follow any written advice from a nutritionist or dietician engaged by the mother concerning the children’s nutrition and dietary needs.

4. The mother use her best endeavours to ensure that D continues to have the benefit of attendance with Dr A, consultant psychiatrist, at times and intervals advised by him, or if the mother/father is/are unable to afford his fees, a psychiatrist with or nominated by Child & Adolescent Mental Health Service, at times and intervals advised by that psychiatrist.

5. The mother must provide to Dr A, and to any other such psychiatrist:

   a.a copy of these orders and reasons for judgment

   and to any other such psychiatrist:

   b.a copy of Dr A’s report concerning D dated 8 April 2011.

6. The mother must not take D to any psychiatrist other than as provided in order 4, other than upon written referral by a general practitioner who, prior to or simultaneously with such referral, must be provided by the mother with:

   a.a copy of these orders and reasons for judgment

   b.a copy of Dr A’s report concerning D dated 8 April 2011.

7. The parties share equally the costs of D’s attendance upon Dr A or such other psychiatrist other than one employed by Child & Adolescent Mental Health Service.

8. Prior to any major medical decision concerning either of the children and prior to any decision concerning choice of schools or change of schools for the children the mother must:

   a.advise the father in writing the nature of the decision to be made and her view as to what the decision should be

   b.seek the father’s response in writing as to whether he agrees or disagrees with her proposed decision and if he disagrees, why

   c.consider the father’s response before making the decision

   d.advise the father in writing as soon as the decision is made.

Living arrangements

1. The children live with the mother.

2. The children spend time with the father:

   a.on alternate weekends from after school Friday until 5.00pm Sunday, the first such weekend to coincide with that Friday upon which pursuant to the current week about arrangement the children would have commenced a week with the father

   b.in the weeks following the alternate weekends, from after school Wednesday until before school Thursday

   c.half of the children’s school holiday periods, being the first half in or commencing in the odd years and the second half in or commencing in the even years

   d.on special days as provided below

   e.such additional time as the parties may agree.

Special days

1. If Mother’s Day falls on a weekend when the children are with the father, the children’s time with the father cease at 12.00 noon on that day.

2. If Father’s Day falls on a weekend the children are with the mother, they spend time with the father from 12.00 noon until 5.00pm on that day.

3. On the children’s birthdays:

   a.if a school day, the children (both) spend time with the father from after school until 6.00pm (unless the birthday is on a day when already the children will commence time with the father from after school on that day)

   b.if a weekend day when the children are with the mother they spend time with the father from 12.00 noon until 5.00pm

   c.if a weekend day when the children are with the father there not be additional time with the mother (on the basis that in any event the children will return to the mother at 5.00pm on the Sundays of such weekends)

   d.if during school holiday periods the children remain with the party with whom they are spending time (on the basis that in any event school holiday periods are to be shared equally on the first half/second half basis) but subject to any arrangements the parties may agree for the children’s birthdays pursuant to order 10e.

4. On the father’s birthday, if the children are not already spending time with him, the mother use her best endeavours to arrange with the father for the children to spend two hours with the father.

5. On the mother’s birthday, if the children are not already spending time with her, the father use his best endeavours to arrange with the mother for the children to spend two hours with the mother, unless the mother’s birthday falls during the children’s alternate weekend time with the father (on the basis that in any event the children will return to the mother at 5.00pm on the Sundays of such weekends).

6. When the children ordinarily will be with the father on Christmas Day, they spend time with the mother from 3.00pm Christmas Eve until 3.00pm on Christmas Day.

7. When the children ordinarily will be with the mother on Christmas Day, they spend time with the father from 3.00pm Christmas Eve until 3.00pm Christmas Day.

8. When the children ordinarily will be with the father on Easter Sunday, they spend time with the mother from 2.00pm until 5.00pm on that day unless it should fall during a school holiday period, but if it should fall during the children’s alternate weekend time with the father there be no additional time with the mother (on the basis that in any event the children will return to the mother at 5.00pm on the Sundays of such alternate weekends). 

9. When the children ordinarily will be with the mother on Easter Sunday, they spend time with the father from 2.00pm until 5.00pm on that day (whether it should fall during the children’s school holiday periods or on a weekend not during school holiday periods).

Changeover

1. All changeovers occur inside Location 1 at Suburb F, unless pursuant to these orders time with either parent is to commence after school or conclude before school in relation to which changeovers be at the children’s school/s.

Children’s telephone communication

1. If, when the children are spending time with either the mother or the father, the children should request telephone communication with the other party, the party to whom the request is made is to facilitate that, for 10-15 minutes duration per telephone call, with permitted frequency of the calls to be decided by the parent facilitating the call.

Restraints

1. The father must ensure that during all times the children are with him neither he nor they come into contact with Mr L or Mr R.

2. The father must ensure that during all times the children are with him they not be left alone in the company of Mr Y.

3. The father must not consume illicit drugs, nor consume any quantity of prescribed drugs exceeding the prescription, when the children are with him or during the 24 hours immediately before the children are to spend time with him.

4. The father must not attend at the mother’s home or any place of employment of the mother other than with her prior express agreement, or to communicate any emergency concerning the children or either of them.

5. The mother must not consume illicit drugs, nor consume any quantity of prescribed drugs exceeding the prescription, when the children are with her or during the 24 hours immediately before the children are to spend time with her.

6. The mother must not attend at the father’s home or any place of employment of the father other than with his prior express agreement, or to communicate any emergency concerning the children or either of them.

7. The father must not take the children to any medical practitioner, psychologist, therapist or health practitioner, other than, in the case of any sudden illness or accident concerning the children while they are with him, such to be on immediate notice to the mother.

8. The parties must not physically discipline the children, nor threaten physical discipline to the children, nor speak to the children of threatened but avoidance of physical discipline to them.

9. The parties must not denigrate each other or any member of the other’s family to or in the presence or hearing of the children.

Attendance at children’s school/s

1. The parties each may attend the children’s school/s on all occasions usually attended by parents, but must use their best endeavours not to come into conflict with each other on such occasions and must obey all directions by the school/s principal/s or other person/s in charge.

Information

1. The parties must notify each other as soon as practicable of any serious accident, or serious medical condition or injury concerning the children.

2. The parties must notify each other of the names and addresses of any treating medical or health practitioner or hospital the children attend and authorise such to provide to the other at his/her expense any information or reports concerning the children provided that this order is sufficient authorisation to do so.

3. The parties must authorise the children’s school/s to provide each party at his/her expense upon any written request by him/her to the school/s copies of school reports concerning the children, school photographs and circular or other written information concerning school activities usually provided to parents of children at the particular school, provided that this order is sufficient authorisation to do so.

Parties’ communication concerning the children

1. All written communications between the parties concerning the children be by email or text message and not contain any subject matter other than as may relate directly to the children and the carrying out of these orders.

2. To facilitate such written communication, the parties as soon as practicable provide each other with an email address and/or SMS text message service number and give written communication of any change of such within 24 hours of any change. 

Family consultant to explain orders to children

1. The parties, with the assistance of the independent children’s lawyer, must ensure that the children attend upon Mr P, family consultant, or other family consultant as arranged by the Senior Family Consultant SA/NT, within 2 days of the making of these orders to enable the family consultant to explain to the children their living arrangements pursuant to these orders, that the Court has decided that these orders are in the children’s best interests, and that in consequence D, in particular, should not feel any guilt about there not being an order for equal time and, fundamentally, that the children will be able to have a meaningful relationship with both of their parents although they will be living primarily with the mother.

Children not to be told of these orders pending interview with family consultant

1. The parties and the independent children’s lawyer must not tell the children about the making of or content of these orders pending interview with the family consultant pursuant to order 37.

All other orders discharged

1. All other orders concerning the children are discharged.

All other applications dismissed

1. All other applications concerning the children are dismissed.

Independent children’s lawyer

1. The independent children’s lawyer is to assist with performance of order 37, and immediately is to provide a copy of these orders and reasons for judgment to Families SA, and be discharged, otherwise, one calendar month from today.

NOTATIONS:

1. Families SA has had considerable past involvement in relation to the children.

2. These orders are final orders, with effect that the Court will not be involved in the matter of the children’s safety unless any new proceedings should be commenced.

3. Accordingly, Families SA respectfully is requested periodically to inquire into and monitor the children’s living conditions and safety.

IT IS NOTED that publication of this judgment under the pseudonym Stubbs & Stubbs (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC1974 of 2009

Mr Stubbs

Applicant

And

Ms Stubbs

Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings, which were commenced on 22 May 2009, concern D born in September 2002 8 years and N born … April 2007 4 years (the children).  Their parents Ms Stubbs (the mother) and Mr Stubbs (the father) have competing applications concerning suitable parenting orders for them. 

The parties’ proposals and the background to them

1. The parties’ proposals were varied several times throughout the proceedings.

2. At the commencement of the trial, 15 March 2011, the mother, the applicant, sought orders for sole parental responsibility in relation to the children’s health, education, extracurricular activities and religious upbringing, that the children live with her and spend time with the father supervised by Ms J, the paternal grandmother, in daytime only, namely 10.00am until 5.00pm each Saturday and specified time on special days; and the father sought orders for sole parental responsibility, that the children live with him and spend time with the mother on alternate weekends and specified time on special days.

3. On 7 April 2011 however, during a break in the trial between 24 March 2011 and 11 April 2011, the father amended his response to seek orders for equal shared parental responsibility and an equal time order, week about, with changeover at 5.00pm on Fridays, and provision for special days.

4. As will be seen, the genesis of the father’s change of proposal was two-fold.

5. First, there was an incident at school concerning D on 24 March 2011 during which he said he would kill himself, and ran onto a road saying “This is what has to happen”. When a car appeared he said “This is it, here comes a car; I am going to do it!!” He was physically restrained by T, an afterschool carer at D’s school, who said “I then stood in front of [D] and stopped the car”, which then “passed at a slower speed”. The incident occurred in the context of other male children at the school not wanting to participate in a game of “Marco-polo”: ex 68.

6. Secondly, Dr A, D’s treating psychiatrist since September 2010, and who had come to know him over 7 sessions as at 25 March 2011, and who saw him with both parents on that day (being the day following the 24 March 2011 incident) advised them on that day that in his opinion it was in D’s best interests that the current interim arrangement of equal time week about should continue.

7. Indeed, in a report dated 8 April 2011, and in oral evidence, Dr A was clear in his view as to this, saying that “absolutely” in his view an equal time order week about should continue: transcript Dr A, 22/25-35.

8. On the evening of 24 March 2011, the parties spent some considerable time in discussion, which had not occurred for a very long time and, as I said, attended on Dr A together with D on 25 March 2011.

9. They differ, however, as to what was said between them on the evening of 24 March 2011. For example, the father says that the mother said to him “I haven’t fought tooth and nail for 50/50 but see what you are willing to do and we will get the lawyers to talk”. The mother says, however, that the father is “manipulative”, and what she actually said was “I haven’t been through this litigation to continue with 50/50”, meaning that D and N are suffering, and that she has exhausted every financial avenue to “get here”, including that she has “lost everything” including her house and business in the incurrence of legal fees and that “50/50 shared cared is not working and it won’t work in the future”.

10. In another example, the mother said that on that evening the father “apologised to me and said he was sorry for everything that has happened to me”, which she considered to be an apology “for the violence and now”. The father, however, denying all violence to the mother, said that what he actually had said was “I apologise for anything you perceive I have done to you”.

11. The mother says the father was crying on this occasion.

12. The father denies crying on this occasion.

13. There are several other inconsistencies in evidence given by both parties on 11 April 2011, on resumption of the hearing, as to an incident as recently, as at that date, as their discussion on the evening of 24 March 2011, reflecting their “opposite stories” in almost all of the matters in issue for the trial.

14. Indeed, the parties’ evidence was at extreme polarities in relation to most of the factual issues raised for determination in the trial.

15. Mr McQuade of Counsel, for the father, described that for the father the incident concerning D on 24 March 2011 and its aftermath including the discussion with the mother that evening and the interview with Dr A the following day 25 March 2011 was a “watershed” for the father, leading him then to propose “50/50” both to the mother and to the Court by his new amended response filed 7 April 2011.

16. The mother said candidly however on 11 April 2011, under cross examination “I do not believe the father and I can be on the same page. He says he will do something, he does it for a week and stops”.

17. Further, looking at the matter objectively, there is the possibility, which I need to consider, that the father’s action in instructing his lawyers to file the newly amended response on 7 April 2011 was opportunistic in the context of Dr A’s advice to the parties on 25 March 2011 that in his view the equal time week about arrangement for D should continue.

18. The mother’s evidence, to which I have just referred, ultimately may prove to be insightful and, even at this early stage of my reasons for judgment, it is important I think to record that Dr A indeed believed that the parties’ new-found and sudden co-operation on 25 March 2011, resultant from the incident on 24 March 2011, may be temporary, as set out in his report 8 April 2011, par 9:

    9.     It was only until the very last session on the 25^th of March 2011, which was attended by both parents that I had the view that they may have improved their approach in co-parenting [D]. I believe this may be temporary and might have been as a result of recent Family Court Hearing.

1. Thus, despite the father’s amended response filed 7 April 2011, raised upon resumption of the trial on 11 April 2011, the mother’s position remained unaltered, save to raise, as an alternative proposal, adoption of the independent children’s lawyer’s proposal, to which I now turn, with minor modification I will mention.

2. The independent children’s lawyer proposed at the outset of the trial, and also at its conclusion, that the mother have sole parental responsibility for both children, they live with the mother and spend time with the father on alternate weekends from after school Friday until 5.00pm Sunday, one night overnight in the week not ending in weekend time, half school holidays and special days (the one night overnight in the off week I should say, being added at the conclusion of the trial).

3. The minor modification which the mother put in relation to the independent children’s lawyers proposal (being the mother’s alternative proposal) included that the alternate weekend time with the father commence at 5.00pm Friday rather than after school Friday, and that the Christmas school holiday periods be half/half, but week about rather than half/half blocks.

Relevant background facts

1. The mother is 39 years and the father 44 years.

2. They met in late 2000, married in mid 2003 and separated on 1 May 2009. They are not divorced.

3. Neither has repartnered.

4. The mother holds a degree qualification, majoring in health care studies, from University 1. She has experience also in the finance industry.

5. The father, whilst not having tertiary training, has a portfolio of mixed employment set out in his trial affidavit.

6. The parties have a C Company franchise, from which they earned their income, currently for sale pursuant to a consent s 79 property order which I made on 24 March 2011.

7. The former matrimonial home already has been sold.

8. Each party has a high level of legal fees in relation to their property and parenting proceedings, with amounts which, on present indications, they will be unable to pay.

9. Indeed, the mother qualified for Legal Aid for the balance of the parenting proceedings in April 2011, with a considerable debt owing to her solicitors, and according to an affidavit by James Cavalier Douglas filed 13 April 2011, even after application of the father’s portion of the proceeds of sale of the former matrimonial home and the C Company franchise, there will be a considerable shortfall in his unpaid legal fees.

10. Each now lives in either rented or borrowed premises.

11. The father suffered two fractured vertebrae in a swimming pool accident in 1990. He says that as a result of pain, he became addicted to morphine and pethidine, which addiction he says lasted for “approximately 5 years”.

12. In November 1990, the father was admitted to Hospital 1 for “probable narcotic overdose”: ex 47.

13. On 27 August 1995, he “held up” a locum doctor, in company, to obtain drugs.

14. In October 1996, in relation to this incident, he was sentenced to four years for armed robbery, with a non-parole period of 18 months, to date from 14 August 1996, which period he served.

15. Between the offence and the sentence, on 9 September 1995, he was found by Ms J, the paternal grandmother, in a coma, described by Ms J as the father appearing to have no air in his lung cavity, and described also in a report by Mr BB, psychologist, dated 2 July 1996 (ex 50, p 8 and p 10) in the following terms:

    In the weeks following the alleged offence, [Mr Stubbs] became distressed and depressed about his deteriorating life circumstances and the seriousness of his legal circumstances. His mother reported that he was living with her. On the 08/09/95 she last saw her son at approximately 9.00pm. Upon going to talk to her son at approximately 7.00am on the 09/09/95, she discovered her son had made a very serious suicide attempt by overdosing on a cocktail of prescription medication. She said that her son had stopped breathing, and that when she moved his body she heard the air trapped in his lungs passively expire. She said that he was cold and that his skin was almost black in colour. She called for an ambulance, and began to administer cardio-pulmonary resuscitation until the ambulance arrived and then he was taken to the emergency department of [Hospital 1].

    The discharge summary (dated the 22/09/95) following [Mr Stubbs’] admission to [Hospital 1] for treatment for overdosing on prescription medication indicates that it was a very serious suicide attempt of high lethality. …

    …

    Due to multiple losses in his life caused by his neck injuries and iatrogenic addiction, [Mr Stubbs] has periodically become severely depressed and actively suicidal. He has made several serious suicide attempts by overdosing on medication. As a result he has sustained hypoxic brain damage. The hypoxic brain damage occurred because severe drug overdoses suppress an individual’s autonomic breathing reflex…

    Common causes of hypoxic brain damage are suicide attempts by prescription medication, carbon monoxide poisoning from a vehicle’s exhaust fumes, and cardiac arrest (heart attack) which has resulted in a prolonged period during which the brain is deprived of oxygenated blood. …

16. On 3 March 1997, according to his criminal record (ex 49) the father was convicted of forging a prescription to obtain drugs and sentenced to four months imprisonment. His criminal record shows a history of other offences between May 1982 and March 1997, but none since, that is, none since the parties met in late 2000, there being however some charges since March 1997 noted as “Dismissed want of prosecution” between May 1997 and April 2010.

17. The father said that while he was in prison for armed robbery he was placed on a methadone program for 90 days after which he “remained drug free” after his release on 14 February 1998, until he met the wife, whom he says used recreational drugs and whom he blames for his reintroduction to drugs.

18. The father suffered a workplace injury on 3 March 2003, re-aggravated on 23 April 2004, and succeeded in a WorkCover claim. The father deals with this in his trial affidavit. See also ex 46.

19. He says that at this time he “overmedicated” himself, because of depression, resulting in admission to Hospital 2 and Hospital 1 in, it appears, November 2004 and January 2005 respectively: ex 47, 4th and 5th segments.

20. The father accuses the mother of use of or addiction to “recreational” drugs when he met her. The mother says however that before meeting the father her recreational drug use had been limited to ecstasy once, and speed twice, but “not as a habit”. She says she used ecstasy on one only other occasion, after meeting the father, and that after meeting the father she used cocaine with him twice. 

21. She refers to occasions when she believes she was “drugged” by the father, raped and otherwise sexually abused, including with inserted objects. The father denies these allegations.

22. I will deal more with the parties’ drug history further on, when dealing with the subject matter of risk of harm to the children.

23. In particular, it is relevant to mention at this early stage, that the mother seeks a finding of unacceptable risk to the children if they should be in the father’s care unsupervised, or overnight, because of her lay opinion, as his partner for more than 8 years, that he is likely to resume drug use and also because of her allegations of past violence, as to which I will make findings in some respects, and her lay opinion that in the future he may be violent to the children so as to cause them harm, in any event, but in particular if he should resume his drug use. In this context, when dealing with the matter of alleged unacceptable risk, I will refer also to expert evidence by Dr B, psychiatrist, in relation to his opinion that drug addiction is an illness, that the father is presently in remission from his addiction but that addiction recurrence may recur.

24. The father alleges that the mother has had a series of suicide attempts, and has threatened on at least one occasion to suicide with a knife in front of D, to go to heaven and agreeing at D’s request that he could come “to heaven” with her. I will deal with these matters also further on.

25. It remains to be seen, post-trial, whether the parties may be able to engage in meaningful employment so as to be able to support the children financially, or whether they will be dependent upon Centrelink support.

26. Ms J, the paternal grandmother, in the past has provided considerable financial assistance to the parties during their relationship and marriage, and has provided considerable financial assistance since separation to the father, including as to the payment of his rent and living needs. She said in her oral evidence however that she has no further capacity to do this.

Previous Court orders and time spent with the children since the parties’ separation

1. As mentioned, the parties separated on 1 May 2009.

2. On 23 April 2009, following an incident on 13 April 2009, to which I will refer in more detail below, being an incident after which the mother cut her left wrist with a razor blade, the children were placed in care by Families SA with Mr and Ms H, the maternal grandparents.

3. On 8 May 2009, seven days following the parties’ separation, the children were moved to the care of Ms J, the paternal grandmother.

4. Between 22 May 2009 and 3 August 2009, pursuant to various interim Court orders, the children lived with the father between 22 May 2009 and 5 June 2009, between that date and 3 August 2009 continued to live with the father and spent supervised time with the mother, and since 3 August 2009, with the exception of three periods to which I will refer, have lived with each parent on the week about basis, with changeover occurring after school on Tuesdays. See ex 45. The exceptions to which I refer include two periods when the children were solely with the mother, namely 1 September 2009 to 27 October 2009, the period of nearly two months, and 15 June 2010 to 11 August 2010, the further period of nearly two months. The first of these periods related to a Notice of Abuse filed by the mother on 7 September 2009 concerning alleged abuse of D by the father on 31 August 2009, and earlier on 13 April 2009. The second, it appears, was similarly based, preceding restoring orders made on 11 August 2010 relating to matters in a Notice of Abuse filed by the mother on 15 March 2011 concerning alleged abuse of D by the father on 20 June 2010. The third period of exception, as I understand the evidence, related only to N, who for the period indicated in ex 45, spent 9 nights per fortnight with the mother.

5. On 15 April 2011, by consent, I made a further interim order with effect that pending judgment the equal time week about arrangement continue, but with changeover on Fridays at 5pm at Location 1 at Suburb F.

6. The interim parenting orders, it is reasonable to mention, leaving aside solely procedural orders, amounted to some 12 or 13 orders between 22 May 2009 and 11 August 2010. On 28 July 2009 Cole FM and on each of 22 December 2009 and 11 August 2010 Burr J provided reasons for judgment in relation to interim parenting orders made on those dates.

7. On 11 August 2008, in his reasons for judgment, Burr J referred to these as “bitter” proceedings, the relationship between the parties as “appalling”, and expressed the need for trial as “urgent”, so there may be “hopefully an end of some of the suffering being experienced by the children”. In essence, Burr J decided to restore an equal time week about arrangement on the interim basis only because, until there could be a trial, it would not be possible to test the parties’ allegations against each other, so that, as to mutual allegations of risk to the children while with each parent, by the children living with the other parent, on the interim basis, in effect, there was equal risk of harm to the children in both households so that an equal time order divided the risk for the children equally. Saliently, his Honour said:

   5.      The impact upon [D] is particularly alarming and there is significant information before the Court as to the problems he is having at school and generally with his function. Each blames the other for that. Neither seems to perceive that the incredible toxicity of their relationship is almost certainly playing a significant part in that. Presently they appear capable of sacrificing the interests of their children in their own individual quests to pursue the orders that they want in these proceedings. Only the testing of the evidence in the trial of these proceedings will enable a Judicial Officer to be afforded to them an appropriate opportunity to craft orders which best represent the interests of these two very troubled young children.

8. I will add that on 7 July 2010, Burr J had ordered that a representative of Families SA attend the next scheduled hearing on 15 July 2010, which appearance occurred, and that on 15 July 2010, the representative was excused from attendance at further hearings subject to any further Court order.

9. Families SA has not, since then, been involved in the proceedings.

Magellan List

1. The matter was declared Magellan, it appears, by Registrar Thomas by order made on 16 September 2009, and has come to trial as a matter on the Magellan List.

Notices of Abuse

1. The mother filed three Notices of Child Abuse or Family Violence, namely on 7 September 2009, 20 October 2009 and 15 March 2011. I will set out the allegations.

Notice 1 – 7 September 2009

1.      On 1 September 2009 the child [D], born on […] September 2002 told the mother that on the previous evening, 31 August 2009, the father, [Mr Stubbs], assaulted him while the child was in his bed. [D] told the mother that the father assaulted him because he would not go to sleep. On the afternoon of 1 September 2009 [D] showed the mother the bruising to both of his arms, consistent with [D] being pinned down forcefully by the father as described by [D].

2.      The father has been violent towards [D] in the past by grabbing him and pulling him and on 13 April 2009, the father kicked [D] during an incident where the father was physically violent towards the mother.

Notice 2 – 20 October 2009

1.      On 11 October 2009 the child [N] born on […] April 2007 stated that “my fanny is hurting, daddy wiggle it” while playing with her genital area.

2.      The child [N] has subsequently repeated statements to the mother “daddy hurt my fanny”.

Notice 3 – 15 March 2011

1.      On 22 June 2010 the child [D] disclosed that the father, [Mr Stubbs], choked him when he was in the shower on Sunday 20 June and that [D] had hit his head on the bathroom wall and had experienced a severe blood nose.

2.      On 23 June 2010 the mother was advised that [D] had made a statement to a counsellor at [Learning Centre 1] that the father had attempted to choke him.

3.      On 29 June 2010 [D] made statements to [Constable L] at [Police Station 1] that the father attempted to choke him, “smashed” his head against the wall of a shower and caused him to have a blood nose for three to four hours.

4.      The child [N] was in the care of the father on Sunday 20 June 2010 at the time that [D] has advised the father attempted to choke him.

1. The subject matter of Notice 2 is not pursued by the mother. It is sufficient to say that, when the father was given an opportunity to explain N’s disclosures, the mother fully accepted that there was innocent explanation for them. Thus, in these proceedings, there are no allegations of sexual abuse, and no disclosures by N as to possible sexual abuse requiring exploration or determination.

2. The mother, however, seeks findings in relation to Notices 1 and 3.

The issues

1. By what I have mentioned already, it is perhaps to state the obvious to observe that the issues for my determination include:

   1.      The children’s physical safety while with each parent.

   2.      The children’s psychological state, in particular D’s psychological state.

   3.      Whether either parent in the past has had an actual suicide attempt, and whether either is a present suicide risk, by intent or accident.

   4.      Whether D is a child suicide risk, and if so, what is best to be done to minimise a child suicide by D.

   5.      N’s status as “the forgotten child”, there having been concentration to date on D’s psychological welfare.

   6.      The weight I should put on Dr A’s evidence which is to the effect that D would not cope with other than equal time and would or might resort to “primitive” measures, including suicide, by guilt felt by him if there be an order for other than equal time, because of his need to be “fair” to his parents by spending equal time with each of them; compared with the weight I should put on the evidence of Ms R, family consultant, and Mr P, family consultant, to the effect that equal time for the children is not appropriate, because of the parties’ own conflicted relationship and hostility.

   7.      Last, but not least, the order that would ensure that, insofar as may be possible, the children have the opportunity to have and continue a meaningful relationship with each of their parents.

   8.      More generally, the children’s best interests in light of the above and the statutory matters to be considered.

2. In order better to understand these issues it is necessary now to refer to the parties’ schedules of allegations of violence both during the parties’ relationship and marriage and since and in particular concerning the children.

3. The schedules are too detailed and too lengthy to reproduce in these reasons for judgment, which usually is my practice.

4. In this particular case, it is sufficient because of the length and detail of the schedules of allegations to refer to them and incorporate them by reference in these reasons for judgment. As such, the schedules to which I refer and incorporate by reference are:

   b.      The schedule attached to the written submissions of Ms Lewis of Counsel, for the mother, handed up on 15 April 2011.

   c.      The schedule prepared by Mr McQuade of Counsel, for the father, handed up also on 15 April 2011.

Principles relevant to parenting orders

Children’s best interests paramount

1. Pursuant to s 60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.

Objects and principles underlying objects

1. Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:

   ·     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   ·     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   ·     ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   ·     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;

   ·     and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:

   ·     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   ·     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   ·     parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   ·     parents should agree about the future parenting of their children; and

   ·     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Determining what is in a child’s best interests

1. Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.

2. The primary considerations are:

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

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

3. The additional considerations are too numerous to set out.  However, I will make specific reference to them below, to the extent that each may be relevant.

Parental responsibility

1. Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.

2. Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.

Equal time/substantial and significant time 

1. Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:

   ·     the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and

   ·     if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.

2. Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:

   ·     days that fall on weekends and holidays; and

   ·     days that do not fall on weekends and holidays;

   and:

   ·     allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and

   ·     allows the child to be involved in occasions and events that are of special significance to the parent,

   although regard may be had to other matters.

3. Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:

   ·     how far apart the parents live from each other; and

   ·     the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and

   ·     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   ·     the impact that an arrangement of that kind would have on the child; and

   ·     such other matters as the Court considers relevant.

Prior parenting plans

1. Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.

Other provisions

1. The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.

Weight

1. Matters affecting weight are primarily for the trial Judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.

Principles relating to unacceptable risk

1. The circumstance that the mother has raised specifically that I should determine that the children will be at unacceptable risk of physical harm if in the father’s unsupervised care has effect that it is appropriate that I now refer to the authorities concerning the assessment of unacceptable risk.

2. Although dealing with unacceptable risk of sexual abuse the High Court in M & M (1998) 166 CLR 69, concluded that findings of abuse should not be made unless the particular circumstances of the case impel such a finding; and that where the Court makes a finding of unacceptable risk of harm to children it is a finding that the risk of harm to the children in spending time with a parent outweighs the possible benefits to them of spending time (the “detriment/benefit” test).

3. Further, in cases since M & M, the Full Court of this Court has made clear that “real and substantial” consideration must be given to the facts of the case in assessing unacceptable risk, and that there is a need for trial judges to ask “whether the evidence establishes unacceptable risk”: Johnson & Page (2007) FLC 93-344 at [66], [68], [69], [70]-[72]. In those paragraphs, and in cases since Johnson & Page, the Full Court has made clear that s 140(2) of the Evidence Act 1995 (Cth) “picks up” what has come to be called “the Briginshaw test”, so that it is now preferable to refer to the statutory formulation in s 140(2) rather than to Briginshaw v Briginshaw (1938) 60 CLR 336. More generally, I would refer to my analysis of these matters in Frome & Frome (No 2) [2010] FamCA 1104 at [47]-[56]. In particular, I will set out [56] in that decision:

   56.    In Lindsay & Baker (2007) FLC 93-347, Bryant CJ referred with approval to [78] - [80] of the first instance decision then under appeal of Carmody J describing at [3] those paragraphs as “a useful summary of what is required”. For my part, [79] and [80] are of particular practical assistance:

   79. The relevant exercise is not a strictly legal one. It requires an assessment of the factors which might indicate the risk of any relevant harm to the child in the future.

   80. Risks consist of chances and consequences. The more serious the consequences the higher the risk even if the odds of the happening of the relevant event are comparatively low. Conversely, it may be perfectly reasonable to take a risk on something in circumstances where, even though it is likely to occur, the consequences are comparatively insignificant and the potential benefits are worth it.

The evidence

1. The case involved 22 witnesses, quite an extraordinary number, and 86 documentary exhibits.

2. The trial occupied 12 sitting days, 7 in March 2011 and 5 in April 2011, with the last 5 days requiring extended sitting hours to accommodate Counsels’ expanded trial plan being the further amended trial plan filed 22 March 2011 (folio 205). The extended sitting hours, as I observed in the April segment of the trial, were necessary to accommodate Counsels’ use of the 5 days in April available. Indeed, to accommodate Counsels’ expansion of the case I found it necessary to sit during the April segment of the trial from 9.00am until 6.30pm on some days and until 7.00pm on one day, the trial thus occupying more than 15 ordinary sitting days in terms of conventional Court hours.

3. In my view the number of witnesses, the number of documents tendered and the number of sitting days, even having regard to the serious issues raised for my determination, was excessive. Nonetheless, it must be borne in mind that even in the “less adversarial” trial process it is important that the Court accommodate the parties’ perceived views of necessary evidence in order to ensure procedural fairness in all respects to the parties and that important issues are not minimised, overlooked, or too readily dismissed by the Court as unimportant or insignificant.

4. The mother relied on evidence by herself, Mr and Ms H, her parents, Police Constables L and S in relation to two incidents concerning D in the Notices of Abuse filed 7 October 2009 and 15 March 2011, Witness 1, D’s year 2 class teacher in 2010 and Ms S, principal at D’s school in 2011.

5. The father relied on evidence by himself, Ms J, his mother, Witness 2, a friend (not cross-examined), Dr HH, social worker, Dr C, psychologist (report 17 December 2009), Witness 3, childcare worker with Childcare Organisation 1 (not cross-examined), Witness 4, family liaison teacher and family therapist/counsellor at Learning Centre 1 between 26 May 2010 and 27 August 2010, who had dealings with D in the junior primary program, Dr A, D’s treating psychiatrist, Witness 5, D’s year 3 class teacher in 2011, Witness 6, caseworker with Families SA, Dr PP, medical practitioner and Dr B, psychiatrist.

6. The independent children’s lawyer relied on evidence by Ms R, psychologist and family consultant (report 18 December 2009), Mr P, psychologist and family consultant (report 8 December 2010) and himself (not cross-examined).

7. In addition, the parties, as I have mentioned, tendered and relied upon 86 documentary exhibits, including two DVDs of interviews by Constable S of D and photographic exhibits.

8. It is not necessary to refer to all of the evidence. If in these reasons I should not refer to the evidence of a particular witness or parts of the evidence of any witness it ought not be inferred it has been overlooked. All of the evidence has been carefully considered, including all of the documentary evidence.

The statutory matters

The children’s best interests

1. I turn now to the statutory matters concerning the children’s best interests. 

Section 60CC(2) – the primary considerations

Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of the children’s parents

1. The concept of “meaningful relationship” was examined by the Full Court in McCall & Clark (2009) FLC 93-405 at [108]-[122]. At [119] the Full Court concluded in favour of “the prospective approach”, accepting at [121] as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski & Albright [2007] 37 FamLR 518 and Bennett J in G & C [2006] FamCA 994. Thus, the Full Court concluded at [122] that the legislation requires a court to focus on the benefit to a child of a meaningful or significant relationship. 

2. Section 60B of the Act provides that the objects of Part VII are to ensure the best interests of children are met by (amongst other things) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests and protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Plainly, one of these objects may impact upon the other.

3. On this subject matter a great deal of comparative evidence was presented. However, I will confine myself to the evidence which I found most helpful and persuasive, chiefly the evidence of Ms R, family consultant, who has considerable experience in relation to attachment and children’s relationships with their parents. Ms R said in her oral evidence, which I accept that:

   a.      The children have a fundamental attachment to the mother, for their deep or primal need for security.

   b.      The children also are attached to the father, but that attachment is not as secure.

   c.      If and when suitable parenting arrangements occur the children’s attachment with the father will become stronger and become secure.

4. I have said that I accept Ms R’s evidence. However, Dr A’s evidence in this regard, which I also accept, is important, given from the perspective of being D’s treating psychiatrist. He said (report 8 April 2011) that D has an “attachment disorder”:

   3.     [D’s] predicament is consistent with an Attachment disorder in relation to unmet emotional needs secondary to ongoing family conflict between his parents. This is further aggravated by frequent changes in accommodation arrangements which further de-stabilizes his emotional state. These changes create significant differences on disciplinary measures, setting of boundaries and expectations which impacts on his psychological well-being. This can not be attributed to faults by any particular parent rather than their differences in parenting styles.

5. Marrying these two views together, they are consistent at least to the extent of the need for suitable parenting arrangements for D in relation to his attachment needs.

6. Ms R’s view as to “suitable parenting arrangements” reflected those which, as at the date of her report, 18 December 2009, she advised. Expressly, Ms R’s recommendations were not relied upon by the independent children’s lawyer because they were not contemporary at the time of the trial compared with the recommendations of Mr P in his more recent report 8 December 2010.

7. It was explored in cross examination whether Ms R’s views as to the children’s attachment, linked as they were with her recommendations as to parenting arrangements, had independent validity. However, having listened carefully to her evidence, and considering this aspect of the matter very closely, I am satisfied that Ms R’s views as to the children’s attachments, in particular the quality of their attachments, is independently formed and capable of acceptance because those views lead to her recommendations, not vice versa. Moreover, in her evidence, Ms R emphasised that by her reference to suitable parenting arrangements, in the context discussed at the trial, she was referring predominantly to the great and urgent need for the parents to improve their own parenting relationship, saying expressly that unless they can improve their parenting relationship then, in essence, the children’s attachment with the father would not be able to grow stronger or secure. There is resonance, I think, in Dr A’s similarly expressed view as to D’s “attachment disorder”. There is contrast nonetheless in that Dr A, in assessing attachment disorder, did not distinguish between D’s attachment with either parent, whereas Ms R did.

8. Mr McQuade’s cross examination of Ms R was effective in many respects. However, he was not able to move her from her view as to the children’s attachments as at December 2009.

9. Mr P observed in his report (par 67) that although the children had been in the father’s care for 6 days before his assessment, there was little observed evidence of a close and warm relationship between him and the children, whilst there was considerable evidence of a close warm and affectionate relationship between the children and the mother.

10. At the time of Mr P’s interviews with the children and the parties, 22 November 2010, the week about equal time arrangement had been in place for about 15 months, except for the periods described in ex 45.

11. In the context of the authorities to which I have referred, in particular the benefit to the children of a meaningful relationship with both of their parents prospectively, Ms R’s second and third observations, when considered in the light of Dr A’s opinion concerning D, both emphasise the need for stability for him not only in the context of suitable parenting arrangements but the necessity for ease of conflict between the parties and the differences in their parenting styles. Whilst a child’s attachment to a parent, and whether or not there is or can be the benefit of a meaningful relationship with that parent, in one sense are different concepts, in another sense they overlap.

12. Further, despite Mr P’s observation that at the time of his interviews with the children he did not perceive a close and warm relationship between the father and the children, there was a considerable body of other evidence to indicate that D in particular enjoys the father’s company and is quite dependent upon the need for the father in his life. For example, D said to Witness 4 that his “biggest worry” is that if he lives with his mother “I would not see dad as much”. This would seem to be the voice of a child who wants a meaningful relationship with his father, and the benefit of that prospectively, even if, at the time of Mr P’s interviews, such may not have been evident.

Section 60CC(2)(b) – the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence

1. The parties have separated. Thus, any violence which occurred during the period of their relationship and marriage hopefully is unlikely to have recurrence as between them, at least in a relationship sense. They are however not divorced. It is necessary in my view to make specific findings in respect of four matters of violence which occurred between the mother and the father, and four relating to D, if only for the reason explained in T & N (2003) FamCA 1129 by Moore J at [36], extracted in Ms Lewis’s written submissions, pp 17-18:

   36.    It also hardly needs to be said that violent and abusive conduct by one parent against the other is highly detrimental to the well-being of children, whether they are witness to it or not.  If they do witness it, anyone can see that such conduct can only be a traumatic experience for them.  There is an abundance of research from social scientists about the highly detrimental effect upon young children of exposure to violence and the serious consequences such experiences have for their personality formation.  They are terrified and simultaneously come to accept it as an expected part of life; they may learn that violence is acceptable behaviour and an integral part of intimate relationships; or that violence and fear can be used to exert control over family members; they may suffer significant emotional trauma from fear, anxiety, confusion, anger, helplessness and disruption in their lives; they may have higher levels of aggression than children who do not have that exposure; and they may suffer from higher anxiety, more behaviour problems and lower self-esteem than children not exposed to violence.  Clinical profiles for children who witness domestic violence include post-traumatic play, diminished ability to regulate affect in the forms of hyper-arousal, numbness, emotional constriction, a low frustration threshold, nightmares and other sleep disturbances, aggressive behaviours, intense and multiple fears, regression in developmental achievements, and disturbances in peer relations.  (see “Attachment, Trauma, and Domestic Violence – Implications for Child Custody” – Alicia F Lieberman, PhD and Patricia Van Horn, PhD; “Children and Domestic Violence: A Review”, Dora Black and Martin Newman.)  One could go on to the impact upon their ability to form attachments, and so on. 

Violence to the mother

Early August 2008

1. The mother described that in early August 2008 the father attempted to strangle her to the extent that she became unconscious. Mother’s trial affidavit, pars 77-78. She annexes photographs of herself (annexure NS1) showing severe bruising which she said resulted from that incident. The father denies the incident. I accept however the mother’s evidence, for the reasons outlined in Ms Lewis’ written submissions, s 6, pp23-5.

2. I find therefore that on this occasion the father attempted to strangle the mother to the extent that she became unconscious, and suffered in that incident the bruising depicted in the photographs annexure NS1.

13 April 2009

1. The mother described that on 13 April 2009 the husband assaulted her on the floor in the children’s presence. Mother’s trial affidavit, par 114. This incident, whilst not leading directly to the parties’ separation on 1 May 2009, occurred shortly before it and, it would appear, was precipitous of the separation.

2. The mother said that the father pushed her to the floor. She drew herself into the foetal position to protect her head from kicking by the father. In her oral evidence she described, with considerable emotion, that D lay his body over hers to protect her from the kicks, while N tried to pull the father off the mother. She says the father laughed and said she would have to kill herself because she was “crazy”. The father then left the house. The mother took a razor blade from a fruit bowl in the kitchen and cut her left wrist. Exhibit 84 depicts a scar lengthwise, not at the wrist but a little way, perhaps an inch or so, from the wrist. In observing the mother closely giving her evidence, I did not form the view that any of it was fabricated or exaggerated.

1. The father’s evidence as to this incident, in contrast, seemed to me to be rehearsed and unconvincing. Indeed, it was so unrealistic, as described by him, as to be not at all credible. The father described that he endeavoured to leave the house but the mother grabbed onto his ankle or leg to hold him saying words to the effect “your father’s leaving”. He said that he “stepped over” the mother as she was grabbing onto his ankle or leg, but did not kick her. Rather, he was shaking his leg to be free of her in order to leave.

2. Mr H, the maternal grandfather, however, gave very telling evidence of D’s description to him of the incident, namely that the father was kicking the mother who was on the ground, that D tried to stop the father and in turn he was kicked by the father, and that N, then not quite 2 years, had said to him “daddy kick mummy” and “daddy call mummy fuckin” and was mimicking her legs to show Mr H the kicking. Mr H was asked to demonstrate the kicking described to him by the children. In the witness box, he demonstrated a lower limb movement with knee extension and, as I recall, a type of circular movement of the lower limb. Mr McQuade put that the movement demonstrated by Mr H was consistent with the father’s evidence that he “moved his leg back and forth to free it”, that is, to free his leg from the mother’s grasp of his leg while on the floor. The children’s evidence is unlikely to be mistaken as to their description to their grandfather, namely D telling him that the father was kicking the mother who was on the ground, that D tried to stop the father and in turn was kicked by the father, and N telling him “daddy kick mummy”, mimicking with her legs the kicking she observed. Thus, the children’s evidence to Mr H, in respect of which there is no reason to doubt their description or candour, has effect that it corroborates the mother’s evidence as to this incident, not only for the reasons already mentioned, but also those outlined in Ms Lewis’ written submissions, s 11, pp30-34.

3. I find therefore that on this occasion, whatever may have been the lead up to the incident, the father kicked the mother while she was on the floor, D lay his body across the mother to protect her, and N also attempted to protect the mother by, at not yet 2 years, trying to pull the father away from the mother.

21 April 2009 and 1 May 2009

1. I accept, without descending to the detail of the evidence, that the father raped the mother and urinated on her on 21 April 2009. Mother’s trial affidavit, pars 119-132; and inflicted injury on her on 1 May 2009. Mother’s oral evidence and exs 8 and 9. In respect of these matters, again I would refer to the analysis of the evidence by Ms Lewis, written submissions, pars 35-38; and s 12, pp 34-37. I have considered the father’s evidence as to denials of the violence on these occasions alleged by the mother. However, Ms Lewis’s analysis of the evidence is persuasive, and I accept that these two incidents occurred as described by the mother.

2. Accordingly, I find that on 21 April 2009, the father raped and urinated on the mother and on 1 May 2009 caused her the injuries depicted in exs 8 and 9.

3. The incident on 21 April 2009 lead to both the mother and the father being taken to hospital in separate ambulances, at 2am or 3am, that presumably being 22 April 2009. On 23 April 2009, the mother and the father each signed a Families SA agreement for the children to be cared for by the maternal grandparents. However, by further agreement, on 8 May 2009 the children moved to the care of the paternal grandmother, until they came into the care of the father on 22 May 2009 before the commencement of week about time on 5 June 2009: ex 45.

4. The incident on 1 May 2009 precipitated termination on that date of the parties’ relationship.

Other allegations by the mother of violence to her by the father and more general observations

1. I have dealt with only four matters alleged by the mother. Her trial affidavit and oral evidence however are replete with several other allegations of violence by the father to her. The matters I have dealt with however are sufficient for present purposes in my task of determining the need to protect the children, including from exposure to family violence. As I observed to Counsel during the trial these parenting proceedings are not criminal proceedings as between the mother and the father, but parenting proceedings to enable me to determine the children’s best interests. In this context, it is neither necessary nor desirable to descend further into the allegations by the mother of family violence to her during the course of the parties’ relationship and marriage. I would not like it thought, however, that the absence of further findings carries any implication of rejection by me of other allegations by the mother of serious assaults upon her by the father. It is, put simply, not necessary to make further findings to dispose of the matter. I would observe also that the father alleged violence by the mother against him, and that the mother acknowledged at the trial that both she and the father had been violent to each other. As to the father’s allegations of violence by the mother to him, they fall also into the category of matters in relation to which it is not necessary to make specific findings. The four matters I have selected in respect of which I have made findings were selected for their cogency, severity and recency in terms of the demise of the relationship and, categorically, not selected on a gender basis. Rather, these four struck me as allegations which on the evidence starkly had occurred and required findings. I acknowledge that not all four incidents directly involved exposure of the children to the violence. However, the 13 April 2009 incident was very serious in relation to the children’s exposure and indeed direct involvement in the violence.

Future risk of exposure of the children to family violence

1. Despite the findings I have made, I have observed that the termination now of the parties’ relationship, more than 2 years ago, has effect hopefully that the children will not be exposed to further family violence between their parents. If such risk still exists, presently it is not capable of accurate future prediction.

Violence to D

31 August 2009 – bruising – “held on bed” incident

1. Exhibit 29 is a DVD interview 3 September 2009 by Constable S with D concerning bruises on his body depicted in the mother’s trial affidavit, annexure NS2. Exhibit 31, pp1-7, is an Auscript transcript of ex 29. It is plain in the DVD that D was avoidant of Constable S, not wanting to be interviewed. However, to my mind there is no reason to doubt what D told Constable S, namely that the father, shortly before the date of interview, established by other evidence as 31 August 2009, pushed D onto a bed, “pushed my arms down”, “and then I got hurt”. D said that he said to the father “daddy, you’re scaring me”. In showing Constable S the bruises, D said “daddy pushed me there”, being on the front of his arms. I note that some of the interview by Constable S of D comprises direct questioning. However, the parts to which I have referred were not the result of direct questioning.

2. D disclosed the incident also to a Dr GG and a Families SA worker. There is no reason to doubt D’s disclosure, corroborated as it is by the bruising depicted in the mother’s trial affidavit, annexure NS2. Further, I accept the observations as to the evidence concerning this incident set out by Ms Lewis in her written submissions, pp 10-11.

3. Accordingly, I find that the subject matter of D’s disclosure, as described to Constable S, in fact occurred.

4. This incident, it will be observed, is the subject matter of the Notice of Child Abuse filed by the mother on 7 September 2009.

20 June 2010 – “shower incident”

1. Exhibit 30 is a DVD interview 7 July 2010 by Constable S with D concerning an incident in the shower at the father’s home on 20 June 2010. Exhibit 31, pp7-19, is an Auscript transcript of ex 30. The evidence which I accept is, as disclosed by D to Constable S, that the father hurt him. D had been in the shower. The father told him to get out “then I just standed up and I didn’t get out, and then he choked me like that and put my head against the tile wall of the shower”, the choking being with one hand, demonstrated, it would appear, as a hand at or around the throat, being the father’s right hand. D said “my head hit back on the tile wall like that”. D said he started crying, then his nose got runny and “it’s like a blood nose”, and “blood was from here to here”, and “it was pouring out after that”.

2. Exhibit 26 is a version of the incident given by D to Constable L, showing two areas of difference, namely that after the incident blood was pouring “for a couple of hours”, and that the father did not assist D, whereas to Constable S D said that when the blood started pouring his father assisted him with tissues to stop the blood, and afterwards they left the house and went to church.

3. Despite those variations, it is clear that there was a serious incident of violence, whether or not it may have developed as a disciplinary action for the child not getting out of the shower when told. The child had been playing with his toys in the shower, and had stood up. When told to get out of the shower, leading to the actions by the father, whatever actions they were, the child suffered a blood nose. I do not accept the father’s evidence that while D was in the shower he suffered a blood nose, and that he merely assisted him.

4. Mr McQuade made much of whether the child initially had used the word “choked”, or whether the mother had introduced that word after the child’s description of the incident to her. Little, however, turns upon such semantic description. A child describing a father having a hand at or around his throat, leading to his head hitting a wall and a blood nose is a severe act of violence to the child. The debate which ensued at the trial as to whether the child or the mother introduced the word “choke” is a distraction from the circumstance of the severity of the father’s violence, as I find, in any event. Ms Lewis deals adequately with the debated aspect of the matter namely, whether the child first used the word “choke” or whether it was a subsequent interpretation by the mother, in her written submissions pp11-13, including concerning Witness 4, family liaison teacher and family therapist/counsellor at Learning Centre 1 in 2010. The father, I note, denied pushing the child or grabbing the child by the throat, but acknowledged that the child’s nose commenced to bleed in the shower. The child’s disclosures to the several persons mentioned, including Witness 4, Constable L and Constable S satisfy me that the incident described by the child to Constable S occurred.

5. Accordingly, I find that on this occasion the father perpetrated a serious act of violence to the child.

6. This incident, I observe, was the subject of the third Notice of Abuse filed by the mother on 15 March 2011.

9 February 2011 – what does “flinch” mean? – “be merciful”

1. The mother gave evidence on 15 March 2011 of D asking her on about 9 February 2011 “why does daddy tell me not to flinch when he hurts me”, and “what does flinch mean”, and that (either on the same occasion or a few days later) D said his father “goes to hit him and then doesn’t”, saying that he is being “merciful” to D. The father denied using the word “flinch” to D, and said in relation to the word “merciful” that in a child computer game called “[…]”, which D plays, the expression “merciful” is used, and that D has learned the word from the computer game. This explanation, however, is not inconsistent with D’s evidence to the mother, particularly as the father plainly, by his evidence, is familiar also with the computer game content.

2. There is no reason to doubt the mother’s evidence of what D disclosed to her on or about 9 February 2011. I find, accordingly, that on unspecified occasions before that date the father has told D not to “flinch” when he “goes to hit him and then doesn’t” with the father saying on those occasions that he is being “merciful” to D in not hitting him.

3. “Family violence”, as defined in s 4(1) of the Act, includes conduct, whether actual or threatened, by a person towards a member of the person’s family that causes that person reasonably to fear or be apprehensive about his or her personal wellbeing or safety.

4. It appears to me that D would not have reported these matters to the mother, and others, unless that description was fulfilled. In particular, the question to the mother “why does daddy tell me not to flinch when he hurts me”, indicates that when the father either has hurt or has threatened to hurt D he has “flinched”, a word capable of meaning only a bodily withdrawal or other protective action.

5. I find accordingly, that before 9 February 2011, and probably recently before that date, the father either hurt or threatened to hurt D, as described by him, which, in context, can only mean physical hurt, actual or threatened.

Undisclosed dates – hits bottom so hard “it beats like your heart beats when you’ve been running”

1. The mother gave evidence on 18 March 2011 of D telling her, seemingly at or about the same time or same week as asking her about “flinching”, that the father hits his bottom “so that it beats like your heart beats when you’ve been running”.

2. I accept the mother’s evidence of D’s use of these words to her. Although the disclosure was not made by reference to any date or dates, the child’s description seems to be of something he has experienced. The description indicates severe hitting, with severe impact on the child.

3. The father denied hitting D in such a manner.

4. However, the child’s utterance and description, which I accept, has effect that I find the father has inflicted direct physical harm to the child by hitting him on his bottom.

Other observations

13 April 2009

1. It is plain, based on the evidence as to this incident which I have said I accept, that the father kicked D also in the process of kicking the mother.

2. This matter is included in the Notice of Abuse filed by the mother on 7 September 2009.

Section 140 Evidence Act(Cth)

1. In order to make a positive finding that abuse has actually taken place, I must be satisfied on the balance of probabilities, but bearing in mind such matters as the seriousness of an allegation, the inherent unlikeness of an occurrence of a given description and the gravity of the consequences flowing from a particular finding, which satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences.  Briginshaw v Briginshaw (1938) 60 CLR 336. Hilton v Allen (1940) 63 CLR 691. Reifek v McElroy (1965) 112 CLR 517. M and M (1988) 166 CLR 69 at 76-77. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-1, in which the High Court, in relation to the “ordinary standard of proof” required in civil litigation said that nonetheless the “strength” of the evidence required “may vary according to the nature of what it is sought to prove” and that authoritative statements such as “clear or cogent or strict proof” are to be understood in this context and not as directed to the standard of proof.

2. Section 140 of the Evidence Act 1995 (Cth) provides:

   (1)    In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2)    Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

   (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. 

3. In Johnson & Page (2007) FLC 93-344 the Full Court observed, at [70], that although cases such as Neat were decided before the introduction of the Evidence Act, the principles in them have been applied in decisions after its introduction. In short, it seems plain that s 140(2) has “picked up” the earlier principles, which thus are useful in its application.

4. In relation to each of the four matters concerning the mother and the four matters concerning D, to which I have referred, I have been and am conscious indeed of this statutory provision, and in respect of each finding am satisfied to the degree and extent so described in s 140(2).

5. In relation to my findings, as I have mentioned, I have had regard also to the father’s evidence, acknowledged by the mother, that throughout the period of their relationship and marriage, the mother also was violent to the father, in the sense that on some occasions the mother may have initiated violence, or indeed perhaps been partly responsible for the father’s violence to her. On any view, they had a relationship punctuated by physical fights and violence. It may well be that on some of these occasions the mother was violent to the father, and in other respects and on other occasions perhaps “goaded” him to violent responses. However, on all of the material, even if on some, or even all occasions, the mother might have “goaded”, or even “invited” the violence to her, such does not excuse it, or alter my findings.

6. Further, and more relevantly, the findings I have made of the father’s violence to D are in a different category. Perhaps, as may seem to be the case, the father’s violence perpetrated to D falls into the category of a frustrated parent resorting to extreme disciplinary measures. Even so, no amount of warranted discipline of a child permits the violent assaults on D, the subject of my findings, nor threatened violence to him, the subject of my findings.

Violence by mother to D?

1. The father alleged that between November 2008 and May 2009 the mother on numerous occasions would cradle D and speak to him about her fears and paranoia and say to him “mummy is going to heaven tonight” while holding a knife, and that D sometimes would ask her “can I come as well” and the mother sometimes would respond “yes”. Father’s trial affidavit, pars 70.4-70.5. The mother denied that such had occurred. There does not seem to be report by D of it.

2. The father also alleged that D sometimes would sit at the dinner table and pretend to cut his wrists with a butter knife “mimicking” the mother. Father’s trial affidavit, par 70.8 The mother denied this also. Similarly there does not appear to be report by D of it.

3. If these matters occurred, they would be of great concern. There is a body of evidence concerning threats by the mother of taking her life and allegations by the father of attempts to take her life. Father’s trial affidavit, par 70; and even of letters written by her on 4 November 2008, her birthday eve, indicating intention to take her life: father’s trial affidavit, annexures pp 25-85 and ex 13, to which I will refer further on.

4. The body of evidence generally does not allow me to make a finding that the attempts alleged by the father did not occur. They may have. However, if they did, there is other evidence, to which I will refer, to indicate that the mother may not be likely presently to take her life in front of the children or kill the children so as to warrant their protection in this regard. I will return to this subject matter below.

The parties’ drug use

1. I have referred to this earlier, to some extent, in relation to both parties.

2. The mother, on her evidence, which I accept, did not suffer addiction to the recreational drugs which she used and no longer uses them.

3. She has in the past overused, and potentially may still overuse, prescribed medication, but on her evidence, which I accept, did not and does not suffer addiction.

4. The father’s drug history is serious, and of concern.

5. In the past, he has overused prescribed medication to the point of being near death at least once, as earlier described, before the commencement of the parties’ relationship. He has in the past extensively used the drug Oxycontin.

1. However, Ms Lewis, in her careful written submissions, at pars 161-4, referred to the circumstance that, under Ms Horvat’s cross examination of Dr A, a degree of uncertainty attached to his recommendations, in that if, which is clear, D is not coping presently with the equal time arrangement why should there not be a “circuit breaker”, leading to the following exchange (transcript Dr A, 62/38-63/10):

   MS HORVAT:   [Dr A], what’s clear is that [D] is not coping with the current arrangement.  Why would we not implement a circuit breaker as such, change the arrangement to see whether that works?‑‑‑Certainly we can endeavour to do that, yes, definitely, but I cannot predict the future and see how it goes;  whether it will be a positive experience for [D] or will be a negative experience.

   MS HORVAT:   It could be a positive experience.  If there was a change implemented whereby the children were to primarily live with one parent, it may be that that does have a positive effect on reducing the stress, the distress and the occasionally very serious behavioural difficulties that they are experiencing or,particularly, [D] is experiencing.  You would agree with that?‑‑‑I agree with that.  I think, again, there needs to be a provision for that, that even if that was the case, I still would expect some degree of cooperation between the parents because even when the lesser period of time that is spent with one parent should be used productively and not be used as a way of creating distance between the children and the other parent and not allow their own differences and resentment to be reflected onto the children.  I think that provision still needs to be there.

2. Ms Horvat, in submissions, emphasised Mr P’s evidence that the children in his assessment have been happier when in the care of the mother, such that a likely effect of change to living primarily with her is that this is likely to promote more happiness for the children and a “circuit breaker” away from the children suffering very different parenting styles week about which plainly currently “is not working”.

3. In discussion, Ms Horvat agreed that if my order is for the children to live primarily with the mother, Mr P should explain to D that the Court has made the decision concerning his living arrangements and that he need not feel guilt or unfairness to ease his own mind of the responsibility for this or guilt about it.

4. It goes without saying however that the likely effect on the children of change in their current living arrangements is at best a matter of prediction, taking careful guidance from the evidence given by the expert witnesses in the case.

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

1. This matter did not assume significance at the trial.

The parties’ capacities to provide for the children’s needs, including emotional and intellectual needs

1. I have dealt with this matter in considerable detail already.

2. The focus in the trial was the children’s emotional needs, rather than their intellectual needs.

3. Dr HH’s evidence in relation to the mother’s “very black and white thinking and reacting to situations”, with “no middle ground and difficulty in realistically assessing situations”, has effect I think of inability on her part to understand that the children’s emotional needs include there being opportunity for them to spend more time with the father than in her limited proposal for one day only in each week being supervised and on special days but with no overnight time so that in effect she can control the situation. Indeed, although the mother through her Counsel put the alternative proposal to which I have referred, I had the impression that it was a forensic alternative rather than reflective of the mother’s genuine belief as to the children’s needs. Nonetheless, despite the mother’s difficulties, there is no doubt that she has the capacity to provide and does provide emotional nurture to the children.

4. The father, until the recently claimed “watershed”, yet to be tested, showed little capacity I think to provide for the children’s emotional needs, in particular for non-physical discipline and a happy environment. Mr P’s observation of the children with the father on 22 November 2010, although only one occasion, is concerning as to the children’s observed lack of warmth to the father, perhaps because he lacks ability to recognise and provide for their emotional needs.

5. I had the impression at the trial that the father perhaps has not nurtured the children enough, whereas the mother perhaps has overnurtured them, in particular D, by reference to descriptions of hugging and stroking him, seemingly excessively and cloyingly, and at times of keeping the children in her bed.

6. There was however no expert evidence of actual enmeshment in the emotional relationship between the mother and D.

7. It is sufficient to say that the parties each seem to lack capacity to provide adequately for the children’s emotional needs, but rather in different ways have used the children for their own needs in their own embroiled and ongoing conflict.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the Court thinks are relevant

1. Witness 4 described D as “very bright” and Dr A described him as “smart”.

2. The mother believes firmly that D suffers Attention Deficit Hyperactivity Disorder (ADHD). Dr A, firmly and categorically, as D’s treating psychiatrist since September 2010, stated that D does not suffer ADHD and that he has “never been wrong” about his diagnostic opinions of children in this regard.

3. D’s severe behavioural problems are well-documented in the evidence and in the descriptions of episodes by his school teachers and Learning Centre 1 staff.

4. Dr A said that whilst D does not have an anxiety disorder, nonetheless he suffers anxiety, and that there is indication of a possible future depressive disorder. See, for example, Dr A’s evidence at transcript 16/20-30.

5. There was little evidence about N’s level of maturity. However, N also has commenced to display severe behavioural problems. At the trial, because of the intensity of focus on D, I described N as “the forgotten child”. However, she is not to be forgotten, and like D, may well have a troubled path in the years ahead.

6. Both children are very overweight, their actual individual weights, compared with appropriate age weights, being described by the mother, D at 8 years being 45kg and N at 4 years 26kg. In relation to this the mother has placed the children on a very strict diet, described in an email 27 March 2011 from the mother to the father, being the last page in annexure HIS1 to the father’s affidavit filed 11 April 2011. Dr B described the mother’s dietary plan as “prescriptive” and that in relation to their dietary requirements he considered that “more flexibility” was needed. Potentially, the children should have the benefit of consultation with a paediatrician concerning their weight and dietary requirements, with reference to a nutritionist/dietician to advise as to their dietary requirements.

The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents

1. This matter has been dealt with sufficiently.

Family violence involving the children or a member of the children’s family or family violence order

1. This matter has been dealt with sufficiently.

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 children

1. Whilst plainly 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 children, it may be that there is no order, presently, to have that result.

2. On present indications, an equal time order arrangement is not working, and thus may be an order likely to lead to further proceedings. However, Dr A’s evidence favouring an equal time order may prove to have effect that an order that the children live primarily with the mother will be likely to lead to further proceedings. In contrast, Mr P’s evidence is that the children are “happier” with the mother with effect that an order that they live primarily with her may be the order least likely to lead to further proceedings.

3. More generally however, regardless of the children’s specific living arrangements, I would reasonably predict that unless the mother and the father somehow are able to abate their own conflict, further proceedings will be likely with consequent detriment to the children by continuance of involvement in the parents’ own conflict.

4. Thus, in this particular case, I do not believe that there is any particular order, rather than another type of order, that would be least likely to lead to further proceedings but, regardless of any order made, the matter of whether there will or may be likely to be further proceedings rests very much with the parties and whether individually they can address their own parenting shortcomings so as to avoid potential tragedy as nearly occurred on 24 March 2011.

5. In my view, whatever order I make, the parties unselfishly need to accept it and work with it so as to provide some stability and happiness for the children, to date absent in their young lives.

6. The parties need to put their own conflict behind them and separately do all they can to assist the development and progress of their children.

Other relevant matters

1. The mother, as I have mentioned, does not wish the children to attend at the father’s church and seeks an order restraining the father from allowing them to worship at or in accordance with the practices of Church 1. This seems to underlie that she seeks for the children to spend time with the father only on Saturdays.

2. She is concerned as to practices at the church reported to her by the children such as the lifting of hands, speaking in tongues and seeing “the light”. However, even put conservatively, there are biblical references to such practices and no expert evidence adduced in the trial that the children’s attendance is harmful to them. On the contrary, there is evidence that the children enjoy participation in the worship activities, which largely, as I understand the father’s evidence, are activities related to a “children’s group”.

3. Exhibit 57 is a brochure concerning Church 1.

4. Absent any expert evidence that the particular practices are likely to cause psychological harm to the children it is difficult to perceive any evidentiary foundation for the grant of the restraint the mother seeks.

5. The mother was raised in the Church 2 religion, however, as I understood her evidence, she is not an avid churchgoer.

6. There is no present evidence of harm to the children by their attendance with the father at his church.

7. In these circumstances, I will not make the order sought by the mother.  

Section 60CC(4) – the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent

1. It is necessary to consider the extent to which each of the children’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent and in particular the extent to which each of the children’s parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the children and to spend time with and communicate with the children and has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to the children and  spending time with and communicating with the children and has fulfilled or failed to fulfil the parental obligation to maintain the children.

2. It is not necessary to revisit the evidence. These matters, to the extent relevant, have been sufficiently canvassed. At the trial, no specific issue was raised as to child support.

Discussion and conclusions

Parental responsibility

1. The findings I have made as to family violence by the father have effect that the statutory presumption is ousted.

2. The mother and the father provided different views as to the school/s the children should attend.

3. The mother follows a strict dietary regime for the children. The father, as the result of recent email correspondence with the mother, to which I have referred, sought from the mother details of her dietary regime for the children and, according to evidence in the last phase of the trial, has used his best endeavours to implement the mother’s dietary program for the children and to eliminate, or minimise, other than nutritional food. Indeed, one of the teachers at D’s school favourably mentioned the improvement in D’s “lunchbox” provided by the father.

4. Until the incident on 24 March 2011, there was little prospect of the parties’ ability to communicate in relation to the children and their needs. The father now, since that incident, has professed a willingness and ability to communicate with the mother and co-operate in their joint parental responsibilities, as evidenced by the emails after that incident to which I have referred, and his adoption of the mother’s dietary regime for the children, to which I have referred. However, it is untested as yet whether joint decision making for the children is likely to be successful in the long term. In particular, I have referred already to the parties’ very different versions of their discussion and its content on the evening of 24 March 2011 and inability even to concur in what occurred that evening or in conversation the following day after their joint attendance with D on Dr A.

5. It is commendable that the father, in the aftermath of the 24 March 2011 incident, keenly wishes to share with the mother joint co-operative parenting of the children and joint co-operative decision making concerning them. There is however no “track record” or history of success in the past as to this. The children’s present predicaments, and particularly D’s, are too fragile at this stage to admit of experimentation. Plainly, conflict in decision making would not be in the children’s best interests. I consider therefore that their best interests will be met by one of the children’s parents, at least at this stage, having sole parental responsibility, at least in relation to their education and health.

6. I am fortified in this view by Dr A’s report 8 April 2011, par 9, which previously I have set out, to the effect that any recent improvement in their co-parenting he believes may be temporary and as a result of the Court proceedings.

7. As to whether sole parental responsibility for the children’s education and health should vest in the mother, or the father, the mother, overall, it seems to me, has the better understanding of the children’s needs so that she, rather than the father, should have sole parental responsibility for the matters most likely to be in contention, namely their education and health.

8. In relation to the major long-term issues otherwise, I presently see no reason to make an order that the mother have sole parental responsibility in relation to the children’s religious and cultural upbringing, their name, which was not raised at the trial as a matter in issue, nor changes to the children’s living arrangements that might make it significantly more difficult for the children to spend time with each parent. The parties thus, by reason of ss 61C and 61D of the Act, will continue otherwise to have parental responsibility for the children as defined in s 61B of the Act.

9. Ms Horvat submitted, based upon the views of Ms R and Mr P, that the mother should have sole parental responsibility for both children, on the basis that she, rather than the father, is better able to assess their educational and health needs.

10. Mr McQuade, for the father, strongly advocated equal shared parental responsibility. However, for the reasons I have explained, the history of the parties’ relationship and inability to make joint decisions indicates against this.

11. I will therefore formulate orders that the mother have sole parental responsibility for the children’s education and health and that the parties have day to day responsibility for the children when with each of them including in relation to their extra curricular activities and attendance at church.

12. I will make further specific orders in relation to the exercise of the mother’s sole parental responsibility in relation to the children’s education and health, so as to involve the father as much as may be practicable.

13. I will add, in relation to the children’s education, that the mother’s expressed choice of schools for the children would involve the payment of school fees. Presently, the payment of school fees is a practical matter which the mother must address. Indeed, the matter of child support generally is a specific matter which the parents must address, in the aftermath of their consent property order and own living and financial circumstances. In the aftermath, it appears that both parties may be impecunious. However, they will have to do the best they can in terms of employment opportunities, consistent with their parenting obligations, to work hard to support the children financially, at least as to their basic needs of health, medical appointments and attendances, education and food.

Equal time

1. The circumstance that I will not make an order for equal shared parental responsibility has effect that I need not follow the “statutory pathway” in s 65DAA.

2. However, the circumstance of Dr A’s evidence has effect that I must do so, nonetheless.

3. I will therefore treat the matter as if s 65DAA(1) and/or (2) apply. This has effect that first I will consider whether the children spending equal time with each of the parents would be in the children’s best interests and reasonably practicable, and if it is, consider making an order to provide for the children to spend equal time with each of the children’s parents.

4. In Goode & Goode (2006) FLC 93-286, the Full Court said at [64] that the juxtaposition of s 65DAA(1)(a), (b) and (c) suggests a consideration tending to result in or the need to consider “positively” the making of an equal time order. In Korban & Korban [2009] FamCAFC 143, the Full Court explained that in Goode the Court did not intend to put a “gloss” on the plain wording of s65DAA(1) by its use of the word “positively” such that the Court should only make an order for equal time if there are no disqualifying factors: [83]; and that “consider” means to assess whether equal time is in a child’s best interests by weighing factors both positive and negative: [85]; but that the inquiry is a “positive one”, in order “to ascertain whether equal time is in a child’s best interests”: [86]. The Court further observed, as is plain by the legislation, that it is only if the trial judge concludes from the overall assessment that an equal time order should not be made he or she then would move to consider whether substantial and significant time is in a child’s best interests.

5. Thus first I will consider whether the children spending equal time with each of their parents is in their best interests, and then consider whether such is reasonably practicable. 

Is an equal time order in the children’s best interests

1. I have carefully considered all of the evidence, in particular Dr A’s evidence. Mr McQuade urged reliance on several pages in Dr A’s evidence by reference to the transcript, imploring that if I do not accept and follow Dr A’s evidence, there is likely to be a tragedy by D killing himself. The several passages to which Mr McQuade referred are as follows: 15/30-34; 16/19-25 and 27-30; 17/28-33; 21/28-44; 22/1-15, 34-35, 39 and 41-43; 23/4-10 and 25-32; 24/1-2, 11-14, 16-20, 29-31, 33-37 and 39-45; 25/37-47; 31/31-35; 33/20-36; 39/30-41; 42/5-8; 43/44-44/4; 46/19-41; 62/14-36; 62/44-63/7; 63/19-26.

1. Dr A’s evidence, as urged by Mr McQuade, is “chilling”. Dr A is D’s treating psychiatrist, and his evidence thus carries great weight, and great weight in exercise of my responsibility as the trial judge carefully to consider it.

2. However, having given this matter deep consideration, and anguished consideration, I have concluded that I need to take into account that Dr A was one of 22 witnesses at the trial, and one of several experts. Frankly, I have no hesitation in stating, as the trial judge, that after hearing Dr A’s evidence I had no doubt that as the trial judge I would be compelled to accept his evidence both as to its substance and tenor, and that thus I would have no realistic option but to make an equal time order, or risk a “child suicide” potentially on my hands.

3. However, progressively, and slowly, over the course of my deliberation in this matter, I have departed from this viewpoint.

4. Even upon listening carefully to Ms R’s and to Mr P’s subsequent careful oral evidence and cross examination, I formed the preliminary view that each had applied “prototype” logic to the children’s circumstances and potentially had “rubber stamped” the literature, in particular, JE McIntosh and CM Long, Children Beyond Dispute: A Prospective Study of Outcomes from Child Focused and Child Inclusive Post-Separation Family Dispute Resolution, Attorney-General’s Department, October 2006 and JE McIntosh and R Chisholm, Shared Care and Children’s Best Interests In Conflicted Separation, 20 Australian Family Lawyer 1, to the effect that equal time is contraindicated when parents cannot co-operate.

5. Indeed, in respect of much of the literature, relied on heavily by Ms Lewis, I have taken into account Mr McQuade’s strident criticism of the small samples in it to support the conclusions in it and his submission that Dr A’s evidence concerning this particular family, and the children, has effect that these children’s plight should not be regarded by the indicated “norms” or paradigms but must be considered in light of the particular evidence in this particular case concerning these particular children, as unique, outside the paradigms.

6. There is much force in Mr McQuade’s argument that I should disregard the literature, and act upon the particular evidence in this case.

7. It is necessary to state categorically that I do so, compelling myself only to the facts of this particular case and the evidence in this particular case, such that I am not influenced by the literature strongly advocated by Ms Lewis and decried by Mr McQuade.

8. I frankly will state that when Counsel commenced their submissions, I was still of the view that having regard to Dr A’s evidence I would be compelled to make an equal time order.

9. However, having listened carefully to the submissions of Ms Horvat, for the independent children’s lawyer, Ms Lewis, for the mother, and Mr McQuade, for the father, and having carefully considered all of the evidence in light of Counsels’ very able submissions, I am persuaded, in particular by Ms Horvat’s submissions, that an equal time order is not working, and that Dr A, whilst a most impressive witness, has not had the advantage which I have had as the trial judge in relation to the whole history of the parties, and the children’s relationships and difficulties, so that after 12 days of evidence and submissions, I am persuaded confidently and firmly that an equal time order is not in the children’s best interests, and that the children should live primarily with the mother and spend time with the father, as I have determined, unsupervised.

10. In particular, it is plain that an equal time order, although in place on the interim basis for quite some time now, has not worked for the children, for whatever reasons, and is not likely to work in the future in the short term, nor the reasonably foreseeable long term.

11. Ultimately, I am persuaded by Mr P’s evidence that the children are “happier” with the mother, such that an order for them to live primarily with her is in the children’s best interests.

12. In so concluding, I have had regard, plainly enough, to all of the evidence which I have analysed as to the children’s safety as the first priority concerning them, the need for them to have a meaningful relationship with both of their parents and all of the other statutory matters to which I have referred, and in particular, of all of those, the evidence of Dr A as to the likely effect of change in relation to D if he should not continue to spend equal time with each of his parents.

Is an equal time order reasonably practicable

1. Although I have determined that an equal time order is not in the children’s best interests, it is prudent nonetheless that I consider also whether such would be reasonably practicable.

How far apart the parties live from each other

1. The parties live in relatively close proximity.

The parents’ current and future capacity to implement an arrangement for the children spending equal time with each of the parents

1. In T & N [2001] FMCAfam 222 at [93], Federal Magistrate Ryan, now the Honourable Justice Ryan, set out a list of matters relevant to parents’ current and future capacity to implement an arrangement of equal time (using the singular as in that case):

   •The parties’ capacity to communicate on matters relevant to the child’s welfare.

   •The physical proximity of the two households.

   •Are the homes sufficiently proximate that the child can maintain their friendships in both homes?

   •The prior history of caring for the child.

   •Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment?

   •Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.

   •Where they disagree on these matters, the likelihood that they would be able to reach reasonable compromise.

   •Do they share similar ambitions for the child? For example, religious adherence cultural identity and extra-curricular activities.

   •Can they address on a continuing basis the practical considerations that arise when a child lives in two homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?

   •Whether or not the parties respect the other party as a parent.

   •The child’s wishes and the factors that influence those wishes.

   •Where siblings live.

   See also, H & H (2003) FLC 93-168 at [47]-[48]:

   •The child’s age.

2. In relation to these matters, there is little evidence on which to conclude that sufficient of them apply. In short, until recently the parties have demonstrated little capacity to communicate with each other in relation to the children’s needs; the parents have vastly different parenting styles, as demonstrated in the evidence although, as I note, after the 24 March 2011 incident the father has endeavoured to adopt the mother’s parenting style; the parties do not respect each other as parents; and on all of the evidence I have no confidence that, on a continuing basis, they can or could address the practical considerations that arise when children live equally in two homes.

The parents’ current and future capacity to communicate with each other and to resolve difficulties that might arise in implementing an arrangement for the children spending equal time with each of the parents

1. I have dealt with this matter sufficiently already.

The impact on the children of an arrangement for the children spending equal time with each of the parents

1. For whatever reason, to date, the impact on D of an arrangement for him to spend equal time with each of his parents has been unsuccessful. Dr A, certainly, put this on the basis of D’s awareness that his parents were arguing about him. Dr A, early in his oral evidence said (transcript Dr A, 3/38-46):

   The only sort of significant issue that comes to my mind is at the very, very first session, when [D] appeared to be quite unsettled, quite restless at times.  Looked worried and I recall him sitting on the floor between mum and dad’s chairs and he looked distressed and at one stage he did say – he actually requested mum and dad to end their argument and their fighting, yes.

   Did he make any other comment about that?‑‑‑Yes.  I recall and I actually brought this to the attention of both parents, was that actually he said that if you don’t start – if you don’t stop arguing, I will want to kill myself.  I want to die.

2. Unfortunately, the parties continued to argue. The impact upon D was the 24 March 2011 incident.

3. Mr McQuade’s submission as to the father’s “watershed” in the aftermath of this incident does not give me comfort of reasonable practicability for the parents to so arrange themselves so as not to have continued impact on the children, and in particular on D, whose prophesy in his very first session with Dr A, several months later it appears he endeavoured to implement.

4. As the trial judge, I have no confidence that, magically, the impact on the children now of an equal time order is likely to be very different from the impact on D of spending equal time with the parties in recent times, namely, such inability for him to cope with it as to have resulted in the 24 March 2011 incident.

5. In short, equal time has been in place on the interim basis for the last 15 months (as qualified by the exceptions in ex 45). Dismally, it has failed.

Conclusion as to reasonable practicability

1. I conclude, based upon what I have said, that an equal time order is not reasonably practicable.

2. In particular, Dr A’s report 8 April 2011, par 9, which previously I have set out, to the effect that any recent improvement in the parties’ co‑parenting he believes may be temporary, contraindicates any long-term ability for them to co-parent the children.

Conclusion as to equal time

1. It follows, on my analysis of the evidence and the submissions, an equal time order is not in the children’s best interests nor reasonably practicable. Thus, I will not make an equal time order.

Is a substantial and significant time order in the children’s best interests

1. Substantial and significant time is defined in s65DAA(3) and (4), as applying “only if” the time a child spends with a parent includes both days that fall on weekends and holidays and days that do not fall on weekends and holidays and allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and allows the child to be involved in occasions and events that are of particular significance to the parent although regard may be had to other matters.

2. There was debate during Counsels’ submissions whether the independent children’s lawyer’s proposal, adopted by the mother as her alternative proposal, amounted to substantial and significant time. It is not necessary to record the debate which ensued. It will be available on transcript if required.

3. I am satisfied that the independent children’s lawyer’s proposal, and the mother’s alternative proposal, is in the children’s best interests, whether or not, technically, it amounts to substantial and significant time, as defined in the Act.

4. In so doing, it is plain that I reject the mother’s primary proposal that the children’s best interests would be met by spending supervised time with the father on one day in each week, being each Saturday between 10am and 5pm, and on special days.

5. There is abundant evidence, to which I have referred, to the effect that the children have and continue to have and need a meaningful relationship with the father. The children’s need in this regard, in my view, cannot be met by spending only daytime with him, on one weekend day in each week, and on special days, such that their time with him needs to extend to overnight time, so that he has a meaningful involvement in their lives, and they have opportunity to spend meaningful time with him.

6. In particular, school holidays are special times for children. Their school terms can be quite long, and children need to feel and experience the involvement of both of their parents not only during their school terms, so as to have a sense of familiarity of involvement of both of their parents in their school lives but to have and feel involvement with both of their parents during their school holiday periods.

7. In my view, the mother’s very restrictive primary proposal would exclude the father from the children’s lives in their school activities during their school week and during holiday times.

8. Having firmly rejected the mother’s proposal that for the children to spend such limited time with the father would be their best interests, I would determine in favour of acceptance of the independent children’s lawyer’s proposal, being the mother’s alternative proposal, as being in the children’s best interests. The mother may find it difficult to embrace this, however, as the children’s mother, it will be her duty to do so.

Is a substantial and significant time order reasonably practicable

1. Further to the matters I have observed already, I am satisfied that the arrangements proposed by the independent children’s lawyer, and the mother’s alternative proposal, can be implemented.

2. The matter with which I am most concerned is the impact on the children of an arrangement for the children to spend time with each parent in accordance with the independent children’s lawyer’s proposal, and the mother’s alternative proposal. Mr P, as I have emphasised, and whose evidence I accept, said that the children will be “happier” with such an arrangement.

3. As the trial judge, I would hope sincerely that such an arrangement will be happy for the children, in the sense of the impact on them of an arrangement for them living with the mother and spending time with the father whether or not, technically, such amounts to substantial and significant time.

Conclusion as to reasonable practicability

1. There is no evidentiary reason to conclude that the orders I propose to make are not reasonably practicable. In particular, I have carefully considered Dr A’s evidence concerning D, and his likely reaction to there being other than an equal time order.

Conclusion as to substantial and significant time

1. Whether or not the independent children’s lawyer’s proposal, and the mother’s alternative proposal, amount to substantial and significant time, I conclude that the children’s best interests will be met by those proposals, as modified, as discussed.

Orders

1. I will make orders accordingly, preferring the independent children’s lawyer’s proposal that the children’s time with the father commence after school on Friday, on the alternate weekends, rather than 5pm Friday, so that the children may have the benefit of the father being known at the school and the better opportunity to have him involved in the school week; and preferring that the children’s Christmas school holiday periods be in half/half blocks, rather than week about in that period.

2. The parties’ proposals, and amended proposals, included many other orders sought, to which I need not make specific reference, as many were not controversial.

3. I am satisfied overall that the orders I will make are in the children’s best interests.

4. I would mention that in the orders relating to Easter Sunday I have made provision for time with the father if Easter Sunday should fall during a school holiday period when the children are with the mother, but not vice versa. This is not oversight. Rather, it is so that the children’s half holiday time with the father will not be interrupted if Easter Sunday should fall during the school holiday period when the children are with the father, given that pursuant to the orders they will be living primarily with the mother.

5. I would include in the orders that Mr P, or another family consultant arranged by the Senior Family Consultant SA/NT, explain to the children their living arrangements pursuant to these orders, that the Court has decided that these orders are in the children’s best interests, and that in consequence D, in particular, should not feel any guilt about there not being an order for equal time and, fundamentally, that the children will be able to have a meaningful relationship with both of their parents although they will be living primarily with the mother.

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1. I propose to include notations to the orders concerning Families SA, in particular that it is requested periodically to inquire into and monitor the children’s living conditions and safety.

I certify that the preceding 319 (three hundred and nineteen) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 9 May 2011.

Associate:     

Date: