VALLACE & VALLACE

[2020] FCCA 664

FEDERAL CIRCUIT COURT OF AUSTRALIA

VALLACE & VALLACE [2020] FCCA 664

Catchwords:
FAMILY LAW – Parenting – interim – consideration of change to children’s living arrangements – shared care arrangement of the children pursuant to final consent orders in June 2018 – where children’s mental and psychological wellbeing has deteriorated since the making of final orders – where the parents are unable to effectively communicate for the benefit of the children – sole parental responsibility ordered in relation to medical decisions.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 102NA

Cases cited:

Goode & Goode (2006) FLC 93-286

Applicant: MR VALLACE

Respondent: MS VALLACE

File Number: DGC 163 of 2014

Judgment of: Judge Mercuri

Hearing date: 10 March 2020

Date of Last Submission: 10 March 2020

Delivered at: Melbourne

Delivered on: 25 March 2020

REPRESENTATION

Counsel for the applicant: Ms Mansfield

Solicitors for the applicant: Wakefield Vogrig & Boote Lawyers

Advocate for the respondent: In person

Solicitors for the respondent: None

Advocate for the Independent Children's Lawyer: Mr Taghdir

Solicitors for the Independent Children's Lawyer: Taft Lawyers

ORDERS

1. The previous orders made on 26 June 2018 and 10 October 2019 be discharged.

2. The children V born in 2004 (“V”), W born in 2005 (“W”), X born in 2007 (“X”), Y born in 2008 (“Y”) and Z  born in 2009 (“Z”) (collectively “the children”) live with the father.

3. The children spend time with the mother as follows:

   (a)Each alternate weekend from after school on Friday (or 3:30pm if a non-school day) to before school on Monday (or 9:00am if a non-school day), except if the Monday is a public holiday or non-school day, when the children will stay in the mother’s care until before school on Tuesday (or 9:00am if a non-school day);

   (b)During school holiday periods after Terms 2 and 3, for the first week commencing on the last day of school term (or 3:30pm if a non-school day) until the middle Saturday of the school holidays at 10:00am;

   (c)During the Term 1 school holiday periods, which generally includes Easter, for the entire school holiday period commencing on the last day of school on Term 1 (or 3:30pm if a non-school day) until the first day of Term 2 (or 9:00am if a non-school day) in the year 2020 and each alternate year thereafter;

   (d)From 3:00pm on Christmas Day until 3:00pm on 27 December in the year 2021 and each alternate year thereafter;

   (e)For the second half of the summer school holidays in the year 2020 and each alternate year thereafter, calculated to take into account exactly half of the nights from the last day of Term 4 until the first day of Term 1 the following year, save that the children must be returned to the father at 3:00pm four days before the earliest of the children’s first day of school, which is to encompass the Australia Day long weekend;

   (f)For each of the mother, V, W, X, Y and Z’s birthdays, if they fall on a day that they are not otherwise with the mother, from after school until 7:30pm if a school day, or from 2:00pm until 7:00pm if a non-school day, save that if the child X’s birthday falls during the Easter period when the children are spending the alternate year with the father pursuant to order 3(c) herein, then X will not be made available to the mother on that day, and alternate arrangements will be made for the mother to celebrate X’s birthday either prior to or after the Easter period;

   (g)On Mother’s Day from 2:00pm until 7:30pm; and

   (h)Such other times as agreed between the parties.

4. The mother is at liberty to communicate with the children via telephone, text message, Facebook messenger and similar electronic median on the first Thursday and second Tuesday that the children are in the father’s care, unless there is an emergency.

5. The children or any of them are at liberty to contact either parent at any time of their own accord.

6. All non-school changeovers are to take place at the residence of the parent the children are going to.

7. The children’s time with the mother pursuant to order 3(a) is to be suspended during all school holiday periods.

8. The children may be returned to the father for the children’s birthdays or Father’s Day as agreed between the parties.

9. The children are to be in the father’s care as follows:

   (a)During the school holiday periods after Terms 2 and 3, for the second week commencing on the middle Saturday of the school holidays at 10:00am until the first day of the following term;

   (b)From 3:00pm on Christmas Day until 3:00pm on 27 December in the year 2020 and each alternate year thereafter; and

   (c)For the first half of the summer school holidays in the year 2020 and each alternate year thereafter, calculated to take into account exactly half of the nights from the last day of Term 4 until the first day of Term 1 the following year.

10. The father may make all arrangements for medical appointments for the children and must keep the mother informed of all such arrangements for the children.

11. Both parents may attend medical appointments for the children, or if only one parent attends, they are to keep the other informed of such appointments; however, the mother is not at liberty to make appointments herself, and is permitted to attend only by prior written arrangement with the father.

12. The mother be restrained by injunction from arranging or signing any consent forms for medical treatment for the children or any of them, except in the case of an immediate emergency.

13. In the event that the children or any of them require and attend for emergency treatment, the mother must advise the father within two hours.

14. Both parties be at liberty to attend all school functions and appointments ordinarily attended by parents, and be kept updated with all school reports, newsletters and the like.

15. Both parties be restrained by injunction from removing the children from the state without the written consent of the other parent, and that permission is not to be unreasonably withheld by the other parent.

16. The mother must do all such things as may be required to facilitate the children’s participation in their winter sports of choice and in the event the mother is unable to facilitate transport or attendance, she must ensure the father or his agent is able to arrange transport for the children.

17. The father be at liberty to provide a copy of these orders and the affidavit of Mr A sworn 20 and filed 26 February 2020 (containing the two family reports dated 29 March 2018 and 3 October 2019) to the children’s schools and any medical or allied health practitioners the children are engaged with, including but not limited to psychologists/counsellors, family therapists and dieticians.

18. The Independent Children’s Lawyer have leave to seek an urgent listing of this matter on short notice.

19. Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

(A)For the avoidance of doubt, any reference to a non-school day in these orders includes:

(a)A curriculum day;

(b)A pupil-free day; and

(c)Any day on which the child/ren are not required to attend school as a result of a direction issued by the school or the relevant education authority.

(B)Pursuant to section 62B of the Family Law Act 1975 (Cth), information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(C)Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 163 of 2014

MR VALLACE

Applicant

And

MS VALLACE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for parenting orders relating to five children of the relationship:

   a)V born in 2004 (“V”);

   b)W born in 2005 (“W”);

   c)X born in 2007 (“X”);

   d)Y born in 2008 (“Y”); and

   e)Z born in 2009 (“Z”) (collectively, “the children”).

Background

1. These proceedings have been on foot for almost three years. 

2. A family report was prepared by Dr A and released on 29 March 2018. 

3. Final parenting orders were then made by consent on 26 June 2018 which provided for the parents to have equal shared parental responsibility, for the children to live with the father and for the children to spend time with the mother from Thursday to Monday in week one and from Thursday to Friday in week two; that is, pursuant to a 5/9 arrangement (“June 2018 final orders”).

4. The father’s application also sought to agitate property matters which were not resolved in March 2018 and therefore remained on foot.

5. In May 2019, the father amended his initiating application seeking to reopen parenting matters and seeking sole parental responsibility for the children and that the children live with him. 

6. An updated family report was prepared by Dr A on 3 October 2019 (“October 2019 report”), which was not filed until 26 February 2020. 

7. When the matter came before me on 10 October 2019, orders were made for an Independent Children’s Lawyer to be re-appointed and for parenting and property matters to be listed for final hearing with an estimate of four days commencing on 10 March 2020.  On that occasion, the matter was listed with priority given the risk issues which had been identified.

8. The mother then ceased to be legally represented and consequently an order was made pursuant to section 102NA of the Family Law Act 1975 (Cth) (“the Act”) on 12 February 2020. At that point, the matter remained listed for final hearing with priority on 10 March 2020 in the hope that legal representation could be secured in time.

9. The mother was unable to secure legal representation for that final hearing date and sought an adjournment which the father did not oppose and the hearing was relisted, again with priority for 2 June 2020.  Given the further delay in the hearing of these proceedings however, and in light of the comments and observations made by Dr A in his October 2019 report, the father sought interim orders pending the final determination of the matter, which were supported by the Independent Children’s Lawyer. 

Father’s proposal

1. In summary, the father sought the following orders on an interim basis:

   a)he have sole parental responsibility for the children, although he would be required to keep the mother informed of decisions made;

   b)the children live with him;

   c)the children spend time with the mother:

   i)each alternate weekend from Friday after school to the commencement of school on Monday (or commencement of school on Tuesday if Monday is a non-school day);

   ii)half of school holidays save for the holidays after Term 1 with the parents having the children in their care for the whole of the school holiday period (alternating each year);

   iii)on special occasions; and

   iv)telephone time;

   d)non-school changeovers to occur at the home of the parent whose house the children are going to;

   e)the father to make all arrangements for the children’s medical appointments and educational enrolments and keep the mother informed;

   f)a mutual restraint on either party travelling interstate with the children unless with the prior consent of the other parent;

   g)the mother facilitate the children participating in their winter sports;

   h)the mother not bring the children into contact with Mr B and Ms C or Ms D and Mr E unless the mother is supervising that time;

   i)the husband be permitted to provide a copy of these orders and Dr A’s affidavit filed 26 February 2020 to the children’s school and any health practitioner with whom the children are engaged.

2. The father’s position is consistent with the recommendations made by Dr A’s October 2019 report.

3. As stated, the Independent Children’s Lawyer was supportive of interim orders being made as proposed by the father.

Mother’s proposal

1. The mother opposed any interim orders being made.  She sought that the current interim arrangements continue in force until the final hearing.  Essentially, the basis of the mother’s opposition to interim orders being made is as follows:

   a)the children seem to have settled down since Dr A prepared his October 2019 report;

   b)the older girls are now engaged in appropriate psychological support;

   c)the final hearing is only three months away; and

   d)in circumstances where the mother’s proposal is for the children to live with her and spend limited time with the father, it is not appropriate to make orders now which may significantly change the children’s living arrangements following the final hearing.

2. There is some force to the mother’s final point above.  Generally speaking, where a final hearing is listed in three months’ time, there would be little utility in making interim orders pending that final hearing and determination, particularly where the parties’ competing positions are diametrically opposed.  However in this case, the issues which are raised in Dr A’s October 2019 report are of significant concern.  For the reasons which follow, I am satisfied that it is in these children’s best interests for the court to make interim orders in the terms sought by the father and supported by the Independent Children’s Lawyer.

Evidence

1. The mother and father have filed their respective trial material in anticipation of the final hearing which had been listed for 12 February 2020. 

2. Relevantly, the father’s evidence is summarised as follows:

   a)the mother has unjustifiably and unreasonably:

   i)maintained allegations that he was the perpetrator of family violence against her (which he denies); and

   ii)sought criminal charges against him for alleged breaches of intervention orders;

   b)he holds significant concerns about the mother’s capacity to care for the children due to her ongoing mental health issues;

   c)he is concerned about derogatory remarks made about him by the mother’s cousin and his wife (Mr B and Ms C), including that Mr B and Ms C have been coaching the children to say negative things about him;

   d)the mother did not support V’s desire to participate in sports;

   e)V developed concerning eating issues in mid to late 2018 which the father sought to address by engaging with a paediatrician, however the mother arranged a dietician to support V without reference to him;

   f)the mother did not follow the recommendations of the paediatrician and therefore V was not receiving consistent messages in both households about her food;

   g)the mother did not agree to the psychologist initially referred to by V’s paediatrician and demanded another be nominated, which effectively delayed V’s attendance upon a psychologist;

   h)the mother unilaterally cancelled V’s psychologist’s appointment;

   i)in April 2019, V’s psychologist Ms F called the father expressing concerns about V’s ongoing prognosis, and he says that it was on this basis that he overheld V from spending time with her mother;

   j)during the time that V was not seeing her mother pursuant to the orders in place during that time, the father nevertheless encouraged her to see her mother;

   k)the mother would not allow the children to communicate freely with the father whilst spending time with her and would often confiscate their mobile telephones;

   l)W’s mental health deteriorated throughout 2019 culminating in her taking an overdose on 12 November 2019;

   m)on 9 December 2019, W was admitted to the G Hospital to treat her eating disorder at the request of her treating paediatrician; and

   n)W was not consistent with taking her anti-depressant medication and the mother encouraged this.

3. The mother’s evidence is summarised as follows:

   a)final separation occurred in late 2017 following an incident where the father grabbed V around the neck;

   b)the mother has lived in Town H for over two years, some 25 minutes from Town J where the children attend school and where the father lives;

   c)she runs her own business from home;

   d)she sees a psychiatrist and general practitioner and has not had any psychosis for over four years, nor any depression or suicidal thoughts for over three years;

   e)after the June 2018 final orders, V developed anorexia, depression and bingeing episodes and anxiety;

   f)V then commenced self-harming behaviour and was placed on anti-depressants in May 2019;

   g)V had 81 days absent from school in 2019;

   h)similarly, since the June 2018 final orders were made, W lost 24 kilograms in an 18 month period and stopped menstruating;

   i)W also began taking anti-depressant medication and self-harming behaviour was identified in October 2019;

   j)on 12 November 2019, W took an overdose of tablets and attempted suicide; she was subsequently admitted to G Hospital and was diagnosed with anorexia;

   k)W had been absent from school for 57 days in the second half of the year in 2019;

   l)X is doing well at school but is very withdrawn;

   m)Y’s behaviour has progressively worsened both at home and school;

   n)Y has been reported for numerous aggressive incidents at school, culminating in his suspension on 27 June 2019 for punching another student; and

   o)Z has had some incidents at school but is otherwise generally doing well.

4. The mother complained about the father’s failure to engage with her with respect to the children’s medical needs and extra-curricular activities, which had led to further conflict between them.  The mother also expressed concern about:

   a)the children being left alone at home and unsupervised, particularly in the mornings when the father leaves home to attend work; and

   b)the father’s limitation on the children spending time with her family both in Victoria and interstate.

5. The mother conceded that equal shared parental responsibility would not be possible between her and the father, and ultimately seeks an order for sole parental responsibility.

6. Notwithstanding the ongoing difficulties between them, the mother acknowledges that the father:

   …has allowed both girls to spend nearly 3 weeks of school holidays with me recently and has been sending them with the other children since the start of the year.  This is more settling for all of the children, and resulted in them being currently stable and able to attend school.  This has been appreciated but I’m aware that it is also only happening in the lead up to Trial and not what the pattern has been over the last year.  I expect this to change at any moment.[1]

   [1] Trial affidavit of the mother sworn 13 and filed 18 February 2020 at paragraph [15].

7. The mother takes issue with some of the contents and conclusions reached in Dr A’s report.

8. The mother concludes her affidavit with:

   I am aware that no change is going to be ideal in our situation.  Continued Court applications are not in the best interests of the children as they are constantly aware of the tension and involvement.  …I also know how serious this situation is and recognise the need for major changes to allow our children a chance at good health and successful futures.  I believe we are in a situation that is going to require adapting over time and feel that I would be more reasonable about that than Mr Vallace.[2]

   [2] Trial affidavit of the mother sworn 13 and filed 18 February 2020 at paragraph [20].

1. For the reasons set out above, the question of whether there should be any change to the children’s living arrangements has come before me at this point on an interim basis. 

2. In Goode & Goode (2006) FLC 93-286 (“Goode”), the Full Court of the Family Court considered among other things, how interim proceedings are to be conducted having regard to the relevant factors that the court must have regard to under Part VII of the Act. Relevantly, the Full Court said:

   …the procedure for making interim parenting orders will continue to be an abridged process where the scope of the inquiry is ‘significantly curtailed’.  Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.[3]

   [3] Goode & Goode (2006) FLC 93-286 at [68].

3. The Full Court made the following general comments about how interim proceedings ought to be conducted:

   In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.  However, the legislative pathway must be followed.

   In an interim case that would involve the following:

   (a)identifying the competing proposals of the parties;

   (b)identifying the issues in dispute in the interim hearing;

   (c)identifying any agreed or uncontested facts;

   (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)deciding whether the presumption in s 61DA… applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)if the presumption applies and is not rebutted, consider making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the factors in s 60CC, or impracticable;

   (h)If equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC or impracticable;

   (i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as  a result of consideration of one or more of the matters in s60CC;

   (j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as  result of the consideration of one or more of the matters in s60CC; and

   (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it, if the court considers after affording procedural fairness to the parties it to be in the best interests of the child.[4]

   [4] Goode & Goode (2006) FLC 93-286 at [81]-[82].

4. It is clear from Goode that a court cannot determine factual issues in dispute in an interim hearing.  However, that does not mean that the court can ignore serious allegations.  The court must assess the risks to the child/ren as best it can with the limited information available to it. 

5. In this case, both parties concede the following:

   a)the children have each presented, to varying degrees, in distress through concerning behaviour;

   b)the current living arrangements are not sustainable in the long term; and

   c)by virtue of their respective applications, the presumption of equal shared parental responsibility ought to be rebutted.  The father says that a change is required now whereas the mother says that any change should wait until the final hearing.

Dr A

1. In this context, Dr A’s report becomes particularly important.  Whilst that report is not yet tested, Dr A is a very well regarded and well qualified forensic psychologist who has produced a thorough and considered report in this matter.  Moreover, as stated above, having conducted an initial report in March 2018, Dr A is in a position both to comment on the children and their ongoing challenges and make observations about the nature of communication between the parents and any deterioration in their ability to communicate.

2. Relevantly, Dr A made the following observations about the parents and their post-separation communication styles in his initial 2018 report:

   Although there is a level of communication between them, generally in the form of emails (sic) exchanges, there is no active discourse or collaboration/discussion around major decisions affecting the children.  They do not speak in any immersive way about the lives of V(sic), W, X, Y, or Z.  They do not interact meaningfully at changeover, nor model positive/civil/congenial exchanges to their children.  In total, while there is a degree of practical functionality about the co-parenting relationship in this case, there are certainly aspects of the post-separation environment that are suboptimal.[5]

   [5] Family report prepared by Dr A dated 29 March 2018 at paragraph [32].

3. Dr A went on to say:

   Despite the difficulties that assuredly exist between these parents, I am not convinced that the situation between them is entirely unsalvageable.  That is, while acknowledging some of the interpersonal complexities that exist, I do believe there is some prospect that the parties can co-parent at a functional level.  …In time, as emotions settle, it is possible that these parents will eventually converse more meaningfully about the children.  The situation has not reached a level of dysfunction or toxicity that would render this outcome impossible.  I believe it is Mr Vallace who needs to make more substantial changes in her mode of engagement with Mr Vallace.  She needs to set aside her own apprehension for the sake of her children.  …She may benefit from professional support around how to do this, though I would caution, hers is a presentation that would warrant an intervention by a clinician well-versed in family law disputes.[6]

   [6] Family report prepared by Dr A dated 29 March 2018 at paragraph [34].

4. Similarly, in relation to the children’s relationship with each parent, Dr A concluded in 2018 that the children had a connection with each parent and said:

   … they do not idolise or venerate one parent while rejecting or undermining the other.  They benefit in different ways from each.  Their mother is clearly more laid-back in her approach... Their father is more structured and promotes positive behaviour, autonomy, and responsibility.  These children need both. The clear message to the Court as an artefact of the robust relationships that exist between these children and each parent is that V, W, X, Y and Z, need to spend significant time with both their mother and their father in order to maintain and consolidate a meaningful, immersive and familiar relationship.  One or two, or even three nights a fortnight with one of their parents may not provide for this opportunity in my view.[7]

   [7] Family report prepared by Dr A dated 29 March 2018 at paragraph [35].

5. In his March 2018 report, Dr A also noted the wishes of the children to continue living primarily with their father and spend considerable time with their mother, although the younger children expressed a desire to perhaps spend a little more time with their mother.  On balance, Dr A ultimately recommended that the then ‘status quo’ continue; namely, that the children remain living primarily with the father and spend five nights per fortnight with the mother. 

6. After receiving this report, the parties resolved parenting matters on a final basis by consent, consistent with Dr A’s recommendation.

7. As part of the current proceedings, Dr A prepared an updated family report in October 2019.  He conducted interviews with the parties and each of the five children on 2 September 2019, in addition to conducting a comprehensive review of the documents filed in these proceedings. 

8. In his October 2019 report, Dr A noted:

   …Relations between these parents continues to be entirely dysfunctional, with little communication, ongoing disagreements in all manner of areas pertaining to the children, and ongoing distrust and will.  There is still an intervention order in place against the applicant father, which has resulted in a number of alleged breaches arising from the manner of his correspondence with Ms Vallace.[8]

   [8] Family report prepared by Dr A dated 3 October 2019 at paragraph [4].

9. He made the following observations:

   …the situation for the children has also remained problematic.  V, the eldest daughter has struggled with her mood and mental state.  Concerns were raised about her eating and the possibility that she was developing an anorexic condition.  Later, there was evidence that she had been self-harming, by cutting herself around the midsection and on her legs.  Concerns have also emerged in relation to W, who is similarly claimed to have exhibited significant weight loss (17 kgs) and restricted caloric intake.  X has been described as withdrawn and isolated.  Y, who is currently in grade 5, started to exhibit significant behavioural problems, both at school, and predominately while in the care of his mother, exemplified by aggression, misbehaviour, social problems, and oppositional defiance.  He has been suspended, and received various other disciplinary sanctions by his school.  He is noted to be aggressive and oppositional and uncontained.  Finally, Z, continues to do well at school although some concerns have been raised in relation to his engagement and social acumen.  It is notable that the parents continue to disagree about the involvement of various professionals – psychologists, dietitians, paediatricians – resulting in various interventions for these children being delayed and otherwise complicated (emphasis added).[9]

   [9] Family report prepared by Dr A dated 3 October 2019 at paragraph [5].

10. Dr A also made the following observations of the mother:

    Consultation with Ms Vallace was complicated by a range of factors.  First, her style of interaction was rigid and inflexible.  Second, she exhibited a consistent tendency to focus on the conduct of the applicant father, rather than examine her own role in difficult events.  Third, her narrative and ability to reason through nuanced and complex situations relating to the children impressed as underdeveloped.  Fourth, her mental state appeared morose, interspersed with instances of anger and hostility, seemingly aggrieved by the contents of the previous report. 

    …

    She did not accept that her decisions in relation to the children, around their medical and psychological needs, as well as V’s extracurricular activities (sports), had been at all flawed, seemingly oblivious to the sensitivities of the situation.  In particular, Ms Vallace appeared unable to comprehend how important sports may have been for her eldest daughter, and that with minor changes in rescheduling, it may have been workable to achieve a positive outcome for V.  Indeed, much of her reasoning in relation to the sports issue seemed more oriented around resisting Mr Vallace’s decisions and preferences for the children, rather than what may have been best for her daughter.[10]

    [10] Family report prepared by Dr A dated 3 October 2019 at paragraphs [13] and [16].

11. Dr A then made the following observations of the father:

    The assessment with Mr Vallace was equally challenging.  He too presented with little introspection.  His demeanour was similarly concrete.  He tended to be overtly frustrated, and quite dominant during some of the interactions.  He appeared unable to see how his own behaviour had contributed to a thoroughly toxic relationship with the children’s mother.  He was intent on blaming Ms Vallace for the ongoing trouble within the family, and resisted feedback about areas in which he may improve.  He was also convinced that he had been unreasonably victimised by the respondent mother, whom had colluded with “an ultra, left-wing, man-hating bitch” at Victoria Police… to have him charged with breaching the intervention order.[11]

    [11] Family report prepared by Dr A dated 3 October 2019 at paragraph [17].

12. In relation to the children, Dr A said:

    A consistent feature with all the children was awareness and unease about the situation between their parents.  All of the children, in different ways, impressed as deeply affected by the dysfunctional circumstances within their family.  These were not happy, unencumbered young people, well-adjusted, contented, striving to succeed and find their place in the world – these were children all disturbed in their own way, in large measure by the hostilities in their family of origin (emphasis added).[12]

    [12] Family report prepared by Dr A dated 3 October 2019 at paragraph [21].

13. Dr A then made the following observations about the situation regarding this family more generally:

    …The acrimony and hostility and bitterness and dysfunction between Mr and Mrs Vallace has augmented and consolidated.  Their maladaptive post-separation relationship has become entrenched in my view.  There are now innumerable and tangible examples of how these children have been directly affected by the inability of these parents to discuss and ultimately agree about a given course of action.  Although these are two loving parents who want the best for their children, their behaviour throughout the post-separation period has been, mutually, appalling.  Both present with an abject incapacity to place the needs of the children ahead of their own dispute with one another (emphasis added)…

    In all, given how things have evolved over the last 18 months or so, it does appear that the situation between these parents is irrecoverable.  It is V, W, X, Y and Z whom are the innocent victims of their parent’s (sic) disturbed way of interrelating.  …I have formed the opinion that it is no longer in these children’s best interests for both parents to retain equal shared parental responsibility.  The inability of Mr and Mrs Vallace to agree on a psychologist or a doctor or dietician throughout 2019 has very likely delayed, and ultimately compromised, the situation for the older two girls.  In absolute terms, these parents have proven themselves incapable of working together in the interests of the children, necessitating change to parental responsibility.  This is a most undesirable outcome for V, W, X, Y, and Z, however, a necessary one given a… pattern that has included disputes over school/health/travel/activities/living arrangements, almost constant litigation since separation, excessive DHHS notifications, recurring reports to police, charges for breaches of the intervention order, and an almost total paucity of any effective interaction about the children…

    Regarding the children’s living arrangements, again, what has been an almost shared care arrangement, has been a decisive factor in how things have evolved for these children. …These are deeply burdened children whom are all presenting with difficulties... The older two girls are showing depressive features, eating problems, and in V’s case, self-harm.  X presents as quiet and withdrawn, keen not to cause any further ripples in the family.  Y is bordering on uncontrollable, presenting with unambiguous behavioural disturbance that will be difficult now to address.  Z feels left out and unimportant, given the magnitude of the difficulties among his siblings.  To restate, these children are all suffering in different ways as a direct result of the toxic environment that has been cultured by their parents… (emphasis added).[13]

    [13] Family report prepared by Dr A dated 3 October 2019 at paragraphs [23]-[24].

14. These observations led Dr A to the conclusion that the children’s living arrangements should change to live with one parent ‘for the sake of stability and consistency (and to minimise exposure to the toxic dynamic between their parents).’[14]  Dr A recommended that a 12/2 or 11/3 living arrangement be implemented, noting that in his view ‘these children are at psychological risk… by continuing to live substantively with both of their parents.’[15]

    [14] Family report prepared by Dr A dated 3 October 2019 at paragraph [24].

    [15] Family report prepared by Dr A dated 3 October 2019 at paragraph [24].

15. Dr A went on to consider which parent would be preferable for the children to live with and noted that there were issues with the children living with either parent.  However, on balance, Dr A observed:

    … Mr Vallace is slightly better placed to promote the children’s relationship with their other parent, than is Ms Vallace.  I would be concerned that if these children were to live mainly with their mother, they would grow up in an ambient environment in which their father may be progressively undermined and devalued...[16]

    [16] Family report prepared by Dr A dated 3 October 2019 at paragraph [25].

Consideration

1. I turn then to the factors to which I must give consideration at this interim stage of the proceedings. I have set out the parties’ respective proposals above. The key issue for determination is whether there needs to be a change to the children’s living arrangements, pending the final hearing in June 2020.

2. The undisputed facts of this case are as follows:

   a)there continues to be significant acrimony and communication issues between the parties;

   b)each parent blames the other for this poor communication;

   c)the children are all suffering to varying degrees, including self-harm, eating disorders, behavioural issues and evidence of mood disorders; and

   d)these conditions have worsened under the current living arrangements, although each parent blames the other for the cause of these changes.

3. Although the mother says that no change ought to be made to the children’s living arrangements on an interim basis, her ultimate claim is for the children to live primarily with her and to spend limited time with the father.  It appears from this that both parties agree that the children’s current living arrangements are not sustainable.

4. Notwithstanding concerning issues arising with respect to the two older girls over the last two years, the parents have not been able to agree on an appropriate treatment regime, the consequence of which may well be as noted by Dr A, to have delayed and perhaps compromised their treatment and care. 

5. In terms of the section 60CC factors, the court must balance the two primary considerations; namely:

   a)the need to provide children with the ability to develop and maintain a meaningful relationship with both their parents on the one hand; and

   b)the need to protect children from psychological or physical harm on the other. 

6. In this case, the children have a meaningful relationship with both their parents, but as is evident from Dr A’s October 2019 report and the parties’ own evidence, the children are suffering under the current arrangements. 

7. Dr A makes it clear that the risk of harm arises from the parents’ dysfunctional post-separation relationship.  The most telling concern arises in the parties’ inability to agree an appropriate course of treatment to address the escalating behaviours exhibited by the two girls in particular.  Dr A reported the following comments having been made by each of the children:

   a)V said that she was ‘not doing very well at the moment’[17] and ‘in an ideal world, I wouldn’t be staying at either place’[18];

   b)W said that whilst she likes spending time with both parents, ‘something needs to change, but I don’t know what that is’[19];

   c)X said, ‘Mum and Dad separated and that caused my sisters to become sick’[20];

   d)Y acknowledged that he was struggling with his behaviour and said ‘I’ve been getting angry easy’[21]; and

   e)Z expressed concern about his sisters and said that Y bullied him terribly.[22]

   [17] Family report prepared by Dr A dated 3 October 2019 at paragraph [21(a)].

   [18] Family report prepared by Dr A dated 3 October 2019 at paragraph [21(a)].

   [19] Family report prepared by Dr A dated 3 October 2019 at paragraph [21(b)].

   [20] Family report prepared by Dr A dated 3 October 2019 at paragraph [21(c)].

   [21] Family report prepared by Dr A dated 3 October 2019 at paragraph [21(d)].

   [22] Family report prepared by Dr A dated 3 October 2019 at paragraph [21(e)].

1. On balance, in the circumstances of this case and given that the children have an established relationship with both parents, an order for the children to primarily reside with one parent and spend more limited time with the non-resident parent is likely to provide greater support for the children’s psychological needs. This outweighs any impact on the nature of the relationship between the children and the non-resident parent.

2. I now turn to consider the secondary factors in section 60CC(3) of the Act:

   a)The older children have expressed a view that it is preferable for the current arrangements to change. Whilst the younger children would like the existing arrangements to remain in place, their views need to be balanced against the benefit of having greater stability in their living arrangements, and less exposure to the toxic and dysfunctional parental relationship;

   b)by and large, the children each have a meaningful relationship with their parents.  However, as a result of the parental conflict, the oldest child has expressed a desire to cease living with either parent in ‘an ideal world’;

   c)as noted above, the parents have not been able to agree on the appropriate treatment for the older girls and may have inadvertently compromised their respective long term rehabilitation;

   d)as to the likely effect of the proposed change, having regard to the children’s current situation, a change to the children’s living arrangements is likely to provide them with greater stability and lessen their exposure to parental conflict;

   e)both parents appear to have limitations on their ability to put their dispute with each other ahead of the children’s emotional needs;

   f)it is apparent that these children have particular psychological needs, and any orders, including changes on an interim basis, need to have regard to those needs; and

   g)given the mother’s allegations the father was controlling and subjected her to domestic violence during their relationship, she also expressed concern that the father would not be able to control his anger with the children in his care.

Parental responsibility

1. As stated, the father seeks an interim order for sole parental responsibility.  Ordinarily, this would be an issue for determination at a final hearing.   An order for equal shared parental responsibility was made by consent in 2018.  Notwithstanding that order, the parents have not been able to work co-operatively, particularly in relation to issues pertaining to the children’s psychological and health.  This has resulted on either parent’s case, in a deterioration of the children’s mental health, particularly with respect to V, W and Y. 

2. Having regard to the observations made by Dr A of the deterioration in the children’s mental health and presentation since the June 2018 final orders were made, I am satisfied that it is imperative for one parent to be able to make decisions about the children’s health, pending the final determination of this matter.  In my view, it is wholly appropriate that the person with that responsibility be the parent with whom the children principally reside.

3. The issue of sole parental responsibility with respect to other long term issues is not as time sensitive and can remain a matter for determination at trial. 

4. For these reasons, I am satisfied that the presumption of equal shared parental responsibility in section 61DA(1) of the Act is rebutted in this case insofar as it relates to the capacity to make medical decisions for the children. It is not in the children’s best interests for the parents to have equal shared parental responsibility in respect of such matters.

5. Both parents accept by virtue of their final orders sought that equal shared parental responsibility is not appropriate in this case.  For the reasons set out above, particularly having regard to the deterioration in the psychological wellbeing of both V and W since the making of the June 2018 final orders, and the difficulty that these parents have had in agreeing to an appropriate treatment regime for their children, there is a sense of urgency in altering the children’s living arrangements which justifies making the orders sought by the father on an interim basis. 

6. In coming to this view, I have had regard to the mother’s submissions that:

   a)given the final hearing is listed in a few months, orders changing the current arrangements ought only be made once all of the evidence is tested; and

   b)if the mother’s case is ultimately accepted at trial, the children will be required to make a second significant change in their living arrangements in a matter of months.

7. There is some force to these arguments.  However, this risk needs to be balanced against the significant deterioration in the older children’s wellbeing since the June 2018 final orders were made, the observations of Dr A about the state of these children’s psychological wellbeing and the fact that a change is required. 

8. This is coupled with the fact that it will still be a matter of months before the issues in this matter will be ventilated in court and perhaps a further period before a final decision is made.  On balance, and in light of the observations made by Dr A in October 2019, it is preferable that these children be given stability and one parent be given the ability to make unilateral decisions about their medical and health needs.  These parents have, to date, demonstrated an incapacity to put their children’s needs ahead of their dispute with each other.

9. In terms of which parent the children ought to live with, at an interim basis, and without having had the benefit of testing the parties’ respective evidence, I accept Dr A’s recommendation that on balance, the father is slightly better placed to support the children’s ongoing relationship with their mother.  In particular, I have had regard to the fact that Dr A has had the benefit of assessing the parties on more than one occasion and has been able to assess the deterioration in their relationship over a period of time.

10. In order to address any potential concerns about the impact these changes to the children’s living arrangements may have, I propose making an order granting the Independent Children’s Lawyer leave to seek a listing of this matter at short notice should the need arise prior to the final hearing. 

Conclusion

1. Having regard to all of these factors, I find that it is in the children’s best interests for the following interim orders to be made, pending the final hearing of this matter:

   a)that the father have sole parental responsibility with respect to medical issues regarding the children, subject to keeping the mother informed of any such decisions;

   b)the children live with the father;

   c)the children spend time with the mother each alternate weekend from Friday after school to the commencement of school on Monday, for half of school holidays and on special occasions.

2. The father also seeks interim orders that the children not be permitted to spend time with specified members of the maternal family unless the mother is present during such time.  The ongoing dispute about the nature of the children’s relationship with the mother’s family and whether this is a positive or negative influence in the children’s lives remains an issue for trial and I do not propose making an order in these terms at this point in time. 

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date:   25 March 2020