VEZZONI & MAXWELL

FAMILY COURT OF AUSTRALIA

VEZZONI & MAXWELL

[2013] FamCA 351

FAMILY LAW – CHILDREN – Children’s living arrangements – where the children live with the father and spend substantial and significant time with the mother – where it would benefit the children to have meaningful relationships with both parents – where the children were not at risk from exposure to family violence, neglect or abuse by either parent – where the mother had been the primary carer for one child and the father had been the primary carer for the other child – where the mother had undermined the children’s relationships with their father – where the children’s wishes to live with their mother were not taken into account due to their immaturity – where the father was receiving assistance to better meet the children’s physical and emotional needs – where the mother projected her anxieties onto the children – where the mother continued to raise allegations that the father had sexually and physically abused the children, despite those allegations being unsubstantiated over a period of years – where the mother conceded at trial her inability to critically evaluate the children’s criticisms of the father – where the father had a history of unstable intimate relationships – where proceedings had endured for seven years

FAMILY LAW – CHILDREN – Parental Responsibility – where the father has sole parental responsibility – where the father retains an obligation to notify the mother in writing and consult with her regarding any decision he makes in relation to the long term care, welfare and development of the children – where the parties will share the responsibility as to what school the children are enrolled in – where the parents will attempt to reach agreement as to who will be the children’s general medical practitioner, and failing agreement the father decide – where the presumption of equal shared parental responsibility was rebutted by evidence demonstrating the parties difficulties in communicating about the children

FAMILY LAW – CHILDREN – Specific Issues – obligation for parents to seek therapeutic intervention – where the mother is requested to obtain a referral for therapeutic intervention to assist her in the care of her children – where the father is required to maintain his current therapeutic treatment – parents ordered to undertake a parenting after separation program

Family Law Act 1975 (Cth) ss 4, 60CC, 61C, 62B and 65DA

Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)

Jacks & Samson (2008) FLC 93-387
L & T (1999) FLC 92-375

APPLICANT:

Ms Vezzoni

RESPONDENT:

Mr Maxwell

INDEPENDENT CHLDREN’S LAWYER:

Stephen Marks

FILE NUMBER:

SYC

6253

2007

DATE DELIVERED:

22 May 2013

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATES:

21, 22, 25, 26 and 27 February 2013

REPRESENTATION

APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Burns

SOLICITOR FOR THE RESPONDENT:

Adams & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Stephen Marks

Orders

That the children J Maxwell, (“J”) born … December 2005 and K Vezzoni, (“K”) born … April 2008 shall live with the father.
That the father have sole parental responsibility for the children on issues not otherwise defined by these Orders and in that regard shall take the following steps when a long term issue arises for either or both of the children:
(a)notify the mother in writing (including by email) of the issue to be determined;
(b)ask the mother to express her views on the appropriate way to address the issue within a reasonable period defined by him in the correspondence;
(c)consider the views of the mother;
(d)advise the mother of the decision taken on the issue.
That unless otherwise agreed between the mother and the father in writing the children shall spend time with the mother as follows:
(a)During each school term each alternate weekend from after school Friday to before school the following Monday (or Tuesday if Monday is a public holiday or pupil free day), with weekends to commence as follows:
(i)on the first weekend of term where the mother has had the first half of the immediately preceding holiday period; and
(ii)on the second weekend of term where the mother has had the second half of the immediately preceding holiday period.
(b)Each Wednesday from after school to before school the following morning with the mother to collect the children from school in the afternoon and deliver them back to school the following morning.
(c)At Easter in those years when Easter does not fall within school holidays from 4.00 pm Thursday until 4.00 pm on Easter Sunday.
(d)During holiday periods at the end of Terms 1, 2 and 3:
(i)in even numbered years from 4.00 pm on the last day of school until 4.00 pm on the middle Sunday; and
(ii)in odd numbered years from 4.00 pm on the middle Sunday until 4.00 pm on the last day before the children are required to attend back at school
SAVE AND EXCEPT that whenever Easter falls within the school holiday period the mother is to have the first half of that holiday period.
(e) During the Christmas school holiday period:
(i)from 3.00 pm on 24 December 2014 to 3.00 pm on 26 December 2014 and each alternate year thereafter; AND for a period of 19 days in January commencing 10 January 2015;
(ii)AND from 3.00 pm on 24 December for a continuous period of 20 days in each alternate year commencing 24 December 2013 and each alternate year thereafter.
Each Mother’s Day weekend if they are not already spending time with the mother from 6.00 pm Saturday to return to school on the following Monday.
The children’s time with the mother will be suspended on Father’s Day weekend from 6.00 pm Saturday for the balance of that period.
During term times the mother is at liberty to telephone the children once between the hours of 5.00 pm and 6.00 pm each Tuesday and Thursday.
The father is at liberty to telephone the children once between the hours of

5.00 pm and 6.00 pm each alternate Saturday.
All changeovers not specifically provided for in these Orders shall be at McDonalds Family Restaurant at Suburb B.
That prior to the commencement of Term 3 2013 (NSW Public School calendar as gazetted) the mother and father shall each do all acts and things and sign all documents necessary to enrol each child in a school agreed upon by the mother and father in writing and failing agreement in the NSW Public School most convenient to the father’s residence and that following such enrolment, each party shall be and is hereby restrained from enrolling either child in any other school without the prior written consent of the other parent.
Both parents shall be at liberty to:
(a)attend all school meetings, functions and events relating to either child or in which either child may be involved to which parents are ordinarily permitted to attend;
(b)be a liberty to be involved in all school activities in which parents ordinarily participate including but not limited to canteen duty.
Each parent shall forthwith (and in any event as soon as practicable) notify the other parent of all illnesses, injuries or conditions suffered by either child whilst in his/her care requiring professional medical treatment or assessment, such notice to include the name, address and telephone number of the treating or assessing medical professional or hospital and these Orders shall authorise such treating/assessing medical professional or hospital to communicate directly with the other parent regarding all health issues pertaining to the children or either of them.
Failing agreement otherwise the father shall nominate a general medical practitioner who will thereafter be known and referred to as the children’s doctor and other than in the event of a medical emergency or the unavailability of such doctor, each party shall be and is hereby restrained from taking either child to any other general medical practitioner without the prior written consent of the other parent.
That upon the children’s doctor being nominated by the father either party may deliver to that doctor the single expert report of Dr C and a copy of these Orders and Reasons for Judgment.
Each parent shall do all necessary things and sign all relevant documents to ensure that both children are included on the Medicare card of each parent.
The mother and father shall each complete a recognised Parenting After Separation course within six months of the date of these Orders and shall provide one another within seven days of receipt of same, with a copy of documentation from the relevant service provided confirming completion of such course.
The mother shall obtain a referral from her general practitioner to an appropriately qualified psychologist or psychiatrist for therapeutic intervention to assist the mother to understand the impact of her anxiety about the children on her decision making and to develop skills and strategies for appropriately reality testing statements made by the children or observations of the children made by the mother which prompt her to believe that one or both of the children is being sexually or physically abused by the father
AND the mother may provide a copy of the report of Dr C to her general practitioner for inclusion in the referral if that doctor considers it would be appropriate to do so.
The father shall maintain attendance at D Family Centre for as long as he is recommended to do so and will accept any referral for therapy made through the Centre.
Each parent shall notify the other of any changes to his/her mobile telephone service number within 48 hours of any changes to such number.
Each parent shall provide the other with not less than 14 days prior notice of any intention to change address, such notice to include the street name and number and town or suburb of the new address.
Each parent shall be and is hereby restrained from denigrating, speaking ill of or criticising the other parent in the presence or within the hearing of either child.
Each parent shall do all acts and things reasonably necessary to ensure no third person denigrates, speaks ill of or criticises the other parent in the presence or within the hearing of either child.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)SYC6253 of 2007

Ms Vezzoni

Applicant

And

Mr Maxwell

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

This is a dispute over parenting arrangements for two children, J aged seven and K, aged just five years. The applicant mother is aged 41, the respondent father 36. The parties commenced a relationship in or about 2005. Their first child J was born in December 2005. The relationship broke down a few months later. There was an Apprehended Violence Order (“AVO”) made for the protection of both the father and J who came into his care. The parties then reconciled and lived together for approximately 18 months and another child was conceived. K was born in April 2008 after all prospects of reconciliation between the parents were gone.
The parties have maintained an increasingly hostile relationship. J has lived with his father since the early separation. K has lived predominantly with her mother since her birth in April 2008. The children have different surnames and although more recently they have been spending time together in the two different households, they have been raised separately. J attends E School, a Religion F school chosen by the father over the mother’s opposition. K attends G School chosen by the mother and opposed by the father, whose preference is that both children attend E School.
The parties do agree that the children should be living together with one parent or the other and that they should both attend the same school. They do not agree as to which parent the children should live with or which school it should be. The parents also agree that both children should attend on the same medical practitioner whichever household they live in and both children should be on the Medicare card of both parents.
The position of the mother before the Court is that the father has been cruel and abusive towards the children, sexually inappropriate, manipulative and indifferent to their real needs.
The position of the father before the Court is that the mother has made false allegations about him. He denies all sexual misconduct, cruel treatment of the children, or deliberate attempts to cause the mother to be fearful for the safety of the children.
Despite these positions each of the parents, whilst seeking residence for himself or herself, proposes for alternate weekends with the other parent, holidays and other special times.
In the household of the mother is her son H, who will be 13 this year and is now at high school. H has physical and intellectual impairments. He enjoys a close relationship with both J and K. He is particularly attached to J.
In the father’s household, there is the father’s son L aged 11 months, the child of his recent relationship with Ms A. K has a close relationship with L and enjoys spending time with him.
The mother has an older daughter who is 21 this year and lives in Victoria. The father has recently had a regular association with Ms A’s three children from a previous relationship, although that is no longer the case.

History of the litigation

The parties’ first child J was born in December 2005.
On 20 March 2006 there was a complaint and summons by the father for an AVO for the protection of himself and J, which application was subsequently granted.
From approximately April 2006, J has been in the majority care of his father.
On 4 September 2007 an Initiating Application was filed by the mother in the Federal Magistrates Court. She sought a recovery order and for J to live with her. The application was supported by a handwritten affidavit of the mother. The application was returnable on 2 November 2007.
On 26 October 2007, seven weeks after filing and one week before the first return date, the mother filed a Notice of Discontinuance.
On 28 February 2008, an Initiating Application was filed by the mother in the Local Court. A solicitor was identified in those documents. The mother was seeking final orders for week about shared care between herself and the father and equal shared parental responsibility.
On 3 April 2008 the parties apparently reached an interim arrangement for the mother to spend time with J in the presence of another person for two periods of four hours per week.
On 4 April 2008 those orders were made at the Local Court and the matter was adjourned to 1 May 2008.
On … April 2008 the parties’ second child K was born.
On 1 May 2008 the father filed his response to the mother’s application filed in February 2008. Also on that day the mother filed a second affidavit in support of her own application and the parties entered into interim consent orders. The matter was transferred to another branch of the Federal Magistrates Court.
On 11 July 2008 the matter was set down for two days of final hearing, with a family report to be prepared in anticipation. The mother was legally represented on that day.
On 4 February 2009, the father filed an Amended Response, including an application for an adjournment of the hearing. The application was determined that same day, the Court granting the father’s adjournment, despite the mother’s opposition.
The parents had been separated well before K’s birth and the father at least initially was uncertain K was in fact his daughter. As such, the father included an application for parentage testing in his Amended Response to confirm his paternity of the child K.
On 19 February 2009, the parties entered into Terms of Settlement, with a shared care arrangement, with each party having J at their home for seven nights every fortnight. The terms set out a graduating scheme for K to spend time with the father. The arrangement would culminate in K spending time with the father in the same fortnightly arrangement as J, upon her commencing school. The orders also included provision that K undergo parentage testing within 28 days. However, it would prove to take a great deal longer, for that issue to be finally resolved.
On 5 April 2011, these proceedings were commenced, when the father sought a recovery order after the mother retained both the children in her care alleging the father had sexually abused them.
On 11 April 2011 the mother was required to return the children to the father but current parenting orders were preserved. The Joint Investigation and Response Team (“JIRT”) concluded the allegations were unsubstantiated.
On 1 June 2011, the father filed an Amended Application and an accompanying Notice of Child Abuse or Family Violence alleging systems abuse by the mother.
On 2 June 2011, interim orders were made, again confirming J’s residence with the father.
Despite consent orders on 19 February 2009 requiring the father to undergo paternity testing for K, a notation to orders made on 14 July 2011 indicated paternity remained an issue.
On 6 February 2012 DNA testing confirmed the father as K’s biological father.
On 21 June 2012 a report by Dr C was released to the parties.
On 13 September 2012, the mother filed a Further Amended Application seeking orders that both children reside with her and spend time with the father on alternate weekends or in the alternative that the children continue living with both parents in a roughly equal time arrangement.
On 21 September 2012, interim orders were made slightly adjusting the pattern of time each child spent with their respective parents.
Accordingly the parties have been litigating in the Local Court, the Federal Magistrates Court and this Court for over seven years.

The evidence

Evidence of Ms Vezzoni, the mother

The mother relied on her affidavit filed 31 January 2013.
The mother was herself raised by her aunt and therefore did not have the experience of being raised in a family with her own parents and brothers and sisters. Accordingly she has been rather cut off and isolated and has no support from extended family members. Despite that, she has been a loving mother to her children and has focused on their interests.
Her adult daughter was born in 1992. She is living independently and supporting herself. She is on good terms with her mother, although there were, perhaps unsurprisingly, confrontations during adolescence. The mother also has H, almost 13. H attends a community high school and has some developmental delay and learning difficulties as a result of the condition he suffers from. The mother maintains an amicable relationship with H’s father.
The mother’s two younger children, J and K, are the subject of these proceedings.
What the mother said about the father is inconsistent with the orders that the mother sought on a final basis and the experience of shared care that the parties have had for some years. There were past allegations made by the mother of serious sexual misconduct by the father and mistreatment of the children. The mother has accepted that JIRT found no substance in those allegations. However, she remained concerned, at least on the face of it, that the father would be cruel and inappropriate with the children in the future. She is also concerned and suspicious about the school which J attends.

The mother has set up tests for the school questioning the veracity of teachers and the philosophy of the school itself. The mother reported to the school that J was telling her that he was hungry and not allowed to eat his food. She was not particularly reassured by the school’s statements that he was able to eat if he was hungry during the day, and always had food available to him.
On one occasion, the mother was speaking to a teacher on the subject of food and to use the words of the teacher made the following throw away comment, “[K] also told me that [the father] stuck his finger up [J’s] bottom and he has been bleeding because of it”. Strangely, the mother agreed that she had made the comment to the teacher, but denied a reference to bleeding. She said she had no idea what the teacher would do with the information she had given. I cannot accept this evidence. I consider it more likely that the mother deliberately made the comment to test the reaction at the school.
The mother agreed that she had effectively interviewed the school in the orientation day in 2011 and had asked about the school’s obligations if an allegation of misconduct by a parent was made. I accept that the mother may well have been inquiring about the school’s policy across all topics, but there was no doubt that she was focused on allegations of misconduct by the father and whether or not in her view, the school would effectively cover up for him. She asked if the school had a policy on “neglect of abuse”. The mother agreed that the school had told her that they would be mandated to report any abuse that they were told about.
The mother agreed that 29 or more allegations had been made to the Department of Family and Community Services (“the Department”) about the children of the father sexually and physically abusing them[1]. She agreed that there had been many allegations, although not all by herself.
[1] Exhibit 12, pg 00172
This evidence is consistent with my observation of the mother that she has entertained fears and suspicions about the father’s conduct and continues to be vigilant to the possibility of hearing evidence from the children to support her fears. J had told a Departmental officer that his mother had told him what to say on one of the occasions when he was interviewed[2]. The mother’s response to that accusation was, “No not exactly”.
[2] Exhibit 12, pg 00169
In his report of 21 June 2012, Dr C referred to the mother’s persistence with sexual abuse allegations after none of the JIRT investigations substantiated abuse. Dr C concluded that the mother did not hold a strong conviction that the father was abusing the children[3]. She accepted during cross-examination that there was a damaging impact on the children of allegations being made, which were false.
[3] Report of Dr C dated 18/06/2012, p 19, par 2
Despite the affidavit she relied on in these proceedings not referring to any further allegations of sexual or physical abuse, the mother agreed that she believed that, “Something had happened to [J] in the nature of a sexual assault by his father.” This is a reference to an earlier allegation about the father inserting his finger into J’s anus and an assault on K by the father putting a knife in her vagina. The mother repeatedly made statements such as, “I believe what my child tells me.” She appeared to be caught between wanting to be believed about allegations said to have been made by the children and wanting to be given credit for having not made any further allegations.
I had the impression that the mother had simply refrained from making further allegations in order to be successful in obtaining an order for residence of the children. This was not because she had come to terms with the possibility that the allegations lacked substance, or that she had misinterpreted what the children were telling her. At one point the mother was asked this question:
Q:Do you think the only way to protect the children is to stop the children being alone with the father?
A:No because it has not been substantiated so if it hasn’t happened that would be very sad.
However, the mother immediately went on to repeat:
I believe what the children have come home and said to me.
Ultimately in her submissions, the mother did indicate some insight into her own situation. She said this:
I have come to the conclusion I have a problem with filtering. I’ve never heard of that until [Dr C] explained it.
She demonstrated further insight in her closing statement:
Something might be wrong with how I analyse things.
The reference to filtering was Dr C reflecting on the mother’s practise of simply taking at face value every statement that was made by the children and also failing to understand that her own interest and follow-up on those topics, led to further statements of the same kind being made to her.
It also became clear that the mother prepared her Court documents in the lounge room of the home. Her son H read some if not all of those documents and had listened to conversations about the case. H too, was well aware of the litigation and involved at least J in that knowledge. It seems likely that H has to some extent, been his mother’s confidante about these proceedings.
My impression is that the mother loves all her four children very much and has been in her own view, fighting to protect the two younger ones from their father. The mother also has uncertainty about the developmental stages of childhood. She related an incident where she had observed J in the shower dancing about and handling his own genitals. The father was present in the bathroom at the time. The mother was critical of his failure to tell the child to stop. She said at that that point “I always tell the children stand up straight, don’t be sloppy and keep your legs together.” The mother thought it suspicious that the father had not stopped the child in what appears to be innocent behaviour and indeed thought that he was encouraging wrong behaviour.
The mother has made a plethora of reports, or allowed others to do so. Again when K was diagnosed by her doctor with thrush, the mother was reluctant to accept the doctor’s explanation. She did not accept that K could have spread thrush from her vagina to her mouth in age appropriate play. She was then aged about three.
K was examined and the mother advised there had been no evidence of penetration. The mother indicated that after taking the child to the doctor on this occasion she began to get “awful suspicions”. The mother described seeing the child dragging herself along the carpet and was inclined to regard this situation as suspicious in relation to the father’s conduct.
In relation to an incident with J in January 2011, the mother made a report in relation to bruising around J’s anus. She took him straight to Town I Hospital. Although the mother denied that she had been convinced that the child had been sexually abused by his father, she also said that there could not be an innocent explanation for the bruising. When asked whether she now thought he had been abused by his father, the mother was ambivalent, “I don’t know, there’s doubt on this.” When pressed, “was it sexual abuse by the father?” she said, “Probably with big questions marks around the whole thing.” She did not contact the father to obtain any innocent explanation. She did not take him from Town I to Town M Hospital when Town I Hospital was unable to see the child and most significantly, the mother handed J back to the father pursuant to the orders without any conversation between the parents.
The proposition was put to the mother that she had fabricated this abuse allegation. It seems unlikely. What seems more likely is that the mother saw something that worried her, had her friend Ms N look at the child and went with her instinctive position that the only explanation could be an abusive one. Hospital notes indicate that the mother had reported an allegation by J that “the father stuck a knife in his bottom.” The mother denied that she had said any such thing and conceded that the only complaint that the child himself had made was, “My tummy is hurting because daddy makes me eat too many vegetables.” I have no reason to reject evidence from the hospital.
On 5 April 2011, J stated to a Departmental officer that he had never been inappropriately touched by his father. When the mother was asked whether she thought J had been truthful on that occasion, she said that she had doubts on the whole situation, “I’m not refusing to accept it, I just have doubts.” However, when the mother was confronted with J’s statement, “Mummy told me to say daddy hurt me”, the mother was quick to say that what J had said was not true.
I consider that the mother has been completely insightless into the effect of the children of being taken to doctors, hospitals and for interviews with the JIRT team for a variety of injuries and complaints, which at no time have been substantiated as abusive.
The mother had reported that J had a fat lip and had been asked who did it and he said, “My dad.” Her explanation was that the father had staged the whole episode. She said he had flicked J on the mouth just before he dropped him off at the mother’s home, so that J would say something to her and upset her. When the proposition was put that such conduct would simply be cruel, the mother agreed and stated that she thought the father was capable of that kind of manipulative cruelty. Subsequently, she found out that J had been biting his lip after an anaesthetic for dental work.
It was hard to conclude otherwise that the mother was attempting to impress the Court with the strength of her feelings about the father, whilst exonerating herself from having gone forward with an allegation of the father giving J a backhanded slap, which proved to be completely unsubstantiated.
On 3 December 2012 the mother involved herself in a dispute between the father and Ms A in a way that aggravated the incident and was both intrusive and an over-reaction to events which really did not concern her. The mother has no doubt been frustrated by the father’s reluctance to communicate with her at times. However, the father’s reactions may have developed because of the mother’s tendency to over-react and adversely misinterpret many events.
Although the mother during the course of the proceedings, did appear to show some insight into her conduct and fears around the children, nevertheless it was clear that her assertion that she had not said anything about the father for

10 months, was because she was worried about being penalised in some way for making further statements. I do think that the mother is capable of learning to challenge her own ideas and to learn techniques of evaluating the children’s statements. However, it may take some time.

Evidence of Ms N

Ms N relied on her affidavit filed 31 January 2013.
Ms N has been a healthcare worker practising overseas for 23 years. Ms N had met the mother through volunteering in a local community project run by her church. They developed a friendship. Unfortunately Ms N has supported the mother in her negative views of the father and did not engage with the father to any extent, or encourage the mother to do so, to reality check some of her ideas based on the children’s statements.
Ms N rang the Children’s Helpline on many occasions. She assumed on a day when J was very thirsty that his father had not been providing him with drinks. She concluded that the children’s father was adversely affecting K’s self esteem. She agreed that she had seen no positive behaviour by the father. Her reference to having “found an explanation for [K’s] sexual behaviour”[4] was an over-reaction. It was an indication of how the mother and

Ms N were feeding off each other in relation to negative views about the father.
[4] Affidavit of Ms N filed 31/01/2013, para 13
At the conclusion of her evidence, Ms N indicated that she had distanced herself from the family and I was left with the impression that she realised she may have gone too far in her support of the fears and actions of the mother.

Evidence of Mr Maxwell, the father

Mr Maxwell relied upon his affidavit filed 31 January 2013.

Household of the father

The circumstances of the father have recently changed. His relationship with Ms A has ended. The father has the majority care of the child of that relationship L, now aged 11 months.
Dr C in his second report, observed that the load of a new relationship with that partner’s three children and the new baby to the relationship, was possibly too great for the father to cope with. That prediction proved to be true.
The father gave his evidence in a contained and somewhat irritated way, which accords with Dr C’s observation that the father admitted, “to [having]…problems coping with the stress [he was] under”[5]. The evidence suggests that at times the father becomes irritated and impatient with the children, despite his best efforts. It is consistent with the observation of Dr C that the children “seem to prefer their mother and find her more nurturing than him.” However, I also accept that the father does care for the children and wants to provide for them and is most likely to continue to promote a relationship between the children and their mother.
[5] Single Expert Report of Dr C dated 18/06/2012, p 17, para 1
The father has consistently denied all allegations of misconduct in relation to his children; sexual, physical or emotional. Past proceedings and inquiries by JIRT have supported the father’s denials.
The father gave considered answers in cross-examination. For instance, he said he could not disagree with the proposition put on behalf of the children that he has a history of unstable adult relationships. He said if there were to be a future relationship, he would ensure that a new partner shared his outlook on life and would be slowly introduced to his children. He said he had learned this approach by experiencing the consequences of not researching a potential partner carefully.
The father was conscious that the children have been raised separately since K was born and I accept that he stayed close to the mother in order for the children to see each other as they grew. The father also accepted his share of responsibility for the extremely poor communication between the parents. To some extent he agreed with the mother’s criticism that at times he would shut down and not speak to her at all. The father has undertaken counselling and gave evidence that “he was looking for better ways of understanding people including himself, so that even in extremely negative situations, he won’t allow himself to stop communicating.” He said and I accept, that he has talked to family and friends about “how they hold themselves together and talk when their partners are making life difficult and the last thing you want to do is talk”.
The father has established a connection with D Family Centre and has found it helpful. The father also conceded that he had been an unpredictable parent to J at times. He admits that the consequences of certain events or behaviour by him have been surprising and anxiety provoking for J. It will assist the father to continue to attend and to be guided by D Family Centre.
The father freely conceded that the allegations that he sexually abused the children had been difficult for him and had damaged his relationship with the mother. In this respect the father was more insightful than the mother, who did not appear to understand the impact on the father of the allegations and their investigation. The father said and I accept, that he does not “take it personally any more.” His view that the children urgently need to stop being exposed to further allegations and their investigation, as they have been over the last two to three years is entirely appropriate.
The father freely conceded that the children were loved in both households, although impressively he said that the allegations which had been made were not in his view indications that the mother doesn’t love the children. The father could not understand how a loving parent could make allegations in that way. He thought it was a deficiency in the mother’s parenting capacity. This accords with my own view of the mother’s behaviour and motivations.
The father was cross-examined by the mother herself. He conceded that he had shown the children an affidavit by Ms A and that he had called on the mother for assistance during a period of conflict with Ms A when they were separating.
The central fact revealed by this cross-examination was that both of the parents are loving parents of all their children, not just the two they have in common, and that each of them is more committed in their relationships with their children than in their adult relationships. What was also revealed was that the mother has remained in a state of distress about J living primarily with his father and has been seeking a method to have him returned to her care. It seems clear that at the time of the first separation in 2006 the father protected his position by obtaining an AVO and when the period of reconciliation was over, relied on the AVO for protection for himself and J. I consider that this was tactical thinking by the father, but also genuinely based on his fear of emotional upheaval when conflict between the parties arises.

Schools

J has attended E School for the last two years since he commenced school and the father wishes for K to attend as well. The school has a religious foundation based in the Religion F faith. However that is not the reason that the father chose it. He enrolled J there because he knew the background of the school, most teachers and parents. It is quite a small school.
The father was easily able to contemplate the children being enrolled in a state school and agreed it was important for both parents to support the education being provided to the children. I consider there is some disadvantage to the children in attending a faith based school, where neither of the parents has any active involvement in the practise of that faith and the mother is inclined to be uncertain if not suspicious of it. A local school will represent a fresh start together for the children.

Evidence of Dr C, Single Expert

Dr C provided a report[6] and gave oral evidence. His recommendations in the report were that the children live together with their father and have contact with their mother on fortnightly weekends, from Friday until Monday, with perhaps an additional overnight per week, if the mother makes no further allegations.
[6] Single Expert Report of Dr C dated 18/06/2012
At the time the parties were interviewed, the father was living with his partner Ms A. At the time of interview, the father was observed to have symptoms of ill health. He was not sleeping well, worried a lot about the children, had a poor appetite, was tearful and upset, with occasional suicidal feelings but no intention. He was reported as seeing a counsellor.
Dr C did not find any evidence to suggest that the father had a psychiatric illness rather that he was very stressed with perhaps mild depression in the form of an adjustment disorder. The stress stemmed from his then partner Ms A being pregnant and the legal battle with his previous partner, the mother in these proceedings, over their two children. Dr C assessed him as having poor emotional regulation, personality difficulties and significant anger issues. By the date of hearing the father had separated from Ms A and had the majority care of their young child L, now aged about 11 months.
Dr C found that the mother had a profoundly difficult childhood: raised by an aunt and disconnected from her family of origin. At the time of interview, Dr C found no evidence to suggest any psychiatric illness, but found significant features of suspiciousness, borderline and dependency issues in her personality style. There was not enough evidence to suggest a clear-cut personality disorder, but there was evidence that she possessed “traits of insecurity, some self harm and some desperation about wanting security”[7].
[7] Single Expert Report of Dr C dated 18/06/2012, p 20, para 3

Dr C was supplied with affidavits by each of the parties and the mother’s witness, Ms N. The doctor was advised of the change in the father’s household and of the fact that the mother had made no reports to the Department alleging abuse of the children. When asked to comment on this aspect of the mother’s evidence, the doctor explained that the mother had probably refrained as she felt she had been warned by the doctor not to make further reports. He remained somewhat sceptical as to how genuine the mother’s restraint was.
Dr C confirmed that the children were closely emotionally attached to their mother, although somewhat parentified, each of them worrying about her welfare when they were away from her. His main concern continued to be that there would be further allegations made by the mother about the father, based more on her anxious fears rather than credible threats to their safety.
In relation to the wishes of the children, Dr C recommended proceeding with caution. K had made the statement, “Mummy she gets me happy.” J said, “I want to stay with my mum, I get happy there. I don’t get happy with my dad.”[8]
[8] Single Expert Report of Dr C dated 18/06/2012 p 22, para 3
Dr C said that he believed J was under tremendous pressure trying to make both of his parents happy. He was not favouring one parent over the other, but did have a strong need to help the mother.
In Dr C’s view, both children wanted to help both parents and also felt burdened by both their parents. They were worried about the mother and J had probably detected fragility in his mother’s personality. The children’s statements reflected a certain confidence in their father’s home, but rising worries about their mother when they are away from her. I have no difficulty accepting this evidence. The children are very well aware that their parents fight over them and have done so on and off all their lives. However, there have also been times when the parents have cooperated and been flexible in their care of the children.
I accept the evidence of Dr C that this supportive relationship could only re-emerge if both parties were confident there would be no more Court cases, interrogations of themselves and the children and disputes over arrangements. So much has happened that has made them mistrustful of each other, especially the father, who has been accused of sexual misconduct and physical abuse of the children. Clearly defined orders and strict compliance of the same will be necessary for some time.
Dr C expressed the view that the mother is very anxious in her nature, worries about the father, and picks up statements made by the children about him, leads the children in questioning and then persuades herself that there has been wrongdoing. I accept Dr C’s view that through lack of sophistication the mother interprets her own anxious thoughts as facts and does not stop to consider a range of possible explanations for statements made by the children.
To assist the mother to process information differently, Dr C recommended that the mother seek therapeutic counselling from someone who could be objective, not simply supportive; that person to have a copy of his report; these Reasons for Judgment; and be knowledgeable about mandatory reporting and its implications.
Dr C made this statement: “The mother needs to accept that she can’t trust her own judgment.” I give this statement significance. It accords with my own view that having heard something or observed something about a child, the mother immediately initiates reports and examinations of the children without any attempt to discuss the matter with the father, to consider other explanations, or to contemplate the impact the process of the investigation will have on them. In the event that the mother takes up recommendations of the doctor, she is likely to feel less anxious and less vigilant.
The following exchange is an example of the mother’s anxieties spiralling out of control. The mother conceded that the father loved the children no less than she did in response to a question from the Independent Children’s Lawyer and this followed:
Q: So from time to time he [the father] engages in torture of them.
A:Yes. I’ve been told [by J] that [the father] told [J] to touch a thorn bush but didn’t let him touch the bush but told him to tell me that he had.
The mother went on to make this spontaneous comment:
I’m freaking out when I hear that - that my baby might have been told to touch a thorn bush.
Implicit in that statement is the level of the mother’s immediate suspicion of the father’s motives and willingness to believe that the father would expose the children to danger, however minor and manipulate them in order to hurt the mother. Even if events had unfolded exactly as the mother said she believed, it could hardly be said to constitute torture. The mother referred to tight underwear and shoe laces tightly tied as being evidence of torture.
Dr C expressed the view that given the frailties in each of the parents and their lack of external supports, substantial and significant time for both of them would be most beneficial for the children. His only qualification to that view was the assessment of how likely it was that the mother would again make unsubstantiated reports against the father with all the consequences for the children that followed. He said this:
If she [the mother] has these anxieties and is able to contain them, then she should spend significant time. If she can’t contain her anxieties then it would need to be very restricted.
Dr C expressed that the children having to spend supervised time with the mother would be a tragic outcome and would not be in their best interests in the long term.
I endorse the view that supervision would not be appropriate for the children, supervision is likely to only exacerbate their own worries about their parents and the need to look after them. In considering this aspect and the doctor’s recommendation, that if there were more unfounded allegations, there should be no time at all with one parent or the other, I take into account that the mother representing herself used quite extravagant language at least to some extent, as a means of advocacy. I also take into account that the mother unfortunately received support for her beliefs from Ms N. Rather than encouraging the mother to talk about any other explanations than abuse for some of the statements made by the children, Ms N became quite involved in an attempt to confirm the abuse, which involvement she resiled from to some extent in the witness box. However, the consequences for the mother were that there has been nobody to confront her about her ideas and conduct.
I accept the evidence of Dr C about the need to consider the frailties of the parents. The father becomes overburdened when he becomes stressed, is angry and non-communicative, leading to the avoidant relationship he has with J. The father readily conceded that J finds him unpredictable in his reactions. The mother becomes anxious, questions the children and puts considerable energy into trying to establish that the father is an abusive parent. That aggravates his emotional responses of anger and shutting down. The parents are working against each other. Those risks must be balanced against the practical burden of having the care of the children for as long as 12 days a fortnight, as proposed by each of the parents.
Substantial and significant time will expose the children to the very different parenting styles of each parent on a regular basis, whilst reassuring the children that both parents are coping with the arrangements. For that reason, orders longer than the bare two night alternate weekend have been made. The children will spend five nights per fortnight with their mother during school terms.

The law

Each of the parents of a child who is not 18 years has parental responsibility for the child pursuant to s 61C of the Family Law Act 1975 (Cth) (“the Act”). In this case, each of the parents has effectively had parental responsibility for one of their two children. The parties have now agreed that the children should be raised together in one household or the other. These parents are able to communicate about their children on occasions, but not consistently.

Issues in dispute

The main issues in dispute have been the school which the children will attend and the need for the children to consistently attend on one treating medical practitioner. Those issues will be resolved by these orders. However, in circumstances where communication has been so poor, it is more appropriate for one parent to be the decision maker, provided that there is consultation and participation, which is also provided for in these orders.
In coming to a decision about the best interests of children, the Court must consider the following matters in s 60CC(2) and s 60CC(3) of the Act.

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

In this matter it is possible for the children to have a meaningful relationship with both of their parents. It is essential for them to do so. Each of the parents has certain fragilities in their style of parenting and in their relationships with others.
The mother is a somewhat emotionally warmer and more nurturing parent. The father is a more consistent and more thoughtful parent. Between the two some greater stability can be achieved for the children, if the children remain primarily in their father’s care, while spending significant time with their mother. This arrangement will reinforce in their minds the safety and significance of the relationship with their father, whilst allowing the time, especially for K, for nurturing with their mother.

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

This is not a case of family violence or abuse within the meaning of the Act. The more expansive definitions of family violence and abuse, do not apply to this case, which the parties commenced long before the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) came into effect.
The mother’s allegations against the father that he has abused the children have not been made out on the evidence. I note the father has alleged the mother has perpetrated systems abuse on the children. I have made findings, which might support that contention.
The mother’s continual reporting of allegations against the father, which have been without merit, have been unsubstantiated and have embroiled the children in numerous investigations, might be described as systems abuse. However, this behaviour is not to be confused with “abuse” pursuant to s 4(1) of the Act, which requires conduct that would amount to a criminal assault pursuant to State or Territory law.

Section 60CC(3)(a) - any views expressed by the children and any factors that the Court thinks are relevant to the weight it should give to the children’s views

The children are aged seven and just five. They have been assessed to be developing well, both cognitively and emotionally for their ages[9]. Both children stated that they would prefer to live with their mother. However, I accept that they have been put under “enormous pressure to become alienated from the father” and are concerned they need to remain with their mother to look after her.
[9] Single Expert Report of Dr C dated 18/06/2012, p 22, para 5
It would not be appropriate to simply implement their wish to live primarily with their mother. They need relief from the need to look after their mother and more time together.
I accept that the children love both of their parents and were in fact delighted when they formed the impression that there would be no more conflict between their parents in the future.

Section 60CC(3)(b) - the nature of the relationship of the children with each of their parents and other persons

Each of the children has their most important relationship with their parents. J has a somewhat avoidant relationship with his father, as a result of the unpredictable parenting that the father has sometimes delivered. Each of the children has a rather anxious relationship with their mother, in the sense that they feel concerned about how she can manage without them.
The children have important sibling relationships, not only with each other, but with H in the mother’s household, especially for J, and with L in the father’s household, especially for K. Dr C identified a risk that J could become alienated from the mother and K from the father if present arrangements continue.

Section 60CC(3)(c) - the willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship

Each of the parents has made decisions about the child primarily in their care. Each has made every effort to spend as much time with both of the children as possible.

Section 60CC(3)(d) - the likely effect of any changes in the children’s circumstances

Reducing the amount of time between J and his father and K and her mother will undoubtedly have an impact. A change of school will also have some impact on the children. However, I consider that the balancing benefit of the children being raised together and attending a school with the support of both parents will be a positive change.

Section 60CC(3)(e) - the practical difficulty and expense of the children spending time and communicating with a parent

The parties are not far apart geographically. The mother is intending to return to paid employment and will be in a better position to maintain a car for contact arrangements.

Section 60CC(3)(f) - the capacity of the children’s parents to provide for the needs of the children, including emotional and intellectual needs

The father has the capacity to care for the children physically and to maintain their relationship with their mother. He has been educating himself with information about the developmental stages of childhood and what can be expected of children. He is making progress in addressing his own tendency to shut down emotionally when relationships are difficult.
The mother has the capacity to be a warm and loving parent. However, she has failed to see her own lack of judgment in taking literally every word her children have said and not filtering those statements in the context in which they are made. She has not understood her power to damage the relationship between the children and their father and also with herself in the longer term.

Section 60CC(3)(g) - the maturity, sex, lifestyle and background of the children and of their parents

The children are young and have not experienced being raised in a family with each other and both parents. At seven and five, they need stability and emotional support.

Section 60CC(3)(i) - the attitude to the children, and to the responsibility of parenthood, demonstrated by each of the children’s parents

Each parent has struggled with the responsibilities of parenthood. The father entered a short relationship with Ms A and her own three children and there is a young child of that relationship. The father has a proven capacity to be committed to parenthood, but has not understood the implications for children of the breakdown of adult relationships which affects their own stability.
Similarly, the mother is a committed and loving mother, who has had children in three different relationships. She has underestimated the significance of supporting the relationship between the children and their father, which she has actively undermined in the past. She is now beginning to understand that she has played a role in creating conflict and instability.

Section 60CC(3)(j) & (k)– any family violence involving the children or a member of the children’s family

There are no family violence issues involving the children or a member of the children’s family.

Section 60CC(3)(l) - whether it would be preferable to make the order that would be lease likely to lead to the institution of future proceedings

There has been episodic litigation over these children throughout their lives. They have been repeatedly interviewed, assessed and taken to doctors in the context of allegations. It is essential that each parent makes every effort to put the past behind them, to cease involving the children in information about the conflict between the parents and to help them through the transition to being raised together as siblings.

Section 60CC(3)(m) – any other factor or circumstance that the Court thinks is relevant

There is some risk in moving immediately to substantial and significant unsupervised time for the mother. However, I consider that the imposition of a period of time when the children did not see their mother, or saw her only in limited supervised circumstances, would be too damaging for them.
If the mother is able to access help to understand the impact of her anxiety about the children on her decision making, both children will benefit. The mother has a great deal to offer the children and if she can contain her anxiety and learn strategies for decision making, she and the father may be able to work together as parents, especially when the children go through adolescence.
The orders also provide for both parents to undertake a Parenting After Separation course. Such courses are especially helpful in understanding the point of view of children caught in conflict about their parents and powerless to do anything about it.
The parties had indicated their agreements to further orders proposed by the father. Those orders are as follows[10]:
1.     ….
6.     That should the mother make any further allegation of sexual or physical abuse of the children by the father or any member of the father’s family, the mother’s time and communication with the children shall be immediately suspended until provision may be made for the mother’s time with the children to be conducted for not less than 2 hours per fortnight, at a contact supervision centre as agreed by the parents, until such time as any such allegation is investigated and closed and the mother is able to demonstrate she is able to refrain from making such allegations.
7.     To facilitate Order 6 herein the parties shall do all acts and things required by the supervision centre as directed by that centre and any expense of such supervision shall be met by the mother.
8.     To further facilitate Order 6 herein the mother shall undertake counselling and training as recommended by the Department of Family and Community Services and/or the Children’s Dispute Resolution Services of this Court, for as long as any such counsellor or teacher recommends and shall provide the contact details of any such person or service to the father within 7 days of making an appointment.
9.     That the mother be restrained from filing any further Application in this Court, the Federal Magistrates Court or any Local Court as to the care of the children without the prior leave of this Court.
10.    That the Department of Family and Community Services, the children’s treating medical practitioner and any Counsellor the mother may attend may be provided with the Expert Report in these proceedings by the mother, the father or the Independent Children’s Lawyer.
[10] Exhibit 14
I declined to make those Orders by consent for the following reasons.
Despite the fact that the mother has made unsubstantiated allegations on more than one occasion of sexual and physical abuse of the children by the father, it would be inappropriate and would offend public policy to make an order which effectively punishes her by immediate suspension of her time with the children, for making any allegation about the father or any member of his family and all the other consequences outlined in paragraphs 7 and 8.
In the event that a parent concludes that there is a possibility of a child having been abused by a parent or any other person, the appropriate course is to raise that allegation with authorities who can assist.

Naturally the father is concerned to protect the children from not only unsubstantiated allegations, but the interviews and examinations which inevitably follow.
However for the reasons stated, it would be quite wrong to put the mother in the position where she may conceal the abuse of a child for fear of having her time with that child cut off.
The Independent Children’s Lawyer proposed an order that both parents attend upon a general medical practitioner within 28 days for the purpose of a referral to therapy recommended by Dr C. [11] Generally, such an order would be beyond the Court’s power (see Jacks & Samson (2008) FLC 93-387; L & T (1999) FLC 92-375). However, such an order can be made with the parties’ consent.
[11] Exhibit 13, Order 15
During the course of proceedings, both parties expressed their willingness to be bound by orders in slightly different terms. The mother agreed to attend upon a course of therapeutic intervention, where she can gain skills in assessing the statements of children and in which, she would have the opportunity to reality test her fears in a therapeutic context. The father agreed to an order requiring him to continue his current attendance at a particular centre and undertake any programs he is referred to.

I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 22 May 2013.

Associate:

Date: 22 May 2013

[2013] FamCA 351

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