WAKEFIELD & WALLIS

[2019] FamCA 535

FAMILY COURT OF AUSTRALIA

WAKEFIELD & WALLIS [2019] FamCA 535

FAMILY LAW – CHILDREN – Best interests – Where the mother filed a Notice of Discontinuance and the trial proceeded on an undefended basis – Where the father and the independent children’s lawyer agree to a proposed order – Where the mother appeared at the trial and consented to some of the provisions of the proposed order – Where the children will live with the father and spend alternate weekends and holiday times with the mother – Where the father will have sole parental responsibility for the children.

Family Law Act 1975 (Cth)

Baghti & Baghtiand Ors [2015] FamCAFC 71

Banks & Banks (2015) FLC 93-637

M & M (1988) 166 CLR 69

APPLICANT: Mr Wakefield

RESPONDENT: Ms Wallis

INDEPENDENT CHILDREN’S LAWYER: Mr N. Grainger

FILE NUMBER: BRC 10278 of 2018

DATE DELIVERED: 9 August 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 8 August 2019

REPRESENTATION

FOR THE APPLICANT: Self-represented

FOR THE RESPONDENT: Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms S. Christie

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

IT IS ORDERED THAT:

1. All previous parenting orders be discharged.

Parental Responsibility

1. The father have sole parental responsibility for all major long-term issues (as that is defined in the Family Law Act 1975 (Cth) (“the Act”)) in respect of X born … 2011 and Y born … 2014 (“the children”).

2. In exercise of the father’s sole parental responsibility he shall:

   (a)       Inform the mother (via email) about decisions to be made 21 days prior to making any decisions, save in the case of emergency and then such notice to be provided as soon as practicable;

   (b)       The mother shall have 7 days to respond to the father’s email correspondence; and

   (c)       The father shall inform the mother in writing as to the decision he has made.

Living arrangements

1. The children live with the father.

2. The mother spend time with the children, at all times as may be agreed between the mother and the father and failing agreement as follows:

   (a)       Each alternate week from the conclusion of school (or 3:00pm) Friday until the commencement of school (or 8:30am) Monday. In the event that Monday is a public holiday, then until the commencement of school (or 8:30am) Tuesday.

School holidays

1. Unless the parents agree otherwise, the children shall spend time with their parents as follows:

   (a)       During the March/April (Easter) school holidays:

   (i)In even numbered years: with the mother, for the half of the holidays that Easter Sunday falls in, and for the other half of the holidays with the father; and

   (ii)In odd numbered years: with the father for the half of the holidays that Easter Sunday falls in, and for the other half of the holidays with the mother.

   (b)       During the June/July, September/October and December/January school holidays:

   (i)For the first half of the holidays with the mother and for the second half of the holidays with the father.

2. For the purposes of paragraph 6:

   (a)       The school holidays will commence on the last day of the school term and conclude on the first day of the new school term;

   (b)       Changeover will occur at 5:00pm on the middle day of the school holidays;

   (c)       The middle day of the school holidays will be calculated by adding the total number of nights in the holiday period and dividing by 2;

   (d)        In the event there is an uneven number of nights, the children will spend the additional night with the mother.

Special occasions

1. Unless the parents agree otherwise, the children shall spend time with their parents as follows:

   (a)       On Father’s Day if the children are not already in the father’s care, the children will spend from 9:00am until 5:00pm with the father;

   (b)       On Mother’s Day if the children are not already in the mother’s care, the children will spend from 9:00am until 5:00pm with the mother;

   (c)       On the children’s birthdays (with both children to attend) with the parent they did not wake up with from after school or 3.00pm until 6.00pm on a school day and on a non-school day from 1.00pm until 5.00pm.

2. Notwithstanding any other provision of this Order, for the purposes of Christmas each year, the children will spend time with their parents at all times as agreed in writing and failing agreement as follows:

   (a)       In even numbered years with the Father from 3:00pm Christmas Eve until 3:00pm Boxing Day; and

   (b)       In odd numbered years with the Mother from 3:00pm Christmas Eve until 3:00pm Boxing Day.

Telephone communication

1. Each parent be at liberty to communicate with the children each Tuesday and Thursday between 6.00pm and 7.00pm by telephone, Skype or Facetime.

2. For the purposes of paragraph 10, each parent shall:

   (a)       Ensure the children are able to access the telephone to make the call;

   (b)       Ensure the children have privacy during the conversation.

Changeover

1. Unless otherwise agreed in writing, the mother shall collect the children from school at the commencement of the time they are to spend with her and return them to school at the conclusion of the time they are to spend with her.

2. If the children are not attending school, changeover will occur in front of the children’s school.

Other orders

1. All communication between the parties with regard to the children, or necessary for the operation of this Order, is to be by email, except in the case of an emergency.

2. The mother and the father shall:

   (a)       Keep the other parent informed at all times of their residential address, email address, landline and mobile contact numbers;

   (b)       Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide the other parent about the children; and

   (c)       Inform the other parent as soon as reasonably practicable of any serious medical conditions or serious injury suffered by the children. This Order authorises any treating medical practitioner to release the children’s medical information to the other parent.

3. This Order authorises any schools attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at the requesting parent’s cost).

4. During the time the children are with either parent, that parent shall:

   (a)       Not question the children about the personal life of the other parent (or members of the parent’s family);

   (b)       Speak of the other parent (and members of the parent’s family) respectfully;

   (c)       Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent (and members of the parent’s family) in the hearing or presence of the children;

   (d)       Not discuss these proceedings with the children other than to inform the children that an order has been made that they live with the father and spend alternate weekends and holiday time with the mother and communicate with her each Tuesday and Thursday; and

   (e)       Not expose the children to family violence.

5. The parents are expressly restrained from physically disciplining the children or allowing another person to physically discipline the children. This order does not restrict the parents from physically restraining X if the need arises for his own safety and the safety of others and such actions do not fall within the definition of ‘physical discipline’.

6. Within fourteen (14) days of 8 August 2019 each parent contact Relationships Australia for the purpose of enrolling in a Parenting Orders Program with a view to completing the Parenting Orders Program as soon as possible, subject to the directions of Relationships Australia and availability of a commencement date.

7. Any outstanding application be dismissed.

8. The independent children’s lawyer is discharged.

9. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order 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 this Order.

it is noted

1. It is noted that the father and the independent children’s lawyer consent to the entirety of this Order while the mother consents to paragraphs numbered 6, 7, 8, 9, 12, 13, 14, 15, 16, 17(a), 17(b), 17(c), 21, and 22.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10278 of 2018

Mr Wakefield

Applicant

And

Ms Wallis

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. Mr Wakefield and Ms Wallis are the parents of two boys, X aged eight and Y aged five. The parents cannot agree about where the children live and what time they spend with the other parent.

2. On 21 March 2019, I set this matter down for a three day trial commencing 8 August 2019 and directions were made for the filing of affidavits setting out the evidence to be relied upon by each party and the independent children’s lawyer (“ICL”). The applicant at that time was the mother. On 26 April 2019, the mother discontinued her application and on 24 May 2019 the father was substituted as the applicant and the matter was listed to proceed on the original trial dates as an undefended hearing. The mother did not attend on 24 May 2019.

3. At the commencement of the trial on 8 August 2019, the mother was at the back of the courtroom and was invited to sit at the bar table. The trial proceeded undefended, in the sense that only the father and ICL placed evidence before me. The mother did not make any application to rely upon any evidence. The mother was nevertheless permitted to review the proposed order agreed to by the father and the ICL and to make submissions generally. As it turns out, a number of the provisions in the order will be made with the consent of the mother. The father and his fiancé, Ms B, made themselves available for cross-examination and when the ICL indicated she had no questions, I asked a number of questions of each of them. As there are existing protection orders in place against the mother and the father, there is a statutory ban prohibiting cross-examination by each party of the other (s 102NA Family Law Act 1975 (Cth)).

4. Despite the matter being undefended, the Court is nevertheless required to review the evidence and consider whether or not the order proposed by the father and the ICL is in the best interests of the children, given the particular circumstances of this case.

proposals

1. The father proposes that the children live with him and that he have sole parental responsibility. In addition, he proposes that the children spend alternate weekends with the mother from Friday until Monday and half holidays.

2. The mother, by way of oral submissions, proposes that the children continue to live with her but spend “more time” with the father than they do currently.

3. The ICL supports the father’s proposal.

issues

1. At the time this matter was set down for trial the following issues were identified by the parties as relevant to the determination of what parenting order should be made:

   a)The best means of managing X’s Attention Deficit Hyperactivity Disorder;

   b)The reasons for X’s significant absences from school;

   c)The conflict between the households;

   d)Whether the father poses a risk to the children because of an alleged inability to regulate his behaviour; and

   e)Whether there is a risk to the children from Mr C.

Brief background

1. The father is 34 and works full time as a tradesman. He has two other children, Z aged 13 and W aged 11. Z’s and W’s mother is deceased. The father’s fiancé is Ms B. She is also 34 and works as a professional assistant. Ms B also has two children, V aged 14 and Q aged 17. V is part of the father’s and Ms B’ household while Q lives with his father but spends alternate weekends with his mother.

2. The mother is 35. She has another child, R, who is 16 and a step-son, Mr G, who is 21.  She works in sales.

3. The father and Ms B have known each other for over ten years but commenced a relationship in 2017. They are engaged to be married.

4. The mother and father began living together in 2010 and separated on a final basis in 2015. They describe their relationship as ‘on again off again’. They agree that their relationship was characterised by frequent arguments to which the children were exposed. There are mutual protection orders in place but neither parent suggests that this history is a reason to limit the children’s time with the other parent.

5. The father is also the respondent to a protection order involving a former partner. That order expires later this month. The father has not had any contact with the aggrieved since 2017. The allegations against him are very serious but the father denies them and no criminal charges were brought against him. The protection order was consented to by him without admission. Contrary to the terms of the protection order, the father admits speaking with the aggrieved but maintains that it was an amicable conversation and instigated by her. He also admits asking his brother to deliver a letter to the aggrieved. The father was dealt with in 2017 for a breach of the protection order and was fined $300 but no conviction was recorded.

6. Ms B pleaded guilty to common assault of the mother on 9 January 2018. No penalty was imposed and no conviction was recorded. The incident involved Ms B pushing the mother in a newsagency on 11 December 2017. While nothing excuses Ms B’ behaviour, I am satisfied that her action was something out of character and occurred after the mother had made some very serious threats to harm Ms B and her children. The mother had one of her son’s video record the incident, which does her little credit.

Applicable legal principles

1. In determining what parenting order is proper I must apply Part VII of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects, principles and matters that must be considered.[1]

   [1]Family Law Act 1975 (Cth) s 65D.

2. A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:

   a)The person or persons with whom a child is to live;

   b)The time a child is to spend with another person or other persons;

   c)The communication a child is to have with another person or persons; and

   d)The allocation of parental responsibility for a child.

3. The reference to ‘person’ in s 64B includes a parent and grandparent.

4. The objects and principles of Part VII of the Act are set out in ss 60B (1) and (2) and those subsections make it clear that the Court is concerned with, among other things, a child’s right to know and be cared for by both parents and the right to spend time with and communicate with both parents and other people significant to their care when it is safe for that to occur.

5. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).

6. The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc. (s 60CC).

7. In considering the primary considerations, the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).

8. Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.

9. The Court is not required to make findings of fact on every factual dispute raised by the parties.[2] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[3]

   [2]Baghti & Baghtiand Ors [2015] FamCAFC 71.

   [3]M & M (1988) 166 CLR 69.

10. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

11. Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).

12. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

13. Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).

14. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

15. Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[4]

    [4]Banks & Banks (2015) FLC 93-637.

16. I now turn to consider the application of the legal principles in the context of the significant issues raised by the parties but bearing in mind that only the father has participated in the trial process by placing evidence before me.

The best means of managing X’s Attention Deficit Hyperactivity Disorder

1. There has been considerable disagreement between the mother and father about whether or not X suffers from Attention Deficit Hyperactivity Disorder (“ADHD”) and the mother admitted to Ms F (the family report writer) that she excluded the father from the medical assessments which resulted in the diagnosis. X currently takes Ritalin with mixed results.

2. Dr D is a paediatrician who has treated X for some time. He first met the father on 1 March 2019 and had a joint consultation with the parents, which appears to have caused him to opine:

   In summary, X is a (sic) 8 year old boy with what appears to be significant emotional dysregulation given the maternal description as well as the previous reports by school staff, allied health professionals, and our observations in clinic.  I am unsure about the specific reasons behind the difference in his behaviour when he is at his father’s place.  His misbehaviour seems to be highly reactive in nature and it is almost certain that many of these have been learned somehow.  He is highly impulsive and defiant.  Even though I still feel that there may be some component of impulsivity in the context of ADHD, I strongly feel now that most of his behavioural issues are a reflection of the dysfunctional relationship between both the households.  School staff had previously noted about attention avoidance and seeking behaviours.  His drawing is somehow concerning highlighting its plain nature, and the strong sequence of events mostly related to his anger.

3. Dr D considers that X would “benefit from specific behavioural therapy”.

4. Subsequent to the parents’ joint consultation with Dr D, the mother again excluded the father from the medical review of X that resulted in a change in the child’s medication.

5. X is a troubled and vulnerable child as observed by not only the parents, (albeit to varying degrees), but also by teachers, Dr D, and by Ms F during the family report interviews. X’s behaviour towards the mother during the family report interview was simply appalling. He repeatedly swore at her in the vilest terms and reacted angrily by throwing things at her. X was very vehement in his expressed wish to go with his father. X’s behaviour towards Ms F was also appalling. He also acted out towards his little brother, Y. Ms F opined:

   132. Overall, X was fairly uncontained in the mother’s care, and despite her best efforts, remaining calm and in control, she was largely ineffective in managing and containing X’s behaviour or more specifically it took considerable time to make X settle. Y was overlooked as Ms Wallis’s time and energy was occupied by X.

6. Ms F compared X’s behaviour when with the mother to that with the father and observed:

   165. It was very notable during this assessment the difference in X’s behaviour when observed with his father compared to when with his mother.  There was a sense of stillness with regards to X’s behaviour.  To be clear, I am not suggesting this is a reflection of Ms Wallis’s parenting abilities, or in fact either parents’ parenting abilities, but it is potentially very telling about what X and Y are likely to experience within each parent’s home.

7. Given the lack of ability for the parents to jointly manage and make decisions about X’s behaviour and how best to deal with it, an order for sole parental responsibility should lie with the parent with whom the children primarily live.

8. The recommendation by Dr D for X to undertake specific behavioural therapy is one that should be followed up after further consultation with Dr D.

9. I was concerned that the father and Ms B may not appreciate the potential difficulties they may experience with X but having heard their evidence, particularly Ms B, my concerns have been allayed. Ms B is a professional assistant and has considerable experience in dealing with children with behavioural difficulties. Her own son, Q, was diagnosed with ADHD, although he seems to have grown out of it and is now aged 17. I am satisfied that the father will receive sensible advice and assistance from Ms B if the children live with them and that he will seek professional input as needed.

The reasons for X’s significant absences from school

1. In the period 15 February 2016 to 30 November 2018 X was absent for 42 full days and 21 part days. In the period 1 December 2018 to 28 May 2019 he has been absent for 4 full days and 4 part days. The evidence falls short of being able to attribute fault to the mother for these absences. X’s defiant and oppositional behaviour has been observed by many and I consider it likely that anyone would have experienced difficulty with X at those times. It seems his attendance at school this year has improved somewhat.

The conflict between the households

1. Having reviewed the evidence I am in no doubt that the children, and particularly X, have been exposed to conflict between the parents. The conflict is not helped by the father and Ms B’s propensity to accept most of what the children tell them at face value. Nor is it helped by the mother’s inability to let go of her anger, which was palpable even during the relatively short hearing. The mother has a history of communicating with the father in the most abusive way including making threats of harm to him, Ms B, and their respective children. While historically I expect the father played his part in the dispute, he at least presents with some level of insight and commitment to change, whereas the mother appears to be unable to cease her unhelpful blame focussed behaviour.

2. I agree with Ms F’s opinion expressed in her report that:

   145. Moving forward, it will be important to implement measures that will reduce or minimise the scope for the parents to have contact with each other in order to reduce the scope for the children to be exposed to conflict between the significant persons in their lives.

Whether the father poses a risk to the children because of an alleged inability to regulate his behaviour

1. The father is the respondent to a protection order in favour of the mother and she is the respondent to a protection order in favour of the father. Those final protection orders were made on 25 January 2018 and will not expire until 25 January 2021. Neither party has been found to have breached the protection order binding upon them.

2. The father is also the respondent to a protection order in favour of a former partner, which will expire on 31 August 2019. The father consented to the order, without admissions. Allegations against the father involved sexual assault which were denied by the father. No criminal charges were brought against him. On 12 September 2017, the father was charged with breaching the protection by speaking to the aggrieved. The aggrieved says that she told the father three times that she could not speak to him while the father contends that they had an amicable conversation and thereafter he asked his brother to deliver a letter to the aggrieved. The father was fined $300 but no conviction was recorded. The father has had no further contact with the aggrieved since that time.

3. Ms B was an impressive witness. She and the father have known each other for over ten years but only commenced a relationship in the latter half of 2017 and are now engaged to be married. She denies there is any family violence in her relationship with the father and I accept her evidence.

4. Ms F, the family report writer, did not identify the father’s past lack of impulse control as a current problem or one that would adversely impact on his parenting capacity. As noted earlier, I consider that the father has gained insight into the destructive nature of his past behaviours.   

Whether there is a risk to the children from Mr C

1. There is no evidence that the mother remains in a relationship with Mr C and this seems to be accepted by the father.

2. There is some suggestion that the mother has renewed her relationship with Mr E, the father of R and Mr G. The only source for this suggestion is the children. The mother denies it. The reason it is raised by the father relates to the mother’s past allegations of family violence against Mr E.

3. The evidence is insufficient to make any findings of potential harm to the children from Mr E. In any event, both parties consent to an order that they not expose the children to family violence.

What parenting order is proper

1. There is no doubt that changing the current living arrangements for the boys as proposed by the father, and supported by the ICL, will involve a significant change for them. However, they currently spend each alternate Thursday to Tuesday and holiday time with the father and are therefore well familiar with the father’s household.

2. The boys have a close relationship with the father, and even the mother accepts that the boys should spend more time with the father than they do currently. The mother does not suggest that family violence is a reason to limit the father’s relationship with the children.

3. Interestingly, the parents had agreed at the time of the family report to the boys living week about with each of them but when this was not supported by Ms F the father reviewed his position and sought a change in the primary care arrangements. I accept Ms F’s opinion that a week about arrangement would not be in the children’s best interests. In the family report Ms F opines:

   154. Inherent in the structure of a ‘week about’ parenting regime is increased opportunities for parents to communicate or be in direct contact with each other.  Such opportunities for example may be when joint decisions are required in areas of behaviour management, financial matters, school issues, or in something as simple as needing to communicate about the collection of a forgotten item in the other parent’s home.

4. The impact on the children of continued exposure to conflict will have a detrimental impact on the children. As Ms F opines – “This may have the effect of causing the children to feel insecure and anxious. The children may feel responsible for appeasing their parents’ heightened emotional state, and it may lead to them feeling of low self-worth and developing a poor sense of themselves”.

5. Additionally, Ms F opines:

   157. Living between two homes on a ‘week about’ basis can be particularly difficult for children, especially young children like X and Y.  It requires them to transition from one home to another frequently, and thereby rely more often upon skills they have not likely fully formed as yet, which in X’s case is very evident, to adapt and adjust to the changes inherent in living in two houses.  This can be taxing on a child’s coping, and may have an adverse effect upon their behaviours.  It can be confusing, and somewhat destabilising, and more so if they are also required to navigate their way through potentially unresolved parental issues which appears to be relevant in this matter.

6. X was assessed by Ms F to have a “stronger affinity towards his father” which she opined was a “normal developmental phenomenon”. X was vehement on the day of the family report interviews that he wanted to be with his father but he is not yet at an age “whereby he has the insight or language skills to convey in depth or with any understanding why it is he prefers his father. For him, it is simply is what it is”. Y has a positive relationship with both parents, according to Ms F, whose opinion I accept.

7. The mother raises two legitimate reasons to oppose the significant change proposed by the father and the ICL. Firstly, she submits that the children, particularly Y, will miss her and will struggle to manage only seeing the mother fortnightly and, secondly, that the boys will be deprived of their close daily relationship with their half-brother, R. While I accept those are reasons to leave the children with the mother, I am not persuaded that a continuation of the current situation is best overall. Addressing the mother’s concerns, I note that in addition to fortnightly time with the mother, the father proposes that the children communicate by phone with the mother twice a week (such calls could include R) and is amendable to the children seeing the mother more than fortnightly if needs be. I accept the father’s assurance, supported by Ms B, that he will facilitate a degree of flexibility in the arrangements if the children’s best interests so require. The father also proposes to engage a psychologist to assist X and I have confidence that if Y required assistance in that form, the father would arrange it. Accordingly, I am satisfied that the mother’s objections are satisfactorily addressed.

8. The mother also raises what she suggests is the naïve approach of the father and Ms B in relation to X. I must say that was also a concern I shared and why I asked a number of questions about this issue. I am persuaded that the father and Ms B are aware of the challenges and capable of addressing them. Ms B is an experienced professional assistant. Her son Q also had ADHD, so she is well versed in behavioural management and was articulate in her explanation of what she and the father do to manage the children’s behaviour, in particular, X and how he responds. I have no doubt though that his behaviour will be testing in the future, as it has been for the mother.

9. Ms F considers that the children will likely transition to the father’s household “with little difficulty” and I accept her assessment and note that a change in the primary care arrangements is in accord with her recommendation.

10. As there are mutual protection orders in place, there are reasonable grounds to believe a parent has engaged in family violence. Accordingly, the presumption in favour of equal shared parental responsibility does not apply. In any event, given the history of conflict between the parents, equal shared parental responsibility would not be in the best interests of the children. In particular, X’s behavioural issues, particularly if they are medically based, need a consistent approach. As the children will be living primarily with the father he will have sole parental responsibility.

11. The mother submits that if there is a change in the primary care arrangements an interim order to that effect should be made rather than a final order. I am not inclined to continue the uncertainty for these children by making an interim order and keeping the parties in the court system. The order I propose to make will be a final order.

12. The proposed minute of order, which will remain with the Court papers, is consented to by the father and the ICL and the document itself indicates with a tick the paragraphs to which the mother consents.

13. I have made a slight change to paragraph 12 to make it clear what is to happen at changeover. I have also included an exemption to paragraph 17d by permitting the parents to tell the children that an order has been made that they live with the father and spend alternate weekends and half holidays with the mother and that she will be able to communicate with them each Tuesday and Thursday. That exemption addresses, I expect, the matters raised by the mother as to why she did not consent to the paragraph in its original form. I have also noted in paragraph 18 that a need to physically restrain X to prevent harm to himself or others does not come within the definition of physical discipline. I expect this addresses the matter raised by the mother. I consider the parents would gain some benefit from attending a parenting orders program and accordingly, I propose to include a requirement that they do so. Lastly, I accept the father’s submission that the change in the children’s living arrangements should occur in accordance with their current regime i.e. they will remain with the mother until next Thursday and transition to the father after school that day.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered 9 August 2019.

Associate: 

Date:  12 August 2019