Wilson and Holmes and Anor

FAMILY COURT OF AUSTRALIA

WILSON & HOLMES AND ANOR

[2012] FamCA 757

FAMILY LAW – CHILDREN - Sole Parental Responsibility – Where the relationship between the parents has been characterised by high levels of conflict and hostility - Where the parents have been unable to cooperatively parent – Best Interests – Where both parents have demonstrated parenting deficiencies - Where the children are attached to both parents and to their step-father – Where the mother has been the primary carer of the children – Change of primary residence – Where the mother and step-father have a history of psychiatric problems and drug use – Where the expert does not regard the step-father as a suitable role model – Where the mother has a history of remaining in violent relationships – Where the mother has self-harmed– Where the father lacks psychological and emotional sensitivity – Where the children presented to the expert with emotional dysregulation and behavioural dysfunction – Where the mother has been unable to assist the children to become emotionally regulated - Where the mother and step-father should initially spend limited time with the children to allow them to settle into living primarily with the father.

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422
MRR v GR (2010) 42 Fam LR 531
George & Radford (1976) FLC 90-060
Flanagan v Handcock (2001) FLC 93-074
Koldsjor & Addington [2009] FamCAFC21

APPLICANT:

Mr Wilson

1st RESPONDENT:

Ms Holmes

2nd RESPONDENT:

Mr N Holmes

INDEPENDENT CHILDREN’S LAWYER:

Brian Quinn & Associates, Solicitors

FILE NUMBER:

PAC

3158

2007

DATE DELIVERED:

4 September 2012

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Johnston J

HEARING DATE:

20, 21, 22 & 23 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Friedlander

FOR THE 1^ST & 2^ND RESPONDENTS:

Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Nash

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Brian Quinn & Associates, Solicitors

Orders

That the following parenting orders are made in relation to the children Z born … April 2002 and T born … April 2005 (“the children”).
That all previous orders be discharged.

Parental Responsibility

That the father have sole parental responsibility for the children.

Live With

That save as set out below the children live with the father.

Time Spent

That for six months from the date of these orders (“the six month period”) the mother and the step-father Mr N Holmes spend supervised time with the children once each four weeks at a contact centre for a minimum of two hours commencing not sooner than 22 September 2012.
That all parties shall do all things necessary to fulfil the requirements of the H Contact Centre for supervised contact at the Centre and comply with all reasonable directions of the Centre staff.
Following the expiration of the six month period, and the children spending six periods of time with the mother at the Centre, the children shall spend time with the mother and the step-father as follows:-
(a)On two alternate weekends from after school Friday to 5:00 pm Saturday.
(b)Thereafter each alternate weekend from after school Friday to before school on Monday, the mother or step-father to undertake collection and delivery.
School holidays
(c)From the end of term two of the 2013 school year for half of each school holiday period excluding the Christmas school holidays at times to be agreed between the parties or in the absence of agreement to commence at 5:00 pm on the day that the school term ends and to conclude at 5:00 pm on the day half way through the holidays.
(d)For the Christmas School holidays commencing in 2013 the Mother shall spend time with the children for two block periods with the first period of two weeks and one period of one week.
(e)For the purpose of these Orders, school holidays will be deemed to commence at 9:00 am on the day following the last day of school and conclude at 5:00 pm on the day before the commencement of school whether or not that day is a pupil-free day. After the conclusion of the school holiday period, the parent who spent time with the children during the first half of the school holidays will spend time with the children on the first weekend following the conclusion of school holidays.
(f)Such further or other times as agreed between the parties from time to time in writing.
Birthdays
(g)The children are to spend time with their mother and step-father on each of the children’s birthdays for a period of four hours as agreed between the parties and in the absence of agreement from 3.15 pm to 7.15 pm.
Special Days
(h)Notwithstanding any other Order herein the children are to spend Mother's Day with the mother and Father's Day with the father.
Changeover
(a) If the children are with the father for the Mother's Day weekend the father is to deliver the children to the mother at E McDonald's on the east bound side of the motorway at 3:00 pm on the Saturday before Mother's Day. If the children are with the mother for the Father's Day weekend she is to deliver the children to the father at W McDonald's at 3:00 pm on the Saturday before Father's Day and to collect them from the father at E McDonald's on the east bound side of the motorway at 6:30 pm on Father's Day.
(b)All other non-school changeovers are to be at E McDonald’s on the east bound side of the motorway.
(c) For the purpose of changeover, at all relevant times, the parties are to meet inside the specified McDonald's restaurant and are restrained from approaching, acknowledging or speaking to the other party in the car park or outside the McDonald's restaurant. Further each party will do all things necessary to ensure that third parties, who are known to them, do not approach, acknowledge or speak to the other party except inside the specified McDonald's restaurant.

Communication

The parties will communicate by SMS only and only for the purposes of confirming changeover details. If there is an emergency the parties may communicate by voice.
That during the six month period the mother be at liberty to write to the children once per week and the father shall ensure that such letter be given to the children providing the contents of the letter will not cause distress to the children.
That during the six month period the father will facilitate the children writing to the mother once per week and he will ensure that he posts the letter(s) to the Mother.
Following the expiration of the six month period, the mother is to send a mobile telephone to the children and the mother is to telephone the children between 7.00 pm and 7.30 pm each Wednesday other than when the children are in her care and the father shall ensure the children’s privacy during such telephone communications.

Christmas

That notwithstanding anything stated above, the father, the mother and the step-father shall each spend time with the children on each of the following days:
(a)for half of Christmas Day at times to be agreed or in the absence of agreement:-
(i) in 2013 and each odd year thereafter:
1.with the Mother and Step Father from 5:00 pm Christmas Eve until 2:00 pm Christmas Day.
2.with the Father from 2:00 pm Christmas Day until 5:00 pm Boxing day.
(ii)in 2014 and each even year thereafter:
3.with the Father from 5:00 pm Christmas Eve until 2:00 pm Christmas Day.
4.with the Mother and Step Father from 2:00 pm Christmas Day until 5:00 pm Boxing day.

School

That the father shall irrevocably authorise any school attended by the children to provide direct to the mother copies of the children's school reports and any other material provided to parents by the school.
That the father shall upon receiving notice of any school or extracurricular special event (including but not limited to concerts, parent teacher interviews, excursions and camps) forthwith provide the mother with details or a copy of the notification of such event.

Medical

That each party shall forthwith notify the other of any medical or other emergency affecting the children whilst in that party's care.

Restraints

That each of the parties be restrained by injunction from denigrating the other party to the children and/or causing or permitting any other person from doing so in the presence or hearing of the children.
That each party be restrained by injunction from publishing any material filed in these proceedings or making any comments about the parties on any form of electronic or print media.
That the parties be restrained from using physical discipline on the children whilst the children are in their care.
That the Independent Children's lawyer's appointment be discharged, at the end of the six month period.

Other

That pursuant to Section 65L(1)(a) of the Family Law Act (1975) as far as practicable compliance with these orders be supervised by a Family Consultant.
That pursuant to Section 65L(1)(b) of the Family Law Act (1975) the Family Consultant give the parties such assistance as is reasonably requested by a party to assist them to carry out these parenting orders.
That the father cause the children to be brought to the Family Consultant by arrangement with the Manager, Child Dispute Services for the purpose of the Family Consultant explaining the orders to the children.
That the father and the children undertake family therapy through an organisation to be agreed between the father and the Independent Children’s Lawyer.
That the mother forthwith provide to the Independent Children’s Lawyer the children’s passports which shall be then forwarded to the father sho shall retain them pending further order.
That the father shall pay the further costs of Dr R of $1,237.50 within 42 days as directed by the Independent Children’s Lawyer.

Change of name

That the application to change the children’s surname is dismissed.
That all parties are restrained from causing the children to have any surname other than the father’s surname.
That pursuant to s 62B and s 65DA(2) 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 Wilson & Holmes 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 PARRAMATTA

FILE NUMBER: PAC 3158 of 2007

Mr Wilson

Applicant

And

Ms Holmes and Mr N Holmes

Respondents

REASONS FOR JUDGMENT

Z and T are 10 and seven years of age respectively. Their parents are Mr Wilson and Ms Holmes. For convenience I shall refer to them as “the father” and “the mother” respectively. The mother’s husband, Mr N Holmes is a joint applicant with the mother. For convenience I shall refer to him as “the step-father”.
The parents have been engaged in litigation about parenting arrangements for the children for more than five years. Final orders have been in place for several years. The relationship between the children’s father on the one hand and their mother and step-father on the other has been characterised by a high level of conflict and hostility. The parents have been unable to protect the children from this conflict.
Following a serious incident in August 2011 the father filed an Application for Final Orders seeking that there be a change in the children’s primary residence from living with their mother and step-father to living with their father.

Applications

The Independent Children’s Lawyer (“ICL”) seeks orders to the following effect:
·That the father have sole parental responsibility for the children;
·That the children live with their father;
·That for six months the children spend time with their mother and their step-father supervised at a contact centre for a minimum of two hours;
·At the end of the six month period the children spend time with their mother and step-father as follows:
(a)On two alternate weekends from after school Friday to 5:00 pm Saturday;
(b)Thereafter each alternate weekend from after school Friday to before school Monday;
(c)From the end of term two of the 2013 school year for half of each school holiday period excluding the Christmas holiday period as agreed between the parties and in the absence of agreement to commence at 5:00 pm on the last day of school term and to conclude at 5:00 pm on the day half way through the holidays;
(d)For the Christmas 2013 school holiday period for two block periods, the first period of two weeks and one period of one week;
·Further times as agreed between the parties in writing;
·Specified orders providing for changeovers;
·Various special days including Christmas Day, Mother’s Day and the children’s and mother’s birthdays;
·Orders in relation to school reports and material;
·Orders about medical treatment and emergencies;
·Various restraints;
·Attendance at parenting courses; and
·Orders to facilitate written communication between the children and their mother.
The father seeks orders in similar form to those sought by the ICL as well as the following:
·An order restraining both parties from publishing any material associated with the proceedings or making comment on any publicly available communication mode, including electronic and print media referring to the proceedings or making comment which allows any of the parties or the children to be identified;
·That the parties be restrained from communicating orally other than in the case of emergency concerning the children and that otherwise their communication be by SMS message, be limited to arrangements for the children and each single communication be limited to no more than fifty words;
·That the parties be required to undertake mediation with Relationships Australia before making any future application to a court about parenting arrangements;
·That the children’s details remain on the Airport Watch List; and
·Certain orders with respect to overseas travel by the children.
On the other hand the mother and step-father seek orders to the following effect:
·That the parents have equal shared parental responsibility for the children;
·That the children continue to live with their mother;
·That the children spend time with their father each alternate weekend from after school Friday to before school Monday;
·That the parties be restrained in various specified ways including from commencing any further court proceedings (with specified exceptions) for a period of five years;
·That certain specified matters be noted;
·That certain orders be made concerning availability of school reports, school information and medical emergency or hospitalisation;
·That the details of both children be immediately removed from the Airport Watch List;
·That within one month the mother arrange an appointment with a psychiatrist and comply with any treatment as prescribed by such specialist;
·That within two weeks the step-father make an appointment with an appropriate therapist to be assessed for anger management and any mental health condition, and that he comply with all treatment requirements as prescribed by such therapist;
·That both the mother and step-father undertake an appropriate marriage counselling program and continue in such program until such time as the court determined it was no longer appropriate;
·That the mother arrange for the children to be managed by an appropriately qualified psychologist;
·That all three parties undertake and complete the F Parenting Program recommended by Ms R;
·That the mother and step-father arrange for regular home visits by officers of the Department of Family and Community Services if possible;
·In the event of police involvement with the mother and step-father or the mother and step-father do not seek appropriate help in a situation of crisis or emergency then the children’s residence immediately change to living with their father; and
·That the parties be restrained for at least two years from filing any parenting application in court and in the event of further disputation that all parties endeavour to resolve the dispute by attending mediation.
The mother and step-father also sought an order to the effect that they be permitted to use the surname Holmes-Wilson in relation to the children. This was vigorously opposed by the father.

Background

The mother, 34 years of age and the father, 38 years of age commenced cohabitation in June 2000 and married in 2000. They separated on 1 August 2006 and divorced in 2007.
As indicated above, there are two children of the marriage. They are Z, who was born in April 2002 and T who was born in April 2005. They are 10 and seven years of age respectively.
The mother commenced using marijuana at 11 years of age. She started using marijuana on a daily basis from the age of 13 and commenced using other illegal drugs, including heroin, in her teens.
At 16 years of age, the mother commenced work as an adult entertainer.
In around 1998, sadly, the father’s then wife Ms L died in an accident in a National Park. A few days after her death, the father took an overdose of paracetamol tablets. He attended counselling for approximately 18 months following her death.
The mother and father met in 2000 and commenced a relationship shortly thereafter.
In 2001, the mother threatened the father with a knife and then held it to her throat. She was taken to Hospital C by police and was referred to Hospital D following overnight admission.
Between approximately years 2000 and 2004, the step-father, Mr N Holmes, used illegal drugs and engaged in binge drinking. He was admitted to hospital during this period on several occasions after having experienced auditory and visual hallucinations. He said that he has not experienced psychotic symptoms since 2004.
In mid 2005, the father joined the Australian Army. He was injured during training and was treated at a rehabilitation unit in NSW.
Between January and March 2006 the mother and the children were living with the paternal grandmother Ms Wilson Senior and her husband Mr Wilson Senior at their home at Town A. The grandmother said that the mother’s behaviour was volatile and unpredictable, and her arguments irrational and repetitive. In late January 2006 the grandmother received a letter from the mother explaining that she had a mental illness.
In March 2006, the family commenced living in defence housing at Town B.
In June 2006, the mother met the step-father online.
On 23 July 2006, the mother was taken to Hospital N by police and was admitted to the mental health unit.
In August 2006, the parties separated under the same roof.
In November 2006, an incident occurred between the parents whereby the mother yelled at the father, poured drink over him and punched him the face. The police attended the home and the mother was charged with assault.
On 14 December 2006, an Apprehended Violence Order (“AVO”) was made by the Local Court against the mother for the protection of the father.
On 2 January 2007, the mother contacted police claiming that the father had assaulted her. The police attended the home but made no charges.
On 3 January 2007, the mother left the former matrimonial home and travelled to the United States (“US”) to meet the step-father. The father collected the children to care for them while the mother was away. He said that T had bruises which Z said had been caused by the mother hitting him. The father reported this to the Department of Family and Community Services.

In May 2007, the step-father travelled from the US to Australia. He thereafter commenced cohabiting with the mother.
On 7 June 2007, consent orders were made by the Federal Magistrates Court which provided for the children to live with their mother and to spend weekends, half of the school holidays as well as some special days with their father.
In September 2007, there were difficulties about telephone communication between the children and their father. The father said that the step-father verbally abused him over the phone and that the mother refused to allow him to speak with the children over the phone.
On 2 October 2007, the father filed an application seeking an Airport Watch List Order after Z had informed him that the mother said that the children would move to the US with her and the step-father.
The father said that on 7 October 2007, he was physically and verbally abused by the step-father at changeover. The father applied for an AVO against the step-father.
On 2 November 2007, orders were made restraining the parents from removing the children from Australia and placing the children on the Airport Watch List.
On 24 November 2007, the mother and the step-father were married.
The father asserted that from December 2007, the mother interfered with his phone calls to the children. He said that they were put on speaker phone or told to respond in a certain manner.
In January 2008, the step-father was charged with a drink-driving offence and subsequently disqualified from driving for a period.
In January 2008, the mother and the step-father changed their residence from Sydney to the Central Coast. It is clear that the mother did not consult the father about her proposed move.
The father said that on 9 February 2008 the step-father video taped him when he came to the mother’s home to collect the children.
In September 2008, the mother and the step-father published family law documents on the internet.
On 22 September 2008, Federal Magistrate Henderson made orders restraining the mother and the step-father from publishing documents. The incident was referred to the Australian Federal Police and the mother was ordered to pay the father’s costs.
On 25 November 2008, Federal Magistrate Terry made final orders by consent providing for the children to live with their mother and to spend time with their father on two out of each three weekends, for half of the school holidays and at certain times on special days. The orders also provided for telephone communication each Tuesday and Thursday evening.
On 3 June 2009, the mother filed an Application in the Federal Magistrates Court seeking that the children’s surnames be changed to Holmes-Wilson.
In June 2009, the father was told by the mother that Z made up a story that two boys at school had assaulted her in the girls’ bathroom. The mother sent the father an email notifying him that she would no longer make the children available to him and would not permit him to have telephone contact with the children.
On 14 October 2009, the father filed a Contravention Application.
In December 2009, Z commenced attending Mr S, psychologist, of the Clinic E.
On 27 August 2010, Federal Magistrate Halligan made orders in relation to the father’s Contravention Application. The learned Federal Magistrate found that the mother contravened the parenting orders made on 25 November 2008 on 19 June 2009 and also on 26 June 2009. The mother was ordered to pay the father’s costs. His Honour also ordered extra times to be spent by the children with their father to make up for that lost due to the contraventions.
In September 2010, the mother and the step-father invited the father to attend upon psychologist, Mr S, in an attempt to address the ongoing parental conflict. The father agreed to attend.
On 20 October 2010, the mother, father and the step-father signed a shared parenting plan which they had developed with the assistance of Mr S.
By December 2010, the parenting plan made in October 2010 had broken down. Mr S ceased assisting the family because of what he described as the inability of all parents to follow the agreed parenting plan and, as a result, the continued negative impact on the psychological well-being of both children. He recommended that the parents consult another psychologist at the Clinic, Ms U.
On 31 January 2011, the mother filed a Contravention Application. This was dismissed by Federal Magistrate Halligan on 24 March 2011.
On 27 May 2011, consent orders were made on an interim basis that the children spend time with their father during school terms for four out of five weekends, for one half of the school holidays and at certain times on special occasions. The matter was then transferred to this Court.
On 10 August 2011, the mother and the step-father had an argument. The step-father pushed the mother and attempted to strangle her. The police were called to their home.
On 19 September 2011, I made orders by consent, in summary, providing for drug testing of the mother and the step-father and that Dr R be appointed single expert to prepare a report
In January and early February 2012, the parties attended upon Dr R for interviews.
On 10 August 2012, the expert report was released to the parties. I made orders by consent that the children live with their father on an interim basis.

Credit

The mother

The mother told Dr R that she could not explain why the step-father had continued on a US disability pension and was unaware of the extent of his history of psychiatric problems and drug use. The mother also said that in relation to an incident in October 2010, to which I shall soon refer, she had exaggerated her account to hospital staff and others for the purpose of having the father psychiatrically evaluated. Amongst other things, she said that the step-father was becoming increasingly violent, psychotic and tried to choke her.
Dr R considered the mother to be a person who has been prone to considerable exaggeration, tended to go over the top, dramatised and told untruths.
I must say I have a similar view.
The mother was able to make some concessions. For example she conceded that at times she had been quite violent and she made no secret of her very long history of using illicit substances. But she also found it difficult on many occasions to provide a responsive answer to the question and frequently offered a considerable amount of material which was not responsive. I had the impression that she felt a strong need to offer this material in an endeavour to favour her own case.
Having said this, I had a sense that much of what the mother offered during her cross-examination was the truth. But not on all occasions. Given her significant propensity for telling untruths, as was also the opinion of Dr R as I have said, I have reservations about the accuracy of significant parts of the mother’s evidence.

The step-father

The step-father initially denied to Dr R that he had a mental illness, a history with mental health professionals and use of illicit substances. However, when questioned by her, he acknowledged six or seven psychiatric admissions in the US, a doctor querying whether he had schizoaffective disorder and receipt until recently of a US disability pension for this condition. Asked by Dr R why he would deny his history, the step-father referred to it happening so long ago and that he preferred not to drag up the past. There was some sense that having come to Australia he had wanted to make a break from what he described to Dr R as his “shameful past”.
I found the step-father to be quite articulate and personable. On most occasions he was able to give responsive answers to the questions. He readily made concessions. Such included his admission that it had been unhelpful for the children for him to have engaged in insulting and abusive email communication with their father and to have sent so much of this to him. I had the sense that most of what the step-father was telling the court during his cross-examination was true. However, given the extent of his mendaciousness towards Dr R I must have reservations at least about some aspects of his evidence.

The father

The father gave responsive answers to questions and he made concessions on numerous occasions. For example, he conceded that it was unhelpful to the children for him to have continued to indulge himself in the ongoing conflict with the mother and the step-father.
I also accept, as was submitted by the mother, that the father was less than truthful when in answer to a question from learned counsel for the ICL whether this was the first time that he sought for the children to live primarily with him he answered that he could not remember, but it probably was. Dr R said in her Report that the father was adamant that he had not threatened to take the children from their mother in the past. Yet as the mother said, it was clear that on 30 January 2008 the father had filed an application in the Federal Magistrates Court seeking orders that the children live with him. This was in circumstances where the mother had relocated the children’s residence to the Central Coast. The father also amended his then Initiating Application to include a substantive order that the children live with him.
The mother also suggested that initially the father had not referred to his suicide attempt. When asked by Dr R, he acknowledged that he had taken an overdose of paracetamol tablets a few days after the death of his first wife. Dr R agreed with the mother that this was a serious matter and approached the realm of the attempt at deception by the step-father in denying his troubled past.
As Dr R said, ultimately it is a matter for the Court to weigh these matters. I accept that the father does not have an unblemished record in telling the truth. But having considered these matters, the view that I have is that generally, where his evidence conflicts with that of the mother and the step-father, I prefer the father’s evidence.

The paternal grandmother, Ms Wilson Senior

The paternal grandmother answered questions in a responsive manner. I accept her as a witness of the truth.

VIOLENCE

There are two incidents which have caused great upset to all of the parties and which can only have been damaging for the children. The incidents attracted considerable prominence in the hearing. They are as follows.

Incident IN 2010

On the morning of 26 October 2010, the mother contacted the New South Wales Mental Health Central Intake Service. The Central Coast Health records indicate that the mother called to report that she was concerned for her safety. She reported that the step-father had become increasingly violent, that his psychotic episodes were becoming more severe, that he had threatened her life and tried to choke her. She said that the step-father had taken 10 Tramadol tablets and drank a bottle of vodka. The mother said that he had different personalities and that there was one personality, named V, that wanted to kill her.
Hospital G records indicate that the step-father attended the Emergency Department later that morning, after the mother had contacted Central Intake. He told hospital staff that the mother had accused him of perpetrating violence following a period of “marriage stress and arguments” over the previous few days. It was recorded that the step-father had a history of mental health issues related to drug use. He denied any suicidal or homicidal ideation. He said he was angry with the mother but denied any domestic violence. He reported frequent hospital admissions in the United States and “schizoaffective disorder”. He denied overdosing on Tramadol.
The NSW police records indicate that police and ambulance officers attended the mother’s home on the same day. The mother had contacted police requesting assistance with the step-father, stating that he suffered from mental health issues. The police report states that the step-father voluntarily attended G Hospital for assessment. The mother told police that she was fearful of the step-father during what she described as “his episodes of mental health”. She said that these episodes had escalated because the step-father was not medicated. The police applied for an Apprehended Violence Order for the protection of the mother.
In my view it was clear that the mother has now minimised the seriousness of her reports. The mother denied to Dr R that she had told hospital staff that the step-father was becoming increasingly violent. She said that she had “over-dramatised” the situation because she had wanted the step-father psychiatrically evaluated and the police would not take him involuntarily to hospital. When Dr R asked why the mother wanted the step-father assessed she said that there had been a few times, when he had been drinking alcohol, that he said and did things which concerned her. This included him getting irrationally angry and yelling a lot, which was not normally part of his nature. She said that he had wondered if he had tried to hide something, particularly when he became aggressive and said “die bitch”. She insisted that he had not been physically aggressive and added that she had exaggerated a bit. However, she said that she had been concerned that the stress in their lives was causing the step-father to relapse into mental illness and she wanted to make sure that this was not the case, that it was a “pre-emptive strike” as she did not want him in the house until he had been assessed as being well.
The step-father informed Dr R that he had not previously heard the mother’s allegations to staff that he was becoming more and more violent, that he was psychotic and that he tried to choke her. He also said that he had not heard that she had said that he had multiple personalities, one an evil one that wanted to kill her. He said that when the mother became hysterical she had a tendency to go over the top.

Incident in August 2011

On 10 August 2011, a violent incident occurred between the mother and the step-father. In his affidavit filed 8 August 2012, the step-father deposed to having had an argument with the mother. He said that during the argument, he pushed her and the mother contacted the police. He said that the mother did the right thing in contacting the police and that he has always emphasised that she should not subject herself to abuse.
In her affidavit filed 22 June 2012, the mother said that, on 10 August 2011, she got into an argument with the step-father. She said he pushed her during the argument and she fell into their bedroom. She said that a friend, Mr I, was at their home at the time and grabbed the step-father. She called the police and the step-father went outside to cool off. She called the father and told him that she had contacted the police. The police attended the home and spoke with Mr I first, and then with the mother. the step-father left the home with the police.
The mother denied that the children were present during the argument. She said that Z was in the shower and did not come out until everything had settled down. The mother said that Z went to bed when the police arrived.
In his affidavit filed 25 June 2012, the father said that the mother telephoned him on the night of 10 August 2012 and told him that she and the step-father had had a fight and that he threw her through the door into T’s room. She said she landed right next to T’s bed and that the step-father then launched himself at her and tried to strangle her. The father said that the mother told him that the step-father has schizophrenia and that he had stopped taking his medication. The father told her to take the children and get out of the house. The father said that he also spoke to the police who told him that the mother and the step-father had been taking amphetamines before the incident.
The NSW Police records indicate that, at around 6.30 pm on 10 August 2011, the mother and the step-father began to argue with raised voices.

The step-father spat into the mother’s face twice and the mother spat back at the step-father. The step-father then pushed the mother into T’s bedroom and onto his bed while T was asleep. The step-father put his hands around the mother’s throat in a choking motion. At some point, the mother was released and moved into her bedroom. The step-father followed her and launched at her, again taking her by the throat in a choking motion. The mother attempted to prise his hands from her. Mr I then entered the room and restrained the father. Once he was out of the room, the mother went into the bathroom where Z was bathing. She called the police and police officers attended her home a short time later. They spoke with the mother and Mr I and obtained statements. They did not sight any physical injuries to the mother. They arrested the step-father and took him to G Police Station.
On 16 August 2011, the step-father was convicted of common assault and was placed on a two year good behaviour bond. The step-father was required to attend an anger management course as part of his bail conditions.
The mother said to Dr R that she and the step-father were stressed and that the step-father lost his temper and pushed her. She said that he gave her a violent push and put his hands around her neck. She said that she called the police and that she also called the father and asked him to take the children.
The mother’s evidence during cross-examination was similar to the account which she gave to Dr R. In my view, it is more likely than not that the mother has minimised her earlier accounts for the purpose of endeavouring to present a picture of events more favourable to her case than the true position.
The step-father told Dr R that he and the mother had had a week long argument that caused a build up of stress causing him to react very badly. He said that he pushed the mother and just made that mistake. He denied that there were any drugs or alcohol involved and said that he had not been experiencing psychotic symptoms at the time.
The mother said that the policewoman was wrong in her comments about there having been drugs in the home.

SUBMISSIONS

Independent children’s lawyer

It was submitted on behalf of the independent children’s lawyer (“ICL”) that orders be made in accordance with the draft minute of orders referred to above.
It was submitted that the problems which the children are now facing are not seated in the behaviour of only one of the parties. It was submitted that each parent has their vulnerabilities. Learned counsel then referred to the mother’s history of depression and symptoms of an underlying mental illness. Reference was also made to the depression suffered by the father following the death of his first wife. Learned counsel also referred to the step-father’s six or seven admissions to hospital in the US in relation to an underlying mental health condition.
It was submitted that all parties attended Clinic E between 2009 and early 2011 and substantial assistance was given to all parties. But no party stepped back from their position in the ongoing conflict to consider the effect of this on the children. The father said that after a long time he realised that he needed to moderate his behaviour and he stopped communicating with the mother other than by SMS messages. But that did not stop the conflict.
It is clear that the step-father exacerbated the conflict, taking a somewhat dictatorial attitude towards the children’s father.
Learned counsel observed that the parties to their credit attended upon

Mr S, psychologist, for assistance in learning ways to manage the conflict. But after sometime Mr S’s assistance ceased. The mother and the step-father subsequently attended Ms U, clinical psychologist, also with Clinic E for assistance in trying to better meet the children’s emotional and psychological needs.
Ms U also had the opinion that the children were presenting with severe indications of emotional dysregulation and behavioural dysfunction. Ms U recommended that all parties attend the F Parenting Program. Amongst other things Ms U pointed out that the capacities needed for a secure parent/child relationship included the ability to engage with children in the regulation of their emotions. It was submitted that Dr R had expressed concern about the mother’s capacity to regulate her own emotions and that there was similarity between Z’s behaviour and that of her mother. Dr R expressed the opinion that in all the circumstances Z was at significant risk of developing future psychiatric disorder. In fact Dr R thought both children were at risk of developing future psychiatric and psychological disorder.

Dr R’s ultimate opinion was that it would not be in the interests of these children for the current parenting arrangements to continue.
In relation to the primary consideration in s 60CC(2)(b) of the Act, that is the need to protect children from physical and psychological harm and from being exposed to family violence, it was submitted that both aspects had been present in this case. It was submitted that it was clear that the children were at psychological risk and that there was no question that they have been exposed to family violence in the mother’s household. It was clear that the mother was very frightened by the step-father’s behaviour to the point where she called the police and wanted him assessed by mental health professionals. It was also clear that there were serious relationship problems between the mother and the step-father. They have sought limited relationship assistance but have not been addressing their own serious underlying mental health issues. It was submitted that the risks to the children were clear, not only having been expressed by Dr R but also by Ms U, and provide compelling evidence of the need to change the parenting arrangements as sought in the minute of orders.
Learned counsel then addressed the additional considerations pursuant to

s 60CC(3) of the Act. The submission included that the children had expressed their view that they wanted to remain living with their mother and the step-father. Also that they were primarily attached to their mother but Dr R had raised issues about the quality of such attachment given the degree of dysfunction in the mother’s household. Learned counsel noted that Dr R said that the children have a warm relationship with their father having spent four out of five weekends with him since May 2011.
It was submitted that there had been problems with the mother’s willingness and ability to facilitate a continuing relationship between the children and their father. At one point she suspended the father’s time with the children and said they would not be able to see their father for the next four years. The father’s willingness and ability in this regard were unknown.
Learned counsel submitted that it was clear that a change of primary residence would be very stressful for the children, Dr R having said that they would be very distressed and would be grieving for their mother in particular. Nevertheless, it was submitted that it would be in the children’s long term best interests for the change to occur.
In relation to parental capacity it was submitted that although the father was an unknown quantity in terms of acting as primary parent, he would have the assistance of his mother, sister and members of his church. On the other hand Dr R clearly regarded the mother’s capacity to parent the children as being significantly compromised and in particular that she would not be able to meet the emotional needs of the children which was causing serious emotional and psychological difficulty for Z in particular.
In relation to the attitude to the children and the responsibilities of parenthood, Dr R had expressed serious concern about the amount of lying and deceit in the household of the mother and the step-father and she regarded

the step-father as an unsuitable role model for the children.
It was submitted that there was no question that the mother’s household was one where serious violence has occurred involving the police and hospital officials. The step-father conceded that he has had problems with anger and there has been a finding of violence against the mother and the making of an AVO to protect the father.
It was submitted that a major concern for the children living primarily with their mother was not so much that their mother suffers from a mental health condition but rather that her mental health condition was not being appropriately managed. In all the circumstances the ultimate submission was that overwhelmingly the orders sought by the ICL would serve the children’s best interests.

The father

Counsel for the father adopted the submissions by the ICL.
In relation to the mother’s assertions that the father had been abusive towards her, it was submitted that the court would be wary about accepting the mother’s assertions. particularly because of the following matters.
Firstly, there was no evidence to corroborate the mother’s assertions in this regard apart from the step-father alleging that during a telephone conversation with the mother in December 2006 he overheard the father in the background being forceful in his comments to her. The mother said that at the time the father had informed her that she would have to have sex with him and if she did not he would have her “kicked out” of his mother’s home at Town A where they were staying at the time. It was submitted that the court could not place reliance on the step-father’s assertions, particularly because there were nine people in the household at the time because the parents were staying with the father’s parents and other persons.
In addition, it was submitted that the mother had attempted to commit suicide and had threatened this on various occasions including in a letter which she wrote to the father’s parents in January 2006. It was submitted further that at no stage during the marriage did the mother write to the father’s superiors in the Army alleging any misbehaviour by him towards her. She only did this after the parties had separated and for the purpose of endeavouring to bring about the situation where he would lose his job.
In any event, if the mother was seriously concerned about the father’s capacity to parent the children by reason of him being abusive towards her, she would not have left the children in his care in early 2007 to travel to the US to meet the step-father.
It was submitted that upon the step-father arriving on the scene and commencing his cohabitation with the mother there ensued a lot of problems in terms of the parenting arrangements. It was submitted that the mother now idealises the step-father and demonises the children’s father. It was submitted that the step-father’s behaviour has been that of enthusiastically denigrating the father, being abusive towards him at changeovers and providing constant invective through his many emails.
It was submitted that while the mother and the step-father made some of the “right noises” with respect to undertaking some therapy, the mother did not seek help until 19 July 2012 and it was only once. The mother has no future appointment in place. It was acknowledged that the step-father has undertaken an anger management course as part of his bail conditions.
In relation to parental responsibility, it was submitted that the mother has shown herself to be incapable of making decisions in the children’s interests where the subjects of the decisions had been in conflict with her own needs. It was submitted that in these circumstances the father should have the sole parental responsibility for the children.
In relation to the application for a change of the children’s surnames, there were a number of submissions. It was submitted that the proposed name of Holmes-Wilson was somewhat lengthy and difficult to pronounce because it has five syllables. It was submitted that in those circumstances it would be likely that the Wilson part of the name would simply be left off in favour of the shortened version namely Holmes. It was also submitted that if the marriage of the mother and the step-father was to fail and the parties separated then there would be no connection between the step-father and the children and the mother might not retain his name.

The mother

The mother acknowledged that she and the step-father had issues. She explained that the reason that they had not done any more couples counselling was that they had been told that they only had to return if they had issues and that she and the step-father had not had many issues.
The mother submitted that she proposed to place herself under the management of a psychiatrist and that the step-father would see a therapist and she thought that it would be helpful for the children to see a psychologist. The mother also said that she and the step-father would be prepared to have an officer of the Department of Family and Community Services visit their home on a regular basis. The mother said that she and the step-father are not liars but it is the father who has been telling the lies.
The mother said that she, the step-father and the father all needed to “wake up to ourselves”.
The mother submitted that the father was not an experienced parent, the longest period that he has cared for the children having been three weeks when she visited the US. The mother submitted that Dr R pointed to the father’s lack of psychological focus and his insensitivity to the children missing their mother. It was submitted that Dr R said that such lack of focus was due to the way that the father had been raised and that accordingly, his mother would not been an appropriate person to assist the father with this short coming. In any event it was submitted that Dr R had acknowledged that the grandmother had acted inappropriately recently when the children were passing into the care of the grandmother and the father by saying words to the effect that the man in the court had said that the children have to go with them.
In response to the criticism of the mother for having contravened court orders, it was submitted that the contraventions were just symptoms of the conflict between the parents. The mother acknowledged that she and the step-father had responded in an immature way to their frustration about the father. By way of explanation, the mother said that this has been because they have faced an ongoing threat of the father being successful in his court application to remove the children from her primary care. The mother said that the father’s pursuit of a change of the children’s residence was not focused on the best interests of the children but rather as punishment of her for having cheated on him.
In relation to the incidents in October 2010 and August 2011, the mother acknowledged that this was a dangerous situation but submitted that the children did not witness these incidents. She submitted that she and

the step-father would ensure that there would be no repetition. It was submitted that her assurances in this regard would have substance because she would be regularly seeing her psychiatrist under a management plan and that

the step-father would be regularly consulting a therapist.
The mother submitted that the father was not being child focused by endeavouring to remove the children from her primary care. In any event, she submitted that the fact of changing the children’s primary residence would be unlikely to diminish the level of acrimony amongst the parties.

The Applicable Law

The statutory provisions which guide the court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of the children are met by:
·Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objectives are that (except when it is or would be contrary to a child’s best interests):
·Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child 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 for the child.
Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or family violence.
Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
In order to determine whether the presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them applies in this case, I propose next to consider those matters which would inform the court about what would be in the best interests of these children. I propose after that to return to consider this issue of parental responsibility.

Section 60CC Considerations

How the court is to go about determining what is in a child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.

Primary Considerations

The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Having noted these primary considerations at this point I shall return to discuss them below.

Additional Considerations – s 60CC(3)

Sub-section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

There is no question that the children have indicated that they wish to continue residing primarily with their mother and the step-father.
When Dr R asked Z whether she wanted the same, or less time with her father, Z replied that she likes it how it is but also said that she likes it “only when Nan and Pa are around, in front of them he (meaning her father) never beats her”.
Dr R said that Z presented as a friendly, articulate, bright nine year old with a mature use of language.
T told Dr R that he would like less time with his father and more time with his mother and step-father. He said, when he was asked whom the one person he would take in a rocket into space would be, that he would take his mother and step-father. Dr R said that T repeatedly indicated that he wanted to live with his mother and step-father.
Dr R said that these expressions of views by the children were hardly surprising because the children were primarily attached to their mother and to the step-father, having lived mainly with their mother. But Dr R also said that little weight should be afforded to the children’s views in the very complex circumstances of this case, particularly the high level of conflict between the parents and significant problems concerning the children’s emotional development. I shall refer to these matters in more detail below.

Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

As indicated above, Dr R said that the children’s primary attachment is to their mother and that the children’s father and step-father are significant persons to the children.
Dr R said that during the interview session with the children, their interactions with their mother and the step-father were positive, the mood happy and the step-father was playful. Z was heard to refer to the step-father as “daddy”.
On the other hand when the children were with their father during the interview they appeared to be relaxed and cheerful sitting with him. Dr R said that later when she was interviewing the father alone the children remained happily in the waiting room engaging her secretary and behaving well. She said that Z came into the interview room twice to show her father her drawings and was later heard laughing with her father during T’s individual assessment.
Dr R said that although T was primarily attached to his mother this was somewhat of an insecure attachment. She said that T was clearly anxious about what was happening in the family. She said that Mr S, psychologist, who had been assisting the family with family therapy over approximately a year had indicated that T was becoming increasingly anxious. Dr R said that this anxiety had been causing some difficulty for T in making transitions from the home of one parent to that of the other.

Sub-section 60CC(3)(c) – the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

Over the more than five years since separation, the mother and the step-father have been unable to parent the children in a way which has enabled the children to transition into the care of their father in a manner which has been free of uncertainty, abuse and stress for the children. There have been many problems and considerable litigation.

Having said this, it is the case that on 10 August 2012, the day on which Dr R’s report was released to the parties, the mother agreed that the children could go on holiday with their grandmother and spend time with their father until the court hearing or shortly thereafter.
The step-father conceded that he and the mother had informed the children on occasions that their father was trying to take them away from their mother and him.
The mother told Dr R that she wanted the children to see their father as a good father but she said that they do not see him in a positive light. She alleged that they are frightened of him.
On the other hand, there does not appear to have been difficulty with the father facilitating the children’s return to the care of their mother and the step-father after spending time with him. Having said this, Z told Dr R that her father calls her mother and the step-father names and has said that her mother is ugly and he hates her. Z said that this has caused her to have bad dreams.

Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

It is clear from the evidence of Dr R that if the children were to be placed primarily resident with their father, they would be very distressed not to be living with their mother and step-father. Dr R said that they would be likely to be grieving the loss of their mother for a period of at least some months until they settled down.
Dr R said that she thought that the first month of separation of the children from their mother would be the most difficult. She thought that such would be the degree of difficulty for the children that they and the father would need to be assisted by a family therapist.
I shall refer to such difficulties again below.

Sub-section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

The parents live at a considerable distance from one another being approximately one and a half hours travelling time apart.
To date the father appears to have been able to manage this travelling notwithstanding that his home is such a long way from the children’s school.
In the event that the children were to be living primarily with their father, this would involve a change of school. The mother and the step-father would then be living a long way from the children’s new school. This would need to be taken into consideration in crafting orders for their mother to spend time with the children in this eventuality.

Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

The father is a disability support worker, working from 8:00 am to 4:00 pm five days each week. The father said that he would place the children in the Out of School Hours Care. He has ascertained that there are places available for the children in this service.
The mother made numerous criticisms of the father’s parenting ability. She alleged that he did not assist her to care for either child and that she could not see any parenting strengths in him. She alleged that he physically disciplined the children, belittled and mocked them. The mother also alleged that the father would openly watch pornographic movies when Z was present and involve Z in their parental arguments. The father denied most of these criticisms. In relation to the mother’s allegation about him watching pornographic movies, he said that he is a church-going Christian, the inference being that it was against his beliefs to do so.
Dr R said that the father presented as a fit, self contained, somewhat guarded 39 year old. She said that he had a minimally reactive affect (but was observed to be warmer and expressive with the children) and appeared to have a neutral mood. The father denied having used illicit substances. He told Dr R that he had refused cannabis and amphetamines which the mother had offered him and said that he rarely drinks alcohol. He had a head injury following a motor bike accident when he was 18 years of age. He had then experienced focal epilepsy for a few years which ceased. He said that his CT scan and EEG were normal. He said that he had been discharged from the Defence Force for migraine headaches in 2010.
The father informed Dr R that his first contact with mental health professionals was possibly in secondary school when he saw someone about the accidental death of three friends overseas. He said that after the motor bike accident he saw counsellors during his two week admission. Following the death of his first wife Ms L, who died in circumstances in which the father faced a coroner’s inquest but was not charged, he had weekly counselling for about 18 months. Before separating, the father and the mother had couple therapy. His last period of counselling was following separation when he was the subject of a military investigation because the mother had made multiple, critical allegations about him by writing to his commanding officer.
As indicated above, the father acknowledged that he took an overdose of eighty paracetamol tablets a few days after the death of his first wife. This was at a time when he found out that her parents had been saying that he killed her. He informed Dr R that he has had no other suicidal ideation or attempt although he said that he had been a bit depressed after separating from the mother.
Dr R said that because the father has not been the children’s primary parent he is below the mother and the step-father on the attachment scale. She said that if the children were placed primarily with him he would need to achieve for himself as quickly as possible a position higher on the children’s attachment scale than the mother and the step-father occupy. That is, that he would need quickly to become the parent to whom the children turn for comfort.
Dr R said that the father was not a novice parent, having been spending four out of every five weekends with the children. She believed that the father genuinely wanted to be in the children’s lives. She said that he has stayed in their lives and has been consistent about wanting to be with them. She said that Z enjoyed being with him and did not hesitate at interview to approach her father with things to show him as indicated above.
Dr R said that the father was not the most psychologically insightful parent that she had met. She said that he had not shown a realistic appreciation of the likely emotional and psychological effects on the children if they were to be separated from their mother and the step-father to live primarily with him. Dr R also said that the father had not always been able to provide the children with comfort when their need in this regard was in conflict with his own agenda. By way of example, Dr R said that T had said that if he was missing his mother he would be unable to tell his father this because his father would just get angry. Dr R said that the father would need to shift his focus to recognise the priority of the child’s need for comfort over the father’s frustration concerning the mother.
Dr R thought that if the children were to live primarily with their father, the emotional and psychological challenges would be such that the father and children would need professional therapeutic support. She said that this would be required in addition to support which the father said would be provided by his mother and also his younger sister, the latter of whom lived quite close by. The father also has friends in his local church who could help him. Dr R also thought that a competent parent would be able to assist the father with good advice about parenting issues. Dr R said that she thought it would be particularly helpful if the children’s paternal grandmother could be available for their support, particularly during the first month.
Otherwise Dr R assessed the father as a parent who was appropriately concerned about whether the mother and step-father’s household was a suitable residence for the children. She said that he did not appear to have a psychiatric disorder which would compromise his parenting. She said that the children had made multiple allegations that he has physically punished them and questioned them. Dr R said that clearly this must not happen but she was cautious about taking what the children have said at face value.
On the other hand the mother operates a business which offers the services of adult entertainment. Sometimes the mother does this work personally. Her business usually involves her working on Friday and Saturday nights. If the children are not in the care of their father during those evenings then she arranges for the step-father to care for the children.
The mother informed Dr R that in 2000 when she and the father were using a lot of amphetamines and she stopped using cannabis, she had a psychotic episode. She said that she was admitted to C Hospital. The mother said that a psychiatrist at the hospital had prescribed an anti-depressant. She also said that a general practitioner doctor subsequently informed her that she had been suffering from a reactive depression and did not recommend further medication. The mother insisted to Dr R that a formal diagnosis had not been made at that or any other time.
The mother informed Dr R that the father had told her that a diagnosis of Borderline Personality Disorder (“BPD”) had been made and that he tried to convince her that she suffered from mental illness. She informed Dr R that for a while she was convinced that she had BPD. The mother conceded that she had written a letter to the paternal grandmother in 2006 indicating that she was suffering from major depression and BPD. She said that she did this as an excuse because the paternal grandparents were threatening to evict her and keep the children. Dr R said that the mother told her that she used the BPD as a reason to have a tantrum.
The mother informed Dr R that she had had a hard life and had used drugs to deal with the pain. She said that she does not use drugs now and is dealing with the real world. She said that she had stopped her recreational use of cannabis in September 2011 for the sake of the children.
The mother informed Dr R that she had used amphetamines daily with the father until 2001. She said that she had been working fourteen hours per day as an adult entertainer, which was difficult because of her fibromyalgia, and the amphetamines helped her to work. The mother said that she had begun using cannabis when she was 11 years of age and was using it daily from when she was 13, after she ran away from home and lived in a group house. She said that she had been using anything she could including heroin. She said that she began to work as an adult entertainer when she was 16 and at that time had a heroin addicted boyfriend who beat her. She said that she had not used heroin since she was 18 except for one occasion when she was very upset. She said that although she was drinking alcohol to excess as an adolescent she now rarely drinks alcohol and when she does it is only in minimal amounts.
Dr R said that the mother presented for interview with significant anxiety and distress, fearful of having her children ordered to live with their father. Dr R said that the mother’s presentation and history were consistent with the diagnosis of recurrent Major Depression and Borderline Personality Disorder. Such was the level of Dr R’s concern about the mother’s mental health that she expressed concern that particular care should be taken with release of her report. She said that this was because the mother had previously self-harmed and might attempt to do so again when she became aware of Dr R’s recommendation in her report, which the mother would see as being quite adverse to her interests.
Dr R said that the mother’s parenting has been significantly compromised, despite intervention in 2009 – 2011 by Mr S psychologist. Dr R said that there were several reasons for this.
The first reason was because of the children’s insecurity in themselves, examples being the difficulty that Z was having in managing her emotions and recognising reality. Another example was T’s anxiety in endeavouring to manage the transition between the homes of each of his parents and Mr S’s observation that T had been anxious for some time.
Secondly, the mother’s own mental health. As indicated above, this compromised her parenting so that when she was living with the paternal grandparents while the father was absent on duty with the defence force, the mother came into serious conflict with the paternal grandparents and compromised her parenting particularly with T being such an anxious child. Her behaviour would only have fed his anxieties.
Next, the mother’s history of remaining in relationships where there was domestic violence and repeated past patterns of re-partnering with persons with whom she has continued to be in conflict. This has not been protective of the children. For example, at the time of the incident in 2010, when the step-father went to hospital, the mother did not want the father to know about this because of her concern that he might take the children from her. So she did not protect the children because of her own concern about this. Similarly, in relation to the August 2011 incident, when the mother had another problem with the step-father, she was now minimising the seriousness of what can only have been a worrying assault. Accordingly, Dr R said that she is failing to be protective towards the children in this regard and that this is another example of her compromised parenting.
Next, her self harming behaviour in the presence of the children and her willingness to talk about the father as having probably murdered his first wife. Dr R said that her preparedness to incriminate him in that and her generally negative attitude to the father would be well-known to the children. The incrimination would have had the potential for significant harm to the children.
Next, Dr R said that the mother’s use of drama and upheaval would clearly negatively impact on the children while denial of significant noxious behaviour (for her and the children) would impair the children’s understanding of the world, others and themselves. Dr R said that she found this particularly worrying because Z has demonstrated difficulties with truth and possibly reality testing.
Dr R said that the quality of parenting received by the children has clearly been instrumental in their development and to date has not been adequate. She said that Ms U, clinical psychologist who worked with treating psychologist Mr S, correctly stated in her letter dated 3 March 2011 that “a factor that repeatedly stands out is the lack of attention to the children’s needs over and above those of their parents”. She said that as a result, the children were presenting severe indications of emotion dysregulation and behavioural dysfunction.
Dr R said that the mother and step-father have had years to sort these behavioural and emotional problems out for the children. She said that clearly the father has contributed to the children’s problems because he has engaged in the ongoing conflict. But she said that she believed that there was more to the problematic emotional and psychological situation which the children were in, than only the conflict. Dr R said that she believed that it was the way that the children have been parented, particularly by their primary parent their mother, which was the problem. She said that the mother has not managed to find a way to help the children to become more emotionally regulated and emotionally robust.
In addition, Dr R expressed the view that as things stand at present, she did not regard the step-father to be a suitable role model for the children. She said in this regard that she was very concerned that Z, who has been having fantasies and for whom telling lies was an important part of her symptomatology, was living primarily with two persons, her step-father and mother, who have been very loose with the truth – a mother who exaggerates, goes over the top, dramatises and tells untruths yet it would be in the children’s interests that they would learn to report things accurately. So Dr R said that there was a significant inconsistency about this.
While accepting the mother’s submission that the father also could be loose with the truth, Dr R thought that there was a difference about the scale and extent of the untruths in the mother’s household compared with that of the father’s household. But she said that ultimately this was a matter for the court.
In relation to the mental state of the step-father, Dr R said that there was no evidence that the step-father experienced psychotic symptoms during her assessment. However, when she questioned the step-father, as indicated above, he acknowledged six or seven psychiatric admissions in the US and having continued to receive until very recently a disability pension for a condition which he described to the relevant authorities as being schizoaffective disorder. Dr R said that the step-father had said that when he was approximately 23 years of age, in the US, he was dealing with stress, dropped out of university, was in a troubled relationship and was partying a lot hanging out with the wrong people. He said that he was using cocaine, speed and ecstasy as well as binge drinking. He said that he had experienced auditory and visual hallucinations. He said that his admissions were for one or two weeks with the last around 2004 and that he has not had further psychotic symptoms. He said that he had not been an addict and did not require detoxification or rehabilitation programs. He denied that he took an overdose (as alleged by the mother to staff at G Hospital) but might have told her such because he was drunk that night.

Sub-section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

There is nothing significant here.

Sub-section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;

Neither child is Aboriginal.

Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

In my view, both of the child’s parents and the step-father have failed in their responsibilities to the children in that they have been unable to restrain themselves from engaging in ongoing conflict and hostility. As Dr R and the other behavioural scientists who have been involved with the family have said, this has been most injurious in terms of the children’s emotional and psychological development.
Of particular significance has been the belligerent, reactionary, insulting and offensive responses by the step-father to the father’s emails about the parenting arrangements. But the father concedes that, outside of the emails, the insults and offensiveness have not been all one way.
At least the father has been more realistic than the mother in interpreting things which the children have said to him “with a grain of salt”. It is clear that Z has been found to be telling lies on at least two serious occasions. I have not had the same sense of reality testing by the mother about things which the children have asserted.

The mother alleged that the father had been coaching the children, in particular to tell Dr R that they wanted to live with him. The mother pointed to T as having said to Dr R that the children “always have to say what their father wants, (that is) that they love it at his house, to tell mum and [the step-father] when they went for a walk”. It would appear that there was some conversation on the evening before the children were interviewed by Dr R in which something was said by the father and paternal grandmother to the children. But as this evidence emerged, I found myself thinking that whatever the circumstances were, they did not involve any coaching of the children.
The mother also asserted to Dr R that the father had coached Z to make allegations of sexual abuse against her and the step-father. I do not accept that this has been established.

Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family;

Each of the parents has alleged that the other has been physically violent to them.
The father denied that he has been violent to the mother saying that in fact the mother had been violent to him. The father said that the mother was verbally abusive towards him frequently and in the presence of the children. The father told Dr R that when their relationship broke up the mother repeatedly assaulted him. He said that she punched, hit and spat once while she was carrying T. He said that during the third incident she hit him with a closed fisted punch and he fell off the chair. He said that he called the police and the mother was arrested and charged. It is clear that the mother was convicted of assault following this incident.
On the other hand the mother said that the father was violent to her during their marriage including that he raped her. She said that he was very controlling and manipulative, angry and sexually aggressive. The father denied these allegations saying that he was neither physically nor sexually violent to the mother. He said that such allegations were a complete fabrication. He conceded that he has been verbally abusive towards the mother.
Dr R said that if the court was to find that the father had perpetrated significant violence on the mother then he would be an unsuitable primary caregiver for the children. But Dr R also said that she had no doubt that the mother had exaggerated at least some of her allegations in this regard.
In my view, the mother did not place evidence before this Court to corroborate her allegations about violence. This was also the submission by the ICL. The mother said that she regretted that she did not report to the police most of the occasions of what she said were incidents of violent behaviour by the father.
It is the case that each of the children told Dr R that their father had become angry and smacked them. Z said to Dr R that her father yelled and stomped and put the children in their room. The father denied that he smacked the children. I must say I am more inclined to believe the children than the father about the alleged smacking. Dr R was asked about this and she said that she would not regard light smacking of the children as a disciplinary measure as being violent behaviour.
This Court does not condone violence in any form. In my view, even light smacking would be regarded as a regrettable form of discipline. Many other measures are available to parents which do not involve physical contact with the children.
In any event, what the children have said in this regard must be viewed in the context of the high level of conflict between the parents and the tendency of the children, particularly Z, for exaggeration and even telling untruths.
At the time of the parties’ physical separation the mother called the police in tears and reported having been assaulted. There is no doubt that on this occasion she then commenced punching herself and the father recorded this on his mobile telephone. The father showed the recording to the police and the police took no action. The mother’s account was that before she started hitting herself the father had already been hitting her. I prefer the father’s account about this matter over that of the mother.
What emerges from this is that on the evidence before the court there have been acts of physical violence perpetrated by the mother on the father. But not by the father upon the mother.
I have referred above to the worrying incidents in October 2010 and August 2011.

Sub-section 60CC(3)(k) – any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;

I am not aware that any such order is current.

Sub-section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

The parents have been involved in litigation for almost as long as they have been separated. Each of them has the view that the litigation has been damaging for the children. To their credit, by seeking assistance from the Clinic E, particularly from Mr S, they persevered for quite some time in an endeavour to manage their dispute without resorting to litigation. But ultimately that failed and their litigation has continued.
It is not my view that if the court was to make an order in favour of the children residing with one of their parents, rather than the other, somehow this would be least likely to lead to further litigation. Whichever order I make, it is likely that the non-residence parent would pursue whatever avenues for further litigation were available,

Sub-section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant

The father has been engaging in what he described as “paranormal activity”. He said that this is an interest which he has in ghosts. This activity has involved him in investigating certain locations, apparently for the purpose of endeavouring to make an “attachment” to ghosts.
The father said that he had spoken to Z about what he claimed was an attachment in this context. The child told her mother.
The father also took the children for a tour of two gaols.
Dr R said that the children had informed her that their father had told them that blankets had been taken off a bed by male and female ghosts. T told Dr R that he and Z had watched movies with what I understood was a ghost theme with their father. He said “it’s freaky”.
Z told Dr R that her father made the children go with him hunting ghosts. She said that she has a nightlight because she is scared of ghosts. She said that she did not like a scary movie which her father had shown her. She said that she would like to erase all the memories of ghosts and scary movies, not have nightmares or be afraid of the dark.
The father said that he had never taken the children on any of his paranormal investigations and did not propose to do so. He acknowledged that the children could be frightened by this subject and that the mother had a valid concern about him discussing these matters with the children or involving them in any way in this interest of his.

Sub-section 60CC(4) – Extent to which each parent has fulfilled or failed to fulfill responsibilities as a parent

The father said that he stopped telephoning the children because of problems with the mother and the step-father cooperating at their end of the telephone line. The father said that communicating in this way had become too difficult for the children. This matter was not pursued in detail and I am unable to make a finding one way or another about it.
The mother has been found to have breached the parenting orders on two occasions.
On the other hand the father breached an Apprehended Violence Order (“AVO”) which operated in favour of the wife in 2007. The father said that he had been taking analgesics for an injury and did not realise that the children were also protected by the AVO. He said that he rang to say goodnight to them and the mother then rang the police.
The father said that he has paid child support. The mother challenged this saying that the father was in arrears of $1631.23 as at 6 June 2012. This is correct but the father has now paid those arrears.

Sub-section 65DAA(5)

Sub-section 65DAA(5) provides in effect that in determining whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents the court must have regard to various specified matters. These include how far apart the parents live from each other, the parents’ capacity to implement such an arrangement, the parents’ capacity to communicate with each other and resolve difficulties that might arise in implementing such arrangement, the impact that such an arrangement would have on the child and such other matters as the court considers relevant.
As indicated above the parents live a considerable distance apart, the driving distance being approximately one and a half hours. I understand that the mother does not drive nor does she have a motor vehicle. In these circumstances she is dependent on the step-father or various other persons whom she said would be able to assist her in driving the children.
As also indicated above, the parents have a very poor relationship and a history of real difficulty in being able to communicate without there being insult and offence. In addition, changeovers have proven to be difficult. Even when orders were made for changeover to be at McDonald’s, a public place, this proved insufficient to protect the children from argument, insult and upset to them.
Dr R said that if a change in the children’s primary residence was going to be ordered, consideration would need to be given to what time the children would spend with their mother and the step-father to ensure that their prospects of settling into living primarily with their father were not undermined. She said that for this reason limited time, a couple of hours a month, would be appropriate during the first six months. She also said that telephone contact between the children and their mother during such a settling in period would probably be unhelpful.
Dr R said that it would be important for the step-father also to be involved in the visits because the children love him, have an attachment to him and it would be important for them to know that they have not been abandoned by him. She also said that it would be necessary for this time to be spent at a supervised contact centre so that the emotional responses of the mother and the step-father did not become overwhelming for the children. Dr R thought that the mother and the step-father would need that time to learn how to contain their emotions in order to be ready to move on to having the children with them for weekends.
Dr R also said that it would be important for the mother and the step-father to undertake individual therapy, and also to undertake couple therapy to improve their relationship, in order to be in the best position to parent the children on weekends and holidays.

Primary Considerations S 60CC(2)

As indicated above these require the court to consider on the one hand the benefit to the child of having a meaningful relationship with both parents and, on the other hand, the need to protect the children from physical nor psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
As indicated above, both parents conceded that they have been unable to adequately protect the children from the ongoing high level of conflict between them. As indicated elsewhere, each parent conceded that they have been verbally abusive towards the children in the presence or hearing of the children. The father conceded that he had been equally at fault with the mother in relation to this.
My view is that this has been a chronic parenting deficiency on the part of each of the parents. The step-father has also been a perpetrator in this regard.
The father said that he believes that this has had a negative effect on Z. He described her as having “gone into her shell” when the abuse has occurred. He said that she would remove herself from the area and go to her bedroom while the verbal abuse was going on.
The father also described a considerable amount of written abuse towards him in the form of email communications to him by the step-father. This was clearly the case. Often the language in the emails has been insulting and demeaning. Four letter words or expressions derived therefrom have been common.
Dr R said that Z is at risk of developing future psychiatric and psychological disorder. She said that this was evidenced during her assessment by Z’s propensity to report events in an exaggerated and generalised manner. For example, her bone was sticking out of her leg at the beach, dad makes them watch only scary movies and eat junk food.
Dr R said that the risk was significant and concerned her a lot. Dr R said that she was really worried about Z’s mental state because of the child’s propensity to rapidly dissolve into tears without being obviously depressed. Dr R said that the child’s concern about becoming fat troubled her because for most nine year olds their body image would not be something that would trouble them.
Dr R thought that Z was emotionally dysregulated. She said that Z’s emotionally labile affect was very similar to that of her mother. She said that there was a parallel between how Z and her mother “emote” and how they both failed to regulate their emotions.
Dr R said that Z’s behaviour at school in terms of having told the fanciful stories really caused concern about Z’s ability to be able to stay in reality. Dr R said that this sort of behaviour was more common in children of pre-school age. She said that this suggested to her that there had been a failure in parenting to help Z to deal with what was real (as distinct from what was fantasy). Dr R said that she would have expected a child of Z’s age to be able to acknowledge that what she had told her was a lie. Dr R said that for Z to believe her own fantasies, which happened in the interview session, then Z was in big trouble because she showed she could not distinguish between what was real and what was not real.

Parental Responsibility

Having considered matters relevant to the best interests of the children I return to consider the question of parental responsibility for them. There is no question that the presumption of equal shared parental responsibility does not apply because both the mother and the step-father have engaged in family violence.
Dr R said that it was very clear that the parents had been unable to parent the children in a cooperative way. In these circumstances Dr R believed that it would be in the children’s interests for one of the parents to have sole parental responsibility for them. She said that endeavours had been made by the parents with Mr S to try to resolve their conflict but with no success. Dr R said that in light of this failure there would be little hope of change in the future in relation to this matter.
I accept the views of Dr R in this regard also noting that counsel for the ICL, made a similar submission.
Accordingly, in my view, the presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them is rebutted in this case by evidence of violence and evidence which makes it clear that this would not be in the best interests of the children. I propose to order that whichever parent the children are to reside with shall have sole parental responsibility for them.

Conclusion

This is not a case where the deficient parenting is all on one side. Far from it, as was observed by counsel for the ICL. The father has conceded that he has not been able to restrain himself from reacting to the mother and the step-father in a way which has continued the parental conflict and hostility. And this has been injurious in terms of the children’s development.
When the mother alleges that there has been some abuse perpetrated on her by the father, the possibility of this cannot be completely discounted. In fact, as indicated above, the father conceded that he has been verbally abusive to the mother just as she and the step-father have been verbally abusive towards him. But as indicated above, the mother’s allegations that the father has been physically violent towards her have not been corroborated by objective evidence provided by the mother.
In addition, as also indicated above, Dr R has assessed the father as somewhat lacking in psychological and emotional sensitivity and that he has not always been able to put the needs of the children ahead of his own needs, especially because of his negative view of the mother. But on the positive side, Dr R has assessed the children to be attached to their father and to have a good relationship with him.
The children are most anxious to stay living with their mother as I have said. This is hardly surprising because she is their primary attachment figure and they have always lived with her. But the evidence of the court expert is clear in my view. Dr R has said, and said so most clearly, that if the children remain in the primary care of their mother and the step-father then it is likely that both children will be in a situation of risk, particularly Z, of developing a future psychiatric and psychological disorder.
Dr R said that there is an urgent need for change. In particular, Z is close to adolescence. Dr R said that for Z to be coming from a position where she is so emotional and “dysregulated”, and then in adolescence have to deal with all the problems and changes that come with adolescence, it is likely that she will be hugely disadvantaged. Dr R said that because of this, Z is at risk of becoming depressed, acting out, including the possibility of developing an eating disorder, use of drugs, and finding some other way of managing her feelings rather than being able to self-regulate and self-soothe. And Dr R inferred that the likely course would probably not be very different for T.
On the other hand Dr R said that the father can offer a more stable life for the children than can their mother.
Dr R said that this is largely why she has recommended a change of residence for both children. That the mother and the step-father have had years to assist the children to achieve a better level of emotional development, yet this has not occurred.
I accept Dr R’s opinion and find that upon weighing the relevant considerations referred to above, the best interests of Z and T require that their primary residence be changed from living with their mother and the step-father to living with their father. He shall also have sole parental responsibility for them.

CHANGE OF NAME

The mother seeks that she should be permitted to use for the children a new surname namely, Holmes-Wilson. Although the submission in support was not highly developed, there are a couple of reasons in support.
Firstly, the mother submits that to add Holmes to the children’s surname would reflect their connection with her and the step-father as their parents. Secondly, the mother said that her own original surname was a combination of the surnames of her mother and father and she would like to follow her parents’ example in this. She thought that it would benefit the children to have her present married surname reflected in their surname.
On the other hand the father opposed any change of the children’s name. It was submitted on his behalf that the proposed surname would be cumbersome consisting of five syllables. It was submitted that due to the length of such a name what would be likely to occur would be that Wilson would be dropped from the hyphenated name to so that there would no longer be any name connecting the children with their father.

It was also submitted that there have been frailties demonstrated in the relationship between the mother and the step-father. It was submitted that the mother has a poor record with relationships and if her marriage with

the step-father was to break down it would be foreseeable that he might return to the US. It was submitted that it would also be likely that the mother would change her name in which case there would be no connection between the children, and the Holmes name.
Much consideration has been given by this Court over the years since as early as 1976, to what the law requires in determining an application concerning change of a child’s name. For example, in the case of George & Radford (1976) FLC 90-060 Watson J said at page 75,296 that the final decision must be governed not by supposed parental rights but by the best interests of the children.
In Flanagan v Handcock (2001) FLC 93-074 the majority, Kay and Holden JJ said at page 88,303 that if the paramountcy principle (best interests of children) was not decisive, it was certainly relevant and needed to be given careful consideration. Finn J said at page 88,305 that in her view it could well be said that the welfare of the child is the paramount consideration or essential test for the exercise of jurisdiction pursuant to s 60B(1).
In Koldsjor & Addington [2009] FamCAFC21 consideration was given to the relevant law concerning change of a child’s surname. In that case the Full Court said that the Act has been further amended since the decision in Flanagan v Handcock. The Full Court said that reference to s 65DAC(2) and the definition of “major long-term issues” in s 4(1), makes clear that in cases where an order is made for parents to share “parental responsibility” any decision concerning a child’s name is to be made jointly by the parents.
In these circumstances, in my view, the decision about what name these children are to use falls to the parent who will have the responsibility for making decisions about the major long-term issues concerning the children of which, under the legislation the children’s name is amongst such issues. As indicated above the father is to have sole responsibility for making such major decisions. In these circumstances, because he does not wish there to be any change to the children’s surname, his decision about this matter will prevail.
In these circumstances the application by the mother and the step-father in this regard will be dismissed.

The Transition

Dr R said that great care would need to be undertaken with the children’s transition to reside with their father.
Firstly, they would need to be told about the change as therapeutically as possible. Dr R suggested a family consultant undertake this task and explain to the children without emotion what is happening.
Dr R said that the children should be reassured about why this was being done. That is, it is not that they are not wanted by their mother, but just that it is time to live with dad or whatever way the family consultant would phrase it so that they could gain an understanding of why this was being done. She said that the setting would need to permit the children to be free to ask questions and receive answers which are honest and as precise as possible.
Dr R said that there would need to be a very clear mapping out about how things are going to unfold. That is, that the children will be able to see their mother at the defined times and this could be put on a calendar so that they can see the times as well. They would be told that they will be able to write to mum and she will be able to write to them also.
Dr R also thought that it would be most beneficial if the children and their father could be provided with a couple of occasions of supervision (preferably by the family consultant who explained why this was happening) and until such time as the family therapy could be arranged by the father.
Dr R also said that the mother’s response, both in her letters and in her face to face visits, would need to be to the following effect. This is that she knows how the children are feeling, that she loves them and that she has not abandoned them, but she cannot be with them because it is dad’s time.
Dr R said that it might take the children some months to settle. She said that if the children were not settled after six months, assuming that there had been family therapy, it might be appropriate to arrange for individual therapy for one or both of the children.

I certify that the preceding two hundred and forty eight (248) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 4 September 2012.

Associate:

Date: 4 September 2012

[2012] FamCA 757

4 September 2012

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