Winter and Winter

FEDERAL CIRCUIT COURT OF AUSTRALIA

WINTER & WINTER

[2014] FCCA 307

Catchwords:
FAMILY LAW – Parenting – Intractable dispute – parents wholly unable to communicate with each other.

Legislation:

Family Law Act 1975, s.65DAA(5)

Applicant:

MS WINTER

Respondent:

MR WINTER

File Number:

BRC 13787 of 2007

Judgment of:

Judge Demack

Hearing dates:

19 July 2012, 20 July 2012, 4 October 2012, 4, 5 and 8 February 2013

Date of Last Submission:

2 May 2013

Delivered at:

Brisbane

Delivered on:

21 February 2014

REPRESENTATION

The Applicant appeared on her own behalf

The Respondent appeared on his own behalf

Counsel for the Independent Children’s Lawyer:

Mr Carlton

Solicitors for the Independent Children’s Lawyer:

Sarah Cleeland Family Lawyers

ORDERS

That all previous parenting orders be discharged.
That except as otherwise provided for in these Orders, the parents are to have equal shared parental responsibility for the major long term parenting issues of the children X born (omitted) 2003 and X born (omitted) 2009 (“the children”) including decisions regarding the children’s:
(a)Education, both current and future;
(b)Religious and cultural upbringing;
(c)Health;
(d)Names; and
(e)Living arrangements, in terms of any changes thereto that would make it significantly more difficult for the children to spend time with the other parent.
That the parents shall consult with each other about decisions to be made in the exercise of heir equal shared parental responsibility, as follows:
(a)Each shall inform the other parent about the decision to be made;
(b)Each shall consult with the other with the view to reaching terms upon which they may agree; and
(c)Each shall make a genuine effort to come to a joint decision with the other parent.
That notwithstanding the provisions of the above Orders hereof:
(a)The father shall be responsible for the day to day care, welfare and development of the children at all times when the children are living with or spending time with him; and
(b)The mother shall be responsible for the day to day care, welfare and development of the children at all times when the children are living with or spending time with her.
That the parents shall:
(a)Keep each other informed at all times as to their residential addresses and residential and mobile telephone numbers;
(b)Keep each other informed as to the names and addresses of any treating medical practitioners who come into contact with the children and this Order shall be authority to any such practitioners to provide to the other parent any information that such practitioners may lawfully provide about the children; and
(c)Inform the other parents as soon as reasonable practicable of any injury or illness affecting the children that requires any medical or hospital attention. This Order authorises any such medical practitioner or hospital to release the children’s information to the other parent.
That the children live with the mother.
That the children spend time and communicate with the father at all such times as may be agreed between the parents and failing agreement as follows:
(a)For two (2) months:
(i)From after school/day-care Monday until 7.00pm and Thursday after school/day-care until 7.00pm in each week;
(ii)On each alternate weekend from 9.00am Saturday until 5.00pm Sunday; and thereafter
(b)For four (4) months:
(i)From after school/day-care Monday until before school/day-care Tuesday and from after school/day-care Thursday until before school/day-care Friday in each week;
(ii)On each alternate weekend from 9.00am Saturday until 5.00pm Sunday;
(c)Thereafter:
(i)Each alternate weekend from after school/day-care Thursday until before school/day-care Tuesday; and
(ii)In each week from after school/day-care Monday until before school Tuesday.
That notwithstanding the above, the children shall spend time and communicate with the father for school holiday periods and special occasions as follows:
(a)On Father’s Day from 4.00pm the day before Father’s Day until 4.00pm on Father’s Day and with the mother for the same period on Mother’s Day;
(b)On the children’s birthday with both children if a school day then with the parent with whom the children did not wake up from after school until 7.00pm and on a non-school day with the parent with whom the children did not wake up from 1.00pm to 5.00pm;
(c)For the (religion omitted) Holidays: (religion omitted), (religion omitted); if on a weekend or school holiday then from 10.00am until 5.00 pm, or if it is an evening event then from 4.00pm until 9.00am the following morning or school day-care. The father is to provide the mother with not less than 30 days’ notice of each event.
(d)Commencing at the conclusion of the second school term 2014 for half of each gazetted Queensland school holiday period, during the first half of the holidays in odd numbered years and the second half in even numbered years. For the purpose of interpreting this clause:
(i)Gazetted Queensland school holidays shall commence at the conclusion of school on the last day of the school term and shall conclude at 9.00am on the first day of the next school term;
(ii)Pupil free days and weekends that fall during the school holidays form part of the school holidays as if they are a school holiday day;
(iii)Changeovers shall occur at 9.00am on the day that falls at the halfway point of the school holidays;
(iv)During the Christmas school holiday periods (which in Queensland is between six (6) and eight (8) weeks depending on the school), the holidays shall be taken on a week about basis.
That during the time the children are with either parent, the parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)speak to the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children;
(d)Not attempt to discuss any adult issues with the children, or allow a third party to do so.
That this Order operates as an authority for any professional care provider of the children (whether a doctor, hospital or otherwise) to release any information concerning the care, welfare and developments of the children to both parents. Should either parent seek any documentation in relation to the children, that parent shall be at liberty to do so, with the parent seeking any documentation to be responsible for any expenses involved.
That the mother will provide the father with a list of professional care providers for the children within seven (7) days of the date of these Orders and the mother and father will advise the other within seven (7) days of any changes to the list.
That any educational/child care institutions attended by the children are hereby authorized and empowered to provide to both parents any information about the children’s educational progress and school/child care related activities and supply both parents with copies of school progress reports, photographs, certificates and awards obtained by the children. Any out of pocket expenses connected to any such request shall be the responsibility of the parent who made such request.
That both parents are at liberty to attend the children’s sporting and extracurricular activities.
That the parents shall exchange a communication book at changeovers in which they exchange necessary information in relation to the children’s health, welfare, development, upcoming significant appointments, upcoming events for the children and extracurricular activities which the children are involved in.
That neither parent shall travel overseas with the children until the children reach ten (10) years of age AND once the children have reached the age of ten (10), both parents shall be restrained from leaving Australia with the children at any time unless:
(a)They provide the other parent with no less than eight (8) weeks’ notice of their intention to travel and include in the notice the destination for travel and the intended departure and return dates to and from Australia; and
(b)They obtain the other parent’s written consent; and
(c)No less than seven (7) days prior to the intended departure date from Australia they provide the other parent with a copy of the return travel tickets (aeroplane of boat) for the children and itinerary for the period of travel including precise destination for the children and the departure date and time from Australia and the return arrival date and time to Australia; and
(d)They provide the other parent with a contact number for the children for the duration that the children will be overseas.
That changeovers in respect of all periods of time shall be affected as follows:
(a)During term time, by delivery or collection of the children from their respective preschool/day-care or school as the case may be; and
(b)During holiday time or on any occasion at all when the school is closed, changeover shall take place outside the Coles Shopping Centre, (omitted).
That the mother be restrained and an injunction granted restraining the mother from relocating with the children to the New South Wales area and further that both parents be restrained from moving any distance from the other which would impact upon the children’s time with the other parent.
That the process to be used for resolving disputes about the terms or operation of these Orders shall be as follows:
(a)The parents shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made;
(b)The parents shall pay the costs of the Family Dispute Resolution Practitioner equally;
(c)In the event that the parents cannot agree on a Family Dispute Resolution Practitioner, the parent wishing to make the change to the Orders shall nominate three practitioners and advise the other parent in writing of their fees, experience and availability;
(d)The other parent shall choose one of the listed practitioners within seven (7) days of receipt of the list; and
(e)If the other parent fails to choose, then the parent wishing to make the change to the Orders will choose the Family Dispute Resolution Practitioner.
That the Independent Children’s Lawyer be discharged.
That all outstanding applications be dismissed.

Notation: Order 8(d) has been amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 to show the correct school term for when holiday time shall commence.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 13787 of 2007

MS WINTER

Applicant

And

MR WINTER

Respondent

REASONS FOR JUDGMENT

The parents of X (born (omitted) 2003) and (known by his middle name) Y (born (omitted) 2009) are unable to agree on the long term arrangements for the children that reflect their best interests. The parents have a long history of poor communication. The older child X appears to have been adversely affected by the intractable conflict. Although not a part of her initial application, the mother’s final position was to seek to be able to relocate the children’s place of residence from south-east Queensland to (omitted) in New South Wales. The father opposed that move.
An Independent Children’s Lawyer (“ICL”) (Ms Cleeland) was appointed. She caused the older child to be assessed by a child and adolescent psychiatrist, Dr J, the parents to be assessed by a psychiatrist, Dr G, and for a number of family reports to be prepared by family consultant, Ms S.

The Respective Positions

The mother is the applicant. Her Amended Initiating Application was filed on 28 May 2012. The orders that the mother sought on a final basis were that the children live with her and that she be able to relocate to (omitted) New South Wales. She sought sole parental responsibility. She sought that the children spend time with the father for daytime time only once in every six (6) week period, for two (2) consecutive days, on the first day from 8:00am to 7:00pm and on the second day from 8:00am to 2:00pm. The mother sought orders for overseas travel when the children were aged twelve (12).
The father is the respondent. He sought orders on a final basis in line with those set out by the ICL in their document dated 15 March 2013. He also sought particular time with the children on (religion omitted) traditional holidays.
The ICL’s final position was informed by the evidence at trial from the experts including Ms S, the family consultant. The ICL considered that the parent should have equal shared parental responsibility and that the children should live with the mother and spend time with the father on an increasing regime which over a period of 6 months would become alternate weekends from Thursday’s to Tuesdays in one week and from Mondays to Tuesdays in the second week. The ICL supported orders for overseas travel from when the children were aged 10. The ICL considered the use of a communication book was sensible. The ICL did not support the mother moving with the children to (omitted).

The Evidence

The mother read and relied upon her amended initiating application filed 28 May 2012 along with affidavit material from herself of 11 October 2011, September 2010, 28 May 2012, 4 November 2012, and 10 January 2013. The mother was required and made herself available for cross-examination. I consider that the mother was a witness doing the best within her capacity to give honest answers. I accept Dr G’s opinion that the mother has some overvalued ideas. The mother holds firm opinions and I consider that she gave truthful answers about her views.
The father read and relied upon the documents set out in his case outline which was filed on 16 July 2012 and in particular his response of 27 July 2010, his affidavit of the same day, and his affidavits of 19 January 2011, 25 October 2011, 26 June 2012, 15 November 2012 and 30 November 2012. He also relied upon the affidavit of Ms T (the father’s partner, recently de facto partner) of 26 June 2012. Ms T was required for cross-examination. I have no hesitation in accepting her as a witness of credit. She considers herself to be in a loving long-term relationship with the father. The father was required and made himself available for cross-examination. I found the father to be an unremarkable witness. He does not present with the same emotional pressure or stress with which the mother presents. I consider he gave his evidence truthfully.
The ICL read and relied upon the documents as set out in her updated case outline it was marked as Exhibit 1. Her evidence included reports from a family consultant Ms R who had conducted interviews pursuant to section 11F of the Family Law Act, a further family consultant, Ms S who prepared four family reports, psychiatrist Dr G who assessed both mother and the father, and psychiatrist Dr J who assessed the child X, along with X’s school teacher in grade 4, Mr N and a lead educator at the school, Ms H (re Y). Numerous documents were tendered as exhibits.
Ms S, Dr G, and Dr J, were all required and made themselves available for cross-examination. Mr N and Ms H were required as well. Neither had prepared an affidavit and gave their evidence in chief orally. Their evidence was unremarkable, and confirmed material produced by a subpoena.
Dr J (paediatric psychiatrist) saw the mother and X on 1 December 2011 for psychiatric assessment of the child. At that stage X was at the end of her grade three (3) school year. At that interview the child expressed no concerns with respect to her relationship with her father she seemed to have an amicable relationship with feelings of enjoyment. Allegations that X had made at earlier times were not repeated to Dr J by X. Dr J saw X for a second time on 8 December 2011. At that stage X did not want to be assessed and entered the room reluctantly. The doctor reported:
“Her behaviour with her mother was regressed, lying across her and sitting on her lap. She was passive aggressive towards her mother. She demanded to win the game of cards, was petulant towards her mother, controlling her mother who tried to appease her. Ms Winter tried to set some limits but not with any effect. X put the puppet she was playing with aggressively in her mother’s face. X used baby talk when she was with her mother. X tried to bite her mother. Ms Winter says no that allows X to continue biting her. X attacked her mother hurting her finger. Ms Winter said, break my finger and I don’t buy you any more subway let go. X made as to bite her mother’s fingers and then she laughed at her mother. She then asked her mother to pat her, tickle her and massage her back. Ms Winter attempts to play appropriately with the toys and slowly X started to respond. Ms Winter said it’s time to go and X refused to tidy up or to leave the room, testing her mother’s limits. There was little time in which X played appropriately or separated from her mother.”
Dr J considered that X had an adjustment disorder with conduct disorder. She considered that X had an anxious attachment to her mother and an enmeshed relationship with her mother with separation anxiety and conduct disorder which occurred at home as well as at school.
Dr J went on to state:
“There are several events of concern for Ms Winter in her care for X. Clearly some of X’s father’s behaviour has been unacceptable which would naturally raise her alarms to care for X. However she is an anxious mother and has overreacted to and misinterpreted numerous other incidents that have been reported. It is obvious that the arguments and relationship issues for X’s parents are long-term and X is the unwitting subject to their processes of acting out the relationship faults.
X has also learned how to manipulate her parents through their conflict. The differences in their parenting style, although normal and should not create a problem for her to manage, she is using to set up the ongoing conflict. Her mother becomes more giving and less able to set limits and discipline as part of this parent child dynamic. As X is given more power she is escalating her demands and behaviour craving unconsciously to be contained by her mother. Her mother has done parenting classes but remains unable to enact a sense of power. This is reflected in her general be behaviour feeling powerless in her relationship with her ex-husband. She needs help to move beyond this paranoid state and be able to take control of both children.
The problem has reached significant proportions in that X has little respect for any authority and this has generalised to the school environment. The problem will impact upon her academic and social development as well is self-esteem and later her identity. She is intelligent enough to be able to manipulate adults and oppositional enough to turn it off and on at will.
X controls her parents by her bad behaviour but has been given the role in her family as the cause for ongoing parental conflict. This is extremely stressful for her but she also has not learnt any limits or rules. She behaves badly in a need for containment but her regressive behaviour means that she does not receive the containment. While this family dynamic continues there is no point offering psychotherapy to X as any adult therapist becomes complicit with the ongoing abuse by not stopping it. When she is an adolescent she can be taught how to cope by rejecting both parent’s with behaviour and becoming independent. There are no medications can fix this problem. It seems unlikely given the length of time that the parents conflict has been waging that this will change in the short term.”

Dr J was required for cross-examination and made herself available. Her evidence included that she was not concerned about X spending time with her father.
Dr G (consultant adult psychiatrist) attended to his assessments of the parents in December 2011 and produced reports that same month.
With respect to the mother, he considered that she had “some obsessional traits and her personality and significant concerns which appear to have resulted in having openly antagonistic feelings towards Mr Winter and his capacity to care for the children” and that there had been “long-standing difficulties with recriminations and reconciliations in regard to the relationship between the parties particular since 2006 following their initial separation.” He considered that it might be appropriate for the mother to receive ongoing counselling and support in order to help work through her unresolved hostile feelings regarding the father and her propensity for allegations regarding is functioning. He did not consider that the mother required the services of a psychiatrist or any psychotropic medications at this time.
Dr G assessed the mother for a second time on 9 November 2012, releasing a report on 13 December 2012. The ICL had some queries in relation to the doctor’s opinion and sought some further information. That information was provided in a further report dated 7 February 2013. Those assessments are considered later in this decision.
Dr G saw the father on 6 December 2011 and made a report of the same day. Dr G was provided with material from which he understood that there were allegations that the father was an abusive man who was controlling with a tendency to excess alcohol abuse. Dr G considered that there was no evidence of any significant past psychiatric history of the father although there was a history of alcohol abuse during his relationship with the mother. The doctor considered that the father did not hold an overtly antagonistic view of the mother.
Dr G was required for cross-examination. His opinions did not change.
The family reports which were prepared by Ms S, family consultant were done over a period of time including after the psychiatric assessments were made available. In her last report Ms S recommended that the children be in their mother’s primary care with regular overnight time with the father which would be able to increase over time to a couple of nights per week. She considered that limiting the frequency of changeovers would be appropriate particularly if done in a method whereby the parents did not see each other. She recommended the use of a communication book. She also considered that block holiday time with the father commence.
Ms S was required for cross-examination. Her evidence included that she opposed the relocation that was sought by the mother and that the children should have the benefit of frequent time with their father. Her concern in that regard was the mother’s lack of demonstrated support for the children’s relationship with the father and the detriment to the children’s relationship with the father consequent upon the mother moving away with them and their time with their father necessarily being reduced. Ms S considered the overnight time commence immediately for a one night period in the first instance. Ms S’s opinion included that a week about arrangement for this family would not be in the children’s best interests.
Counsel for the ICL put some particular proposals to Ms S about the time with the father increasing. The ICL’s proposal effectively follows that line of questioning and the evidence given by Ms S.

The Background Facts

The mother was born in (omitted) 1968 and the father was born in (omitted) 1968. They met in (omitted) 1999 and commenced cohabitation in (omitted) 2000.
They married on (omitted) 2001.
Their first child, X, was born on (omitted) 2003.
The parties separated in June or July 2005.
On 2 September 2005, the father commenced proceedings in the Family Court of Australia for parenting orders.
On 8 September 2005, the mother was granted a Domestic Violence Order in the Redcliffe Magistrates Court after a contested hearing. The father was named as the respondent.
On 8 November 2005, interim parenting orders were made by consent which provided that X would reside with her mother and that the parents would have joint responsibility for decisions about her long term care, welfare and development. X’s time with her father was premised in the alternative – whether or not he had completed a recognised drug and alcohol program. If he had, then X’s time with her father was on alternate Fridays from 1.00pm until 4.00pm on the Sunday. If not, then the time was limited to day-time time only.
Amongst the other orders made by consent at that time, was an order that each parent was restrained from relocating more than 30 km from (omitted) (in south east Queensland) with X. I note that the mother now seeks to be able to take both children to live with her in (omitted), New South Wales.
Final parenting orders were made by consent on 11 September 2006 which provided for X to live primarily with her mother and to spend regular time with her father.
On 5 February 2007, the parties entered in a financial agreement with respect to their property interests. That agreement was later the subject of litigation before me. On 9 November 2011, I dismissed the wife’s application seeking to set aside the agreement.
On 16 September 2007, someone other than the mother notified the Department of Child Safety that the father was accessing pornography sites all day, taking photos of the child, was weird and sick. Possible grooming of X was mentioned. On 28 September 2007, the Department recorded their assessment as unsubstantiated.
On 2 November 2007, the mother attended at the (omitted) Police Station to report that the child had told her that her father had smacked her on the bottom, for getting the days of the week wrong. There was no visible sign of injury. The police records reveal that the mother told them that she did not believe in any physical discipline and that she believed that the father should not physically discipline the child either.
On 7 November 2007, the police conducted an interview with X. No offences were disclosed by the child. The subpoenaed documents state:
“The child disclosed that her dad has a secret place in his house and it is in the roof and her and her dad go up there and sit at a table and there are fairies there.”
The child also told the police that her mother had taken her to see a doctor “the other day” due to a rash on her vagina and to “check her bum”. The police then learned that the mother had taken the child to a doctor on 6 November 2007 who examined the child. Apparently her hymen was broken, but the doctor was unable to say how that had happened. The child told police that she liked to “sit in the bath and play with her vagina”, because it “feels nice and it tickles”.
Notwithstanding the making of purportedly final arrangements for the adjustment of their joint and separate property interests, the parties continued to have a sexual relationship. That relationship became the subject of some controversy during these proceedings when the mother alleged that it was non-consensual. The second child, Y (known as Y) was born on (omitted) 2009.
Notifications were made to the Department of Child Safety on 4 February 2010 with respect to allegations about the father’s treatment of X and with respect to her displaying sexualised behaviours, and her being exposed to a pornographic film. A further notification was made to the department on 8 February 2010 about concerns for the child and the father’s household. The matter was referred to the police. X was interviewed at her school by police and a social worker on 10 February 2010. The police record shows the report was considered unfounded as there was “sufficient evidence after investigations to indicate the offence did not occur”.
On 11 March 2010 a notification was made to the Department of Child Safety alleging that X had been hit on the head by the father and that he may be using excessive discipline on the child. On 16 February 2010 the department received a notification that X had been exposed to pornographic images with her father. It would seem that this notification most likely came from X's School as the subpoenaed records show that X told staff in the finance office quote “what was happening” and the principal and deputy principal spoke with the child. X said that her dad was leaving the marriage, he says awful things to her, he looks at things on the computer and television which are inappropriate.
On 26 March 2010 the mother’s then solicitors advised the father in writing that his time with X would be suspended pending him in participating in a parenting program and an anger management course and offering daytime contact only.
In April 2010 the Department of Child Safety had X participate in a further interview.
The mother deposes that on 1 May 2010 she drove past the father’s home and saw X sitting on a stool in the front yard. The father was not in sight and his car was not in the garage. The mother stopped and spoke with X who told her that “he has gone to the shops” and also that “he said not to tell you”. The mother took X into her care and the father turned up at the mother’s home 20 minutes later offering no explanation, the mother says.
On 10 May 2010 the Department of Child Safety received a notification that the father had left X unattended whilst he went to a garage sale.
On 14 May 2010 the school records include an email from a teacher recording that the child had said to her “you know what I think is weird about my dad he’s got nude photos of my mum on the TV, computer and now he’s got them on his phone.”
The mother deposes that on 15 May 2010 she received a phone call from police communications late morning informing her that the father was having a panic attack and would she accept return of X. The police then brought X to the mother’s care.
The mother commenced proceedings in this court on 28 May 2010 seeking a discharge of orders and that the father complete a recognised drug and alcohol program and thereafter spend regular time with X on alternate weekends for two (2) nights and that X otherwise live with her. At that stage she also sought orders to include the baby Y. At that stage the mother’s allegations about the father included that he had a problem with substance abuse.
The Department of Child Safety received a notification on 22 July 2010 alleging that the parental dispute was involving X.
X was attending (omitted) College. Their records of 22 July 2010 record an incident where the father came to collect X and X became hysterical saying that she did not wish to leave with him.
The father filed his response material and supporting affidavit on 27 July 2010. He sought orders that the mother’s application be dismissed, that the parents have equal shared parental responsibility for the children and that in the first instance the children primarily live with the mother and spend time with the father building up over time to be a shared care type arrangement. The father’s affidavit filed in support included allegations that the mother had issues with her mental health including suffering from depression and prior attempted suicide. He further alleged that the mother had threatened him on occasions that she would prevent in having contact with X.
X’s school records reveal an incident on 28 July 2010 when she made disclosures of being scared of her father and wanting to be with her mother.
The matter came before me on 30 July 2010. I ordered that the parties attend upon a family consultant for a child inclusive conference.
On 6 August 2010 interim consent orders were reached which provided that both children would live with the mother and spend time with the father at specified times with X spending longer periods of time in the father’s care than Y. The order also provided “that if at any time the children are unable to be calm til settled, the father is to contact the mother to affect change over forthwith.” The order also required the father to not consume alcohol whilst the children were in his care. Both parents were required to attend a triple P parenting course. The father was required to attend for an alcohol assessment and to follow the recommendations of the service provided after the assessment. The orders provided for the assessment of the parenting orders and for the orders to be explained to the child X by family consultant pursuant to section 65L.
X’s school records indicate that on 25 August 2010 X was involved with an altercation with another child at school where X slapped the other child.
A notification was made to Department of Child Safety on 30 August 2010 alleging that “the mother may be coaching the child to lie, fearing concern for mental health of child by mother damaging daughter’s head to inflict pain, mother’s poisoning daughter’s mind.”
X’s school records reveal on 4 September 2010 there was a teachers meeting that discussed X and her openly defiant behaviour and has “become more of a victim, attention seeking about a sore foot on a few occasions, late for class, seeking sympathy, attitude to teachers, still back chats at times, friends inconsistent, regular conflicts.”
The mother alleged that there had been an incident on 2 September 2010 when the father had phoned her asking her to collect the children straight away. She said that the father was waiting outside his house when she turned up. He was holding Y; X was by his side. She says that the father said to her to “fuck off” and that she “had turned X against him and that he never wanted to see her again”. She further alleges that the father said “your life is over Ms Winter, God will be your judge now.”
The father later deposed to his version of events saying that the child had arrived for her time with him and asked whether she could stay with her mum that night. Soon after the father had asked the child why she didn’t want to stay the night and the child told him that her mum was going to take her to a doughnut hotdog restaurant for dinner. The father deposed to becoming angry and saying to the child that he did not want to see her again. The father then deposed to regretting that. He also deposed to telling the mother to “fuck off you are not getting the handover book and I then approached Ms Winter and at a reasonable voice and distance told Ms Winter what I thought of her and yes I did say to Ms Winter that she was the lowest form of life, that she had coached our daughter to lie in court. My words were exact and measured and I said “look at you Ms Winter, you are losing weight, your face is shrivelling with the bitterness that consumes you, you look like you are dying”. He further explained that it was not a threat for him to say may God judge you, rather it was his way of saying that God would be her judge.
On 6 September 2010 the mother filed an application in the case and a supporting affidavit, seeking that the orders of 6 August 2010 be discharged and that the children live with her and have supervised time with the father. Her affidavit included the allegations made in the above paragraphs and further alleged that the father had reprimanded X for “voicing her experiences with him in court”, that the child told the mother that the father was teaching her how to use a cigarette lighter.
X’s school records reveal an email of 6 September 2010 where the school notes that X has been taunting another child.
Family report interviews were conducted by another family consultant, Ms S, on 10 November 2010.
On 14 November 2010 the mother attended the (omitted) Police Station alleging a common assault by the father. The police records indicate that the mother was informed that there was insufficient evidence to charge the father due to nil disclosures by the complainant child and the extremely limited disclosures made to her by the child.
On 24 November 2010, I ordered the parents to attend a parenting orders program and I appointed an ICL.
On 28 January 2011 I ordered that the father’s time with the children be supervised at a contact centre and ordered a further family report.
By that stage in the parenting proceedings the mother had commenced her application with respect to the setting aside of the financial agreement. Directions were being made for the progress of that matter as well.
On 5 April 2011 I made orders which moved the father’s time to being unsupervised with changeovers at a public place. Again X and Y were having different time with their father as was age-appropriate for Y. The orders again imposed upon the family consultant to do more work with the parents pursuant to section 11F of the Family Law Act. I made trial directions for a two-day hearing in November 2011.
On 28 April 2011 further parenting orders were made which provided for the children to be spending time with the father for contemporaneous time. I further ordered the father to undergo supervised liver function blood testing for alcohol abuse.
On 21 July 2011 I ordered the parties to attend a conciliation conference with a registrar with respect to the issue of the financial agreement. The matter did not resolve before the registrar and directions were made to have the threshold issue of whether the binding financial agreement should be set aside determined at the trial for parenting orders that was already listed.
On 7 November 2011, interim parenting orders were made by consent with the assistance of the ICL. Those orders provided for the parents to have equal shared parental responsibility and for the children to live with the mother and to spend a particular time with the father which was to be on alternate weekends in the first instance from 8:30am to 5.00pm on both Saturday and Sunday, for two (2) midweek times from school until 7.00pm and for changeovers to continue occurring in a public place. The parents were to jointly enrol X in a program for supporting children after separation and they were to both enrol in the post separation parenting program (which had been earlier ordered by me.) Importantly the parties were to attend upon a psychiatrist for psychiatric assessment as organised by the ICL.
The trial dates were used for the threshold issue of the binding financial agreement.
On 9 November 2011 I delivered my decision dismissing the application for the setting aside of the binding financial agreement.
On 5 June 2012 directions were made as sought by the ICL for a further family report now that the psychiatric assessments of the parents and the child X had been received.
On 2 August 2012 directions were made for a final hearing in the parenting matters to be listed to commence on 4 October 2012.
The trial commenced on that day and the mother was cross-examined by the ICL’s counsel and by the father. Under cross-examination by the ICL’s counsel the mother gave evidence that Y’s conception had occurred in the circumstance of rape by the father and the ICL submitted that the trial should be adjourned so that could be better understood. Further parenting orders were made. The children’s time with the father was to continue as the daytime time only with particular provisions being made for Christmas Day and for (omitted). Directions were also made with respect to any affidavit material that the mother would file and serve in relation to the allegation of rape and any response material by the father. The ICL sought the mother’s further attendance upon the psychiatrist who had earlier assessed her.
On 19 October 2012 further directions were made for the matter being set down for final hearing on 4 February 2013.
Dr G provided a report of 13 December 2012 to the ICL. He had seen the mother for further assessment. On page 3 of 6 of his report he states:
“Ms Winter stated me at our initial examination on 6 December 2011 that she had the dissipated in an ongoing sexual relationship with him although felt coerced into an ongoing sexual relationship in order to facilitate her ongoing living arrangements. Mr Winter in his affidavit dated 13 November 2012 states on page 16 that, “Ms Winter had stated to her doctor that she was trying to fall pregnant without my knowledge as per her court testimony.
In the Ms Winter interview with myself on 9 November 2012 she stated that the sexual nature of her relationship with Mr Winter was an increasingly disturbed and difficult one characterised by his systematic ongoing sexual abuse of her and abnormal sexual behaviour such as forced anal sex. Ms Winter on interview maintained her position with respect to her concerns regarding Mr Winter’s behaviour. She believed him to be a vile man who sexual behaviour towards her constituted repeated rape, yet I note she has not taken this matter to the police.”

Dr G obtained collateral history from Ms Winter’s general practitioner between 2000 and 2010, Dr S. Dr G records:
“Dr S and acknowledge that Ms Winter indicated that she had significant difficulties with Mr Winter and that she regarded her as a pleasant woman but that the family dynamic appeared to be extremely unusual given their domestic relationship…
Dr S states that Ms Winter admitted to an ongoing sexual relationship with Mr Winter with Dr S and also stating that as a doctor she was never particular concerned about Ms Winter’s safety in her sexual relationship with Mr Winter.”
He found his summary unchanged from his previous assessment “in that she regarded Mr Winter was an evil man who she wanted nothing more to do with and whom she had grave concerns regarding his sexual proclivities and potential concerns regarding her daughter X.”
The ICL sought some clarification from Dr G and to that end he provided a further report on 7 February 2013. He stated:
“With respect to Ms Winter’s presentation in this case I believe, that her concerns relating to Mr Winter’s propensity for possible sexual abuse of his daughter and her claims that she was serially raped, constituted an overvalued idea.
An overvalued idea by definition is, “an unreasonable or sustained belief that is maintained with less than delusional intensity i.e. the person is able to acknowledge the possibility that the belief may or may not be true. The belief is not of one that is ordinarily accepted by other members of the person’s cultural subculture and the concept of the overvalued idea is according to authors [then named] is a belief that is strongly held with less than delusional intensity.…
With respect to this case regarding Ms Winter it is my opinion that she certainly hold strong beliefs regarding Mr Winter’s propensity to have raped her from 2005 to 2008. This however, is contradicted by his statements to Department of Child Safety during this period of time and to Dr S during which time no mention of these rates were disclosed. Furthermore Ms Winter indicated to Dr S that she hoped to get pregnant and wished Mr Winter to put the divorce papers on hold. Furthermore I note that Ms Winter has documented in a testimony to the court stating “if I am going to get raped I might as well get a baby out of it” such a notion is contradictory and not in keeping with the general view regarding rape and certainly she has given a different version to her general practitioner with respect to her desire to achieve pregnancy with Y.
Furthermore I do note questioning by Her Honour whereby Ms Winter may be thought of as failing to protect her daughter by allowing her to visit her father whom Ms Winter is regarding as a serial rapist. It is my opinion therefore the whilst Ms Winter may have an overvalued idea regarding her view of Mr Winter as being a rapist that it is inconsistent with the fax is presented and as such does not constitute a mental disorder per se, but is more an attitudinal or reflection of Ms Winter’s rigid personality style and anger towards Mr Winter.
To this end I believe that Ms Winter’s attitudes thoughts are fixed and somewhat rigid and is likely to have a significant impact on her capacity to involve herself in a shared cooperative arrangement with regard to the children.”
Dr G considered that orders should contain clear boundaries.
On 17 December 2012 further parenting orders were made the provided for the children to not spend time with the father on 27 December 2012 and the changeovers were to occur at a different location.
On 21 December 2012 Registrar Spink made an order discontinuing an application for contravention filed 30 November 2012 by the father. Those allegations have been with respect to times in October 2012 when the father alleged that the mother had not allowed the children to spend time with him.
The evidence was concluded on 8 February 2013 and written submissions were ordered.

The Law

X and Y’s best interests are my primary consideration.
The starting point for the trial is the issue of parental responsibility and whether it should be equally shared or held by one parent alone. The mother argues that she should have sole parental responsibility and the ICL and the father submit that it should be held equally. In determining that matter I must consider whether the presumption has been rebutted on the basis of child abuse or family violence and I must also otherwise consider the best interest factors as set out in section 60CC of the Family Law Act as to whether there is anything which indicates that an order for equal shared parental responsibility would not be in the children’s best interests.
After I have considered that matter, I must turn my mind to the orders with respect to with which parent the children will live and how they will spend time with the other parent. In the event that I am satisfied the parent should have equal shared parental responsibility I must turn my mind to whether it would be in the children’s best interests to spend equal time or failing that substantial and significant time with the other parent.
The mother in this proceeding seeks an order that she be able to move from the (omitted) area of south-east Queensland to (omitted) in New South Wales. It is trite to say that it would not be reasonably practicable for the children to spend substantial and significant time or equal time in the event that the mother was able to move. The father and the ICL both seek orders that would have the children living with the mother and spending substantial and significant time with the father.
It is therefore necessary for me to consider the reasonable practicability factors as set out in section 65DAA (5) of the Family Law Act.

Best Interest Factors

The benefit to the child in having a meaningful relationship with both of the child’s parents

Nobody seeks to argue before the court that it would not be in the best interests of the children to have a meaningful relationship with both of their parents.

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

X and Y continue to be parented by parents who are unable to communicate effectively with each other. It is clear from the psychiatric assessment of X performed by Dr J that X has already been adversely affected by this dysfunction in the parent’s parenting relationship. Ms S points to the risk to Y in likewise being adversely affected in the future.
In so far as there has been allegations by the mother that the father has been the perpetrator of family violence on her in the past, that he is being coercive or controlling towards her, that he has spoken to her abusively, and that he has repeatedly raped her, I cannot find those many and varied allegations to be proved. Each of them is a serious allegation and for some of them the father has made admissions. Certainly the father admits to speaking to and about the mother in the past in a way which is plainly abusive. I do not consider that the mother’s allegations with respect to being raped by the father at the time that Y was conceived are more probable than not. She was actively trying to conceive another child with the father at the time. She had a number of opportunities to complain of any unwanted behaviour at the time and since. I accept Dr G’s opinion with respect to the mother’s overvaluing of ideas. I acknowledge that part of this concept makes it difficult for the mother to acknowledge this as her experience.
The real risk to these children comes from the ongoing conflict between the parents and the parents’ inability to regulate their own emotions in front of the children. Both parents have experienced this at times and it seems to me more probable that the mother continues to experience that more strongly than the father.

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

X was psychiatrically assessed by Dr J, child and adolescent psychiatrist. Dr J was cross-examined. Dr J’s opinion included that X had an “anxious attachment to her mother” (Annexure B to affidavit of Dr J filed 24 April 2012 being a report of 6 February 2012 on page 20), and that she is “in an enmeshed relationship with her mother with separation anxiety and conduct disorder which occurs at home as well as at school” (report pages 20 and 21).
The family consultant Ms S attended to the preparation of four (4) family reports. In her first, she said “X has expressed frustration and sadness at the ongoing parental conflict and court proceedings”. She considered that the observations of X with her parents in 2011 had been largely positive, X had been at ease with each parent and a happy recipient of their affections. With respect to Y, he presented as a delightful and happy young boy who was too young to be interviewed. Ms S made it repeatedly plain that the ongoing parental conflict was potentially very damaging to the children.

The nature of the relationship of the child with each of the child’s parents; and other persons; the capacity of each of parent and any other person to provide for the needs of the child, including emotional and intellectual needs; the attitude to the child, and to the responsibilities of parenthood, demonstrated by each parent

The children have been primarily parented by the mother. Save for the issues which are expressly addressed in this judgment, I am satisfied that the mother is a good enough parent.
The children have spent significantly less time with the father than with the mother. The father has demonstrated some vulnerabilities or frailties in his parenting. Having said that I am satisfied that a large part of his difficulty has come from his subordinate position as the ‘contact parent’. He has repeatedly been frustrated in his attempts to expand his relationship with the children. Having said that I am satisfied that the father does not have any particular deficit in his parenting capacities or his attitudes to the children or to the responsibilities of parenthood.

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; and 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 with whom he or she has been living

In her fourth report dated 11 July 2012 Ms S stated from paragraph 62:
“Each parent’s proposal contains advantages and disadvantages for the children. Relocation might be beneficial in so far as it limits opportunities the direct parental contact and conflict. Yet it is likely to adversely affect the children’s relationship with their father this is particularly so if Y with fairly frequent contact (i.e. at the very least weekly) is indicated in your of his developmental stage and given that Ms Winter is unlikely to promote and encourage the maintenance of positive father child relationships.
Further, relocation will require the children to adapt to substantial change and this is not ideal given the family dynamic with the children are also required to devote psychological resources to traversing an emotionally complex, and at times hostile, co-parenting environment. The move would seem contra-indicated for X in view of the past difficulty forming and maintaining friendships. While a fresh start could be beneficial, there is a risk that her poor social and relational skills will limit her capacity to form new friendships and it appears that she has recently made progress in this area at her current school.
Relocation would likely to provide emotional benefits to Ms Winter by virtue of geographic distance from Mr Winter and the proximity to her parents. This might have a flow on effect in regard to her emotional availability is a parent however it can be argued that there are alternative means of achieving this. As suggested by doctors Dr J and Dr G, Ms Winter would likely benefit from ongoing counselling to help address her animosity and somewhat irrational suspicions of Mr Winter. In addition limiting the need for parental interactions could provide Ms Winter with some of the distance she seeks from Mr Winter. This would ideally include limiting the number of changeovers, having changeovers via school, child care, extracurricular activities or a contact Centre, and maintaining written communication between the parents wherever possible.”
I accept that opinion unreservedly.

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

In the event that the mother’s application to relocate with the children to (omitted) were allowed then the practical difficulty and expense would rise to the extent that it would substantially affect the children’s right to maintain personal relations and direct contact with their father on a regular basis. In the event that the mother remains in south-east Queensland matters of practicality and expense do not arise.

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 relevant characteristic of the child

It is a sad reality in this case that the older child X has become so enmeshed in the conflict between the mother and the father that there was a real necessity for her to be psychiatrically assessed. The assessment by Dr J was thorough and useful. I accept her opinions unreservedly.
It is a sad reality in this case that the mother alleges that the second child Y was conceived in circumstances that the mother seeks to categorise in hindsight as rape whilst concurrently acknowledging that she actively sought to conceive a sibling for X. Y has not been affected by the conflict in the way the X has as at the date of the trial. Ms S warns the parents of the risk to Y in being exposed to the level of conflict to which X was exposed.

If the child is an Aboriginal child or a Torres Strait Islander child 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 the likely impact any proposed parenting order under this Part will have on that right

These children are not Aboriginal or Torres Strait Islander children.

Any family violence involving the child or a member of the child’s family and any family violence order

At the time of trial there was a family violence order in place being a temporary protection order under the provisions of the Queensland Domestic and Family Violence Protection Act 2012. The mother is the aggrieved spouse and the father is the respondent spouse. The mother’s application with respect to that order provided the information that there were ongoing children’s matters in this court and that she continued to feel intimidated and afraid of the presence of the father at handover times.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings

The ICL submits that final orders should be made. Proceedings have been lengthy and ongoing with respect to both parenting and property matters. The parents demonstrate long-standing intractable conflict. Orders which are clear and unambiguous and set out the parent’s responsibilities with respect to the children’s time with each of them may assist the parties in being up to resolve matters without returning to the court environment.

Reasonable Practicability

How far apart the parents live from each other

The parents have historically lived in the (omitted) area of south-east Queensland. Whilst they both remain living there, there is no issue with respect the distances to be travelled.
(omitted), New South Wales, is about 260 km away or a three (3) hour drive.

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

The mother’s preference would be to live in (omitted), New South Wales where she has extended family support. The mother holds (omitted) qualifications and is an experienced (occupation omitted). Save for her intractable conflict with the father, she manages her life well. There is no evidence that her functioning and in particular her parenting capacity has been adversely affected by her having to remain in south-east Queensland. I am satisfied that she has the capacity to implement an arrangement which requires her to remain living in the same general vicinity in which the father lives.

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

It is the view of the experts in this proceeding, that the order should clearly state the times that the children spend with each parent and to make other specific orders so as to provide a structured framework in which the parents can facilitate the children’s time with each parent. This is because the parents are unable to work cooperatively with each other.
The mother points to the following deficits in the father’s capacity to communicate with her. His failure to acknowledge text messages as recently as January 2013. His view that a message from the mother in relation to a pickup point for X at school was aggressive. His acknowledgement that they do not talk and that there will be times in the future when they will strongly disagree.
Notwithstanding those deficits in the father’s capacity to communicate with the mother, I am satisfied that the mother’s difficulties in this regard are more marked than the father’s. These parties have been in Court before me many times over a long period of time. I have seen their courtroom presentation on many occasions. The mother has been consistently resistant generally towards the father and specifically in terms of his time with the children. Her speech is pressured when she speaks of him and she only refers to him as Mr Winter. It is my view that the mother’s level of retained anger towards the father is higher than any unresolved feelings the father might have arising from his relationship with the mother. That is not to say though that the father has not behaved dreadfully at times when feeling angry at the mother because of what he perceives to be her attitude towards him and his relationship with the children. This was particularly clear on the time when the father told X that he didn’t want to see her again.
The corollary of this concern though is that in the event the mother lived with the children in New South Wales, she would have no need to have any reference to the father nor would she have the requirement to ensure that the children’s relationship with the father occurred with the frequency that the experts recommend. So notwithstanding their inability to communicate effectively, the expert evidence points to the necessity for the children having at least substantial and significant time with their father.
It is, though, their lack of capacity to communicate with each other, the history that underpins that, and the mother’s personality traits which inhibit her capacity to helpfully move through her issues, which combined mean that they do not have the current or future communication to make equal time work for the children. An equal time arrangement requires a level of communication that these parents do not hold to ensure that the children’s needs are not adversely affected.

The impact that an arrangement of that kind would have on the child

The children have been having regular time with their father while living with their mother. For their time with their father to reduce in the manner that the mother proposes in the event that she was living in (omitted), New South Wales, may have the effect that the children are less exposed to the conflict between the parents and the mother is happier in her adult situation. It would also have the negative effect of their relationship with their time with the father being considerably lessened. There is no evidence before the Court that the mother has the capacity or willingness to truly and properly support the children’s relationship with the father in the event that she moved away.

Parental Responsibility and the child’s time with each parent

The mother seeks an order for sole parental responsibility. The ICL and the father both seek an order that the mother and father have equal shared parental responsibility. A family violence order was current at the time of trial. A family violence order has also been made in the past. Both times the mother has been the aggrieved spouse and the father has been the respondent spouse. The mother had alleged that the father had been violent to her during the relationship. The father has admitted past behaviours of verbal aggression in nasty terms.
It is also the case that the parents have been unable to demonstrate any capacity to communicate with each other in a useful sense over the many years. The mother is unable to refer to the father by any name other than Mr Winter. She is quite unable to use his first name or any other term. The mother does not speak with the father at changeovers and indeed does not look at him. The mother did not look at the father in the court room during cross-examination.
Notwithstanding the issues of past potential family violence and the ongoing incapacity for the parents to communicate with each other the ICL takes up Ms S’s view that neither parent should be provided with the capacity to make decisions of the children without reference to the other parent. The ICL is concerned that any order for sole parental responsibility would need to rest with the mother as it is plain that the children will primarily live with the mother. The ICL submits in the event that the mother had sole parental responsibility for the children it would impact upon X and Y having a meaningful relationship with their father. It seems to me that is a sensible submission based on the presentation of the parents and the mother’s marked inability to choose to communicate with the father.
I accept the ICL’s submission that the parents are both intelligent and articulate people who have demonstrated a capacity to communicate effectively with people other than there former partner. I also accept the ICL’s submission that the parents have demonstrated the capacity to abide by court orders in the past.
I am satisfied that the parents should have equal shared parental responsibility and that the order should provide a mechanism for the exercise of that parental responsibility.
The children have historically lived with the mother. They have spent time with the father. That time has been a short durations occurring frequently. The frequency of those visits will not be able to be maintained in the event that the children live with the mother in (omitted) New South Wales. Given my concerns about the mother’s capacity to foster a relationship between the children and their father is important that the frequency of their time with the father be provided for by court orders. That necessarily means that the children must remain living in south-east Queensland and must not be removed to live in (omitted) with the mother.
The children’s time with the father now needs to be extended. The time should be extended along the lines that the ICL cross-examined Ms S about. The ICL’s proposal follows those lines. I adopt the ICL’s proposal.

Overseas travel

Both parents seek orders with respect to the capacity to take the children on overseas travel. I’m satisfied that by the time the children are aged 10 years of age their time with the father will have sufficiently extended for it to be appropriate for them to be able to travel with either the mother or the father overseas.

Religious holidays

The father has been in the process of studying ( omitted). He seeks to have the children with him on the (religion omitted) holidays. The mother seeks to have the children with her for Christmas day and the Easter days.
It seems to me that the children should be with their mother for those Christian holidays and with the father for the (religion omitted) holidays and Easter holiday periods.

Orders

The orders I make are essentially in line with those as set out by the ICL. I make the orders set out at the commencement of these reasons.

I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Judge Demack

Date: 21 February 2014

[2014] FCCA 307

21 February 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies