Oral evidence of Family Consultant tested
Family Consultant’s oral evidence
- Dr Alexander identified the areas of Ms J’s report which she says weaken the report to such a degree that I should not place weight on the report. Those areas include:
- Ms J’s failure to explore the issue of the father’s relationship with his older children. What Ms J admitted that in hindsight it was an omission she disagreed with the proposition that she should have raised them with X as she said that was not part of what she was doing. Dr Alexander pointed out to Ms J that she discussed A with X so surely it was relevant that she discuss X’s older half-siblings. This is a limitation of the report.
- Ms J’s failure to explore the father’s relationship with Ms T further. Ms J referred to her letter of invitation but that is not a sufficient answer. At  of her report Ms J records X talking about not being able to spend as much time with her father because of spending time at Ms T’s and also spoke about Ms T’s two children. My impression is that Ms J was somewhat defensive about this and was quite firm in her view of the two parents with the father having been X’s primary parent for some years now and with the mother taking actions such as over holding X to interfere with this. This was also raised in the s.11Freport. It is a limitation of the report that Ms J did not explore this.
- It is clear from Ms J’s oral evidence that she feels strongly that the mother has been on a campaign to get X into her care and has taken actions to secure this including over holding X and taking out an intervention order against the father which included orders preventing the father from being able to approach X’s school. I find there is some evidence to support this.
- It is also clear that Ms J accepted the father’s comments to her that he had consulted with the mother before changing X’s school. It has now been established that it was wrong.
- Ms J expressed the view that X has a more secure attachment to her father. Whilst X has a close and loving relationship with both her parents her attachment to her mother is a little more insecure particularly when one considers what has happened for X. She has been over held by her mother and has been caught between two parents. As she feels more secure with her father she feels able to say she wants to live with her mother. The conflict between X’s parents has remained high since 2011. X is in the middle of that conflict and has to show loyalty to both parents. Her impression is that X is under a lot of pressure and feels the need to let her mother know that she wants to live with her.
- Ms J said that the fact that the mother left the home when X was very young had an impact on X as it would have had in the reverse. More recently the mother has remarried and had another child. These factors all add up to X being more insecure with her mother.
- Ms J was present in Court whilst Ms A gave her evidence and read her notes before she gave oral evidence. She accepted that X stated a wish is to live with her mother. She said she thinks it is difficult for counsellors seeing children without experience in this area (as a forensic parenting expert) and having a detailed knowledge of the history of this family.
- Dr Alexander put to her that Ms A saw X on nine occasions but she only saw X once. Ms J replied that it is not that simple. She has a different role to that of a counsellor. Her role is that of an assessor who assesses the whole family.
- With respect to the sleeping arrangements for the three children when they stay overnight at Ms T’s home Ms J did not clarify with X as to whether or not X shares a bed or a bedroom with the other children. She said that if X has to share a bed rather than a bedroom that would be concerning.
- At  Ms J observed that since her first report in 2011 X has continued to develop a very significant relationship with her mother and her mother’s husband. She said that this showed that the father as X’s primary carer has encouraged and facilitated that relationship. She expressed concern about the mother’s ability to facilitate X’s relationship with her father given her actions in over holding X and applying for the intervention order. I agree with her concerns. I still hold those concerns after hearing all of the evidence.
- What Ms J says at  and  are significant:
- <li “=””>
It may be that Ms Morrow genuinely believed that X was at risk from Mr Moseley particularly given the entrenched high level of conflict between Ms Morrow and Mr Moseley. X has lived most of her life being in the middle of two parents in conflict. It is my view that X has emotionally managed moving between them both by showing loyalty to each of them when with them. It also seemed that X feels she has to tell each parent what she thinks they want to hear about what happens in the other household. (omitted) children so caught in the middle of their parent’s conflict have seen by example what happens when a significant relationship breaks down so they fear this may also happen to them if they do not protect their relationship with each parent. (omitted) children may also embellish a story about the other parent’s house particularly when they receive a positive reaction from the parent they are telling the ‘story’ to. X is no different to other young children so caught up in these circumstances. It is also safe for a young child to pass ‘stories’ to each parent as they are very aware the parents do not communicate.
In this case, X has become caught up in the ‘concerns’ expressed by Ms Morrow, X feels she is able to support Ms Morrow in her quest to have X live with her. X feels more secure within her relationship with Mr Moseley so she feels confident she will not lose him if show shows support to Ms Morrow…
- Ms J stated that X is not at risk in either parent’s household and enjoys both schools she attended when in her parents’ respective care. Ms J said that part of the reason for recommending X remain in the father’s care is because that is the status quo. There is nothing drastic to warrant a change in residence. She points out that it is natural for a nine year old child to want to spend time on a farm with a horse and her motorbike. She greatly enjoys her time at her mother’s home.
- Dr Alexander cross-examined Ms J about the texts the mother annexed to her affidavit in order to challenge Ms J’s opinion at  of her report that the father is not vindictive and would not retaliate. Ms J said that she thought the father was reacting and was frustrated. I do not think this entirely answers to those texts. There are also examples of the father being nasty about the mother. Paragraph 18 of his trial affidavit is an example of that. However what needs to be pointed out is that when the mother over held X again in February 2016 the father did not take retaliatory actions but filed an urgent application. This is a significant difference between the two parents.
- Ms J said she could understand why the mother wanted to have X in her care as she reaches puberty.
- Dr Alexander submitted that I should not place any weight on Ms J’s report for the following reasons:
- The relevance of the father’s partner;
- The significance of the father’s relationship with his older children;
- The sleeping arrangements at the father’s partner’s home;
- The father’s unilateral change of X’s school;
- The father’s rude and vindictive texts; and
- The child’s strong views.
- I have discussed these issues as well as issues concerning the mother including her repeated unilateral actions in withholding X.
- I accept that there are limitations to Ms J’s report but they are not such that I will place no weight on it in the context of the other evidence I have heard. I find X has been influenced by her mother’s strong desires to have her living in her primary care. It is clear that the mother has spoken to X about the court proceedings. It is also clear that X is acutely aware of her mother’s desires. I find it is likely that X does embellish some things. I accept Ms J’s evidence that this happens when children are subjected to high conflict and where the parents do not communicate. It is highly unlikely that X remembers a time when her parents were not in conflict. Ms J thinks the mother has subtly influenced X. It was the mother who raised the issue of the school and X not getting dinner which she refers to at  of her report. X complains that she doesn’t get dinner at her father’s home. When asked to elaborate she could not and said it was a while ago and she could not remember.
- Ms J said that she does not believe that the amount of conflict justifies a change of residence at this time. She does not think it will change things a great deal and how X will be emotionally affected by the conflict in the future. She agreed that it would be helpful for X to spend more time with her mother.
- When the mother was recalled to give evidence she said it was her mistake with respect to the phone calls and it was only Thursdays instead of Tuesdays and Thursdays.
- I accept that there are limitations to Ms J’s report.
Legal Principles and their application to the facts of this case
- The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
- The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act 1975 gives the Court the power to make a parenting Order which is defined by s.64.
- In deciding whether to make a particular parenting Order, s.60CA requires that I consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
- There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
- In this case s.60CC(2)(a) takes precedence. X has a meaningful relationship with both her parents. This will continue as a result of these orders. The orders will enable X to spend more time with her mother than she has been able to the past few years.
- The Family Law Act 1975 indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
- The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford  FamCA 33, Mazorski & Albright  FamCA 520; (2007) 37 Fam LR 518 and McCall & Clark  FamCAFC 92; (2009) FLC 93-405.
- There are 13 additional considerations which are set out in s.60CC(3).
- X has expressed her views to Ms J and her counsellor. I accept that X wants to live with her mother. I am also mindful of the Court’s obligations to weigh and carefully consider a child’s views: see Maldera & Orbel  FamCAFC 135; Dylan & Dylan  FamCAFC 109 and Bondelmonte & Bondelmonte  FamCAFC 48. It is important to note that whilst the Court must consider the child’s views it is not obliged to follow them. In this case I have considered X’s views in the context of her age and the conflict she has been in the middle of for as long as she can remember. X has a close and loving relationship with both her parents. She needs more time with her mother.
- Both parents are able to provide for X’s physical and intellectual needs. I have concerns about her parents’ capacity to provide for her emotional and psychological welfare.
- Both parents have taken up the opportunities to participate in decision-making for X. The issue is their inability to do this effectively. They have taken up opportunities to spend time with X.
- The mother does not pay child support for X. She is not working and has not been required to.
- During the course of the hearing I explored other options for spend time arrangements. By the end of the hearing the parties agreed that the parent who does not have X in their primary care should spend time with X for a greater portion of the school holidays as well as two out of three weekends during school terms.
- The orders I will make will significantly increase the time X spends with her mother without changing her primary place of residence. This will be less disruptive to X than changing her primary place of residence. That would require her to change her school again but also would mean living with her mother during the school week which she has not experienced before. It is clear she likes her school and is doing well. What the orders achieve is providing X with more family time with her mother. As well as additional weekends she will have more time during school holidays which is a particular benefit as the mother is not in paid employment.
- Whilst the mother will be disappointed by these orders, they do provide for X to spend significantly more time with her mother during weekends and holidays which will enable X to enjoy the time she clearly loves with her mother, little sister and Mr Morrow on the farm.
- I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount. There are no issues of family violence in this case.
- Section 61DA(1) provides that when making a parenting order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
- If the presumption is not rebutted and I accept it would be in the best interests of the children to make an order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
- In this case the presumption applies. I am not satisfied that one parent should have sole parental responsibility despite the difficulties the parties have had in consulting with each other. I am satisfied that both parents are at fault. They need professional assistance so that they can communicate and consult with each other effectively and start to protect X from their adult issues and the conflict. If they don’t then X is likely to suffer long term psychological harm. Both her parents love X dearly. I am satisfied neither parent wants X to suffer emotional harm but they have been focused on their conflict with each other and not how it impacts on X.
- For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
- In MRR & GR  HCA 4, the High Court of Australia found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an Order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an Order for equal time.
- Both parents acknowledge that an equal time arrangement is not practical because of the distance between their homes. It is also not possible for time to occur during the week for the same reason.
Court’s concerns about the parents
- This is a finely balanced case. I have concerns about both parents.
- My sense of the mother is that she has been determined to have X in her care and to that end has been keen to look for opportunities to take X into her care and to undermine the father. She has done this by over holding X, by talking to Ms P and encouraging X to keep secrets from her father. X is very aware that her mother wants to have her in her primary care and knows what her mother wants to hear. I suspect she is rewarded by the mother with her attention and sympathy.
- On the other hand the father seems to be to some extent emotionally detached and unaware of what is going on for X.
- I have concerns for X’s long term emotional well being regardless of the orders I make unless both parents take immediate actions to get counselling assistance to address their issues and to start focusing on X’s wellbeing rather than undermining each other.
- One of the adjustments X is having to make currently is the father’s relationship with Ms T. She has to deal with two other children coming into the household. It is quite a different dynamic to having a new baby sister. It is not uncommon for parents to have to adjust to living in a blended family. This in itself is not a reason to change X’s living arrangements.
- My sense of the father is that he is not as emotionally attuned as he could be. Neither parent appears to have taken on board Ms J’s comments about the conflict in her first report.
- I suspect the father is somewhat rigid and expects others to agree with him and when they do not, he has difficulty. This was apparent with respect to his position with respect to (omitted) primary school in his belief that there was collusion and a conspiracy between the teacher and the mother and presumably now the principal as well.
- I take into account what Ms A has recorded as contemporaneous notes of conversations with X. X’s expressed desire to live with her mother is consistent with what she has told the family report writer and Ms O.
- The mother has done a parenting course recently. The father did one 11 years ago. The parents need more assistance than a parenting course. Ms J spoke of child focused counselling and said that if they do not do this they will not be able to move on. Due to the distance between the parties home it will be necessary to arrange for one of them to participate in counselling by telephone unless that parent is able to travel.