The false abuse allegations case of Merton vs. Merton before the Family Court of Australia

• Merton Merton [2009] FamCA 175 (26 February 2009) [98%](From Family Court of Australia; 26 February 2009; 132 KB)
• Merton Merton [2007] FamCA 1350 (19 November 2007) [100%](From Family Court of Australia; 19 November 2007; 148 KB)
• Merton Merton [2007] FamCA 264 (20 February 2007) [100%](From Family Court of Australia; 20 February 2007; 17 KB)
• Merton Merton [2007] FamCA 281 (19 February 2007) [99%](From Family Court of Australia; 19 February 2007; 20 KB)

Merton & Merton [2009] FamCA 175 (26 February 2009)

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2009/175.html?query=^MERTON

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Merton & Merton [2009] FamCA 175 (26 February 2009)

Last Updated: 7 April 2009

 

FAMILY COURT OF AUSTRALIA

MERTON & MERTON

[2009] FamCA 175

FAMILY LAW – CHILDREN – Best interests,FAMILY LAW – CHILDREN – Parental responsibility FAMILY LAW – CHILDREN – With whom a child lives FAMILY LAW – CHILDREN – With whom a child lives – Relocation

Family Law Act 1975 (Cth)

A and A (Relocation Approach) [2000] FamCA 751; (2000) FLC 93-035Bolitho & Cohen [2005] FamCA 458; (2005) FLC 93-224 U and U [2002] HCA 36; (2002) FLC 93-112 M and S (2007) FLC 93-313 Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 Taylor & Barker [2007] FamCA 1246; (2007) FLC 93-345

APPLICANT:

Mr Merton

RESPONDENT:

Ms Merton

INDEPENDENT CHILDREN’S LAWYER:

Cathleen Corridon

FILE NUMBER:

DGC

3102

of

2007

DATE DELIVERED:

26 February 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

DESSAU J

HEARING DATE:

2 Sept 2008, 31 October 2008, 8-12 December 2008, 29-30 January 2009 & 2 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Weil

SOLICITOR FOR THE APPLICANT:

Perry Weston

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Buchanan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Cathleen Corridon

ORDERS

1. That all previous orders in relation to the children M born … January 1998, J born … February 1999 and C born … February 2001 shall be discharged.
2. That the children shall forthwith live with the father.
3. That the mother shall spend time with the children supervised by a person or Contact Centre nominated by the Independent Children’s Lawyer at times and places suitable to the supervisor but not less than once per week for two hours for a period of six months.
4. That at the expiration of the six months referred to in paragraph 3 of these orders, the mother shall spend time with the children:
   (a) Each alternate week from the conclusion of school on Thursday until the commencement of school on Monday, or Tuesday if the Monday is a public holiday;
   (b) Half of all school holidays as agreed, and in the absence of agreement, the first half;
   (c) On Mother’s Day from 9.00am to 5.00pm if it falls on the father’s week-end;
   (d) For two hours on each child’s and the mother’s birthday if they fall in the father’s time; and
   (e) For four hours on Christmas Day if it falls in the father’s time.
5. That the father shall have the children in his care:
   (a) On Father’s Day from 9.00am to 5.00pm if it falls on the mother’s week-end;
   (b) For two hours on each child’s and the father’s birthday if they fall in the mother’s time; and
   (c) For four hours on Christmas Day if it falls within the mother’s time.
6. That for the purposes of the mother spending time with the children, where pick up and drop off does not take place at school, the change-overs shall occur outside the H milk bar.
7. That the mother is hereby restrained from relocating the children from H.
8. That the mother shall be and is hereby restrained from attending at the father’s property and/or parking on any of the roads abutting the father’s property.
9. That the presumption of equal shared parental responsibility does not apply in this case.
10. That the father and mother shall consult Dr N in relation to the children’s medical and developmental needs and follow all recommendations made by Dr N.
11. That in 2009 M and J shall continue to attend H Primary School and S Specialist School on a shared basis as recommended by the schools, and that C shall continue to attend H Primary School full-time, and that the mother and father shall consult the principals of the schools annually towards the end of Term 4, and follow all recommendations made by the schools as to which school and/or schools each child shall attend.
12. That the mother and father shall ensure that the children continue to receive the services currently engaged for them and any other or additional services recommended by Dr N and the schools.
13. That if the mother fails to follow any recommendations made by the children’s treating paediatrician and schools, the father shall have sole parental responsibility for implementing those recommendations.
14. That the ICL is requested to forward a copy of these Reasons for Judgment and a copy of the sealed orders to the Department of Human Services, Dr N and the Principals of the children’s schools.
15. That the appointment of the Independent Children’s Lawyer shall be discharged at the expiration of six months.
16. That pursuant to s 65DA(2) and s 62B, 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.
17. That the father’s application shall otherwise be dismissed and removed from the list of cases awaiting finalisation.
18. That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 3102 of 2007

MR MERTON

Applicant

And

MS MERTON

Respondent

REASONS FOR JUDGMENT

 

INTRODUCTION

1.  Ms  Merton  (“the mother”) and Mr  Merton (“the father”) have three children, M (aged 11), J (almost 10), and C (almost 8). They presently live with their mother and spend five nights’ per fortnight and half school holidays with their father.

2. All three children have autism spectrum disorders: M with severe mixed language disorder and moderate to severe intellectual disability, J with moderate intellectual disability and a severe communication disorder, and C with Asperger’s Syndrome and borderline cognitive ability. The boys currently attend mainstream schooling for three days’ per week at H Primary (each with an aide), and specialist schooling for two days’ per week at S Special School. C attends H Primary full-time, with an aide three days’ per week.

3. Sadly, to compound the children’s respective difficulties, they have been at the centre of litigation, off and on, for several years. In February 2007 the case reached a final hearing before Guest J, and culminated in final consent orders for the children to live with their mother and spend regular time with their father. But the litigation did not stop there.

4. In August 2007, the father filed an Application for Contravention, on the basis that the mother was refusing to make the children available to spend time with him. The mother then announced her intention to relocate with the children. The father filed an application to stop the relocation. That case was due to be heard in this court in March 2008, but in the meantime the Department of Human Services became concerned that the children were subject to emotional abuse in their mother’s home. DHS commenced Children’s Court proceedings. Those proceedings were completed in April 2008, with the status quo of Guest J’s orders being maintained.

5. This case then started before me in September 2008. At that time the mother was keen to relocate the children from H in regional Victoria where the parents currently live two kilometres from each other, to S, some 65 kilometres’ away. Shortly before the December part of this hearing, she changed that, seeking then to move them to O, six hours’ drive from H. The mother claims there are better schooling and treatment options available there.

6. If the children are relocated to O, it will inevitably result in severe limitations on the time they can spend with their father. That does not appear to concern the mother, given the serious allegations she makes against him, including that he has sexually abused C (and possibly M), that he physically abuses the children, and that he is cruel to and mistreats them, including that he keeps them in sub-standard accommodation without basic utilities such as electricity, and without proper food or care. She also alleges that he refuses to accept the children’s disabilities and diagnosis, and that he himself is impaired by an autism spectrum disorder.

7. The father wants the children to live with him on his farm, W property in H, to have supervised time with their mother for six months, and then, to spend time with her on alternate week-ends. He also wants sole responsibility for making decisions about the children. He believes that otherwise it will be unworkable to arrive at decisions about their education and treatment.

8. His case is that the mother has and will continue to do everything possible to interrupt his time with the children. He complains that there have been many notifications to DHS, mostly at the mother’s instigation. He complains that she will not allow the children to develop their strengths, concentrating instead on their weaknesses. He refers to the psychiatric evidence about the mother’s mental health, in particular Dr E’s opinion that the mother’s conduct is consistent with systems abuse or Munchausen’s by Proxy Syndrome, or that she is either vexatious and/or delusional. He points to a genuine concern of emotional abuse of the children by her.

9. The father’s case is largely supported by the Independent Children’s Lawyer, and is broadly in keeping with the Family Report writer’s recommendations.

BACKGROUND

10. The father is aged 48. He is a farmer. His family has lived in the H community for many generations. The mother is also aged 48 and is engaged full-time in home duties. She had two sons, B and L, from a previous relationship. Tragically, in 2001, aged 16, B took his own life. L is nearly 21. According to the mother he has a close relationship with her and the children.
11. The parties started to live together in October 1997 and married in December that year. M was born in January 1998, J in February 1999, and C in February 2001. The parents separated in October 2003. The children continued to live with their mother. They saw their father as arranged between the parents. The mother’s account is that he did not show any great interest. The father’s account is that the mother always thwarted his attempts to be fully included in the children’s lives, prompting him to start the court proceedings in 2005. I shall deal with that issue below.

MATERIAL RELIED UPON

12. The father, who was represented by counsel, relied upon the following documents:

• His Amended Application for Final orders filed 6 August 2008
• His affidavit sworn 1 December 2008 filed 2 December 2008
• His affidavit sworn 8 August 2006 filed 9 August 2006
• Affidavit of Mr PS sworn 1 December 2008 filed 2 December 2008

13. The mother, who appeared without legal representation, relied upon the following documents:

• Her Response to an Application for Final Orders filed 5 August 2008
• Her affidavit sworn and filed 24 November 2008
• Affidavit of her sister sworn 4 July 2008 filed 5 August 2008
• Affidavit of Ms JJ sworn 13 November 2008 filed 24 November 2008
• Affidavit of Mr HR sworn 3 December 2008 filed 4 December 2008

14. The ICL relied upon the following documents:

• Family Report of Mr U dated 10 November 2008
• Affidavit of Dr E sworn 13 February 2008 filed 20 February 2008 annexing psychiatric reports of the father and the mother dated 18 January 2008
• Affidavit of Dr E sworn 11 may 2006 filed 17 May 2006 annexing psychiatric reports of the father and the mother dated 12 January 2006
• Affidavit of Dr G sworn 31 October 2006
• Report prepared by Dr F dated 3 June 2008
• Reports prepared by Dr G, paediatrician, dated 17 July 2002, 7 September 2006, and 5 October 2006
• Reports prepared by Ms BD, speech pathologist, dated 21 September 2006, 21 October 2007 and 29 October 2007
• Reports prepared by Ms BK, occupational therapist, dated 30 July 2008 and 20 August 2008
• Reports prepared by Dr N dated 7 March 2002, 20 May 2003, 4 September 2007, 25 October 2007, 8 January 2008, 22 July 2008 and 18 September 2008
• Report prepared by Ms D , psychologist, dated 13 October 2008

15. The issues in relation to the children’s health, management, and education, were central to this case. Accordingly, it was agreed that the medical and allied experts, as well as the educators (that is, all the ICL’s witnesses except the psychiatrist Dr E and the Family Consultant Mr U) would give evidence together at court on 31 October 2008, so that each could hear the other, and each could comment on each other’s evidence. Mr U was in attendance, so that he had the benefit of hearing from all those experts before he prepared his Family Report. I shall come to the relevant detail of the expert evidence.

16. Later in the hearing, I heard additional evidence from the psychologist Ms D and the psychiatrist Dr F. The ICL also called Ms PL, a DHS worker, who gave evidence and was cross-examined about the Department’s involvement.

RELEVANT LEGAL PRINCIPLES

17. Part VII of the Family Law Act 1975 was substantially amended in July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act. Section 60B(1) sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:
(a) 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
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

18. Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
(a) 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
(b) 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
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

19. In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the court in determining what is in the child’s best interests. Section 60CC(4) provides that the court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).

20. There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent.

21. If there is equal shared parental responsibility, the court is required to consider an order for the child to spend equal time with each parent (s 65DAA(1)), or substantial and significant time (s 65DAA (2)).

22. Before the 2006 amendments,the Full Court set out the applicable principles and the approach for a trial Judge in relocation cases, in A and A (Relocation Approach) [2000] FamCA 751; (2000) FLC 93-035 (considering the binding authority of the High Court in AMS v AIF; AIF v AMS [1999] HCA 26; (1999) FLC 92-852). It provided the following three steps for the Judge (at para 82):

1. Identify the relevant competing proposals;
2. For each relevant s. 68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s.60B;
3. On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.

23. Expanding on the second step, the Full Court in A and A added:

• As one, but only one, of the matters considered under s. 68F(2), the reasons for the proposed relocation as they bear upon the child’s best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 (1997) FLC 92-755 is no longer an accurate statement of the law.
• The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
• Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child’s contact with, and access to, the other parent.

24. The Full Court emphasised that a party did not bear any onus to establish that the relocation would promote the child’s best interests, and could not be required to demonstrate “compelling reasons” for the relocation. Although significant weight was attached to a parent’s right to freedom of movement, it was still subject to the child’s best interests, which remained the paramount though not the sole consideration. In deciding best interests, the court had to consider each parent’s proposal for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s right to regular contact with a parent no longer living permanently in close physical proximity.

25. In Bolitho and Cohen [2005] FamCA 458; (2005) FLC 93-224, the Full Court noted that the High Court in U and U [2002] HCA 36; (2002) FLC 93-112 had reaffirmed that the “overarching issue” in relocation was to ensure that any parenting order was in the best interests of the particular child. It noted too that U and U “… ameliorated the somewhat rigid and/or formulaic approach set out in A and A.” The Full Court (at para 72) referred to the High Court having said:

…that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.

26. In December 2006 I published my reasons for judgment in M and S (2007) FLC 93-313. In that case the mother sought to relocate from Melbourne to the United Kingdom with the parties’ eight-year-old daughter, in order to live with her husband who was working there for three years.

27. In M and S, I referred to the 2006 legislation and noted (at para 81,386):

The legislature has not explicitly prohibited the relocation of a child away from one parent. It has not introduced a specific presumption against it, nor an onus of proof on the moving party. Nor has it suggested that just because the relationship between a child and parent will inevitably be affected by a move away, that in itself should preclude the court from permitting relocation. Otherwise, given the inevitability of some change to the nature of the child/parent relationship when the structure of the time spent together is changed, virtually all requests for relocation would as a matter of course be disallowed. Had that been the intention, the Act would have been amended accordingly.

28. I then observed, (at para 81,385):

Although there is nothing in the new legislation explicitly altering the previous approach to relocation whereby the court was obliged to consider the child’s best interests as the paramount consideration, the amended Act does provide a context, through its objects, principles, and particular considerations, that is substantially different from the context in the previous legislation. As the Full Court in Goode’s Case observed (at para 72):

‘… it can fairly be said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children…’

29. I then applied the pathway outlined by the Full Court in Goode v Goode [2006] FamCA 1346; (2006) FLC 93-286.

30. That approach was approved in Taylor and Barker [2007] FamCA 1246; (2007) FLC 93-345. The majority (Bryant CJ and Finn J) said (at 81,916-917):

However, consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time’ or “substantial and significant time” arrangement.

31. The pathway in Goode’s case is effectively a logical stepping through of the legislative provisions briefly set out above.

THE ISSUES

32. It is convenient to consider the various issues under the umbrella of the s 60CC considerations. I will first consider the primary considerations under s 60CC(2).

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;

33. As a general proposition, children need a meaningful relationship with both their parents. And ideally, the inevitably complex care for children with special needs should be shared by two loving parents.

34. In this case, my findings on the respective allegations of abuse and mistreatment will help inform my decision as to the advantages (or disadvantages) for each child, and the best form and structure, of a meaningful relationship with each of their parents.

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

35. This is at the heart of the case. Each parent asserts that the children are at risk in the care of the other parent.

36. The mother raises a number of allegations against the father, the most serious being sexual abuse, physical abuse, substandard accommodation, and cruel mistreatment and neglect. She has made numerous complaints to DHS. She has complained to schools, experts, and the court. Recently, on 23 October 2008, she even protested publicly, parking her car outside the post office in H, displaying a poster of bruised body parts (of the children) with a large sign which read, “Don’t support child abuse”.

37. As Ms PL from DHS said, the mother’s allegations have “escalated”. Even during the period when this case was part-heard (from 12 December 2008 to 29 January 2009), the mother made further complaints to DHS that the father had physically abused the children during the Christmas and summer holiday time, that he had refused to feed them (including on Christmas Day), and that he made his dogs attack them. She repeated her various allegations as to there being no electricity, television, or fridge in his home, and that the conditions and care were unhygienic. She also repeated her allegations of his poor mental health. None of her allegations have been substantiated by DHS or other authorities.

Sexual Abuse

38. As to sexual abuse, according to the mother, as recently as on 6 November 2008, C specifically disclosed that she has been sexually abused by her father. The mother said she made notes of what C told her occurred at her father’s while the boys were briefly away at school camp:

What happened,
Dad opened my bedroom door and came into my room, (the bedroom immediately on your left as you pass through the kitchen into the lounge room) it was dark, I was very scared and pretended to be asleep.
He sat on my bed with crossed legs facing me (the window) he put his (right) hand inside my pajamas [sic] and was rubbing and pushing my fanny. (using left hand for balance behind his back) It hurt me a lot, but I did not move, was too frightened.
I could not say anything, I just pretended to be asleep, after he went, I cried and cried in the morning, dad did no [sic] say anything in the morning. He pretended that it did not happen.
Did he shut the door when he left yes I cried,
Was there any blood. No
Has this happened before: No

39. The mother immediately called the police. An officer spoke to C within two weeks. The precise date was a little unclear. Neither the police nor DHS substantiated the sexual abuse. The mother is critical of DHS for “not doing their job”. She explains that C would not have remembered the abuse by the time police spoke to her. She is critical that DHS would not give C “visual prompts”. She demonstrated her own “visual prompt” to C, acting out a hand down her pants.

40. There was no medical evidence supporting the mother’s claim that C had a memory problem. Indeed it was contrary to the DHS worker Ms PL’s experience of C. Nor was there medical evidence that C should have had visual prompts. In fact, contrary to the impression given by the mother, the experts commented quite favourably on C’s skills of communication.

41. On 21 November 2008, C saw Ms D, the counsellor to whom the mother has been taking the children since August 2008. According to Ms D, C “denied ever having accused her father of touching her” and “seemed genuinely surprised” when she mentioned it to her. When Ms D told the mother of C’s denials, the mother attributed it to C being with her father that day and unable to tell the truth (although C was interviewed alone by Ms D).

42. I note the context of C’s purported “disclosure”. Both boys were away at school camp. The mother was very resistant to M going. She denied that she told Mr CG (the school Principal) that it was because she feared C would be sexually abused. Rather, she claimed she had told him that M was anxious for C if he went to camp because, “Maybe there’s a problem”. She denied that she forecast possible sexual abuse, but her comment to Mr CG, and her distrust of and previous complaints about the father, suggest that she was already pre-conditioned to fearing for C. Her excuses otherwise for not wanting M to join his peers on school camp were without reason or substance. I accept from his father that he had a good time, and it was important for M to be included.

43. In light of the mother’s suspicions (and other evidence below of her questioning the children when they return from their father’s), it is most likely that C was questioned by her mother upon her return from her father’s home. It is likely too that the mother’s style of questioning C would cast serious doubt on the reliability of any purported disclosure. I have already noted that the mother was insistent that one must use “visual prompts” when talking with an autistic child, and that her illustrative “prompt” in this instance was a highly suggestive portrayal of a hand plunging to the genital area. I shall return to other examples of the mother’s suggestive questioning of the children, but for present purposes I also note the mother’s own description of “setting the scene” for C to talk with her, to the effect:

[C] is very narcissistic. So I tell her she’s beautiful and I love her and so very gently then I can ask her …

44. It seems the mother had been concerned as far back as November 2004 that the father had sexually abused C. She said C returned from her father’s with a rash “from inner thigh to inner thigh” across the genital area. Although C made no allegation against her father, the mother, upon her own admission, responded hysterically. Her immediate report to police and DHS, and a medical examination of the child, showed no evidence of sexual abuse.

45. Again, in July/August 2005, the mother suspected that C – and M – had been sexually abused by their father. She said C drew a “sexual drawing” and several days’ later, M drew one. I have seen the drawings.

46. The one claimed by the mother as C’s, purportedly depicts C and her mother. I cannot clearly interpret a penis on C, as claimed by her mother. From a layman’s perspective, the drawing purportedly done by M may depict a penis. It is not clear. I am not an expert. I cannot safely interpret the drawings. What concerns me is that they were sufficient to alarm the mother first and foremost that the children had been abused by their father. She did not entertain any less sinister explanation. She said she asked M to explain the drawing, to which he replied

“Dad has a secret. If we tell we die.”

47. I cannot make a finding that C or M was sexually abused by their father in November 2008, or at any other time. I take into account the factors I have referred to, as well as issues I will explore further below as to the mother’s mental health, her insistent questioning of the children, and how well and calmly the children relate to their father.

Physical Abuse

48. The mother has repeatedly claimed that the children are physically abused by their father. He adamantly denies it.

49. She is utterly fixed in her view that bruises on the children are as a result of their father’s physical abuse. She does not entertain, see, or hear, other innocent explanations.

50. The best illustration is an incident in September 2007, when J was bruised in his pubic region. The father and children all freely recounted a bicycle accident. The father took J to the doctor about it. The doctor’s opinion was that the injury was consistent with the explanation. There was no DHS substantiation of that (or other bruising) as abuse by the father. Nevertheless, the mother remains convinced that the father inflicted the bruise.

51. She points to differences in the versions about it. On the next day, M told J’s aide that J had slipped on his bike and hit the bike seat. He told DHS workers something to similar effect. C said she heard J screaming and ran outside. She saw him straddling the ute, apparently having fallen while taking his bike off the ute. The mother claimed M had later told Dr N that he was being sick at the time so did not actually see the accident. The mother said the father had told different versions to various people of what occurred. She called no witnesses as to conflicting versions, and any details she recounted showed only slight and insignificant variations between accounts.

52. Nothing the mother raised in this regard dissuaded me from a finding that J had suffered a bicycle accident, in accordance with the account of the father and children. It is ironic that although the mother is adamant that what the children say must be believed, she is dismissive of what the children say when it does not accord with the version she is pursuing. Her fixed view that the father inflicted the bruising was unreasonable on all the evidence. That a photograph of J’s genital area was publicly displayed by the mother in H in October 2008 was troubling indeed. I shall return to that.

53. The children have not complained to independent people of physical abuse, except in one instance. That is, on 8 October 2008, when M told Ms D that his father had punched him on the stomach.

54. According to Ms D’s report:

[M] came into my office alone. I told him I knew he had a bruise on his tummy and asked how he got it. He replied, ‘Dad punched me. I dropped something.’ I asked him if he liked going to his father’s and he said, ‘I will get bruises and Mum will get mad.’ I asked him about other bruises, and he said, ‘I don’t know how I get them. That’s the problem.’ I asked [M] if his father hits him often. He replied, ‘I don’t know.’ I asked him what his father hits him for, he replied, ‘I don’t know. I want to stay with Mum.’

55. That M told Ms D that his father punched him on the stomach naturally concerned Ms D, and must concern this Court. But I need to assess that disclosure in the broader context of all the allegations of physical and other abuse.

56. The mother produced a photograph of a bruise on M’s stomach. She was fully supported by her sister, who it seems was the one who reported the bruise to DHS, in September 2008.

57. I found it hard to attach significant weight to the mother’s sister’s evidence, and cannot regard her as an “independent” person. It is reasonable that she wanted to support her sister, but her evidence was, more than that, strongly partisan.

58. In her affidavit, the mother’s sister claimed extensive expertise as a social welfare worker with families with autism spectrum disorder, and as an educator. In the witness-box, when asked if she purported to give evidence as an expert or as a sister, she said it was as a sister. Nevertheless she offered what appeared to be at least pseudo-expert opinions, such as:

I believe the child. Children with disabilities don’t lie. They are incapable of making up a story…I don’t believe they are suggestible.

59. There is no independent expert opinion before me to support the mother’s sister’s claims. To the contrary, I heard genuine concern from other experts as to the children’s suggestibility.

60. Evidence about certain “rituals” when the children come home to the mother, and her account as to how recent (January 2009) drawings and comments came into being, (all of which I shall detail below), did nothing to diminish the prospect that she badgers them with questions upon their return from their father’s. Generally, the children have not related complaints of abuse to others. The mother’s claim that the children say they have repeatedly complained to their schools about their father’s cruel and violent behaviour is simply not supported by anything the schools have said or reported.

61. I cannot be confident that the children have freely expressed genuine concerns to their mother or her sister. As I shall note in a moment, their recent purported complaints can in some instances be shown to be untrue, although they accord precisely with their mother’s oft-repeated concerns.

62. As to M’s disclosure about the bruise, it raises the possibility that it was caused by his father, but I cannot be satisfied that is the case. I have no confidence that his disclosure was free from the influence of his mother and/or her sister, wittingly or unwittingly, by a string of suggestive questions. What is evident about M is how increasingly distressing he obviously finds the repeated questioning of him. I shall also come to that in more detail.

Sub-standard Accommodation

63. The mother makes various claims about the sub-standard accommodation in which the children are kept when with their father. She has insisted that there is no electricity in the home. Again, the children do not complain to others, although in August 2008 C did mention something to Ms D about “torches on the table for dinner” at her father’s home.

64. The mother has pursued this complaint relentlessly with various authorities. Nothing has placated her, although she has been assured a number of times, in a number of ways, that the property does have electricity properly connected. The father’s recent electricity bill was produced (showing consumption over the past year). There was confirmation from various DHS visits, and from the Shire. There is no logical or objective reason to believe he does not have and use electricity.

65. Further, according to the DHS worker Ms PL, DHS investigated the property a number of times, and were satisfied the father and the children live in the house, not the shed, but the mother has also refused to accept that as true.

66. In the latest round of complaints to DHS, the mother’s allegations had escalated, to include that the children complained that there was also no fridge, television, telephone, hot water, or toilet paper, and that the children were not bathed or washed at all at their father’s. There was no independent evidence to support any of those allegations.

Cruel Mistreatment and Neglect

67. The mother makes other allegations against the father including that he keeps the children locked in the dairy alone, or fails to feed them properly. If true, they suggest very serious and cruel abuse or neglect.

68. Like the other allegations, these too have escalated recently, so that in the recent January 2009 complaints, the mother alleged that the children reported that their father did not feed them. She said that he gave them no Christmas dinner but made them watch him and the other adults while they enjoyed Christmas dinner at the paternal grandmother’s home. The mother said that the children only had water while they stayed with him, and for food, they had to pick apples. According to the mother, M has lost “just shy of five kilograms”, and M could not eat “without throwing up” because his stomach had shrunk.

69. She also said the children complained that they received no Christmas presents from their father, and that M received no birthday present. Moreover, according to the mother, the children have complained that “Dad does not like us and hurts us all the time” or “Dad makes the dogs attack us – we are not allowed to defend ourselves – if we do he locks us in the bedroom”. She said that the children reported trying to run away during the recent holiday contact, but being “locked up” by their father.

70. Again I must look at the purported disclosures in context.

71. First, both the report writer Mr U and psychologist Ms D have made favourable comments about the children’s interaction when with their father. Neither the schools nor the doctors have reported concerns in that regard. Despite the mother’s claim that various allegations have been made directly by the children at school, there was no independent evidence of that. To the contrary, Mr CG, the Principal of H Primary School, gave evidence that he could not even tell which home the children came from in the morning, in that, either way he had no concerns about their presentation or the school lunches prepared for them. Since hearing that evidence, the mother has reported that one of the children said “Dad is tricky, he puts food in our lunch-boxes at school, but we get nothing at home – it makes us sad.”

72. The children’s January 2009 drawings, relied upon by their mother as proof of abuse and mistreatment by the father, are hard to follow. Some may suggest an angry stick-figure with other smaller stick-figures. However, without the accompanying text, written my the mother, I could not hazard a guess at their interpretation.

73. These drawings underscore the high probability that the mother is badgering the children with questions and most likely suggesting the answers.

74. I accept from the experts, as opposed to the mother’s sister, that these children, like other children, are suggestible. I accept that the weight to be placed on apparent disclosures varies according to a range of features, most particularly the manner in which the children were questioned. In this case I have very serious concerns about that. The mother was forthright in her unswerving view that the father abuses the children. She was also forthright in saying that she needs to be leading, direct and suggestive in her questioning of the children, in light of their disabilities.

75. There is abundant evidence that these children are continually questioned, and that the mother undertakes something like a forensic analysis of their time with their father, each time they return to her household.

76. The mother says that when the children return, she first gives them “fluids”. I regard “fluids” as a significant description by her. It accords with her underlying belief that the children need to be restored to health – to be re-hydrated – when they return from their father’s care.

77. I heard evidence that the “fluids” often consisted of Coca Cola. The father said that the children have referred to it as “truth Coke”. Ms PL from DHS referred to that too. It suggests that the “fluids” are part of a ritual whereby the children are questioned, then bathed, during which –as the mother agreed –she frequently photographs them.

78. I accept the father’s evidence that on one occasion late in 2008, when J was in the bath at his father’s, noticing that he had a small bruise, J looked fearful, and asked his father not to take a photograph of him. It suggests a high level of anxiety for the child.

79. Nowhere was leading questioning more apparent than in the questioning conducted by the children’s 21-year-old half-brother L, on 10 January 2009. He wrote questions in an exercise book, and then what purported to be the children’s answers and drawings. He asked questions such as “What bad things does your dad do?” followed by up to four repetitions of that same question, to both J and C.

80. The mother pointed to the fact that she was not home at the time. It is disingenuous of her to suggest that she had nothing to do with the questioning. I have no doubt that L would have conducted the questioning under the auspices of his mother. He is usually away and only dips in and out of the children’s lives. It is most unlikely that he would have arrived at a process of questioning the children, and having them draw pictures – the very process otherwise undertaken by his mother in the surrounding days – without her full knowledge and influence.

81. The effect on M of such questioning has become clear. He has shown an adverse reaction. DHS was concerned by his response to questioning when brought in about these recent complaints. They described him as “slumping” in his chair. He looked nervous and anxious when he saw a note-taker in the room. He would give only non-committal answers. He would not engage beyond that.

82. I have heard no independent evidence of M’s weight loss (Ms D described him as “obese” and said she did not notice any weight loss), and no independent evidence that he has been vomiting. If these were genuine symptoms, I would expect medical evidence about them. In the absence of that, I say that if he has in fact lost weight, it could reflect any range of things, including anxiety about the position in which he is being placed. However I cannot reach a concluded view.

83. Some of the mother’s allegations are simply far-fetched, such as the father making the dogs attack the children. It is a ridiculous allegation from every point of view, including that there is no evidence of dog bites or attacks. But there is also independent evidence contrary to many of her allegations.

84. I have already referred to the unequivocal evidence that there is electricity at the father’s home: evidence the mother simply refuses to accept. So far as the bizarre account of Christmas Day is concerned, and the assertion that the father did not allow the children to eat, when questioned by DHS, C described how she got “the yummy bone, at Nanna’s house”, and she was animated and laughing when telling the DHS worker about the occasion. When that was recounted to the mother in evidence, she said it still did not relieve her concern that the children were not fed. And although C also told the worker that the children received a “Wii”, a popular electronic game, from their father for Christmas, and she happily described a game she and her father played on it, apparently the mother has not accepted that.

85. Ms PL gave her evidence before the January 2009 round of complaints. Even then, she had emphasised her concern that the mother’s complaints and allegations against the father were “escalating”. There was ample proof to support that view.

86. For example, in late October 2008, the mother put a note in C’s school lunch-box. It read:

[C] bruising back leg stomach scratches leg. [J] bruising back leg. Mandatory report please. (Hot dogs not on menu at dog trials).
The mother was apparently unconcerned that C would, as she did, find the note in her lunch-box.

87. The mother’s conduct, in parading photographs of the children in her recognisable car in H, a small community, is in itself abusive of the children.

88. The mother showed very little insight about it. She claimed that she was doing it to highlight the serious issue of child abuse. At one point, she said that it was in relation to her children. At another, she suggested she was raising awareness generally, to protect other children in the community. When asked to consider the impact on the children, she said that she did it on a day when she knew that the father and children would be in Melbourne (they were there to see Mr U for the Family Report) and anyway, the children could not be identified. She was either dishonest, or had no insight at all as to the potential embarrassment for the children in having personal family issues displayed in public, and their bodies on show, including J’s genital area.

89. The mother seemed non-plussed by the Department’s concern about this incident, a concern shared by all the experts in this case. When DHS retained the photo-boards, the mother simply said she could make more. And she did. I accept Ms PL’s evidence that the mother also threatened to put the photos on “Youtube”.

90. The mother’s desire to air family issues publicly has also been clear in the past. For example, at one point after separation, she circulated a letter in the community where she made nasty allegations about the father which, although no names were mentioned, obviously referred to him. Again, the mother showed no contrition, and no insight about the potential embarrassment and upset to the children.

91. I am satisfied that the children do not face the risks in the father’s care as the mother claims. But the father’s concern that the children are being emotionally abused in the mother’s care is well-founded on all the evidence, and supported in particular by DHS, Dr E, the Family Report, and ultimately the late evidence of Dr F as well.

92. I turn now to the additional considerations set out in s 60CC of the Act.

(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;

93. Each child told Mr U that they wanted to stay with their mother.

94. As to M, Mr U reported:

• Regarding both parents, [M] presented a rather positive view of his mother stating that she plays with him, is good with computer games and there was nothing he did not like or wished was different. As to his father, [M] was unsure about any positive attributes, but did not like feeding the animals.
• [M] stated that he did not like visiting his father because of the bruises he receives from falling down and the puppy scratching him. He was unable to identify where upon himself he was bruised. He said his father used to yell at him, but he was unable to elaborate or further explain what happens if he is disciplined at his father’s home. However, [M] stated that he would like to stay living with his mother because she has games to play and he is unsure if his father has any of the same games. [M] added that he becomes angry if someone plays with his games. He said that he does not want to see his father, but was unclear why.

95. In relation to J, Mr U noted:

• [J] is nine years old and in grade four at school. This Family Consultant experienced considerable difficulty understanding [J] due to limited language skills. He vacillated between clear and virtually incomprehensible babble all within the same sentence.
• [J] indicated that his mother told him he can stay wherever he wants and therefore he wants to live with his mother. [J] said that it was bad to visit his father because he feels sad. He appeared to imply that he gets into trouble whilst at his father’s house, but was unclear as to what he did wrong, how he was disciplined or what in fact actually occurs.
• Due to [J’s] language difficulties, this Family Consultant attempted to utilise non-verbal means of communication in an attempt to elicit his views, but such were also unsuccessful, save to say that he indicated feeling happy at his mother and sad at his father’s home. [J] was unable to elaborate why or explain any of his views.

96. Mr U made the following observations of C:

• [C] is seven years old and in grade two at school. She was somewhat unclear as to why she was attending upon this Family Consultant.
• [C] stated that she lives with her mother and two brothers, but had a more limited understanding of when she spends time with her father. At home she sleeps with either her mother or her brothers because she gets scared; she never sleeps by herself. When she spends time with her father, she said he tries to make her sleep by herself and she gets scared, but her teddy bear is not much help.
• [C] understood there were differences between both parents and stated that her father will not let her where [sic] her glasses, he has dogs at his home and there are not many toys at his house.
• [C] said that whilst spending time with her father she enjoys, skipping and watching television, but she did not like that the dogs scratch her, when she goes to the dairy or when she gets in trouble and her father yells at her. She said sometimes she gets a whack on her legs with her father’s hand when she is naughty and she feels sad because it hurts.
• [C] stated that she does, “Not much like to visit dad because of all the bad stuff”. When asked to elaborate she said there are no oranges for orange drink, she is given food which she does not like and her father does not give her chocolate, chips or oranges. She also indicated that she does not know why her father would not give her chocolate all the time. [C] added that it would be good to live with her mother most of the time and bad to live with her father.
• When using pictures to represent her feelings, [C] chose the sad face to indicate how she felt whilst spending time with her father. She then chose a happy face to represent how she feels whilst living with her mother because she is provided with the food she likes, toys and sometimes has take-away.

97. Having noted what the children said, Mr U went on to say that it was “somewhat difficult to clearly elicit the children’s individual views.” He said:

…[M] made mention of being bruised from falling down and the puppy scratching him and that he would like to remain living with his mother because of the games she has in her home. Due to [J’s] language difficulties his views were difficult to ascertain. [C] noted that she is physically disciplined whilst spending time with her father, but her preference to remain living with her mother appears to be based upon the greater availability of junk food.

98. The children’s views are an important consideration for me. However, I must weigh those expressed views with all the evidence. In doing so, I shall take into account that in a carefully worded and detailed report, and one which showed a full appreciation of the complexities of this matter, Mr U concluded that, despite the children’s expressed views to him (and to others, including Ms D), they should not be relocated to O with their mother, and in any event they should move to live primarily with their father.

(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);

99. The views expressed by the children suggest they love and have a strong attachment to their mother. She has been their primary care-giver. In the early years after separation they spent most of their time with her.

100. The accounts vary as to why the father was not spending regular and consistent times with them. I accept his version as the more accurate, that the mother made it difficult for him to see them. His strong desire to spend more time with the children has been evident at least from the time he brought the issue before the court in 2005. That runs counter to the mother’s claim that he has shown little interest in them. In addition, of the two parents, he has exhibited more willingness to encourage the children’s relationship with the other parent. The mother’s conduct is inconsistent with a willingness to encourage a relationship with their father.

101. Mr U’s observation of the children with their father was very positive. Mr U noted the boys appeared “very excited” when they saw their father. They spoke with him about what they had been doing.

102. Mr U said it was of particular note that the children “appeared far more relaxed, quiet and not so agitated”, compared to when he observed them with their mother.

103. C initiated playing a board game with her father. The father impressively engaged all three children to play together. He and the children played together calmly. The children’s behaviour was significantly better with their father than their mother and according to Mr U, they appeared to maintain a positive relationship “and strong bond” with their father. The father’s friend, Mr PS, made similar observations of the relationship.

104. Ms D also made positive observations. When she gave evidence with all the experts on 31 October 2008, she had not yet met the father nor seen the children with him. When she gave further evidence on 30 November 2008, she reported that, when brought in by their father shortly before then, the children were content to play in the waiting room, while she spoke with him. She described his manner with the children as “brusque but not unloving” and that the children “appeared happy in his presence”.

(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;

105. I have already noted that of the parents’ conflicting accounts as to the father’s level of and desire for involvement with the children this far, I prefer the father’s account. In every respect he impressed me as a straightforward, honest, person. He was not caught out as being dishonest at any time in the course of his evidence.

106. Although the father’s frustration with the mother’s behaviour was obvious, he gave no indication that he was trying to be destructive of her relationship with the children. In expressing a concern that the mother’s time with the children should be supervised in the short term, he quite reasonably referred to their safety, and his concern that she is manipulating them into serious allegations against him. His emphasis appeared to be on his concern for the children arising from those allegations, rather than his own irritation or any desire for revenge.

107. It is obvious that the mother is undermining the relationship between the father and children. Dr E could not be certain whether she was delusional, or being vexatious. In any event, she is the author of the majority of the complaints against the father to DHS: complaints that have not been substantiated. When DHS took action in the Children’s Court in early 2008, it was because of protective concerns of emotional abuse of the children in the mother’s care. Although the children were ultimately left with her, her complaints about the father have since escalated, such that even Dr F, the psychiatrist who had given a report favourable to the mother in the Children’s Court, is now expressing “great concern” about the mother and her “pre-occupation”. She described her as “verging on delusional beliefs”.

108. Although the mother bears no onus to prove a compelling reason to move, her motives in seeking to relocate the children are relevant to an assessment of her willingness to facilitate a relationship with their father.

109. The mother would say that her proposed relocation of the children is simply motivated by where the best services exist for them. I do not accept that. When the case started before me in early September, she was proposing for that reason to take them to S. By late October, her plan had changed to a relocation further away, to O.

110. She had offered no substantial details as to the services in S, and more recently she has offered no details as to the superior services in O. In fact, several times she told me it was because there were better adult services there, for when the time came that the children needed them. Her plans to relocate the children are quite under-developed. She could not even say with certainty when she would move to O. Nor could she give details of house prices, for example. She had made no enquiries.

111. Although I accept that there must be burdensome financial and other struggles for carers, potentially the more so in rural areas, when I look at the array and the calibre of the experts currently attending these children, overall I am very impressed. In fairness, I am impressed that the mother has been able to locate and arrange them. I am impressed that the father has participated in, and supported the process. And I am impressed by most of the experts, in particular Dr G and Dr N, the specialist paediatricians, who made it clear that the children were receiving appropriate services where they are now located. They were outstanding witnesses. I accept their evidence unreservedly. It put a lie to the mother’s claim that the children must move away in order to access appropriate services.

112. It is not to say that there has not been, or will not be, some deficiencies in funding, or the availability of some specialist services as and when they are needed, but the evidence failed to satisfy me that it would be any different in O. Moreover, the mother was dismissive of the fact that there would be many changes for the children if relocated, even though in other respects she emphasised the need for consistency for them. She skated over the fact that Dr N, the children’s treating paediatrician, whom both parents trust, would no longer be involved, and that the children would need to start over with a raft of new expert helpers.

113. Finally, the mother’s evidence as to how the children could spend time with their father if they lived six hours’ away, was unimpressive. She blithely said they could see him “weekly if necessary”. She spoke about “encouraging” the children to use public transport. She started talking about the hope that there could be a “consensus” between the parents so long as they could agree on “systems to protect the children at all times”.

114. None of this was realistic. Her thinking on how and when the children would see their father was quite undeveloped, and out of touch with how that had proceeded this far, or how much it would cost, or how the children would cope with long hours of travel. I fear that probably reflects the value that the mother puts on the children’s relationship with their father, and it is very low. It also raised the spectre that she had not genuinely turned her mind to the mechanics of the children spending time with him, as she is unlikely to facilitate or comply with any regime in that respect.

115. Dr E’s opinion, in his psychiatric assessment of the mother, was that in attempting to relocate, she was attempting to “wrest control of the children from the father.” I agree. It seems she is actively seeking to undermine and interrupt their relationship.

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

116. There is no doubt that a move from their mother’s home to their father’s, and a significant reduction in the time they spend with their mother, would be a very substantial change for these children. That said, the mother’s proposal for the children to move to the O area with her would also involve dramatic and substantial change for them. In that instance they would be in unfamiliar surroundings, away from their father, their schools, their friends, and the extensive network of professionals who care for them, and with whom they and the family have built relationships.

117. When asked whether, arising from their disorders, these children have a particular need for consistency and routine, Dr G answered (transcript 31 October 2008, p 24):

Yes and no, I think is the answer to that question. Yes because all the standard developmental and educational management advice say that because these people have difficulties with understanding the world around them and are confused by change, then one of the most important things in management is consistency, adherence to routine. The no is that I don’t believe that should be a barrier to any decision that you might make about these children living in different places at different times.

118. Dr G said that as long as there was a routine, the children would adjust to it.

119. The mother has said that the children are close to their half-brother L. He was not a witness. Apart from the evidence about his questioning of them during the recent January 2009 holidays, I heard very little of his involvement with them. He is 21 and has not been living with them. In the circumstances, I cannot regard his involvement, or any changes to it, as a significant factor.

120. In reaching the difficult decision about the children’s best interests into the future, I will need to weigh up the effects of the respective changes, against the benefits to them.

(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;

121. Obviously if the parents continue to reside two kilometres from each other in H, there will be no geographical difficulty for the children regularly seeing each parent.

122. If they live with the mother in O, an expensive and long six-hour trip, or 12-hour return trip, would seriously interrupt the relationship between the children and their father.

123. If the time the children spend with their mother is supervised, it could involve expense, although the father is not opposed to supervision by appropriate friends. Still, any need for supervisors is likely to reduce the opportunity for the children to spend substantial time with their mother. That is an important consideration.

(f) the capacity of:
(i) each of the child’s parents; and
(ii) 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:
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

124. When the case first started before me in September 2008, the mother told me that the father himself suffered an autism spectrum disorder. She diagnosed it “probably as Asperger’s Syndrome”. Sadly, she has not wavered from that view, despite the evidence of Dr E, the independent expert called upon to perform a psychiatric assessment of both parents for this case, the evidence of Dr F, the psychiatrist employed by DHS to assess the family, an earlier report from psychologist Mr P, and the recent report of the Family Report writer.

125. At page 6 of his report, Dr E wrote:

In regard to [the father], she [the mother] remains adamantly of the view that he suffers from Aspergers’ Syndrome and is still of that view. She has researched this subject widely and regards herself as well informed as a result of experience with her own children and research and discussion with various Specialists. By way of her support of her belief that [the father] suffers from Asperger’s, she indicated that he has a passion for dogs, is inept and rigid, and can’t change to meet the children’s needs. He is a person who is beyond reason, has no compassion and can only do one thing at a time such as feed the dogs but not look after the children simultaneously, that he can’t work with anyone or do things at the time they are needed to be done. He can’t maintain eye contact and finally, the only way that the diagnosis can be fully established is by way of a cognitive assessment.

126. Dr E went on to note that he did indicate to the mother that in his professional opinion the father did not suffer from Asperger’s Syndrome, and that no other experts or mental health professionals that he was aware of had formed the view that he did. He noted:

…[The mother] nonetheless remained adamant of the view that in fact he does suffer from that disorder. Her opinion in that respect remains fixed and unwavering.

127. In evidence before me, the mother maintained, in that fixed and unwavering way, that Dr E’s diagnosis could not be complete because he had not completed the “WPPSI” testing on the father. She spoke authoritatively about the eight scales that require testing, and why it was an important “diagnostic tool”. I accept Dr E’s very clear professional opinion that there was no clinical basis for any such testing.

128. Dr F also assessed the father. She noted that:

… I did not find evidence to support a diagnosis of autistic spectrum in [the father], …
But the mother seemed to overlook that, in favour of Dr F’s notation:
…that an accurate diagnosis requires input from other sources and requires a developmental history.

129. Similarly, although Dr F’s evidence on 31 October 2008 (transcript p 50) was:

… I didn’t see anything to suggest that [the father] had an autistic spectrum disorder, …
The mother emphasised that Dr F had added:
… although I have to say I did not use any of the standardised tests. This was not a full assessment for an autistic spectrum disorder. This was a clinical opinion, and there are measures that we can use but that involves a much longer assessment that can’t be done in my rooms.

130. In her evidence, Dr F made it very plain that there was no need for testing as there was simply no clinical basis of concern as to the father’s mental health.

131. I listened to the father giving evidence and being questioned over an extensive period. I was impressed by his calm, lucid, and assured approach to the questions. Every aspect of his behaviour and demeanour was appropriate to the situation. There was nothing in his presentation that concerned me.

132. The mother’s insistence that the father “has a problem” remains current. In her recent notes to DHS, on 12 January 2009, she referred to the children attending the taping of a television show with their father. It is a talent quest, in which he performed. She described him as not getting through to the next round, being angry, and saying, “I was going to be a winner – now I’m going to be a loser”. She posits the view that his attitude exhibits “more rejection victim identity”. The father was recalled to give evidence about this and the other recent allegations. As to the show, he said in fact he did get through to the next round. I believe him. It highlights the concerns about the mother’s mental health and/or motivation.

133. In the same notes to DHS, the mother again raised the broader issue of the father’s mental health. She wrote:

Check out Fantasy, Borderline personality disorder, persecution, victim Identity, schizophrenia (not believing the facts regardless of an abundance [sic] creditable professional evidence – also on spectrum).

134. Ironically, despite the fact that she refers to “not believing the facts regardless of an abundance [of] creditable professional evidence”, by the time she again expressed these concerns about the father, there had already been an abundance of credible professional evidence that the father did not suffer from any form of autism, Asperger’s Syndrome, or mental health problems.

135. I am satisfied from all the evidence that the father has sound mental health and capacity. I am satisfied that he has no health issues that would interfere with his capacity to care for the children. I am alarmed by the mother’s inability to acknowledge his capacity, and her inability to heed the weight of expert evidence. It supports serious concerns about her, not him. It casts doubt not only on her capacity or willingness to facilitate the relationship between the father and children, but also as to her own capacity and insight in parenting them.

136. I have no doubt that the mother dearly loves her three children. She is someone who has obviously been through a great deal, having lost a son at 16, in tragic circumstances. To have two other sons with an autistic spectrum disorder with some significant disabilities, and then a daughter with Asperger’s Syndrome, to be separated, to have handled many of the early years of their care almost single-handedly, to be strapped for cash, and in a rural community, has no doubt presented profound challenges to her. She is not someone who has simply sat back. She has tried enormously hard to garner every possible service for the children and it is to her credit that she has sought out the best for them. As I have noted, the raft of experts around them was for the most part impressive.

137. As I have also already noted, the two specialist paediatricians, Dr G and Dr N, were especially impressive. There seems to be agreement on that. I place great emphasis on their evidence. They were balanced. They were not partisan in any way. They seemed to be particularly astute in trying to avoid unnecessary damage to either parent or their relationship with either parent, in the way they gave their evidence. Nevertheless, their evidence gave me some fundamental insights into the children’s needs.

138. Each paediatrician spoke very clearly about the need to emphasise the children’s abilities, not just their disabilities. Dr G, a paediatrician recognised for his particular expertise in autism said:

… First of all …all children with disabilities ought to be valued for what they are, and … the emphasis should be on enabling them to have the opportunities to participate in the full range of activities that are available to all other children. That includes things like family life, stability of home, shelter, going to school, recreational activities, friendships, all of that sort of stuff; the opportunity to dream about what they might do with their future…

139. Dr N, who has treated the children off and on since 2002, and primarily since 2007, cautioned against what he called “over-therapising”, that is, occupying a child’s whole day with various interventions that do not allow them to just be children. He emphasised the need for a “balanced overall plan” but not overdoing therapy with them. He said they needed time – “just to be”.

140. There was telling evidence as to how differently the children presented with each parent in the following paragraphs of the Family Report (on p.20), supported by observations of Ms D:

v. The observed interactions between both parents and the children were quite remarkable. Whilst both parents appeared capable of caring for and providing for the children, their style was quite different and resulted in very different behaviours from the three children. [The mother] appeared to be as very busy mother and attended to all of the children’s individual needs in a rather anxious and agitated, but functional manner. This resulted in the children themselves been [sic] quite over-excited. When this Family Consultant observed the children with [the mother] they wore their special classes [sic] and ID cards around their necks and looked different than average children.

vi. The observed interactions between [the father] and the children were very different. Is [sic] important to know what [sic] that [the father] brought all three children to attend upon this Family Consultant without [the mother]. None of the children wore their special classes [sic] or ID cards. [The father] had a very relaxed and calm manner about himself as he interacted with the children throughout the interview day. The children’s demeanour was more relaxed, clam and peaceful. During clinical observations [the father] was able to engage all three children to play a board game together as a family. There was no protest or objection by any of the children to their father’s request and they stopped their individual activities to play together…

141. Importantly, Mr U then noted:

… With the greatest of respect towards both parents, the children looked more disabled in appearance and behaviour whilst with [the mother] than [the father].

142. The mother has consistently complained that the father does not accept the experts’ diagnosis of the children’s respective disabilities. In fairness to her, when the case first started before me, I was concerned that the father understated those disabilities. However, as the case proceeded, my concern receded. Once I was exposed to the detail of the evidence, it became clear that overall the father did acknowledge, understand, and accommodate, the children’s disabilities.

143. I base that finding on what he said, but most particularly on the evidence of the experts and educators involved with these children. Overall, they were complimentary of both parents, and of the efforts they make for their children. The few experts who could not offer a complimentary comment about the father, primarily Ms BD the speech pathologist, and Ms BK the occupational therapist, had mostly dealt directly with the mother and not the father.

144. The psychologist Ms D did say she was concerned that the father still underestimates the children’s difficulties. However, she formed that view, first, because she understood he intended to send the boys to “a normal school”. Further questioning elicited that Ms D had been told that by the mother. It is untrue.

145. Otherwise, Ms D was worried that the father had said J, who has a severe language difficulty, “just needed to try a little harder”, and at one point he drew an analogy to training dogs. At the same time, she was also worried that the mother over-estimates the children’s disabilities, that she “over-pathologises” them, particularly C, whom she classes with the boys, when her level of impairment is significantly lower.

146. I am satisfied that the father has at times understated the degree of the children’s disabilities. That seems to be for three main reasons. The first is that he does in any event have a rather laconic and understated manner. The second is that he genuinely tries to emphasise the children’s abilities rather than their disabilities. The third and paramount reason seems to be that he reacts to what he perceives as the mother’s over-emphasis, over-statement, and almost hysteria, about and pre-occupation with, the children’s disabilities. His perceptions in that regard are well-founded on all the evidence.

147. I am confident that nevertheless the father has demonstrated that he will accept advice as to the children’s treatment. I was particularly impressed that although he had not been in favour of sending the boys to a specialist school, he participated in the conference at which that decision was reached. He has abided the decision, and he has fully supported the children and cooperated with the specialist school as well as his school of preference, H Primary.

148. The evidence supports Ms D’s concern that the mother “over-pathologises” the children, to the children’s disadvantage, particularly C who is substantially less disabled than her brothers. I accept Mr U’s evidence, the DHS evidence, the evidence of H Primary School, and the father’s evidence in this regard.

149. The difference in the children’s physical presentation, as well as their behaviour with each of their parents is stark. And although the mother is no doubt doing what she thinks best, she is extreme in her responses. For example, when at one point she was advised that the children would benefit from swimming lessons, she removed them from regular schooling for very substantial parts of each week to travel and spend substantial times in the pool. The father managed to arrange time in the pool without the children missing large blocks of lessons, school routine, and time to be with their peer groups.

150. I am not suggesting that the children, particularly the boys, do not have substantial special needs. Nowhere is it more obvious than when it comes to J’s speech. According to all the evidence, he is quite hard to understand. I am satisfied though that the right experts are in place for the children. However, I rely more heavily on the evidence of the paediatricians, for their overall views and expertise, than for example the occupational therapist or speech pathologist, who have their own expert but far narrower views. I found them more rigid in their attachment to particular therapies. On the other hand, the experience and wisdom of the paediatricians was such that they exhibited more flexibility as to how treatment could be approached.

151. I note Dr N’s prescient warning that the children need to be “protected from the conflict”. It was his opinion that whatever happened, there ought to be an understanding that the children needed to be spared that involvement. Both paediatricians spoke of the importance of a “normal” childhood for the children. The evidence points not only to a lack of protection from conflict in their mother’s home, but in fact specific immersion in conflict that is depriving the children of a “normal” childhood.

152. As to education, Dr G is strongly in favour of mainstream schooling for autistic children, if possible. Dr F expresses a contrary view. That difference between the experts reflects the difference between the parents’ views too. I respect the experts’ differing opinions and am satisfied that there are genuine and arguable views on the topic.

153. What is important is that both schools are offering a caring and appropriate setting for the children, and presently there is an impressive co-operation between the schools, and with the various services assisting the children. That the boys currently attend a specialist school on a day when the speech pathologist is not available to them is a pity, but cannot in itself be a decisive factor in this complex case. The schooling arrangements are likely to change for the boys, and one way or another they are exposed to the various therapists. I have already noted that what is also important is that, despite the father’s views that the children should be in mainstream schooling, when he participated in a conference with all the relevant experts, he not only agreed to some specialist schooling, but he has participated fully and co-operatively since then.

154. As there will be a need to make changes as the children themselves grow and change, the challenge is to find an arrangement that will ensure that changes can be made for the children, and major decisions arrived at, without the children being exposed to further conflict, or disadvantaged by indecision or fights. I shall return to that challenge below.

155. To summarise the vast amount of medical evidence, or to distil it, I observe that each parent responds differently to the children’s medical and allied needs. In a sense, their different styles could provide balance. But, as the paediatricians underlined, I must look at the children as children, not just disabled children. In this case it is the broader context of parenting, and its impact on the children – not just the medical and treatment issues – that loom very large.

(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;

156. Any aspect of this consideration which is relevant is considered under other headings.

(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;

157. This aspect is not relevant.

(j) any family violence involving the child or a member of the child’s family;
(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;

158. I have dealt with the broad topic of risk, above.

(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;

159. These children face so many challenges, they do not need the added burden of on-going litigation. Unfortunately that has been a central feature of their young lives. Although it is difficult to make precise predictions when dealing with children and families, the frailties of human nature, and the general vagaries of life, it is my hope that the orders I will make will give the children as much opportunity as possible to lead their lives free of on-going court battles.

CONCLUSION

160. The first decision for me is whether there should be equal shared parental responsibility for these children. In this case, the presumption of equal shared parental responsibility does not apply, given my finding that there are reasonable grounds to believe that the mother is psychologically abusing the children by her insistent questioning and scrutiny, and her repeated unfounded allegations against the father of sexual and physical abuse, neglect and cruel mistreatment.

161. I accept the expert evidence, particularly of Dr E and Mr U, which raises the spectre that the mother’s attitude in this regard, however else it is described, involves some sort of delusional disorder.

162. I am satisfied that it is in the children’s best interests to move to live with their father. I am satisfied that he is capable of caring well for them. That finding is supported by the evidence that the children appear to relate happily with him, and present in a markedly different, and apparently less disabled and/or agitated manner when they are in his care. I have significantly more confidence too that it is their father, not their mother, who has the capacity and willingness to encourage the children’s relationship with the other parent. A symptom of her incapacity was her ill-considered proposal to relocate the children a very long way away from their father.

163. I arrive at this decision taking into account the significant change that it will be for the children, and that it is contrary to the expressed views, at least of the boys. Having watched and listened to the parents over an extended period, and having seen that the mother’s unassailable views about the father’s abuse of the children, and his mental illness have escalated rather than eased, I see no other way to protect the children.

164. This leads me to the very difficult issue of the responsibility for medical and educational decisions. The complexity was highlighted by the Family Report writer, who changed his mind between his November 2008 Report and his evidence a few months’ later.

165. In his report, Mr U had concluded that there could be significant benefit in the mother maintaining responsibility for organising all of the children’s various medical needs and therapy appointments. He suggested that the children’s treating paediatrician could then assist both parents as to whether particular interventions were necessary. As to education, he proposed that the children continue as now, with reviews from time to time, the parents being strongly encouraged to consider the recommendations of the educational facilities.

166. In his evidence, Mr U recognised that the mother’s mental state was such that his proposal was really unworkable.

167. It is a sad conclusion that I am not able to entrust the decisions about the children’s on-going needs to their mother. Although in the past she has organised the full range of specialists, and is to be congratulated for the paediatricians she has located, her current mental health and behaviour is such that there can be no confidence that the children will be allowed to rest or get on with their lives, without either being over-therapised by her, or taken to various experts still in the hope of proving abuse by their father.

168. I have already observed the father’s potential to under-treat, as noted in his response to J’s speech therapy. What the father has shown however, is a genuine willingness to follow the advice of the experts, and I am satisfied that he will continue to do so.

169. In relation to the medical treatment and allied therapy for the children, I propose an order in line with the ICL’s proposal that the parents consult specialist paediatrician Dr N, and follow all recommendations made by him. Similarly, I accept the ICL’s proposal for the children to continue at their present schools, and for the parents to consult the principals on an annual basis, and to follow the recommendations made by them.

170. I also accept the ICL’s proposal that if the mother fails to follow any recommendations made by the children’s treating paediatrician or schools, the father shall have the sole responsibility for implementing those recommendations. It is probably as practical and reasonable an order as can be arrived at in these difficult circumstances. The need to avoid uncertainty, and future litigation and conflict, is very important.

171. The remaining profoundly difficult issue relates to the mother’s time to be spent with the children. I am conscious how important they are to her. I am conscious how important she is to them, and that they must be cushioned as much as possible from the significant change that this change in residence will necessarily bring about.

172. I have heard the expert evidence of the risks to the children if the mother were to have unsupervised time with the children, in the short term. In response to the concern expressed by Dr E, Mr U, Dr F and Ms PL, that if this case “went against her”, the mother could harm herself or the children, she cogently argued that there was nothing to suggest that she ever had or ever would harm her children. That aspect of the evidence was really referring to physical harm. Its possibility or likelihood is one about which I need not make any definitive finding, because in any event, there is an obvious concern of on-going emotional abuse. I accept that the risks for the children are likely to be heightened in the emotional context of a change in residence. Accordingly I conclude, in accordance with the proposal of the father and the ICL, there should be a period during which the mother’s time with the children shall be fully supervised.

173. The ICL proposed a period of three months. The father proposed a period of six months. It is a difficult balancing exercise, but I adopt the longer period proposed by the father. I am aware that the mother’s time with the children will be significantly limited by the availability of an appropriate supervisor. Although I would like that to be for a shorter than longer time, the reasons dictating such supervision, realistically, are likely to prevail for more than 12 weeks. These children need the maximum protection until the new living arrangements have settled.

174. One of the most vexing issues in this case is as to whether to make an order for the mother to undergo therapy. At one point, Dr E raised the prospect of an order for therapy being made if the mother was to spend time with the children. Although his evidence was that she would require therapy long-term, up to one or two years, he suggested that her time with the children need only be supervised in the short-term, to cover the immediate sense of loss she might feel with the children’s change of residence.

175. In their final submissions, neither the husband nor the ICL sought an order for the mother’s time with the children to be conditional upon her undertaking therapy.

176. The husband did not seek any order at all for therapy. The ICL however did propose that at the same time as the supervised contact, the mother should commence treatment, and that there should be a report to the ICL at the end of the six months’ supervision as to the mother’s progress. There was no suggestion though that either her supervised or unsupervised time should be conditional upon such treatment or therapy or the outcome of the report.

177. I see a number of problems with an order for therapy in this case.

178. First, I do not have the power to make an order for a parent to undertake therapy, unless it is a condition to a parenting order. See the Full Court’s decision in L & T [1999] FamCA 1699; (1999) FLC 92-875.

179. Secondly, if I were to make therapy a pre-condition to the mother’s supervised time with the children, their time with her would inevitably be delayed while it is put in place, potentially for a long time, if as is likely, she refuses to, or cannot comply. The children need to see their mother. They will have the safety net of supervision. It would be contrary to their best interests to make orders that would have them changing residence and not seeing their mother.

180. I have considered whether I should make the mother’s unsupervised time with the children conditional upon on-going therapy. I conclude that it is simply untenable as it cannot be policed in a regular or meaningful way for the long time-frame required. That is probably why it was not proposed by the other parties.

181. However, it is my ardent hope that the mother will either continue to see her counsellor Ms JJ, or undertake the long-term therapy envisaged by Dr E. She requires it for her sake, and the sake of her children. She must maximise the chance of her time with the children being successfully maintained in the future. The greatest motivation for her is that if she seeks help, and finds good health, she can continue her important role in her children’s lives. Without that help, and if there is a continuation of her unfounded allegations against the father, the case may return to court and the time she can spend with the children could be in jeopardy.

182. As to the proposed supervisors, as the parties could not give definitive answers about who they may be, I appreciate and adopt the ICL’s proposal that she will stay involved, in order to oversee those arrangements. I agree with the ICL that I cannot order a specific time or times for the supervised contact. It will be subject to the constraints of individuals or centres to act as supervisors. I shall order that it is to occur at least once per week for two hours, but it is my hope that the mother can spend time with the children twice per week and hopefully for longer than two hours. It would benefit the children to have that frequency of time with her, if it can be arranged.

183. As to other fine details of the mother’s time with the children, I have followed the ICL’s proposal, and added some detail in an effort to cover all that is needed. The parties will be invited to address me further about the detail, before the final form of the orders is set.

ORDERS

184. The orders I propose, subject to submissions as to form, are as follows:

185. That all previous orders in relation to the children M born … January 1998, J born … February 1999 and C born … February 2001 shall be discharged.

186. That the children shall live with the father.

187. That the mother shall spend time with the children supervised by a person or Contact Centre nominated by the Independent Children’s Lawyer at times and places suitable to the supervisor but not less than once per week for two hours for a period of six months.

188. That at the expiration of the six months referred to in paragraph 3 of these orders, the mother shall spend time with the children:
(a) Each alternate week from the conclusion of school on Thursday until the commencement of school on Monday, or Tuesday if the Monday is a public holiday;
(b) Half of all school holidays as agreed, and in the absence of agreement, the first half;
(c) On Mother’s Day from 9.00am to 5.00pm if it falls on the father’s week-end;
(d) For two hours on each child’s and the mother’s birthday if they fall in the father’s time; and
(e) For four hours on Christmas Day if it falls in the father’s time.

189. That the father shall have the children in his care:
(a) On Father’s Day from 9.00am to 5.00pm if it falls on the mother’s week-end;
(b) For two hours on each child’s and the father’s birthday if they fall in the mother’s time; and
(c) For four hours on Christmas Day if it falls within the mother’s time.

190. That for the purposes of the mother spending time with the children, where pick up and drop off does not take place at school, the change-overs shall occur outside the H milk bar.

191. That the mother is hereby restrained from relocating the children from H.

192. That the mother shall be and is hereby restrained from attending at the father’s property and/or parking on any of the roads abutting the father’s property.

193. That the father and mother shall consult Dr N in relation to the children’s medical and developmental needs and follow all recommendations made by Dr N.

194. That in 2009 M and J shall continue to attend H Primary School and S Special School on a shared basis as recommended by the schools, and that C shall continue to attend H Primary School full-time, and that the mother and father shall consult the principals of the schools annually and follow all recommendations made by the schools as to which school and/or schools each child shall attend.

195. That the mother and father shall ensure that the children continue to receive the services currently engaged for them and any other or additional services recommended by the children’s treating paediatrician and schools.

196. That if the mother fails to follow any recommendations made by the children’s treating paediatrician and schools, the father shall have sole responsibility for implementing those recommendations.

197. That the appointment of the Independent Children’s Lawyer shall be discharged at the expiration of six months.

198. That pursuant to s 65DA and s 62B, 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.

199. That the husband’s application shall otherwise be dismissed and removed from the list of cases awaiting finalisation.

200. That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

I certify that the preceding one hundred & eighty-four (184) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate:

Date: 26 February 2009

 

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Merton & Merton[2007] FamCA 264 (20 February 2007)Last Updated: 21 May 2007

FAMILY COURT OF AUSTRALIA

MERTON & MERTON	[2007] FamCA 264
FAMILY LAW – PROPERTY SETTLEMENT – Complex litigation adjusted under contest in the Long Defended List – Practical resolution in the circumstances

APPLICANT:	Mr Merton
RESPONDENT:	Mrs Merton

FILE NUMBER:	DGF		258		of		2005
DATE DELIVERED:		20 February 2007

PLACE DELIVERED:	Melbourne
JUDGMENT OF:	Guest J

HEARING DATE:

19, 20 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Whitchurch
SOLICITOR FOR THE APPLICANT:	Perry Weston

COUNSEL FOR THE RESPONDENT:	Mr Ramsay
SOLICITOR FOR THE RESPONDENT:	Oakleys White

ORDERS

(1) That the Husband pay to the Wife the sum of $255,000 (“the payment”) as follows:

(a) $127,500 within or upon the expiration of 20 April 2007.

(b) The balance being $127,500 within or upon the expiration of 20 August 2007.

(2) That contemporaneously with the payment:

(a) The Wife remove the caveat she has placed on “the real property” being the former matrimonial home and farm at W registered in the name of the Husband at her expense upon payment of the first instalment referred to in paragraph 1(a) therein.

(b) The Husband indemnify the Wife against all payments and liability pursuant to the mortgage registered to R Company (“the mortgage”), the loan from the Husband’s father and the Commonwealth Bank overdraft and all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.

(3) That in the event that any of the payments that are not made in accordance with these orders then the Husband sign all documents and do all things necessary to transfer to the Wife the real property to be held on trust for sale (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:

(a) first to pay all costs, commissions and expenses of the sale;

(b) secondly to discharge the mortgage and any other encumbrance affecting the real property;

(c) thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 11% per annum adjusted monthly from the date to the Wife;

(d) fourthly the balance to the Husband.

(4) That the Husband indemnify the Wife against all liabilities relating to the former partnership businesses conducted by the Husband and Wife including any tax liability.

(5) That pending the payment or completion of the sale:

(a) the Husband have the sole right to occupy the real property and that during such right of occupation the Husband pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;

(b) the parties hold their respective interest in the real property upon trust pursuant to these orders; and

(c) neither party encumber the real property without the consent in writing of the other party.

(6) That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

(a) each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders the livestock, the plant, the furniture, personal possessions, and the like chattels in the real property being deemed to be in the possession of the parties respectively;

(b) each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

(c) insurance policies remain the sole property of the owner named thereon;

(d) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;

(e) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

(7) That the applications of the Husband and the Wife respectively filed on the 24^th day of March 2005 and on the 22^nd April 2005 be otherwise dismissed.

IT IS CERTIFIED

(8) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

IT IS DIRECTED

(9) That all property/maintenance issues be removed from the Pending Cases List.

(10) That the Minutes of Consent Orders remain on the Court file.

(11) That the solicitor for the Husband file 3 clean copies of these Orders within 7 days.

THE COURT NOTES:

That the parties intend these orders shall as far as practicable finally determine the financial (and other) relationships between them and avoid further proceedings between them.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 258 of 2005

Mr Merton

Applicant

And

Mrs Merton

Respondent

REASONS FOR JUDGMENT

1. This matter has continued before me in the Long Defended List. The welfare matters were adjusted yesterday and very much so to the credit of both the husband and the wife. The issue of property was considered this morning and I was in a position to address both counsel in the presence of their clients and to provide a preliminary view. [See Johnson v Johnson (2000) 201 CLR 488]

2. I understand the position that was advanced by each of the husband and the wife. It is plain to me why the proceedings progressed to the litigation phase as each of them had polarised views of their respective entitlements. They have now been adjusted. I am very familiar with the whole of the facts and circumstances underpinning the property aspect and that of contributions pursuant to s 79(4)(a) to (c) and s 75(2) of the Family Law Act (1975) (as amended).

3. There is available to the court and to the practitioners by way of broad analysis a range in which just and equitable orders are made in cases such as this. It is within the umbrella of that range that negotiations take place. I would estimate that neither the husband nor the wife will be greatly enamoured with the adjustment. However, it is in my view a just and equitable arrangement that sits seamlessly within the provisions of the Family Law Act to which I have just referred.

4. There are obligations on judges of this court to be satisfied that orders are just and equitable, notwithstanding that they are made by consent. Given my knowledge of the factual matrix underpinning these orders I am so satisfied. In the circumstances I mark the Minute of Consent Orders Exhibit “B”.

5. The parties came to this court in heated dispute. Their case had the capacity to run five and longer days. In my view, had they contested all issues I would estimate that it would have gone on into next week, with collateral damage to the future. They are out of this court in two days. They have the capacity now to get on with their lives. I do congratulate the parties on having the strength and the dignity in coming to this arrangement. I appreciate that in situations like this you can never really achieve the perfect solution.

6. I am confident that within a reasonably short period of time both parties will come to appreciate that it is the best result that could be achieved in the circumstances. Significantly, it has enabled both of them to get on with their lives. This is what they must do.

7. The parties are, in my view, to be heartily congratulated on achieving this result and much credit goes to their strength of character and to the professional representation each had in Court. I wish them both the best for future.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate:

Date: 28 March 2007.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MERTON & MERTON

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Merton & Merton [2007] FamCA 281 (19 February 2007)

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Merton & Merton [2007] FamCA 281 (19 February 2007) Last Updated: 23 May 2007

 

FAMILY COURT OF AUSTRALIA

MERTON & MERTON	[2007] FamCA 281
FAMILY LAW – CHILDREN – Complex application in Long Defended List – Resolved between the parties and consent orders made – Emphasis given to role each party to play in the children’s lives.

S 60CA; s 60CC(1); s 60B Family Law Amendment (Shared Parental Responsibility) Act 2006

Johnson v Johnson (2000) 201 CLR 488

APPLICANT:	Mr Merton
RESPONDENT:	Mrs Merton

INDEPENDENT CHILDREN’S LAWYER:
FILE NUMBER:	DGF		258		of		2005

DATE DELIVERED:	19 February 2007
PLACE DELIVERED:	Melbourne

JUDGMENT OF:	Guest J
HEARING DATE:	19 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Whitchurch
SOLICITOR FOR THE APPLICANT:	Perry Weston

COUNSEL FOR THE RESPONDENT:	Mr Ramsay
SOLICITOR FOR THE RESPONDENT:	Oakleys White

INDEPENDENT CHILDREN’S LAWYER COUNSEL:	Mr Eidelson
INDEPENDENT CHILDREN’S LAWYER SOLICITOR:	Cathleen Corridon

 

ORDERS

(1) That the children of marriage an elder son born in January 1998, a younger son born in February 1999 and a daughter born in February 2001 live with the Wife.

(2) That the Wife and Husband share the parental responsibility for the said children.

(3) That the Husband spend time with and communicate with the children as follows:

(a) in each alternate week from Wednesday at the break up of school until the following Monday at the start of school, commencing 14 March 2007.

(b) for one half of each school term holiday failing agreement, the first half, to commence from school break up on the last day of term until 5.00pm on the second Saturday of the term holidays.

(c) for one half of the summer holidays, to be spent in non-consecutive periods of one week.

(d) at Christmas, from 10.00am on 24 December 2007 until 10.00am on 25 December 2007, and from 10.00am on 25 December 2008 until 10.00am on 26 December 2008 and each alternate year thereafter.

(e) on Father’s Day from 10.00am until the start of school on Monday, and in the event that the Husband’s contact herein occurs on Mother’s Day weekend, then his contact shall be suspended from 10.00am on same day.

(f) such other contact as the parties may agree upon in writing.

(4) (a) that the Husband shall be available to care for the children during the periods which are stipulated herein for him to spend time with them.

(b) in the event the Husband is not available to care for the children pursuant to Paragraph 4(a), then the children remain the Wife’s care.

(5) That the Husband and Wife shall liaise with and consult with any medical or mental health expert or practitioner that the children regularly attend upon in relation to their:

(a) general health

(b) autism spectrum disorder

(c) intellectual disability

and comply with, to the best of their abilities in a consistent way, any treatment regime or management regime which is recommended save that any recommended medicine or vitamin regime is strictly complied with.

(6) That the Husband and Wife shall ensure that the children are at all times transported in a vehicle, which properly accommodates all three children.

(7) That pursuant to s.65DA(2) and s.62B, 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 the 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 wherever possible each of the Husband and Wife equally contribute towards the costs of the children’s

(a) medications

(b) therapy as required, including consultation with treating medical and other practitioners.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 258 of 2005

Mr Merton

Applicant

And

Mrs Merton

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter comes before me in the Long Defended List of Cases. It has been in the List for some time now and involves both child welfare and property matters. The proceedings commenced this morning, with Mr Whitchurch appearing on behalf of the husband, Mr Ramsey for the wife and Mr Eidelson on behalf of the Independent Children’s Lawyer. All counsel have worked industriously and presented Minutes of Consent Child Welfare Orders which I mark Exhibit “A”.

2. By way of short background, the husband was born in April 1960 and is 46 years of age. The wife was born in September 1960 and is also 46 years of age. They were married in December 1997 and following unhappy differences, separated in October 2003. There are three children of their union, an elder son, who was born in January 1998; a younger son, born in February 1999, and a daughter, who was born in February 2001.

3. I have had the advantage of reading Case Outline Documents provided on behalf of each of the parties detailing their respective arguments. I have also had the advantage of reading their helpful trial affidavits and the various affidavits relied upon by them. In addition, and significantly, I have read the documents filed on behalf of the Independent Children’s Lawyer, being the affidavit of Dr E filed 17 May 2006, Dr G, filed 8 November 2006, and that of Mr P, psychologist, filed on 11 January 2006.

4. The parties have adjusted the proceedings, despite what could be said to have been allegations and counter-allegations that may, if litigated, have brought into stark relief a very serious situation between them. I was able to address the parties this morning under the umbrella of Johnson v Johnson (2000) 201 CLR 488 as to the advantages of resolution and how that can work to the advantage of the three children. This, they have done.

5. The principles governing the child welfare jurisdiction are now set out in the Family Law Amendment (Shared Parental Responsibility) Act 2006. In considering these consent orders, I must regard the best interests of the children as the paramount consideration. See s 60CA of the Act. In determining what is in the children’s best interests, I have to consider those other matters set out in s 60CC(1) of the Act which are described as “primary” considerations and “additional” considerations.

6. The primary considerations are important. The first is the benefit to the three children of having a meaningful relationship with both of their parents. The second is the need to protect the children from physical or psychological harm from, being subjected to or exposed to abuse, neglect or family violence.

7. The Act indicates that these considerations are to be considered as having importance. They are described as “primary”, and as a note to s 60CC points out, are consistent with the first two objects of Part VII of the Family Law Act 1975 (as amended), set out in s 60B. Those objects, which I have explained to the parties this morning, ensure that the best interests of the children are met by having the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and to protect them from physical or psychological harm.

8. I also pointed out this morning that the principles underlying the Family Law Act 1975 emphasise that children have the “right to know and be cared for” by both their parents and have a “right to spend time on a regular basis” with and communicate with them on a regular basis. I further emphasise the fact that both the husband and the wife “jointly share duties and responsibilities” concerning the care, welfare and development of their children and they should, where possible, “agree on their future parenting”.

9. In my view, the parties are to be congratulated in coming to this agreement. I suspect, from what has been a pretty turbulent avenue down which they have travelled in the litigation pathway, they have come to a resolution now, with the assistance of the Independent Children’s Lawyer that can only work to the best interests of their children.

10. The orders are clear and it is my expectation that the future for these three children will be a positive one. They are going to have the benefit of both their parents and I expect, although it will not be easy, I suspect, that in the future there will be cooperation and mutual trust between the two of them.

11. With such a result, I have no doubt whatsoever that the children will prosper. They have certain difficulties, expressed in the reports filed on behalf of the Independent Children’s Lawyer, of which both parents are intimately concerned. I congratulate them on having the commonsense, the dignity and the determination to come to this arrangement. I certainly wish them both the best in the future.

12. I make orders in terms of Exhibit “A” and I direct the solicitors for the husband to engross the orders.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate:

Date: 28 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MERTON & MERTON

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