Abney and Paris - [2013] FMCAfam 7

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ABNEY & PARIS

[2013] FMCAfam 7

FAMILY LAW – Parenting – live with and spend time with – competing applications – independent children’s lawyer – best interests of children – consideration of equal shared parental responsibility – circumstances to rebut presumption of equal shared parental responsibility – objects and principles – significance of relationship with siblings – significance of religion and competing positions – capacity of each parent to provide and care for children – stability of settled circumstances of each parent – ability and willingness to foster a relationship with other parent.

Family Law Act 1975 (Cth), ss.4, 60B(1) and (2) 60CA, 60CC, 61B, 61C, 61D(1) and (2), 61DA, 65DAC, 65DAE

Lansa & Clovelly [2010] FamCA 80,
AIF v AMS (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Chappell and Chappell (2008) FLC 93-382

Applicant:

MR ABNEY

Respondent:

MS PARIS

File Number:

SYC 5110 of 2011

Judgment of:

Coker FM

Hearing dates:

23 & 24 August 2012

Date of Last Submission:

29 October 2012

Delivered at:

Townsville

Delivered on:

15 January 2013

REPRESENTATION

Counsel for the Applicant:

Mr Wong

Solicitor for the Applicant:

Samaan & Associates

Counsel for the Respondent:

Mr Jackson

Solicitor for the Respondent:

Batey’s Family Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Guterres

Independent Children’s Lawyer:

Legal Aid NSW

ORDERS

That all previous parenting orders be discharged.
The Father have sole parental responsibility for the major long term decisions regarding the children, [X] born [in] 2007 and [Y] born [in] 2008, subject to the communication and notification of such decisions to the Mother, including but not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
Notwithstanding the provisions of Order 2:
(a)The Father be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.
(b)The Mother be responsible for the daily care and welfare of the children when they are living with or spending time with her.
The Father shall consult with the Mother about matters which affect the children’s long term upbringing including their health, education, religion and development and shall take into account the Mother’s views prior to making such decisions.
The children live with the Father.
The children spend time with Mother at all reasonable times as may be agreed and in particular:
(a)Until the commencement of the school year in 2014, on a fortnightly cycle during the gazetted school term as follows:
(i)In the first week of each term, from the conclusion of school/preschool on Friday until Sunday 6pm and in each alternate week thereafter;
(ii)In the second week of each term, from the conclusion of school/preschool on Thursday until commencement of school/preschool on Friday morning and in each alternate week thereafter;
(iii)In the event that the day of collection falls on a public holiday or non-school day, then such time shall commence at the conclusion of school/preschool on the preceding day and in the event of the day of return falling on a public holiday or non-school day, then such time shall conclude at 6pm.
(b)From the commencement of the school year 2014, on a fortnightly cycle during the gazetted school term as follows:
(i)In the first week of each term, from the conclusion of school/preschool on Friday until the commencement of school/preschool on Monday and in each alternate week thereafter;
(ii)In the second week of each term, from the conclusion of school/preschool on Wednesday until the commencement of school/preschool on Friday and in each alternate week ;
(iii)In the event that the day of collection falls on a public holiday or non-school day, then such time shall commence at the conclusion of school/preschool on the preceding day and in the event of the day of return falling on a public holiday or non-school day, then such time shall conclude at 6pm.
(c)During all gazetted school holidays commencing from the end of Term 1 in 2013, unless otherwise agreed, for one half of the school holiday periods following Terms 1, 2, 3 and 4, being the first half in even numbered years and the second half in odd numbered years.
(d)In the event of the parties being in the same locality on Christmas Day and on Easter day, then the parent not having the children in their care at that time, spend time with the children at times to be agreed between the parties in writing and failing agreement from 9.00am until 2.00pm on that day.
For the purposes of defining the first and second half of gazetted school holiday periods the following apply:
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:
(a)The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Saturday;
(b)The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday following the Easter public holidays to 6.00pm on the Sunday preceding the recommencement of school;
(c)The Easter long weekend, should it stand alone, shall be exercised in accordance with the existing weekend Orders;
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:
(d)The first half of a gazetted end of Term 1, 2 and 3 school holidays shall be from 5.00pm on the Friday which follows or is the last day of school to 6.00pm on the Saturday of the middle weekend of such holiday period;
(e)the second half of a gazetted end of Term 1, 2 and 3 school holidays commences at 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;
(f)the first half of the gazetted Christmas school holiday period commences at 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;
(g)the second half of the gazetted Christmas school holiday period commences at 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.
In addition to times provided, should the children not be in Mother’s care on the children’s birthdays, the Mother’s birthday and the grandparent’s birthdays, the Mother spend time with the children as follows:
(a)If a school day, from after school to 6.00pm;
(b)If a non-school day, from 2.00pm to 6.00pm.
Notwithstanding orders 6 and 8 herein, should the children not be in the Father’s care on the children’s birthdays, the Father’s birthday, Ms K’s birthday and their sibling’s birthdays, the Father spend time with the children:
(a)If a school day, from after school to 6.00pm;
(b)If a non-school day, from 2.00pm to 6.00pm.
Should the children not be in the care of the Father on Father’s Day or the Mother on Mother’s Day, then in that event the children spend time with the Father or the Mother on that specific weekend and shall spend time with the other parent on the next weekend, following which the rotation pursuant to these Orders shall resume.
Nothing in these orders shall prevent the Mother from allowing the children to continue to spend overnight periods with her parents, or to seek their support in her discharge of her responsibilities under these orders.
For the purposes of the handovers, unless otherwise agreed between the parties:
(a)All changeovers shall take place at the school/preschool and if not a school/preschool day, then they shall take place at the front entrance to the [P] Community Centre located at [address omitted], [P] (“the PCC”); and
(b)Each party shall be at liberty to appoint delegated member/s of their family as their nominee to attend changeovers on their behalf and will notify the other parent in writing of who their nominees may be.
The parent not having the children in their care have the opportunity to communicate with the children by phone at all reasonable times as may be agreed and in particular each Wednesday and Saturday between 6.00pm and 6.30pm, with the parent not having the children in their care to be responsible for making the call and the parent having the children in their care to ensure they are available to take the call in a quiet and private environment.
Both parents shall be entitled to attend all school events and functions, and schooling and extracurricular events attended by the children which parents are normally entitled to attend.
The Father shall provide the children’s schools and preschools with a written authorisation to provide the Mother with copies of all reports, photographs and any other documents. In the event that the school or daycare indicates it is unable to facilitate this request, the Father is to provide the Mother with copies of those items.
The Father shall provide each of the children’s treating doctors with a written authorisation to provide the Mother with information and copies of all reports as requested. In the event that the doctor indicates s/he is unable to facilitate this request, the Father is to provide the Mother with the requested information/documentation.
Each party shall ensure that they provide the other parent with their residential address, email address and contact telephone number, and notify the other parent within 7 days of any change to any such information.
Each parent is restrained from making critical or derogatory remarks in relation to the other parent in the presence or hearing of either child, and each party shall do all things necessary to ensure that no other person makes critical comments about the other party in the presence or hearing of either child.
Each party is restrained from interrogating the children regarding the other party’s household, or permitting any third person to do so.
Each party is restrained from using any form of physical discipline against either child, or permitting any third party to do so.
The Mother or those on her behalf, are restrained from seeking to impart religious instruction to the children other than in the Muslim faith and that neither parent shall make comments to the children critical of the other parent’s religion.
Each parent shall attend a Post Separation Parenting Course, and for the purpose of this order shall within fourteen (14) days contact the Case Manager of Keeping Kids in Mind on telephone 1800 554646 to arrange an intake appointment, and thereafter shall cooperate by attending any further appointments as recommended by Keeping Kids in Mind programme in order to complete the Course.
The parties shall communicate by email regarding non-urgent matters, and by text message in respect of urgent matters, in respect of these orders or the children’s welfare.
The Australian Federal Police are hereby authorised and requested to remove the names of both children from the Airport Watch List.
The Independent Children’s Lawyer be discharged.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT TOWNSVILLE

SYC 5110 of 2011

MR ABNEY

Applicant

And

MS PARIS

Respondent

REASONS FOR JUDGMENT

These proceedings relate to orders sought with regard to the parenting of two children, [X] born [in] 2007 and [Y] born [in] 2008. The children are the children of Mr Abney, whom I shall refer to as the father, and Ms Paris, whom I shall refer to as the mother.
This matter was commenced by an initiating application filed by the father on 23 August 2011 when he sought orders in relation to parenting of fairly short compass. The orders propose that there should be equal shared parental responsibility, with the children to live with the mother and the father each week on the basis of living with the mother from 9.00am Sunday until 6.00pm Wednesday, and with the father from 6.00pm Wednesday until 9.00am Sunday, and as might otherwise be agreed between the parties.
The father’s proposals also related to changeovers being effected at the McDonald’s Family Restaurant [address omitted], [P], as well as the orders that are normally considered appropriate by parties, including orders with regard to notifications of change of address, non-denigration of each parent by the other parent, in the presence of the children, as well as notice being given in relation to any injury to the children.
The father, having obviously some concerns in relation to the possibility of the children being removed from the jurisdiction, though it is a little unclear as to how such concerns might have arisen, also sought orders with regard to a restraint being placed upon the removal of the children from the Commonwealth of Australia and additionally sought that there should be an Airport Watch listing of the children’s names with the Australian Federal Police.
The mother responded to that application in due course and what unfortunately seems to have ensued from there is a multitude of applications relating to interim arrangements in relation to the parenting of the children. The father’s application of 23 August 2011 resulted in an order being made on 24 August 2011 dismissing an application for review. Then on 8 November 2011, orders were made in relation to equal shared parental responsibility and for the children to live with the mother and spend time with the father. From there, further orders were sought and in fact a Notice of Appeal was filed, along with an application in a case.
What I note in relation to this matter is that there appears to have been a somewhat turbulent history since the initiation of proceedings by the father in August of 2011. Unfortunately, it remains the case that the parties are unable to resolve as between themselves, arrangements with regard to parenting and the matter was heard over a number of days so as to provide a basis upon which the orders that each party sought could be made.

THE APPLICATIONS

The father’s proposed orders were contained within the draft of final orders, which were handed up on the first day of hearing, 20 August 2012. The terms of those orders were as follows:
1.That all previous parenting orders be discharged.
2.That the Father have sole parental responsibility for [X] born [in] 2007 (aged 5); and [Y] born [in] 2008 (aged 3) (“the Children”).
3.That the Children live with the Father.
4.That the Children spend time with the Mother as follows:
a. each alternate weekend from 5pm Friday until 5pm Sunday;
b. such other times as agreed.
5. That for the purposes of facilitating the time in paragraph 4, the Father shall deliver the Children to the nominee of the Mother at the front entrance to the [P] Community Centre located at [address omitted], [P] (“the PCC”) at the commencement of the said time and the Mother shall cause her nominee to deliver the Children to the Father at the PCC at the conclusion of the said time.
6. That the children shall communicate by telephone with the parent whom the children are not otherwise living with, each Saturday from 5:00pm-6:30pm, and for the purpose of this order:
a.the parent whom the children are not otherwise living with may telephone the children on a number nominated by the parent with whom the Children are living or spending time with; and
b.the parent with whom the Children are living or spending time with shall ensure that the children are available to receive the call.
7. That each party shall ensure that, as and when required, that he or she authorise the school or schools, which the children may attend from time-to-time, to provide all documentation and information typically available to a parent.
8. That each party be restrained from using any form of physical discipline in relation the Children.
9. That, subject to Order 2, each of the Children be enrolled and shall attend [W] school.
The mother also detailed in her material the proposals that she had in relation to the parenting of the children in her Case Outline and those orders were as follows:
1. That the Respondent Mother (“Ms Paris”) has the sole parental responsibility for the Children [X] born [in] 2007 and [Y] born [in] 2008 (“the Children”).
(a)That Ms Paris consults with the Applicant Father (“Mr Abney”) prior to making any decision regarding the Children’s long term care, welfare and development and considers Mr Abney’s views before making any such decision.
2. That the children live with the Respondent Mother (“Ms Paris”).
3. That the Children spend time with Mr Abney:
(a)     From the date of these Orders until 1^st February 2013:
(i)Commencing the first Saturday after the date of this order and continuing every alternate weekend thereafter, from 10am Saturday until 5pm Sunday.
(b)     From the 1^st February 2012 (sic) thereafter:
(i)From the conclusion of school/pre-school Friday until the commencement of school/pre-school Monday.
(ii)In the event of a public holiday or other non-school day on the Friday then the time shall commence at 10am. In the event of a public holiday or other non-school day on the Monday then the time shall conclude at 5pm.
(iii)For half of all school holiday periods in each calendar year as agreed between the parties and failing agreement:
(A)In the first half of the June/July and September/October school holidays; and
(B)In the second half of the December/January and March/April school holidays.
(C)The times in Order 3(b)(i) and (ii) is suspended during school holiday times from the day after the last scheduled day of school and recommencing on the first weekend after school resumes.
(iv)On Father’s Day when the Children would not otherwise be spending time with Mr Abney from 5pm the Saturday night immediately before Father’s Day until the commencement of school or 9am on the Monday.
(v) On Eid Al-Fitr and Eid Al-Adha:
(A)Where those festivals fall on non-school days where the Children would not otherwise be spending time with Mr Abney, from 10am on the first day of the festival until 6pm on the last day of the festival (3 days).
(B)Where those festivals fall on school days and the weekend festivals fall on a weekend where the Children would not otherwise be spending time with Mr Abney, from the conclusion of school or 3pm Friday until the commencement of school or 9am Monday.
(vi)    At other times as agreed between the parties.
4. Mr Abney’s time with the Children is suspended:
(a)On Mother’s Day when the Children would not otherwise be in the care of Ms Paris from 5pm the Saturday night immediately before Mothers Day until the commencement of school or 9am on the Monday.
(b)In each calendar year from 10am Christmas Eve until 6pm Boxing Day.
5. For the purposes of changeovers, where the Children’s school is not available, then Ms Paris or her parents and Mr Abney shall meet at Woolworths [omitted] at the commencement and conclusion of Mr Abney’s time with the Children.
6. Each parent ensure that the attend changeovers on time, and ensure that only civilised and positive communication in the presence and/or hearing of the Children takes place.
7. Each parent is restrained from:
(a)Interrogating the Children in relation to the other parent’s household;
(b)Discussing the Children’s living arrangements with them;
(c)Making any negative comment about the other parent or the other parent’s family in the presence and/or hearing of the Children;
(d)Forcing [Y] into wearing the headdress of the Muslim faith against [Y]’s wishes; and
(e)     Physically disciplining the Children.
8. That Mr Abney is restrained from causing or allowing [Y]’s hair to be cut.
9. That in the event of a medical or other emergency involving the Children or a member of the Children’s immediate family, the parent with the care of the Children notifies the other parent as soon as possible of the nature of the emergency and the location of the Children and the name of any treating medical officer. Such notice should be provided as quickly as possible, but in any event, no later than 1 hour within such an emergency occurring.
10.That the parties communicate in relation to the children only and that such communication shall take place via text message or email.
11.That both parents do all acts and things and sign all consents necessary to ensure that either parent can obtain information from the Children’s school and medical practitioners in regards to the Children’s progress, diagnoses and treatment.
12.Both parents are entitled to attend all school functions and events and all sporting and extra curricular activities undertaken by the Children, where it would usually be expected that parents attend such functions, events and activities.
NOTATION:
1. For the purposes of school holiday changeovers the midpoint of the school holidays shall be:
(a)In the March/April, June/July and September/October school holidays the Saturday of the middle weekend; and
(b)In the December/January school holidays the 10^th January.

Because of issues of complexity that arose in relation to the matter, steps were taken early with regard to the appointment of an independent children’s lawyer, and the independent children’s lawyer indicated at the commencement of the proceedings that they were not in a position to advise of proposed orders. After evidence was heard over a period of some four days, however, the independent children’s lawyer, in written submissions provided in relation to the matter, detailed the orders that were proposed by them in relation to the parenting of the children. Those orders were as follows:
1. The mother Ms Paris shall have sole parental responsibility for the children [X] (male) born [in] 2007 (aged 5) and [Y] (female) born [in] 2008 (aged 4) (“the children”).
2. The mother shall consult with the father about matters which affect the children’s long term upbringing including their health education and development as follows:
2.1The mother shall be responsible for notifying the father in writing at least 28 days in advance of any decision she proposes to make which affects the children’s long term upbringing including their health education and development;
2.2The father shall be at liberty to respond to the mother in writing within 14 days setting out his views regarding the proposed decision; and
2.3The mother shall take into account the father’s views when making such decision.
3. Each parent shall be at liberty to impart religious instruction at their discretion to the children when the children are in their care, provided that neither parent shall in any way make critical comments to the children about the other parent’s religion.
4. Subject to order 5, the children shall live with their mother.
5. Nothing in these orders shall prevent the mother from allowing the children to continue to spend overnight periods with her parents, or to seek their support in her discharge of her responsibilities under these orders.
6. Until the commencement of the school year in 2014, the children shall spend time with their father on a fortnightly cycle as follows:
6.1In week one, from the conclusion of school/preschool on Friday until Sunday 5pm,
6.2In week two, from the conclusion of school/preschool on Thursday until commencement of school/preschool on Friday morning;
6.3In the event that in week one the Friday falls on a public holiday or non-school day, then such time shall commence at the conclusion of school/preschool on Thursday.
7. From the commencement of the school year 2014, the children shall spend time with their father as follows:
7.1 During school terms, on a fortnightly cycle as follows:
7.1.1In week one, from the conclusion of school/preschool on Friday until the commencement of school on Monday;
7.1.2In week two, from the conclusion of school/preschool on Thursday until the commencement of school on Friday;
7.1.3 And in week one:
(a)In the event that the time starts on a Friday which is a public holiday or non-school day, then such time shall commence at the conclusion of school/preschool on Thursday, and
(b)In the event that the time concludes on a Monday which is a public holiday or non-school day, such time shall conclude at the commencement of school on Tuesday.
7.2During school holidays as follows unless otherwise agreed:
7.2.1For one week in each of the school holiday periods following Terms 1, 2 and 3, on dates to be agreed between the parties, and failing agreement, for the first week of the holiday, and
7.2.2For three one-week blocks in the school holidays following Term 4, on dates to be agreed between the parties and failing agreement, in the first, third and fifth week of the school holidays; and
7.2.3For the purposes of this Order, school holiday periods are deemed to commence on the last day of the school term, and to conclude at 6pm on the evening before school resumes.:
8. In addition to the time set out herein, the following spend time arrangements shall also take place on special occasions as follows:
8.1On Eid Al-Fitr and Eid Al-Adha each year for a period of two nights and three days, provided that:
8.1.1If such festival commences on a non-school/preschool day, then such time shall commence at 10am on the first day of that festival
8.1.2If such festival commences on a preschool/school day, then such time shall commence at the conclusion of school;
8.1.3Such time shall conclude at 6pm on the third day of the festival.
8.2If not already a weekend on which the children see their father, then the children shall spend time with the father on the Father’s Day weekend each year from 5pm Saturday until the commencement of school on Monday morning.
8.3The children shall not spend time with their father on the Mother’s Day weekend each year, but shall spend time with him the following weekend instead.
9. For the purposes of Orders 6-8 unless otherwise agreed between the parties:
9.1the father shall be responsible for delivering and collecting the children to and from preschool/school if applicable, and
9.2otherwise all changeovers shall take place at Woolworths [omitted], and
9.3each party shall be at liberty to appoint delegated member/s of their family to attend changeovers on their behalf.
10.Both parents shall be entitled to attend all school events and functions, and schooling and extracurricular events attended by the children which parents are normally entitled to attend.
11.Neither party shall alter the children’s place of residence outside the Sydney Metropolitan area without written consent of the other party, or leave of the Court.
12.Each parent shall ensure that the other parent is advised as soon as practicable of:
(a) Medical problems or illnesses suffered by either child whilst in that parent’s care including any hospital admission or other injury;
(b) Any medication prescribed for either child;
(c) Any social school or religious functions which either child is to attend; and
(d) any other matter relevant to the welfare of either child.
13.Each party shall ensure that they provide the other parent with their residential address, email address and contact telephone number, and notify the other parent within 7 days of any change to any such information.
14.The mother shall provide the children’s schools and preschools with a written authorisation to provide the father with copies of all reports, photographs and any other documents. In the event that the school or daycare indicates it is unable to facilitate this request, the mother is to provide the father with copies of those items.
15.The mother shall provide each of the children’s treating doctors with a written authorisation to provide the father with information and copies of all reports as requested. In the event that the doctor indicates s/he is unable to facilitate this request, the mother is to provide the father with the requested information/documentation.
16.Each parent is restrained from making critical or derogatory remarks in relation to the other parent in the presence or hearing of either child, and each party shall do all things necessary to ensure that no other person makes critical comments about the other party in the presence or hearing of either child.
17.Each party is restrained from interrogating the children regarding the other party’s household, or permitting any third person to do so.
18.Each parent shall attend a Post Separation Parenting Course, and for the purpose of this order shall within fourteen (14) days contact the Case Manager of Keeping Kids in Mind on telephone 1800 554646 to arrange an intake appointment, and thereafter shall cooperate by attending any further appointments as recommended by Keeping Kids in Mind programme in order to complete the Course.
19.The mother shall attend upon clinical psychologist, Mr L, for treatment in relation to adjustment disorder until such time as he advises the mother no longer requires treatment and the mother shall comply with all recommendations made by him in relation to treatment and attendance.
20.The parties shall communicate by email regarding non-urgent matters, and by text message in respect of urgent matters, in respect of these orders or the children’s welfare.
21.Each party is restrained from using any form of physical discipline against either child, or permitting any third party to do so.
22.The Australian Federal Police are hereby authorised and requested to remove the names of both children from the Airport Watch List.
Notation
A. The Court notes that the children currently spend several nights per week at the home of the maternal grandparents and that children will transition to the mother’s full time care at a time to be determined by the mother and the maternal grandparents.

THE EVIDENCE

Obviously, there is a significant divergence therefore between what is proposed by the father in relation to the parenting of these two young children and what the mother proposes, which proposals are to a significant degree, supported by the independent children’s lawyer. Each party called a number of witnesses in relation to the proceedings. The primary evidence, of course, comes from the parties and I must say, to a lesser but significant degree, from the report writer, Ms M. Her report dated 13 August 2012 and released on that day was relied upon by both parties, in relation to their position in respect of this matter.
Before turning to the evidence of Ms M and the parties themselves, it is important however that I should note further evidence that was sought to be relied upon in relation to these proceedings. In particular, the father sought to rely upon the evidence of his former wife, with whom he has resumed a relationship, as well as upon the evidence of his adult daughter, Ms H.
For the mother, her psychologist Mr L was called to give evidence, as was the maternal grandmother, Ms P. Each of those persons, though less significant in relation to final determination than the parents themselves, gave evidence which provided assistance in respect of this matter.
The first of those was Ms K. Ms K is the wife of the father in these proceedings, though it would appear that there was acknowledged to have been an Islamic divorce effected between the father and his former wife, prior to his marriage to the mother in these proceedings. Ms K affirmed her affidavit of 26 July 2012 and with the assistance of an interpreter, provided evidence in relation to this matter.
I must say that I thought Ms K a generally impressive witness and one who was genuinely concerned with the welfare and the best interests of the two children, the subject of these proceedings. I note that in that regard, the report writer also had the opportunity of speaking with

Ms K and at paragraph 32 noted as follows:
Ms K (the father’s wife) presents as being a warm, child-friendly person who is supportive of her husband. She views [X] and [Y] as loving her and she said that she loves them “like my kids”. She described herself as “living for” her children.
That assessment by Ms M, I thought, accurately reflects my assessment in relation to Ms K. She was clearly supportive of the father in these proceedings and recognised the hurt that she says the father suffered as a result of the breakdown of the relationship with the mother and in particular, the consequential times that he spent without the children in his care, or even an opportunity for interaction with them. She spoke of the father’s continued interaction with the children of their relationship following separation in 2006, prior to the religious marriage effected between the mother and the father, but noted that subsequent to separation, the father maintained significant contact between himself and the children of their relationship, he being as

Ms H indicated a father determined to remain in the children’s lives.
Ms K spoke of her support for the father in the care of the children the subject of these proceedings, and I certainly accept that that was the case.
It was clear that there was some degree of hostility between Ms K and the mother, but that is perhaps understandable in light of the family dynamics that existed at the time of Ms K’s separation from the father and the mother’s religious marriage to the father. The parties lived in close proximity to each other and it was perhaps understandable that there would be certain difficulties in their interaction with one another, though the impression that I gained was that Ms K attempted to provide for a balanced relationship between she and the mother, and in particular recognised the importance to the two young children, the subject of these proceedings, in having a relationship with their older siblings of the marriage between the father and Ms K.
Ms K was asked about her knowledge of the father’s relationship with the mother and in particular her knowledge of the father’s admission to hospital in September of 2010. I thought Ms K was a little defensive in that regard, indicating that she had known that the father had been admitted to hospital at that time but did not know what it was for, other than that he had indicated to her that he was not well.
I would have thought that Ms K would have made more enquiry than that, and I suspect that she knew more of the father’s possible attempt at suicide than what she let on in evidence given in relation to this matter. That however, again, is perhaps reflective of her protective nature, both for the children as well as the father and a desire to separate her relationship with the father from the consequences of the relationship between the father and the mother.
In any event, Ms K was generally impressive, certainly in respect of issues with regard to her support of the father and his continued relationship with the children the subject of these proceedings, as well as, I would think, enormously forgiving in light of the hurt that must obviously have been caused to her as a result of the breakdown of her relationship in 2006 with the father and his subsequent marriage to the mother in these proceedings.
That is not to say, as I have indicated, that there could not be improvements in respect of the dealings particularly between Ms K and the mother and there certainly appears to have been at least one occasion where there was a verbal if not physical altercation between Ms K and the mother, which did neither party any great credit.
I was generally impressed with Ms K however and as I noted previously, the report writer also commented favourably about Ms K and commented in a similar manner in her oral evidence, given in relation to this matter.
As indicated I also had the opportunity to see the father’s oldest daughter, Ms H and to see and hear her evidence taken, in relation to this matter. Ms H was an impressive young woman. She dressed in the manner traditional of a Muslim woman, though I got the distinct impression that there was a girlishness about her as well as a recognition of the importance of family to Ms H.
Ms H is a student and therefore had obvious opportunities to be available for interaction with her younger siblings, [X] and [Y]. She appears to have had quite significant interaction with them and has been involved in various ways in the care of the children, including it would seem on occasions, when requested by the mother to provide assistance. Ms H indicated that she had not discussed the proceedings with her father and did seem a little vague as to what her understanding of the father’s proposals might be, in relation to for the care of the children.
She was asked, for example, why the matter was before the court and she indicated that it was for the children and when asked to indicate what her father wanted in relation to the children, put it in the most simple of terms when stating that he simply wanted the children to be with him, because they were not being cared for by the mother. It seemed a rather simplistic stance in relation to the matter, but by the same token, I would accept that it was a situation where Ms H had not really discussed her father’s position in relation to these two younger children to any real extent, other than to indicate that he wished, for what he considered to be legitimate and proper reasons, for the children to live with him.
Ms H noted that there were occasions where she and her 14 year old sister had taken on a more responsible role in relation to the care of the children and in fact noted that there appears to have been at least one occasion where, in July of 2012, her sister took [Y] to the doctor because neither she, nor her mother Ms K, or the father were available to provide assistance. It would seem however, that such arrangements were made in conjunction with discussions with the father and Ms K and I accept that the involvement of teenage siblings in providing some assistance and care in relation to the children when they were to be notionally in the care of the father is neither unreasonable or untoward.
I was generally impressed by Ms H as a caring daughter and older sister to the children, the subject of these proceedings and noted, as did the report writer, that there appeared to be a real closeness between the family of the father, including subsequently the two children the subject of these proceedings.
I also had the opportunity to consider the evidence of the maternal grandmother, as well as the evidence of the mother’s psychologist,

Mr L. Before turning to Mr L however, I note that the maternal grandmother, Ms Paris, was significantly involved in the care of the children and in providing assistance to the mother in that regard, and that it appears, as was also noted by Ms M, that the maternal grandmother and maternal grandfather, though I did not have the opportunity to see him, were supportive parents and grandparents, and wanted nothing but the best for their grandchildren, including to provide a settled and stable routine in relation to their grandchildren.
It is noteworthy, and to their great credit, that the grandparents have stepped up to provide assistance to the mother, in circumstances where she was, because of her own emotional state, but no doubt also because of the heavy commitments she had with regard to work, study and parenting, in need of assistance in providing for the children.
Having said that however, there were some issues of concern that I thought arose in relation to the evidence of the maternal grandmother, Ms P. That related particularly to arrangements with regard to day-care and pre-school for the children. It appears clear that arrangements were made for the children to attend a pre-school which was in close proximity to the maternal grandparents’ residence, though not necessarily at all close to either the mother’s or the father’s homes.
The evidence of Ms P in that regard was that the pre-school and day-care were close by, but that she hadn’t consulted with the father about such arrangements, noting that the mother had enrolled the children. It appears clear however that any arrangements that were made in that regard were made by the mother, perhaps in consultation with the grandparents but certainly in consideration of the fact that the grandparents were to play a significant role, in relation to the care and supervision of the children.
Certainly, it appears there was little consideration of such arrangements that might be appropriate with regard to the grandparents involving the father in the decision-making process, or in having him available for the purposes of involving himself more fully in the children’s day-care or educational arrangements.
It was clear also that until April of 2012, when pursuant to orders of Federal Magistrate Sexton, the children were returned to the care of the mother, they had had little if any opportunity in the entirety of their lives to spend overnight time with the maternal grandparents, but that they were almost immediately placed in a situation where the maternal grandparents took the primary role, in relation to the care and supervision of the children. There appears, unfortunately, to have been little if any consultation with the father in relation to such arrangements and certainly no consideration by the grandparents of the need to involve the father in such significant decisions, such as with whom the children might spend the majority of their time.

I gained the distinct impression that whilst Ms P, though I have no doubt also, Mr P, were supportive and caring parents and grandparents, their primary consideration here was to provide support and assistance, understandably to their daughter, but that that had come with a corresponding lack of appreciation of the need to involve the father in the children’s lives.
A number of questions were directed toward Ms P in light of that particular concern and it was noteworthy for example, when asked whether the children experienced any concerns with only spending one Saturday evening a fortnight with their father, when they had prior to the orders of April 2012 been spending significant, if not all the time, with their father, Ms P indicated that they never indicated distress at any times in change-overs with the father and did not appear to seek more time with him.
I thought that a little naïve on the part of Ms P and whilst it may be that the children had little to say, the greater responsibility was to recognise, that even if the children did not verbalise a need or wish to spend more time with the father, it would have been the appropriate step to take.
I was however most impressed with the honesty of Ms P. In particular, she was asked whether it was her intention, along with her husband, to assume the mother’s parental role and her immediate response was to say that that was not the case and that the intent was to help the mother in the situation where they saw her losing her confidence and in need of assistance. It was clear however that the maternal grandparents did not seek a long-term involvement in relation to the parenting of the children, and in fact, when asked by counsel for the independent children’s lawyer whether, if the court thought it might be in the best interests of the children, for the grandparents to have the primary role in relation to the parenting of the children, the response was immediate and to the effect that that was not sought by them, nor were they willing to take that role on.
Rather, Ms P indicated that she was, as she put it, “okay with the children being there”, but she doesn’t want to be a parent again. She was asked whether that meant that she would be agreeable to the children being with her until they were at least in [Y]’s situation, 18 years of age, in other words another 14 or 15 years and she indicated that that was not the case and that she and her husband would be getting close to 80 years of age and that they were not wishing to take on that parenting role.
It was important that that evidence be noted in relation to this matter because it of course was significant both in respect of what might be the “fall-back position” in relation to parenting of the children, if neither parent was seen to be the best person to provide for the children, but it also recognised that the grandparents, whilst providing assistance, did not see that as a situation which could continue indefinitely.
Quite clearly, there needed to be a recognition by the parents, but also by the court of the fact that whatever might have been in place with regard to the parenting of the children since April of 2012, was not a long-term arrangement and certainly not a situation that the maternal grandparents saw as indefinitely remaining effective.
Ms P was also, I thought, most honest in relation to her observations of the father. I gained the distinct impression that whilst they came from different perspectives, in respect of what might be appropriate for the children, there was an over-riding respect that the grandparents had for the father and also that the father had for the maternal grandparents. As such, they were able to maintain communication and contact with each other and it was noteworthy that the father referred to the maternal grandfather only as Mr P and in, I thought, respectful tones.
It was also noteworthy that on an occasion where there was certainly a family gathering of the maternal side of the family and the father attended, when asked whether the father was yelling at the mother, the maternal grandmother quite appropriately indicated that he was not yelling but it was rather the case that his exchange with the mother was strong, intense and loud but not yelling.
It did the maternal grandmother, I thought, great credit that even in the situation of contested proceedings, she could maintain a proper balance in relation to recounting her evidence, in relation to this matter.
I was impressed with the maternal grandmother and by inference the maternal grandfather, and of their desire to be supportive and helpful of the mother in relation to the parenting of these children. In re-examination by counsel for the mother, the grandmother was asked why she and her husband would not want to be the persons responsible for the long-term care of the children. She answered with words to the effect, “because our aim with all children is for the mother to have the dignity of being their mother, otherwise they might be marked as not being a good parent.”
I thought that reflected well upon the maternal grandparents and indicated their clear recognition of the distinction that obviously had to be drawn between two caring and loving parents and the role of caring grandparents. I was impressed by Ms P evidence in relation to this matter and her ability to step up and to provide for the needs of the children.
The mother’s psychologist, Mr L also provided evidence in relation to this particular matter. He was cross-examined at some length by counsel for the father about his assessment of the mother and in particular about his diagnosis in March of 2012 that the mother suffered from an adjustment disorder with mixed anxiety and depression. When asked what he meant by that, he indicated that the mother exhibited symptoms of both anxiety and depression and that it was a little difficult to more fully assess what her exact situation was.
He was asked whether he was aware that the mother was medicated for ADHD and indicated that he did not know that that was the case but had sought to treat the mother as a psychologist in relation to the circumstances, that she had reported to him.
Mr L’s evidence was not of great significance in relation to the final determination of this matter because, whilst he continued to treat the mother, he recognised that there were ongoing needs of the mother for continued treatment. He noted for example that whilst the primary source of anxiety experienced by the mother at the present time related to the court case, it was also recognised by her that there may be other stressors in her life, that would continue anxiety after this case was brought to an end.
In fact, Mr L specifically noted in this report and was asked about the fact that there would be a hope that the end of the case would ameliorate any anxiety experienced by the mother, and he indicated that he hoped that would be the case but was aware of the fact that the mother herself did not think that her anxieties would end. Whether in fact it was the case that the mother thought this would arise because of behaviours of the father or other stressors that might arise in her life was unclear, but what was certainly obvious was that there was no end in sight with regard to the mother’s stressors and consequential anxiety and depression.
I was assisted by the evidence of Mr L.
As I indicated, the evidence from those witnesses to whom I have already made reference was of assistance in relation to this matter but of course the primary witnesses in relation to assisting with relation to the determination of this matter are the parents themselves and to some degree at least, the report writer Ms M.
I had the opportunity of reading the report prepared by Ms M in relation to this matter and also of course to seeing her give evidence. I thought that her evidence in relation to the matter was of particular assistance in relation to the proceedings and, in my assessment, it is important that her comments and recommendations in relation to the matter should be considered, before addressing those issues that arise from the evidence of the parties.
It was noteworthy in particular that Ms M, though having provided a comprehensive report and assessment in relation to this matter, was not in a position where she could make a recommendation. In her report of 13 August 2012, she made the two following recommendations at paragraphs 53 and 54, firstly:
53. It is recommended that sole parental responsibility be given to the parent with whom the Court deems the children should live.
54. It is recommended that, if the parents have not yet done so, they attend a counselling service for assistance with their parenting relationship.
Ms M was asked about that in her evidence before the Court and specifically noted that she felt that she couldn’t give a final recommendation in relation to the matter because, as she put it, “I wasn’t sure what was going on”. She indicated in particular that her difficulties there arose because of concerns with regard to credibility of both witnesses and the truthfulness of the witnesses. She indicated that that stemmed from matters relating to the involvement of the police, the father’s behaviours in recording the mother and his fixation, at least at the time of reporting the matter, relating to the mother’s sexual morals, as well as in respect of the issue of the father’s attempted suicide, though she noted that he had indicated to her, as he indicated to the court, that he was not genuine in that regard.
Interestingly she was asked specifically by counsel for the independent children’s lawyer whether, if it were found that the father had made a real attempt on his life, how that might influence her in relation to any recommendation in this matter, and she indicated that she did not think it would influence her very much and went on specifically to note, words to the effect:
“I thought the father was in the more stable mental state and noted particularly that he was now in a stable relationship with his former wife and that that, along with other stable arrangements in his life, such as his involvement with the children, with work and with the community generally provided a stable base for the father and by extension the children, the subject of these proceedings”.
Ms M was questioned at length about recent developments and in particular, the current arrangements for the children. She commented in respect of that, that she was unable even to get to the bottom of where the children were living and that she was troubled by that. She also noted that the mother had taken appropriate steps to seek assistance from both the father and from the maternal grandparents and that that was a positive, in relation to the mother, though it was also the case that there was a concern as to continuing instability that might arise for the children, if the mother were not able to get her own house in order.
She said on a number of occasions during her evidence, that she thought the father was a very good father. She noted that she was impressed with he and his family and that the primary issues in relation to the determination of this matter from her perspective and she would have thought also from the court’s perspective whether the father could support a respectful and loving relationship with the mother. She indicated, when asked whether she assessed the father as having the capacity to support that type of relationship, that her concern at the present time related to his current attitude to the mother, and whether there had been improvement over what she had seen in interviews in September and October of 2012.
She acknowledged that there were very different perspectives in relation to the matter and that it was clearly a case of the father saying that he had moved forward, while the mother was still gravely concerned that the father would be unable to refrain from providing the children with a damning indication of her and her behaviours. She spoke also of the exchanges between the parents and the effects of that upon each of them and upon the children.
She noted at paragraph 16 of her report that the father had stated that he did not want the children to lose their mother and Ms M commented in relation to that, that she did not think he was lying but rather it was one more layer to be considered in relation to the complex dynamics that arose in relation to this particular case. She was asked whether the father had insight into those complex dynamics and their effect upon the children and she noted in particular that the father, in her assessment, lacked insight as to how his reactions to the mother directly affected the children. By the same token, she noted that the father was a warm personality, a good father, and in her assessment he had a great deal to offer the children.
It only compounded the complexity of the issues that arose in relation to this matter, not the least of which related specifically to the issue of the religious upbringing of the children. The father was noted by

Ms M as a devout Muslim, who practised his religion in accordance with the tenets of his faith and that the mother, having converted to Islam prior to the time that they had formed their relationship, had now reverted to her Christian faith which was practised devoutly by the maternal grandparents, both of whom had in the past, acted as missionaries.
Ms M, in noting that the father had a great deal to offer the children, also spoke favourably of Ms H and the other family members and what they had to offer these children, as well as the very significant acceptance that that entire family unit had provided for the children.
When speaking about the issue of religion, Ms M noted that it was very important and that, as she put it, the father was very invested in it and that it had implications, in relation to the determination of this matter. She noted in her report, for example, that the children would have to “navigate the religions of their parents” and that she, in any assessment that she made, was mindful of competing proposals.
She indicated, for example, that there was a significant consideration arising from the fact that it would appear, at least from the father’s perspective, that he thought that he was marrying a devout young, Islamic woman and that religion was most important to him. If that were the case, then she acknowledged that it would have been at the time that the children were born, a clear intent of both parents that the children should be raised in Islam and that that would be a factor to be considered, in relation to orders with respect to with whom the children lived.
She noted that to be the case here, and said that it simply was one more layer of complexity, in relation to the complicated dynamics of this family unit. Ms M was asked whether it might be appropriate then for there to be an order made, that neither parent or their extended family instruct the children in any religious faith until they were older, and she acknowledged that whilst this may have been a possibility, it was also she thought an improbability, because of the fact that the father and the maternal grandparents practised their faith and from the father’s perspective at least, his family lived as a Muslim family.
It would have been impossible, she thought, and I must say I agree, to think that the father would be able to distance himself from his religion. She was asked by counsel for the father, for example, whether if a person were devoutly religious it would be possible to remove the need to instruct the children in religion, when that faith permeated all their lives. She acknowledged that that would be the case and that it would be, as she said, impossible to instruct a parent, particularly the father in this case not to teach his children about religion, because it was such a fundamental part of the person that he was.
I was minded in that regard to the adage, modified by me here, that “a father or a mother didn’t necessarily teach their children how to be a good person or a religious person but rather let the children observe their practices in that regard”. The impression that I gained of the father and I think was also gained by Ms M was that religion was the centrepiece of his life and it would be, to all intents and purposes, impossible to suggest that he and his family not instruct the children in relation to their faith, because it would form a part of their daily lives.
Ms M was asked by counsel for the father about the father’s behaviours prior to separation and subsequent to separation, including his instructing a private detective to make enquiries about the mother and to set up recording devices in relation to the mother, so as to perhaps catch her out, in relation to issues with regard to her fidelity. Ms M noted that it was not unusual for people at the time of a breakdown in the relationship or in circumstances where they had concerns about their partner to “go a bit crazy and to act in an erratic manner”
She indicated that if a spouse suspected infidelity those suspicions did affect their behaviour in a negative manner and that as long as such behaviours did not continue indefinitely, they were to a significant degree able to be explained by the circumstances, at the time of separation.
Ms M, when asked about those behaviours, was also asked to comment upon the Mother suggesting that she was afraid of the father or suffering anxiety, as a result of interaction with the father but sent an email by the mother to the father, which seemed at least on the face of it, to be a trade off between the time with the children as opposed to the lifting of a caveat, which the father had over property which was owned by the mother.
Ms M acknowledged that there was certainly some concerns in relation to such behaviours, though again erratic behaviour by one parent or the other at the time of the breakdown of a relationship and perhaps trying to leverage children’s issues against property matters, was not an uncommon, though perhaps an unseemly action, on the part of one party or the other.
She was asked to comment upon the assessment that it might be seen as a situation of “high emotion”, and she indicated that in relation to both parents it would clearly be the case that it may take some time to settle down, before parents started to behave in a manner, more typical of their personality. In most instances, circumstances of that nature and erratic behaviours did settle but the issue, as she put it, was the loss particularly experienced by the father here so profound that it does not allow erratic behaviours over time to settle.
It was a matter of some concern to her but by the same token it was clear that the report writer was comforted by a number of the statements which were recounted to her in relation to the father acknowledging that the mother could have other partnerships that she could move forward with her life and that his primary concern was the children and the opportunity for both parents to be involved in the children’s lives.
Ms M spoke of the distress that the behaviours of both parents have no doubt had upon the children and noted that significant blocks of times spent with one parent or the other with little or no interaction with the other parent would clearly be a situation, which would lead to some difficulties for the children, particularly the younger child [Y], in separating from the parent with whom they had been spending significant time.
The real need was for there to be stability in the children’s lives and a settled routine involving both parents in the children’s lives. In that regard Ms M’s evidence was particularly of assistance, in relation to arrangements that might properly be made as between the mother and the father.
I was mindful of the fact that Ms M indicated that both parents had been at fault and that there was certainly, as is almost invariably the case, occasions where each could have acted in a more appropriate manner, in relation to their dealings with each other. When asked however whether the mother accepted any personal responsibility for the effects that had been had upon the children, as a result of the actions of she and the father, at the time of the breakdown and subsequent to the breakdown of the relationship, Ms M indicated that from the mother she got a sense of “evasiveness”.

She gave examples of that, in relation to her discussions with the mother about her conversion to Islam and she was noncommittal in that regard. It was also clear that the mother seemed to suggest that it was the father who demanded that she wear a scarf, to act in an appropriate manner as a Muslim woman, but then at a later stage acknowledged that she had in fact been wearing the scarf before forming her relationship with the father.
Ms M described the mother as anxious about how things would be understood and to some extent I gained the impression that there was concern, that the mother might, at least to a degree, rewrite history so as to paint herself and her stance in a better position. In the end Ms M gave me the distinct impression that she had greater concerns about the mother and her future stability and ability to provide for the children than was the case with the father, with that one significant rider, which related to whether the father would be able to properly foster and develop the relationship between the children and the mother.
When asked whether she had a concern that the mother did not have a defined plan for the future and therefore would not be able to provide ongoing stability for the children, Ms M answered in an unusual, but I think telling way, she responded by saying words to the effect:
“Can I say if it were found that the father would support the relationship with the mother, then the place the children should be is with their father, but if it were found that he can’t foster that relationship and would undermine the relationship, then it was a major deficit and one that may not be able to be overcome”.
The questioning went on to seek to define what the concerns might be, in relation to undermining the relationship and correspondingly the effects upon the children of their being in a less than settled arrangement, or as counsel for the father put it, a situation where the time with the mother would “chop and change”. Ms M acknowledged that that would be quite disruptive. She in fact then repeated her statements about support for the father’s position if it were found that he could support the relationship with the mother and she went on to indicate that it would be, in her assessment, best for the children to live with one parent providing support and nurture.
In cross-examination by counsel for the mother a different approach, understandably, was taken in relation to this matter and the father was portrayed, from the mother’s perspective, as being resistant to a relationship being fostered with the mother and Ms M emphasised that if that were found to be the case, then it would be persuasive in any recommendation of the children living with the mother.
She indicated however, that whilst that would be a persuasive factor there was, in her assessment, a need for there to be “a parent available to care for the children” and I must say that the impression I gained from that particular statement was that there needed to be confidence that the mother would be able to step up and provide a settled and supportive relationship environment for the children, that was so essential for their prime wellbeing.
Following on from that, there were a number of questions relating to the concerns that occurred and interestingly, Ms M then came back to the same sort of comments that she had previously made, in relation to the father, in that she said words to the effect, “there needs to be minimum changes”, but with the changes that the children had already experienced, avoiding another change was not a reason to preclude a change, as she then went on, “it all comes back to the father’s attitude, this is the primary issue”. If it were found that the father and his family would wholeheartedly support the relationship with the mother, then she would wholeheartedly support the children living with the father.
The fundamental issue, as was repeated by Ms M on a number of concerns, was whether the father was able to foster the relationship with the mother, because if it were found that that was the case, then clearly, the father was a more appropriate parent for the children to live with for the predominance of time.
Ms M was asked about her interviews with the children and the statements made, particularly by the child [Y], about the mother and her attachments to the father. Interestingly, in that regard Ms M noted that it was not what she referred to as the “more usual situation of a young child saying “mummy bad”, but rather there was a sadness she observed in the child and whilst there had to be a consideration as to whether the child making such statements was being influenced by the father, or whether the child was actually sad, her impression was that with a three year old, it was very hard for them to be influenced and her preference was that the child was actually showing a real sadness, rather than an influence or manipulation brought to bear upon her.
Ms M’s evidence in relation to this matter was of particular assistance, because it focused on the significant issue in relation to the determination of this matter. If there were confidence that the father would be able to put his own hurt to one side and to foster and engender the relationship with the mother, then the impression was that Ms M would be entirely supportive of the children living with the father because of the stability that he could provide, the guidance and direction that he could show the children, and of course the significance of the support of his wife Ms K and the relationship that was clearly in existence between these two children and their siblings, in the father’s current household.
I was most assisted by Ms M and her evidence, in relation to this matter, and noted that Ms M was asked finally about the issue of parental responsibility and whether that should be sole or joint parental responsibility. She was asked about whether it would be possible to “hive off the religion issue” and then to allow the parties to have equal shared parental responsibility and she acknowledged that that was a possibility, but that there would be difficulties for the children one way or the other and that it was an issue of particular concern.
It would be remiss of me not to note that I enquired of Ms M whether the issue of religion should be looked at or considered in light of the fact that, as I mentioned before, if the mother was at the time of conception, acting in the manner of a devout Muslim, then it was not unreasonable for the father to expect that the children would be raised as Muslims, and Ms M acknowledged that that would be a reasonable thing for the father to think and she noted that particularly in light of the devout nature of the father’s faith, that he could not help to act as a Muslim and that his behaviours, as a good Muslim, would obviously directly influence the children.
I raised that particular issue with Ms M because of the obvious concerns that arose from the fact that no matter with whom the children were to live, there would be a situation where they experienced religious belief and behaviours arising from two different faiths. She acknowledge that that would be very difficult for the children and that it would be important for there to be recognition of the fact that the children would experience difficulties unless one parent or the other were responsible for decisions in relation to the children’s religious education and upbringing.
I turn, in light of those significant comments attributable to Ms M, to the evidence of the parties themselves. I had, obviously, the opportunity to consider all of the material that was filed in relation to this matter, but of course in light of the conduct of the trial, had the very great opportunity to observe each of the parents. The father impressed me in many ways, in relation to his desire to parent these children, and to be fully involved in the children’s lives. The father was clearly hurt by the occasions when he was separated from the children and precluded from opportunities to be involved in their lives and to make decisions, in relation to the parenting of the children.
That is not to say, however, that there were not matters of concern in relation to the father and it was perhaps obvious from the very beginning of cross-examination, in relation to this matter that one of the issues related to the father’s assessment of himself as a parent. In that regard he was asked by counsel for the mother whether he could do anything, such as a parenting course, to improve his parenting skills. His immediate response was to say that that was not necessary. That he was, as he put it “a very good father”.
He was asked whether he had no faults at all and perhaps realising that there may be trap about to be sprung, indicated that of course he can make mistakes, but he was also able to correct them, and when asked to indicate what some of those faults or mistakes may have been, he indicated that he was not able to say. He was asked to perhaps look more widely and to think in the last year or so whether there had been any mistakes made by him and he indicated that he was unable to recall any.
What that of course indicated was that the father was very set in his views, that he was a man who did not brook any real criticism of his role as a parent and the actions that he had taken, though it was clear that, like all parents, there had been omissions on his part, not the least of which was the fact that his prior relationship had broken down because of his determination to build his business and work interests and to provide for the family, and that that had directly lead to a situation where he became estranged from his wife and children, because of the amount of time that he put into work.
It was noteworthy of course that in that regard he had reconsidered his situation and now worked for about six hours each day and had reconsidered the appropriateness of arrangements previously made.
The fact is however, that the father seemed extremely confident in his own capacity to parent the children and to make decisions in relation to the children and of course correspondingly seemed extremely confident that failures in the relationship between he and the mother were genuinely attributable to failings on the part of the mother.
The father was definite in his views. He acknowledged that if the children were to live with him, they would be required to do what he thought correct, and in that regard seemed to indicate that that related, not only to matters such as their raising as young children toward adulthood, but also it would be necessary for them to follow his beliefs and expectations, in relation to the children.
The father, however, in that regard noted, that until the children were old enough to make their own decisions, whilst he would provide direction and would require that they do what he thought was correct, it would also be the case that he would provide an example for them, and my observation of the father, and I think that it is reflected in the assessment of Ms M also, is that he would be a devout Muslim, one who practised his religion appropriately and did all that he could to show the children the positives that arise from that religion.
Whilst the father would be, no doubt, a strict parent and one who expected his children’s obedience, he would not be, I think, a harsh parent and would be a man who would provide for the children in all respects, though that must be considered in light of the very real concerns that appear repeatedly to be raised, in relation to whether the father recognised the real importance to these children of having the mother in their lives.
The father seemed determined to acknowledge that the mother had been a good mother until 2009, but that thereafter she had lost direction in that regard, that she had become involved in computer use, Facebook and the like, and had forgotten, or disregarded her responsibilities as a parent.
The mother denied that and I must say that whilst the father, no doubt, had criticism of the mother in relation to such issues, it was clear also that he was, at that time, toward the end of the relationship working hard and long hours and that the suggestions that the mother would sleep until 11am and provide no food or drink for the children, rings more as an exaggeration than as a statement of fact.
The father, I thought was genuine however, in his recognition of the importance of family and that was reflected most clearly in the real respect that he showed toward the maternal grandparents and for the role that they played, in relation to the support and provision to the children. That recognition by the father, of the importance of family is perhaps an indicator of the father’s apparent hurt, at least at the time, about the breakdown of the relationship and the fact that, from his perspective, the mother had failed to meet her obligations as a mother, particularly with regard to providing for the children and their needs and in instances where the father was of the view that she was “cheating on him with other men” and that therefore the family that they had formed together had been broken down, as a result of the mother’s behaviour.
The father was genuine I thought in his wish, at least initially, for there to be equal time spent between the children and with he and the mother. The impression that I gained, in relation to this matter, is that the father wished for a situation where both parents could be wholly involved in the children’s lives though I have no doubt that, at least from his perspective, that was to be upon his terms, with the mother behaving in a manner that he considered appropriate, rather than in a manner that the mother might consider appropriate.
It was a significant factor in relation to this matter, because whilst the father spoke of the fact that he had no difficulties with other relationships being established by the mother, or changes in religious orientation, it was clear that they were matters that caused him hurt and the concerns expressed by Ms M rang true, when wondering whether the father would be able to move forward, as he said he wanted to do, in relation to this matter.
The father was quick to believe the children’s statements to him. For example, he complained that the mother had physically abused the children, that they had been hit with belts and sticks, though there is little of a corroborative nature in that regard. The father believed that the mother had had sexual relations with a partner in the presence of the children and that that had occurred intentionally on her part. The father was quick to assess that the mother had been less than appropriate in her protection of the children, such that there was a possibility that [X] had been sexually interfered with by a friend of the mother.
There appears little, if any evidence in that regard, and it does weigh heavily in relation to the determination of this matter because the father seemed very quick to assess the children would recount to him accurately issues that were of a concern to them and that it was his role to act protectively. Whilst obviously that is the proper course to follow in relation to children, it must be tempered with a reasonable consideration on the part of a parent, to look at the age of the children and the weight that could properly be given to such statements made by children.
It led, of course, to a circumstance where the father’s behaviours were, as described by Ms M, erratic and ill considered. He set up recording devices in the mother’s bedroom. He failed to recognise that this might be intimidating, harassing or simply frightening for the mother, but rather thought that it was an understandable stance taken by him, in order to protect the children.
The father indicated in his oral evidence that such behaviours commenced in or about March 2011 and concluded in April 2011 and have not recurred. The mother seems to have some doubt in that regard, but by the same token there appears to be no suggestion whatsoever of further recordings being sought to be relied upon, in relation to these proceedings, or any suggestion that recordings of any nature have been taken.
Certainly in circumstances where, if the father still behaved in such manner, one would also expect that he would seek to rely on any incriminating evidence that flowed from such tapes. I am more inclined therefore to the view that whilst the father was acting in an erratic manner and one that could understandably be considered by the wife to be intimidating or frightening, it is not something that has continued and was much more a reflection of the hurt and difficulties that were experienced by him at the time of separation, than any continued actions on his behalf.
Similarly, the father’s actions in or around September 2010, relating to a suicide attempt, were erratic in the extreme. The father certainly sought to manipulate and control the mother through his behaviours and whilst he suggests now that there was no firm intent on his part to act in such a manner, it is troubling that he would have considered that it was appropriate to act in such a way, knowing that the mother would be distressed by it, knowing that the children would be in her care and most likely would come into contact with him in such a situation and knowing that the most likely response would be for her to contact medical authorities and for there to be the consequential on-flow from that.
The father denied that he lost consciousness though medical records indicate differently. The father considered that he acted in a mature and appropriate manner that time and when asked if his actions were mature, responded that, “yes they were, 100 per cent”. The fact is, of course, that such manipulative and controlling behaviours, even at the time of separation, were inappropriate and that there was failure in any respect on the part of the father, to consider the consequence of his actions, not only upon the mother, but far more significantly, upon the children who witnessed him in that state.
The father’s behaviours in many respects have been inappropriate and whilst they might, in many ways, be attributable to the trauma and hurt associated with the breakdown in the relationship, the father clearly needs to give serious consideration to his actions and reactions in situations of distress.
Interestingly, the father appeared to draw a distinction between his manner of verbally disciplining the children and the manner of the mother disciplining the children. In his trial affidavit he refers to the mother screaming at the children and he confirmed that that was the case. Answering honestly, however, he responded when asked whether he screamed at the children that he did, but he was “practising his duties as a parent”. He was asked then whether his screaming at the children was appropriate and he indicated that it was necessary to correct children’s mistakes, but when asked whether the mother’s screaming was appropriate or inappropriate he indicated that of course it was inappropriate because he said words to the effect, “she has to care for the children”.
The distinction between the role of the father and the mother could not be more obviously highlighted than in such statements by the father and it was certainly troubling that he would now be of the view that his behaviours were appropriate, whilst the behaviours of the mother were inappropriate. It was a matter of some concern to me that the father was unable to recognise some of the failings in his parenting, but was quick to find fault with identical behaviours on the part of the mother.
The father also relied upon the authorities, including police and Department of Community Service Officers to reinforce his concerns, in relation to the children. It appear clear that the father has, since separation, taken the children on at least four occasions to police stations, or other offices for the purposes of them being interviewed or questioned and failed to see that there might be a direct harm caused to the children, by having them attend at such institutions. It is, of course, always difficult for a parent to appreciate, that acting protectively may sometimes be harmful to children, but the father’s views seemed very much determined by what he considered to be appropriate behaviours on his part which were all understandable and justifiable, he said, whilst behaviours or reactions on the part of the mother, particularly to his behaviour gave rise to concerns as to the mother’s appropriate parenting.

Obviously the issue of parental responsibility is one of great significance. Here it is a matter which looms large because of the very divergent position of the parties. I note that Lansa & Clovelly was a case where Murphy J was dealing with what he referred to as “pervasive and apparently intractable conflict.”
Unfortunately, whilst I would not consider this to be a case of “intractable conflict”, it is certainly a case where the direction that each parent seeks to follow in relation to the parenting of these two young children are very divergent. The difference that can be drawn between Lansa & Clovelly and this case, however, is that there was some indication that the report writer in that case was hopeful that a decision about parenting would see an abatement of the conflict between the parties. There was also evidence in Lansa & Clovelly of the fact that the parties had been able, at least in part, to make decisions and to work together with regard to the decision-making process with regard to the long-term interests of the child.
There is no such indication in relation to this matter, at least insofar as that concern with regard to the religious upbringing of the children is concerned. It is clear also that that is a factor aligned with culture and must be considered as significant in relation to the determination of this matter because, as was noted by the report writer, it formed an inherent part of each of the parent’s personalities and therefore, their parenting generally.
Section 61DA provides that there is a presumption of equal shared parental responsibility, but pursuant to subsections (2) and (4), it is a rebuttable presumption in circumstances of family violence, or in circumstances generally where the court considers that it is in the best interests of the children for the presumption to be rebutted.
Section 61DA is in these terms:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
Obviously, the presumption arises from the declaration of what constitutes the paramount consideration, the child’s best interests. If the parents can show that there is a unified direction to be followed in relation to the parenting of the children and that they have a respect for each other and a trust in each other’s parenting, then clearly both parent’s involvement can only be beneficial to the child. However, the presumption can understandably be rebutted and section 61DA(4) clearly provides for a wide discretion to be available to the Court.
In this instance there are real concerns held by me as to the parents’ capacity to work together to ensure that decisions relating to the children’s best interests would be to the fore. In that respect I note that concerns were held also by the report writer, Ms M, as to the parents’ capacity to work together, and there were similar concerns expressed by the Independent Children’s Lawyer, noting that consideration was given as to whether certain issues, such as religion and education could be excluded from equal shared parental responsibility and included in orders vesting sole parental responsibility in one parent or the other.
My concerns in relation to the parents’ lack of ability to work together were emphasised earlier in these reasons. Each parent had at different occasions acted in a manner which was not child-focused but more directly reflected their wants and wishes in relation to the children. Each parent had at different times held the children over for significant periods and failed to facilitate or even recognise the harm to the children of being separated and having no contact whatsoever with the other parent or members of the other parent’s family, with whom the children had close associations.
I saw nothing in the evidence of the mother that gave rise to any confidence in me that she would be able to work with the father to make decisions in relation to the long-term care, welfare and development of the children. In that respect, for example, I note particularly the mother’s evidence before the Court with regard to making arrangements in relation to the children’s school which would generally be accommodating of the needs of her parents, but without any consideration of the father’s wishes or proposals in relation to the children. The mother seemed far more concerned about facilitating the significant assistance that she currently had and would apparently continue to require for some time, than to consider the parents working together to decide the best arrangements for the children.
The father also seemed to struggle with a concept of joint decision-making or consideration of the mother’s views in relation to the parenting of the children, though I would consider that the father, though firm in his role as a parent, would more readily consider the wishes or hopes of the mother in relation to the children, than would be the case from the mother’s perspective. I continue in that regard to be troubled by the mother’s indication during cross-examination that she told Federal Magistrate Sexton what had to be said, otherwise she may not have achieved her ends, which in April 2012 meant the delivery up of the children to the grandparents.
Suffice it to say that when I am mindful of the provisions of section 61DA(4), I am satisfied on the evidence that has been provided that equal shared parental responsibility would not be able to be sustained by these parents but would rather be a recipe for further dispute, confrontation and ultimately harm to the children.
Accordingly, I am of the view that the proper orders with regard to parental responsibility in the long-term should vest in the parent with whom the children were to live. To determine that particular aspect of the matter, however, there needs to be the application of the evidence to the applicable law.
Section 60B(1) and (2) set out the objects and principles of the act relating to children. Relevant here are sections 60B(1) and (2) which are in these terms:
60B(1) The objects of this Part are to ensure that 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.
60B(2) The principles underlying these objects 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).
Section 60CC is reflective of those objects and principles and sets out the matters that a Court must consider in determining what is in a child’s best interests. Particularly relevant here are the provisions of subsections (2), (2A) and (3) which are in these terms:
60CC(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
60CC(3) Additional considerations are:
(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;
(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);
(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;
(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;
(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;
(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;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(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;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
The difficulties that arise in this matter stem, at least in part, from the fact that both of these parents have a great deal to offer the children. The witnesses called, for both the mother and the father, spoke of the fine parenting that each displayed whilst the children were in their care, and it was noteworthy that Ms M particularly noted the loving relationship that the children had with each of their parents and with each parent’s extended family. The difficulty, and I have already alluded to it, arises because whilst each parent individually has much to offer the children, together they are not able to provide, “the sum of two parts” but rather a subtraction of each from the other.
Such a situation, whilst not entirely unusual or unexpected in family law proceedings, is nevertheless disturbing because it leads to the situation of one parent or the other having to have far less involvement in the lives of the children, at least pursuant to any orders that might be made, than would be the case if the parties were able to put to one side the animosity that obviously continues.
To determine therefore what arrangements will be in the best interests of these children, consideration must be given as I have indicated to those factors set out in section 60CC(2), (2A) and (3). To a large extent, there is little distinction that can be drawn between each of the parents. They both love the children and it is to the children’s benefit to have a meaningful relationship with both of the parents. The children clearly have benefitted from that relationship and will continue to do so, no matter what final orders might be made, though the time to be spent with each parent might vary.
That issue of a meaningful relationship needs to be considered however in light of the terms of section 60CC(2)(b) in that the child’s right to a meaningful relationship with a parent is subservient to the need to protect a child from physical or psychological harm. The addition of section 60CC(2A) on 7 June 2012 specifically noted that as a factor to be given greater weight in the primary considerations. I have already noted however, and it is to the parents’ credit that physical harm or abuse of the children, or in fact domestic violence of a physical nature at least between the parents, does not arise. However, psychological harm is also a significant consideration and in this instance I do have concerns with regard to the children and their emotional best interests when I am mindful of certain of the actions of the mother.
In that respect, I noted at length the distinctions between what evidence the mother gave in regard to her suggested fear of the father, contrasted against the tone of various emails that were exchanged. The mother struck me as being manipulative in those instances, seeking to position herself with regard to property proceedings and using the children as collateral. More significantly however, she was also, she acknowledged, prepared to tell the court what was necessary to achieve her goals when, in my assessment, she knew what was of concern to Federal Magistrate Sexton in relation to the care of the children and knew that what she immediately did in having the children in her parents’ care, was contrary to those expectations.
I am not at all convinced that the mother would not continue such behaviours and in fact the evidence that fell in relation to this matter suggested that there were various stressors in the mother’s life, not just the breakdown of the relationship and these proceedings generally, and that in those circumstances there was no certainty as to stability for the children now or into the foreseeable future. The mother continued to rely heavily upon her parents for her own support, as well as for the support of the children and there are many uncertainties that arise as a result of that.
The mother had previously been estranged from her parents. Whilst I would expect that the grandparents would do all that they could to continue to assist the mother and the children, there is in my assessment real prospect of further difficulties over time arising from that continued assistance provided by the grandparents, particularly being mindful of their age and of the grandmother’s own statements to the effect that she and her husband did not wish to resume a full-time parenting role. That could only be a further stressor and, more specifically, a difficulty for these children.
The children have had upheaval and disturbance in their lives since separation some two years ago and it appears clear on the evidence that it is the father who has been more able to provide a settled and stable environment in which he has been significantly involved than has been the mother. Of course, the father has the enormous support of Ms K and their children, [X] and [Y]’s older siblings, and that also provides stability and support.
As was emphasised throughout these proceedings, the father is an excellent father and much loved by the children. There was no question as to his capacity to meet the needs in all respects of the children, other than the report writer’s concern, arising simply from a consideration of his capacity to foster a proper relationship with the mother, should the children primarily be in his care. Significant therefore in relation to the additional considerations are particularly sections 60CC(3)(a), (b), (c), (d), (f), (g), (i), (l) and (m).
In respect of each of those considerations I would note as follows:
(a)The children did not make any specific request or give any indication of their wishes in relation to this matter. That is understandable in light of the children’s young age and lack of maturity, but what can clearly be discerned from all of the evidence, is that the children’s wish is to have both of their parents significantly and substantially involved in their lives. No other specific determination can be made.
(b)The children’s relationship with each of their parents and with extended family is positive and beneficial to them. They have a particularly close relationship with Ms K and also with their maternal grandparents and nothing but positives can be drawn from that.
(c)Each parent has attempted to be involved in the children’s lives and, as I have noted on certain occasions, have involved themselves to the exclusion of the other parent. Both parents however clearly seek involvement in the children’s lives to the maximum extent beneficial to the children.
(d)The children have been through numerous changes of home and carer and whilst further change is to be avoided, particularly if it were detrimental to the children, there is nothing to suggest that a move from the residence of the maternal grandparents, particularly when it would be either to the home of the father or some other home of the mother, would be in any way harmful.
When one is mindful of the objects and primary considerations set out in section 60B(1) and 60CC(2) relating to ensuring the children have the benefit of both of their parents having meaningful involvement in their lives, then a move from the home of the grandparents to the primary residence of either the mother or the father would not be a significant or difficult move to consider. In that regard, of course, it is only the father who has a settled and established home, crowded though it might be, in which the children could live and in any event it is a residence well-known to them.
I do not envisage any detrimental or long-term effects upon the children of a move from the residence of the maternal grandparents to the home of the father, particularly when it would ensure the more significant involvement of at least one parent in the children’s lives.
(f)The capacity of each of the parents and others to provide for the needs of the children, including their emotional and intellectual needs is most significant. Both parents, along with their family support are able to provide for the children’s intellectual development and, no doubt, all will take appropriate steps in encouraging that intellectual and educational growth, however concerns do arise with regard to the capacity of both parents to provide for the children’s emotional needs. As previously referred to in these reasons, both the mother and the father have, on occasion, acted in their self-interest to the detriment of the children.
I am however more comfortable with the father’s future ability to meet the children’s emotional needs than I am in the mother. Whilst the father clearly has made poor choices and these have affected the children, and I am mindful here of the suicide incident, I am satisfied that the father has now moved on from the emotional turmoils of separation and is more cognizant of the need to act at all times with the children’s best interests to the fore, and that he recognises the need for the children to have a relationship with their mother and her family.
The mother struck me as still being emotionally insecure. Her psychologist spoke of the need for continued involvement after the conclusion of these proceedings and of the fact that there were numerous stressors continuing in the mother’s life. Additionally, the mother herself was honest and it did her great credit in noting that she did not know when she would be able to provide for the children, without significant assistance, and as I mentioned earlier, with that coming from her parents there was no real confidence that I could find in relation to long-term emotional stability being available to the children.
There are clearly issues of concern with regard to each household, but in this instance I am far more certain of the father’s future capacity to put the children’s best interests and needs to the forefront than I am as to the mother and her capacities.
(g)This subsection looms large for a number of reasons relating to culture and background, but also in my assessment because of religion. As I noted, the father is a devout Muslim. It permeates all of his and his family’s day-to-day life and it is impossible to imagine that it would not loom large in relation to the children and their upbringing. The father is a traditional man of his culture and I have no doubt that on occasion that clashes with some of the expectations of western society. The father expects Ms K and their children to behave in a certain manner, including with respect and with recognition of the Muslim faith. The father would also expect similar behaviours on the part of these two children and it would be impossible to expect otherwise.
It is different now within the mother’s household, but I must say that the differences and the consequential difficulties have arisen not through any actions of the father, but rather as a result of the mother’s decision to step away from the Muslim faith and revert, I think, to Christianity. The mother was at the time that the relationship commenced, a practicing Muslim woman. It is significant now, because the father’s expectations were and remain that the children of a devout Muslim couple would be raised in the Muslim faith. As the children get older, the confusion and the contrasts between the two households will become more telling and no doubt more difficult for the parents and the children.
When considering this particular aspect of the matter, I was minded to consider the types of issues that arose in relation to arguments as to schooling for children and the different hopes and expectations that parents have when together for the education of their children, as opposed to when they are separated. In determining those types of matters, consideration understandably is given to what the parents’ aspirations for their children were when they were together and whether they could be continued when separated. A similar situation arises here. When these children were born, the parents jointly aspired for them to be raised as Muslim and for them to be mindful of both the religious and cultural considerations that that gave rise to.
The separation of the parties, but more particularly the mother’s philosophical change, has given rise to these difficulties and they must be confronted. Again, I am far more certain of the father’s stability in respect of culture and religion than I am of the mother, particularly when her own evidence was that she had stepped away from her upbringing as a Christian and with western cultural influences to Islam and then, in more recent times, had stepped away from Islam. It gives rise to an ongoing concern for me as to the confusion in these children’s lives if they were to be placed other than with the father.
Culture and religion therefore are a significant factor in relation to the determination of this matter in a manner which reflects, generally, the father’s proposals.
(i)I have already addressed issues in relation to each parent’s capacity to provide for the children’s emotional and intellectual needs and to a significant degree those matters are reflective of each parent’s attitude to the child and to the responsibilities of parenthood. It is perhaps necessary only for me to say here that both parents have on occasion fallen short of the most responsible approach to parenthood but that I have no doubt as to each parent’s determination to meet as fully as possible the responsibilities of parenting and that I have a greater confidence in the father being able to do that, both in a physical and a psychological sense.
(l)It is difficult always to attempt to predict what might be the future directions of a family’s or a child’s life. However, I am satisfied that an order which now places the children primarily in the care of the father and with him to have responsibility in consultation with the mother for long-term decisions in respect of the children, is far more likely to provide certainty and therefore a settled and stable arrangement for the children, than would be the case if the children were with the mother primarily and there was no certainty as to residence, school to be attended, care arrangements or meeting future financial needs.
To make orders least likely therefore to lead to the institution of further proceedings requires precision in the terms of the orders to be made so as to ensure that the children’s relationship with the mother is fostered and developed but also requires certainty in relation to the future decisions to be made in relation to the children’s long-term care, welfare and development.
(m)One other fact looms large in relation to this matter and it is the children’s relationship with their siblings from the marriage of the father and Ms K. The relationship that the children already have with their older siblings is a positive and beneficial one, and I am mindful in that regard of the need to ensure that that relationship is fostered and developed as fully as possible, especially in circumstances where they will be relationships that will hopefully endure long into the future.
The sibling relationship is important and can be best fostered by the settled and stable arrangements which would ensue from the children’s growing in the same cultural and religious circumstances as those of their older siblings. It is not a factor which would ultimately determine this matter but is certainly a factor of some importance and to be considered, along with all others that I have referred to above.

I have come to the decision therefore that the best interests of these children now and into the future can be met by the children living primarily with their father and for him to have responsibility, in consultation with the mother, for decisions in respect of the long-term care, welfare and development of the children. The father impressed me as a man with firm views and ideals but also as a man who recognised the primary obligation to his children of ensuring that they grow into the best adults that they can be and that that can only be achieved by them having a relationship with both of their parents and that being fostered and developed to the greatest extent.
As I indicated earlier, I was much assisted by the evidence of Ms M and agree that other than her concerns with regard to the father’s capacity to foster the children’s relationship with the mother, the father was in all respects an excellent parent, determined to put the best interests and the needs of his children to the fore. Whilst there is never certainty in relation to what the future might hold, I am satisfied that the father recognises the importance of the children’s continued relationship with their mother and to the benefits to the children that would flow from such a relationship I am not so certain either as to the mother’s all-round capacity to provide for the children’s physical and psychological needs, but more particularly as to her ability to recognise and to foster the children’s relationship with the father.
Accordingly, the orders that I intend to make in relation to this matter generally are reflective of the orders sought by the father, though they are to be quite prescriptive insofar as ensuring the mother’s substantial and significant involvement in the children’s lives, and in decisions to be made with regard to the children’s long-term care, welfare and development.

I certify that the preceding two hundred and two (202) paragraphs are a true copy of the reasons for judgment of Coker FM

Associate:

Date: 15 January 2013