Alan and Eastman

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALAN & EASTMAN

[2013] FCCA 174

Catchwords:
FAMILY LAW – Parenting – arrangements for children aged 8 & 6 who have suffered psychological harm as a result of exposure to family violence perpetrated by the mother’s partner – where the children have been living in a reparative environment with the father for the last seven months and have been spending day time only with the mother – where the mother has mental health issues and does not seem to appreciate the extent to which the children were affected by exposure to the family violence – where the mother’s relationship with the violent partner has ended – need for caution in re-introducing extensive time with the mother – where the nature of the case means that any orders made will need to be reconsidered in the future – whether interim orders should be made and the matter remain within the court system or whether final orders should be made and the parties be required to engage in family dispute resolution at a later stage to review the arrangements.

Legislation:
Family Law Act 1975, ss.60CC, 61DA, 65DAA

Cases cited:

Collu & Rinaldo [2010] FamCAFC 53

Applicant:

MS ALAN

Respondent:

MR EASTMAN

File Number:

NCC 1542 of 2012

Judgment of:

Judge Terry

Hearing dates:

4 & 26 February 2013 and 25 March 2013

Date of Last Submission:

25 March 2013

Delivered at:

Newcastle

Delivered on:

26 March 2013

REPRESENTATION

Counsel for the Applicant:

Mr Weightman

Solicitors for the Applicant:

Arnold Lawyers

Counsel for the Respondent:

Mr Bates

Solicitors for the Respondent:

Julia Clark Solicitors

ORDERS

All previous parenting orders are discharged.
Subject to order 3, the parents have equal shared parental responsibility for the children [X] born [in] 2004 and [Y] born [in] 2006.
The father shall have sole parental responsibility for issues concerning the children’s education, medical needs and psychological needs.
The children shall live with the father.
The children spend time with the mother as follows:
(a)each alternate Saturday and Sunday commencing at 9.00am and concluding at 5.00pm on each Saturday and Sunday respectively;
(b)from 2.00pm to 7.00pm Christmas Day 2013 and each odd year thereafter and from 9.00am to 2.00pm Christmas Day 2014 and each even year thereafter;
(c)on the children’s birthdays from 3.30pm to 5.30pm and each odd year thereafter and 5.30pm to 7.30pm in 2014 and each even year thereafter;
(d)from 2.00pm to 7.00pm Easter Sunday 2013 and each odd year thereafter and 9.00am to 2.00pm Easter Sunday 2014 and each even year thereafter;
(e)on [Z]’s birthday from 5.00pm to 7.00pm each year;
(f)on the mother’s birthday from 5.00pm to 7.00pm each year; and
(g)at such additional or alternate times as may be agreed between the parties.
Notwithstanding any other order, the children shall spend from 9.00am to 5.00pm on Father’s Day with the father and if that coincides with the mother’s time in accordance with order 5(a) then the mother’s time is suspended and the mother shall spend the following Sunday from 9.00am to 5.00pm with the children.
Notwithstanding any other order, the children shall spend time with the mother on Mother’s Day from 9.00am to 5.00pm.
For the purpose of implementing these orders the mother shall collect the children from the father’s residence at the commencement of each spend time with period and the father shall collect the children from the mother’s residence at the conclusion of each spend time with period.
The non-residence parent have telephone communication with the children every second Wednesday between 7.00pm and 7.30pm and for the purpose of facilitating this communication:
(a)the residence parent shall ensure the children are available for telephone communication;
(b)should the residence parent’s mobile telephone be unavailable in any one instance, for that particular communication, the non-residence parent is to be advised of an alternate number on which to call the children as soon as reasonably practicable;
(c)if the non-residence parent receives no advice with regards to an alternate phone number on which to have communication, then it is presumed the usual contact number is to be used;
(d)each party shall provide the other with a current mobile telephone number and details of any permanent change thereto within 12 hours of such change being effected;
(e)the non-residence parent shall initiate telephone communication by telephoning the residence parent on the nominated telephone number; and
(f)the children shall be given privacy during telephone communication with the other parent.
The residence parent authorise the children’s school to provide the non-residence parent, copies of all school reports, school photographs, and any other reports on school progress and behavioural issues and other school circulars in relation to the children.
Each parent shall promptly advise the other should the children while in their care be diagnosed as suffering from a serious medical condition, or be taken to hospital as a result of an accident or a medical emergency and each parent shall keep the other advised of the name and telephone number of any relevant any medial practitioner to which the children have been taken and each parent shall be entitled to obtain information from that medical practitioner about the children’s medical condition.
The father shall ensure the children attend appropriate counselling as directed by the designated counsellor for such period as suggested by the counsellor.
The mother is restrained and an injunction is granted restraining her from allowing the children to have any contact with or any communication with Mr G.
The father permit, where reasonably practicable, the mother’s extended family spend time with the children. Such time is to be arranged directly with the father and no other third party. Such spend times to take place should it not coincide with the children’s already arranged family/sporting events.
Each party shall keep the other advised of their current residential address and telephone and email contact details and advise the other party within 48 hours of any change to those details.
Each party is restrained and an injunction is granted restraining them from physically disciplining the children or permitting any other person to do so.
Each party is restrained and an injunction is granted restraining them from denigrating the other party or the other party’s partner or a member of their family to the children or in the children’s presence or allow the children to remain in any place where such denigration is occurring.
By no later than 12 months from today the parents shall commence attending on a family dispute resolution practitioner for the purposes of reviewing the operation of the above orders and considering whether any change to the orders is required including a change which allows the children to spend overnight time and holiday time with the mother.
The parents shall also arrange in conjunction with their attendance on the family dispute resolution practitioner for the children to attend upon a counsellor so that the parents can obtain information about the way in which the orders are operating for the children and about the possible impact on the children of any proposed change to the orders.
The parents shall make a genuine attempt to resolve any dispute between them about a change to the orders, but if they are unable to reach agreement after making that genuine attempt then either parent is at liberty to make an application to this court to change the orders and it is not the intention of the court that they be prevented from making that application by the rule in Rice and Asplund.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA
AT NEWCASTLE

NCC 1542 of 2012

MS ALAN

Applicant

And

MR EASTMAN

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
I am required to determine a dispute about parenting arrangements for [X], 8 and [Y], 6.
The parents separated more than three years ago, and for more than two years after separation the children lived with the mother and spent time with the father on alternate weekends and sometimes overnight during the week. However since interim orders were made in August 2012 the children have been living with the father and spending time with the mother on alternate Saturdays and Sundays during the day only.
In her second amended initiating application filed on 17 January 2013 the mother sought final orders that the children live in a week about shared care arrangement. She did not pursue this at the hearing however, rather she sought orders that the children live with the father and spend time with her each alternate weekend from after school Friday until the commencement of school on Monday and each week from after school on Tuesday until the commencement of school on Wednesday.
The mother sought an order for equal shared parental responsibility for the children.
The father sought orders that the children live with him and spend time with the mother each alternate Saturday and Sunday during the day only as well as on special days. He originally proposed that the time on the Saturday and Sunday occur only once per month but he changed his position during the hearing and proposed that the time occur each alternate weekend, which is what is happening at the moment.
The father sought an order for sole parental responsibility.

The Evidence

The mother relied on her Amended Initiating Application filed on 17 January 2013, her affidavit filed on 17 January 2013 and the affidavits of the maternal grandfather Mr A and maternal step grandmother

Mrs A filed on 17 January 2013.
The father relied on his Amended Initiating Application (treated as a response) filed on 18 January 2013, his affidavit filed on 18 January 2013 and the affidavits of the paternal grandmother Mrs C, his mother-in-law Mrs R and his wife Ms S all filed 18 January 2013.
A Family Report was prepared by Ms B, a family consultant and was released to the parties on 14 August 2012.
The mother, father, Mr and Mrs A and Ms B were cross-examined. Mrs C, Mrs R and Ms S were not required.

Background

The mother and father commenced cohabitation in about August 2002. There was differing evidence about the exact date on which cohabitation commenced but that is sufficiently close. They married in [omitted] 2004 and separated in 2009. There was also differing evidence about the date of separation but Ms B adopted 2009 as the date of separation in the Family Report and nobody took any issue with this at the hearing.
The parties have two children, [X] born [in] 2004 and [Y], born [in] 2006.
Prior to separation the mother was the children’s primary carer while the father worked full time and was the primary provider of financial support.
There was no evidence about what precipitated separation. The children were about 5 & 3 at the time and afterwards they lived with the mother. The mother had been diagnosed with Bipolar disorder in 2008 but that did not prevent the father agreeing to the children living primarily with her after separation.
The father’s evidence was that after separation he spent time with the children on alternate weekends and each Wednesday overnight to Thursday. The mother raised an issue in her affidavit about whether he exercised this time regularly but the issue was not explored during the hearing.
The parties took part in mediation after separation and on 27 June 2011 final orders were made by consent in the Local Court at [omitted]. The orders provided for the parents to have equal shared parental responsibility and for the children to live with the mother and spend time with the father each alternate weekend from 3.00pm on Friday until 8.00pm on Sunday, on special days and for half of the school holidays or at least half of the shorter school holidays with some defined time during the Christmas school holidays.
It was common ground that after these orders were made the children sometimes spent extra time with the father and that he sometimes had them for up to five nights a fortnight.
One of the troubling aspects of this case is that those orders were made at a time when the children were being exposed to serious family violence in the care of the mother perpetrated by her partner Mr G.
The mother commenced a relationship with Mr G in either 2009 or 2010 and according to the Family Report commenced living with him in June 2010.
In January 2011 the mother attended [omitted] Hospital claiming that Mr G had been verbally abusing her, had threatened to smash in the glass doors of her home with a shovel, was isolating her from family and friends and had been breaching Apprehended Domestic Violence Orders (ADVO’s).
The reference to the breach of ADVO’s is a little bit puzzling because the mother said during cross-examination that she first applied for an ADVO against Mr G in January 2011. The mother was very likely pregnant to Mr G at the time of her presentation at [omitted] Hospital, because their daughter [Z] was born on [omitted] 2011.
In February 2011 Mr G assaulted the maternal grandfather by grabbing him around the throat and holding him against a wall.
In April 2011 a meeting took place between the father, mother, maternal grandfather and maternal step-grandmother during which the mother told the father that Mr G was being violent in her home. She told him that Mr G had come home drunk on one occasion and trashed the inside of her house with a shovel and that the children were present. This would appear to be a reference to the incident which occurred in January 2011.
The mother told the father that she had obtained an ADVO preventing Mr G coming to her home after he had been consuming alcohol.
Police records refer to another incident in April 2011 which involved Mr G pushing the mother who was then about five months pregnant. The police also recorded that on this occasion Mr G grabbed and twisted [Y]’s wrist.
The mother agreed during cross-examination that [Y] had told her that Mr G had grabbed her wrist on this occasion but said that she had not seen it herself.
In May 2011 the mother had a fall in the bathroom and injured her back. The maternal grandfather believed that the fall was caused by

Mr G assaulting the mother but the mother denied this at the time and she denied it during the hearing.
On 11 June 2011 an exceptionally serious incident occurred at the mother’s home involving Mr G.
The mother rang the maternal grandfather at about 4.14am to tell him that she had concerns about Mr G’s behaviour. The maternal grandfather and step-grandmother immediately went around to the mother’s home and arrived there at about 4.50am. They found the mother crying hysterically. She told the maternal grandfather that Mr G had been at the house drunk and that she had called the police. She said that the police had attended but by the time they arrived Mr G had left. She said that [X] and [Y] were crying but because Mr G had left the police left as well.
At 6.20am, just as the maternal grandfather and step-grandmother were about to go home, Mr G appeared at the door of the mother’s home yelling to be let in. He yelled and banged on windows and uttered threats against the maternal grandfather and step-grandmother and he eventually broke into the house through the ensuite bathroom window.
After gaining entry to the house Mr G grabbed the maternal grandfather around the neck and punched him and threw him backwards causing him to hit his head.
The police were called again and Mr G again decamped. The mother asked [X] to run across the road to get a neighbour who was an Army medic. The neighbour came over and tended to the maternal grandfather on the floor until an ambulance arrived.
While the maternal grandfather was hunched on the floor Mr G sent text messages to his phone saying things such as “Never go to war with a toothpick [first name omitted], hee hee, I won again.”
Mr G was later arrested and charged.
It is difficult to overstate the sheer horror of this incident. It must have been exceptionally frightening for [X] & [Y]. They heard threats yelled, they heard banging on windows, the house was broken into, they saw their grandfather assaulted and injured and [X] was sent across the road to get help. Ms B observed that an adult who had resources to help them cope with exposure to such an incident would have difficulty forgetting it and these are children. Years and years and years might pass and they might never forget it. It was horrific.
The consent orders were made after this incident. This troubles me deeply because I find it very difficult to accept that the father who was seeing the children regularly would have been completely unaware of the details of what had happened.
On 17 August 2011 the mother gave birth to [Z].
Mr G was placed on bail after he was charged and the father was aware that he was on bail. On 24 August 2011 there was an exchange of text messages between the father and Mr G after the father saw Mr G’s motor cycle at the mother’s home. The father texted the mother saying that he would report it if he saw Mr G’s motor cycle there again and

Mr G sent the father a very aggressive text message in response.
In November 2011 Mr G was sentenced to six months imprisonment for assault and breaches of ADVO’s. He was released in February 2012 and he and the mother resumed contact.
On 10 March 2012 the mother went to Mr G’s home with the three children and found another woman there. The mother went home and according to what the maternal grandfather told the father a couple of days later she ingested pills and alcohol. The maternal step-grandmother either happened to call in or was called by the mother and found the mother on the bathroom floor of her home heavily under the influence of what she had taken. [X] and [Y] were home at the time and they followed the maternal step-grandmother into the bathroom. [Z] was in her cot.
The mother was taken to hospital by ambulance and she remained in hospital for a week.
At this point the maternal grandfather and step-grandmother suggested to the father that he should apply for custody of the children but the father did not immediately do so. The children continued to live with the mother and in April or May 2012, notwithstanding all that had occurred, the mother reconciled with Mr G. As a result some services which had been assisting her withdrew their support.
The father contacted the Department of Family and Children Services after he was told by the maternal grandfather about the reconciliation and he also became aware of other concerns about the children at this time. On 28 May 2012 the children’s school told him that [X] and [Y] had been sent to school without breakfast on numerous occasions and that they had told teachers that they were scared of Mr G and hated him.
On 11 June 2012 the father retained the children at the end of a weekend visit. He subsequently received a very aggressive message from Mr G saying that his parents had plenty of money and would fund a fight over the children.
The mother applied for a recovery order and the father simultaneously applied for parenting orders, but the mother recovered the children prior to the first court mention date by collecting them from school.
The matter came before me on 17 July 2012 and I ordered pursuant to s.11F of the Family Law Act that the parties attend a child dispute conference with a family consultant. The conference was conducted by Ms B. The mother told Ms B that she and Mr G were attending relationship counselling to assist with reconciliation. Ms B was very concerned and recommended that an urgent limited issues report be prepared.

The interviews for the report took place on 6 August 2012 and on that day the mother told Ms B that she had had no contact with Mr G since 20 July 2012. She said that she was no longer confident that Mr G was demonstrating a serious wish to make a change because he had contravened ADVOs and sent her and the maternal grandfather threatening messages. Mr G was in fact arrested I think on 17 July 2012 although I do not know what happened in regard to that.
The Family Report was released on 16 August 2012 and on 23 August 2012 I conducted an interim hearing. I made interim orders for the children to live with the father and spend time with the mother on alternate weekends during the day only and I listed the matter for final hearing in February 2013.

The parties’ current circumstances

The mother is 32 and lives in [omitted] with [Z] aged 2½. The mother is a [occupation omitted] who works from 9.00am to 5.00pm five days a week. She is employed by the same business as the maternal grandfather.
The mother receives financial assistance which enables her to employ a full time nanny to care for [Z] in her home while she is at work. She obtained this assistance by emphasising the difficulties she laboured under as a result of her mental health issues and having been a victim of family violence.
At the hearing the mother denied that she was still in a relationship with Mr G or was contemplating renewing that relationship, and one of the difficult issues in the case is whether I should accept this evidence.
There was clear evidence that until the commencement of these proceedings the mother and Mr G were still intent on pursuing their relationship. They were interviewed by officers of the Department of Family and Children Services on 19 and 20 June 2012 and were separately asked if they had made a commitment to each and both said that they had.
Their relationship was still continuing on 17 July 2012.
The mother told Ms B on 6 August 2012 that she had given up on Mr G on 20 July 2012 but the father said that [X] told him in November 2012 that the mother was still talking about Mr G and that [Y] told him in December 2012 that the mother had said that Mr G was all better now.
During cross-examination the mother agreed that she had spent time with Mr G’s family on occasions since August 2012 and that she took [Z] to see her paternal grandmother quite regularly. She said that over Christmas 2012 [X] and [Y] were included (together with the mother and [Z]) in a social event with members of the [G] family.
The mother vehemently denied however that she had seen Mr G recently, was in any sort of communication with him or had any intention of reconciling with him.
Some of the mother’s answers during cross-examination about this issue concerned me. Twice at the beginning of her cross-examination the father’s counsel asked the mother if Mr G had been in contact with her and her first answer on both occasions was “Not directly.” She went on to claim that nobody had contacted her on his behalf but she also said that Mr G’s mother had told her that Mr G would like to see [Z].
The answers “Not directly, no” caused me concern but on the state of the evidence it is simply not open to me to find that the mother is continuing a relationship with Mr G or has any intention of resuming a relationship with him.
I take into account the things the father said that he was told by [X] and [Y] but they are children. Children can get the wrong end of the stick. Words can be garbled when they move from one person to another. It would be unsafe for me to place too much weight on what the children have said to the father and I cannot make a finding that the mother’s relationship with Mr G is continuing or that the mother intends to resume it.
There was no evidence that the mother was in another committed relationship although she has a friend [name omitted], or had at the time of her cross-examination a month ago, who has been at her home of an evening and she has a male boarder who she insisted was just a boarder. There was nothing in the evidence which would allow me to be doubtful about the mother’s evidence in those respects.
The father is 33 and he lives in [R]. He is a [occupation omitted] and he works from 6.00am to 4.30 pm Monday to Friday.
The father married Ms S in [omitted] 2012. He has known Ms S for about two and a half years. Ms S is an [occupation omitted] who works part time at [omitted].
The children attend [omitted] School at [R]. [X] is in year 2 and [Y] is in year 1. [Y]’s school performance has improved since she came into the primary care of the father; the mother conceded that. The children are both doing extra curricular activities. [X] plays [omitted] and [Y] is in [omitted].

The children’s best interests

Any orders I make about [X] and [Y] must be orders determined by treating their best interests as the paramount consideration and s.60CC(2) and (3) of the Family Law Act sets out the matters to which I must have regard in order to determine the children’s best interests.
S.60CC (2) contains the primary considerations and s.60CC (3) the additional considerations and normally I deal with them in that order. In some cases however it is very difficult to make findings about the primary considerations until findings are made about the additional considerations. This is such a case and I am therefore going to deal with the subsections in the reverse order and start by considering the matters in s.60CC (3).
The first additional consideration is any views expressed by the children and any factors such as their maturity and level of understanding which the court thinks are relevant to the weight it should give to those views.
There was evidence about the children’s views in the Family Report and evidence from such a source is valuable evidence. Family consultants are experienced people with backgrounds as either social workers or psychologists. Ms B has a Bachelor of Social Work which she obtained in 2000, 13 years ago, so she has a bit of experience.
Ms B said that [X] expressed his views regarding his living arrangements without being asked. He said:
I just want to live with dad, not mum.[1]
[1] Family Report paragraph 45
[X] told Ms B that he had expressed these views several times to each parent and said that [Y] also thought that this was a good idea.
Ms B said as follows about [Y]’s views:
[Y] arranged her bear cards in such a way as to reflect the time she spends with each parent [[Y] was still living with the mother at this point] placing her, [X] and [Z] with the mother and placing the father a short distance away. [Y] then moved the cards, depicting her and [X] with the father and said, “I want to live more with daddy.”
To obtain more information Ms B contacted the Department of Family and Community Services and she also spoke to Ms S, a support person who worked with the mother in 2012. Both sources reported that the children had expressed wishes to live with the father and had expressed a wish for various support workers to take them home, that is to the worker’s homes.
The Family Report was released seven months ago and at the time of the interviews the mother had only just decided to cease her efforts to reconcile with Mr G. Things have changed for the children since then. They have been living peacefully with the father and their time with the mother has been limited and has not been marred by any further exposure to violence.
There is always the possibility that the children’s views might have changed but the mother did not claim in her affidavit that the children were expressing a wish to return to her primary care or even to spend more time on her. I am absolutely convinced that if the children had been saying such things the mother would have told me about it.
I therefore have no reason to believe that the children’s views have changed since the report was released.
The children are only 8 and 6 however and their views certainly do not determine the matter one way or the other but what I can take from the evidence about the children’s views is that they would prefer to live primarily with the father.
The next additional consideration is the nature of the children’s relationship with each of their parents and any other persons including a grandparent or a relative of the child.
There was some evidence touching on this in the Family Report and I place weight on it because Ms B is experienced and does not bring emotion to the matter.
Ms B said as follows in regard to [X]:
[X] was asked to describe his family relationships. He described the mother as cranky all the time. When asked to recall a happy time with the mother, [X] said the only time the mother was happy is when she is by herself and when we are quiet and leave her alone. He recalled the last time the mother played with him was when the parents were still living together. He said this was probably the last happy time he can recall living with the mother.[2]
[2] Family Report paragraph 43
Ms B noted that it was reported in records from the Department of Family and Children’s Services that when [X] was asked in June 2012 “What’s good about mum?” he replied she took him to the park once.
Ms B spoke to Ms T from [X]’s school who told her that [X] had said that the mother had been yelling and swearing at him and had recently told him to “go and live with your dad for the rest of your life”. [3]
[3] Family Report paragraph 57
The mother denied during cross-examination that she had ever said anything like that to [X] but this report came from somebody at the school and it seems unlikely that the report is incorrect.
I accept that parents sometimes say things like this when they momentarily lose control and are extremely agitated but it is certainly not indicative of an overall good relationship between the mother and [X].
Ms B said that when she asked [Y] to describe the mother using bear cards [Y] took some time to respond. Ms B said that she asked [Y] whether she was having trouble with this and [Y] responded: “I’m just trying to find a cross one”.
[Y] eventually selected an angry bear. Ms B then selected a happy bear and asked [Y] to recall a time when she had seen the mother happy. [Y] said “I’ve not really seen her happy”. [Y] then pointed to a sad bear and said “I’ve sometimes seen her sad”. When asked what she thought made the mother sad [Y] identified Mr G.[4]
[4] Family Report paragraph 45
None of this evidence suggests a good, close, caring relationship between the mother and the children but seven months have passed and the children have been in the reparative situation in the father’s home during this period. The mother has not been challenged in caring for them by a focus on Mr G’s violence and the children have been uneventfully spending time with the mother in accordance with the interim orders. I have to consider the possibility that the mother’s relationship with the children is different today than it was when Ms B prepared the report.
However there was nothing in the mother’s affidavit to suggest that this was the case. The mother did not concede that she had ever been a cross, angry, distracted parent but nor did she provide much information in her affidavit about fun things she had done with the children since the interim orders were made or provide much information at all about her relationship with them such as would give me confidence that there had been a huge change in the relationship between the mother and the children over the last seven months.
Ms B said that both children, who were interviewed separately, described the father as happy.[5] Both said he was always happy, which does not necessarily seem completely likely to be correct but that is what both children said. [X] could not identify anything negative about his time in the father’s household. I am satisfied that the children have a good relationship with the father.[6]
[5] Family Report paragraph 44,5
[6] Family Report paragraph 44, 55
Little information was provided about the children’s relationship with their sister [Z]. [Y] is reported to have said on more than one occasion that she missed [Z] and that is understandable. The sibling relationship between the three children is important.
The children have a close relationship with their maternal grandfather and step-grandmother who have had an important role in picking the children up from school and attending [X]’s [sport omitted]. At times in the past the children saw the maternal grandfather and step-grandmother weekly.
The relationship between the father and the maternal grandfather and step-grandmother has been strained since the interim orders were made as a result of a dispute between them about the interpretation of the interim orders. This is sad but the children still have a close relationship with the maternal grandfather and step-grandmother. They value it and they are happy to spend time with them.
The next additional consideration is the extent to which the children’s parents have taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with the children or to communicate with the children.
Both parents have always taken the opportunity to be part of the children’s lives since separation and this consideration does not assist me.
I must consider the extent to which each of the children’s parents has fulfilled or failed to fulfil their obligations to maintain the children.
The mother made no complaint about the father’s payment of child support during the period the children lived with her.
The mother has been assessed to pay child support since the children have been living with the father. She has not paid it and she owes arrears. However apart from one issue later on in the judgment to which this is relevant I do not consider that the mother’s failure to pay child support assists me to resolve the issues in dispute.
I must consider the likely effect of any change in the children’s circumstances including the likely effect on the children of separation from either of their parents or any other child or person with whom the children have been living.
The children have been living primarily with the father since August 2012 and they have been spending time with the mother on alternate weekends during the day only.
The mother proposed that the children commence spending five nights per fortnight with her and this would be a big change for the children. It would not necessarily be aligned with their views and if they felt unsafe with the mother such a change could have serious psychological consequences for them.
If I order that the children continue to spend limited time with the mother this will result in a long-term change in the children’s circumstances because until August 2012 they had always either lived in a household with both parents or lived primarily with their mother.
If I make this order the mother will have considerably less opportunity to be involved with the children on a day-to-day basis and considerably less opportunity to do certain activities with them. In addition the children’s relationship with [Z] might never be as close as it would have been if they had spent more time in the same household as her.
Whether this change is likely to be detrimental overall or beneficial overall for the children when all matters are weighed and balanced is something I will have to consider once I make findings about the remaining s.60 CC(2) and (3) matters.
I must consider the practical difficulty and the expense of the children spending time with or communicating with a parent.
The parents live a stone’s throw from each other and this consideration is not relevant.
I must consider the capacity of each of the parents to provide for the needs of the children including their emotional and intellectual needs.
Two issues of concern arise in relation to the mother. First, she was diagnosed in about 2008 with Bipolar II, a mental illness and second, from at least January 2011 (and possibly earlier) until sometime in 2012 the mother was in a very destructive relationship with Mr G.
Mr G perpetrated serious family violence in the mother’s home and notwithstanding this the mother continued her relationship with him over a very lengthy period of time. During this period the children found the mother to be angry and uninterested in them and toward the end of the period issues seem to have arisen in relation to the children being given breakfast before school.
In March 2012 the children were in the home when the mother took an overdose of pills and consumed a large part of a bottle of Jim Beam. The mother was not focused on the children in any way during that episode.
The mother attached to her affidavit reports from her doctor and psychologist and these reports suggest some intertwining between the mother’s mental health issues and the violent relationship. There was no expert evidence which would allow me to determine which of those two was the predominant problem but overall there was a very serious problem in the mother’s home on and off between 2011 and 2012 at the very least.
When the mother filed her application for parenting orders on 13 June 2012 after the father retained the children she was still pursuing reconciliation with Mr G, despite what she had been through with him since at least January 2011.
It was the mother’s case that all these problems were now behind her. She said that she had completely ended her relationship with Mr G; was under the care of a psychiatrist, a psychologist, a GP; had undertaken domestic violence counselling and had completed a program called Inner Strength; had mended her relationship with her father and step-mother; and had facilitated the children having counselling with Ms F, just as the father had. The mother said that she was in touch with the children’s school and was more focused on the children and more involved with them and that things are different now.
The mother’s counsel submitted that the mother had been a capable parent prior to her relationship with Mr G and that the court could be confident that she would be a capable parent in the future now that

Mr G was off the scene.
I am not necessarily convinced that this is the case.
In support of his claim that the mother had historically been a capable parent the mother’s counsel relied on a passage in Ms B’s report in which she related how the father told her that the mother had been the best mum in the world at an earlier time in the children’s lives. It is important however to bear in mind exactly what Ms B said, which was as follows:
The father reflected on the mother’s parenting capacity for the children during the early stages of their relationship. He described her as the “best mum ever”, recalling how the mother regularly spent time playing with the children and cooking healthy meals for them. However, the father described a long history of mood swings with the mother which he believed worsened after [Y] was born.[7]
[7] Family Report paragraph 68
The father’s description of the mother’s parenting capacity prior to

Mr G coming on the scene was therefore not quite as glowing as the mother’s counsel suggested during submissions.
The reports from the mother’s GP and her psychologist do not contain a glowing endorsement of the mother’s parenting capacity either. The mother’s GP said as follows:
In respect of her mental health issues, [Ms Alan]’s progress has been variable since she came under my “care and attention”. Factors have included the natural history of [Ms Alan]’s mental health, the effect of medication taken at the time and circumstances which were beyond her control.
If the afore-mentioned factors were to combine in [Ms Alan]’s favour, I consider that she would be able to take care of the children on a day to day basis. I don’t believe that [Ms Alan] would harm her children, however, if she were to have a mental crisis the children could inadvertently be in jeopardy.
Monitoring of [Ms Alan]’s mental health has included that by an “in house educator”, a counsellor, the public health system and myself. I cannot give an assurance to all concerned that her (mental) health will continue to improve.

The GP also said as follows:
I have never doubted [Ms Alan]’s love for her children. Her ability to care for them on a day-to-day basis is less than predictable in my view.
Mr M, the mother’s psychologist, also avoided endorsing the mother’s parenting capacity. He said as follows:
I am not prepared to make further judgments about

Ms Alan’s capacity to parent her children on a day-to-day basis, as this was not the context for our contact and therefore has not been formally assessed.
The mother sought and obtained assistance in 2012 which enabled her to pay for in-home care for [Z] by claiming that her ability to parent had been affected by her mental health issues and her exposure to family violence.
In the Family Report Ms B said as follows:
With regards to her parenting capacity for the children, the mother denied that there are any concerns, whilst also conceding that she is very dependent on the In Home Care provided by Ms S. With regards to the current nature of her relationships with the children, the mother acknowledged some conflict with [X] and expressed the view that “[X] is going to make me pay for this forever”. The mother was asked specifically about the recent incident when she allegedly swore at [X] and told him to live with the father, and when asked what that incident may have been like for [X] the mother replied “that was an argument we needed to have”. With regards to [Y] the mother believes that they remain close, however, acknowledged that [Y] has missed her since she resumed full-time work. Nevertheless, the mother expressed her intentions to continue full-time work as this has been beneficial to her own wellbeing and coping.[8]
[8] Family Report paragraph 65
This passage suggests that the mother does not recognise the deficiencies in her parenting capacity or fully understand the difficulties in her relationship with the children.
In the light of this evidence I could not have considered, if the mother had asked for it which she ultimately did not, making an order that the children resume living primarily with the mother.
However the fact that the mother might struggle to parent the children adequately day in and day out does not necessarily mean that the children should not have more extensive time with her than they are having at the moment or that they should not have any overnight time with her. Those are separate issues.
A concern I have which does bear on this is that the children had an absolutely dreadful time in the mother’s care on and off for 18 months and possibly for longer, because we really do not know what happened prior to the incident in January 2011, and there was no evidence that the mother really understood that or had any insight into how the children had been affected by the events which occurred in 2011/2012.
My observations of the mother in the witness box suggested to me very strongly that she was simply not connected to the children’s plight. There was nothing in her evidence to suggest that she had any insight into the harm which had been caused to the children by the exposure to family violence.
When it was put to the mother that [X] might have behavioural problems as a result of his exposure to family violence the mother’s response, and she gave this same response to Ms B, was that [X] had had behavioural problems since he was two.
Ms B said as follows and this resonates strongly with the other evidence in the case:
The mother has demonstrated some difficulty acknowledging the impact that her mental health and parenting approach has had on the children. Instead, the mother appears to be focused on her own feelings of injustice, rather than demonstrating a capacity to sustain a child focus and separate the children’s needs and experiences from her own. Furthermore, the mother’s belief that she has been coping better than ever would appear to be somewhat distorted, given it is contrary to all other information.[9]
[9] Family Report paragraph 63
Since the Family Report was prepared the mother has done some courses and has had some counselling but there was nothing in her presentation in the witness box and nothing in her affidavit to suggest that she currently had any great empathy with the children or any insight into the harm that had been done to them by their prolonged exposure to family violence.
An illustration of the fact that the mother just does not understand the impact on the children and everyone else of what has happened is her reaction when the father asked her for information about the male boarder in her home.
Given that the children were exposed to horrific instances of family violence over a lengthy period of time it ought to have been obvious to the mother that anyone would be concerned about the fact that there was another male person living in her home. However when the father asked about this man the mother brushed him off and gave a very curt and dismissive response.[10]
[10] See annexure Z3 to the father’s affidavit
The mother seems to think that because she has moved on from her relationship with Mr G that everyone else should forget about the events of the past. She appears to find it incomprehensible that people might continue to be worried.
I have concerns about the mother’s capacity to provide for the children’s emotional needs and that has a bearing on whether I order that the children spend overnight time with the mother, because the children have felt very unsafe with the mother overnight in the past. They have been exposed to some horrific incidents at night. They have had some sleeping difficulties as a result.
If the mother thinks that just because Mr G is off the scene and because in her own mind all problems are over it is unreasonable for other people to remain worried then the mother might not be able to properly provide for the children if they expressed fear at night or had sleeping difficulties in her home. She would not be on the same page as the children which could have unfortunate implications for the children.
The mother did not raise any great concerns about the father’s parenting capacity. She raised a few little concerns but I am satisfied that the father has provided well for the children since they came into his care.
The father has gone to considerable trouble to establish routines for the children. He has had to deal with some difficult behavioural issues but the children are improving which suggests that the father has been able to deal with those difficult behavioural issues appropriately. I am satisfied that the father has the capacity to provide for the children’s day-to-day, intellectual and emotional needs.
I am concerned that the father took so long to act and that the children were left in a dreadful situation with Mr G for so long but that cannot be changed and the father has been trying very hard since mid-2012 to do the right thing by the children.
I must consider the children’s maturity, sex, lifestyle, and background.
The only relevant factor here is that the children are young – [Y] is 6 and [X] 8. It is very important that they live in a stable, quiet, calm environment so that they are able to get on with their own tasks of growing and learning.
I must have regard to the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents.
It could be argued that the mother showed a poor attitude to the children by exposing them to family violence for so long but this may well be attributable to the mother’s mental health difficulties together with the difficulties experienced by a person who becomes emotionally trapped in a violent relationship rather than be a result of the mother showing a poor attitude to the children and the duties of parenthood.
I must consider any family violence involving the children or a member of the children’s family.
During 2011 the children were exposed to serious family violence perpetrated by Mr G. The incident in June 2011 which I described earlier was particularly traumatic but it was not the only occasion when the children were exposed to family violence.
The children made references to their exposure to family violence when speaking to Ms B. In regard to [X] Ms B said as follows:
[X] described witnessing occasions of physical violence by Mr G towards the mother and the maternal grandfather. He described one occasion when the maternal grandfather had to come over to the mother’s house in the early hours of the morning, and when he went to close the bathroom windows he found Mr G in the house. He said that Mr G “pushed and banged” the maternal grandfather, causing the maternal grandfather’s nose to bleed. [X] said that he was standing with [Y] watching the incident and screaming.
[X] also described witnessing Mr G “push” and “smack” the mother. He described one occasion when he was in bed listening to Mr G “whacking her”. He said that the mother was “on the phone, and a little bit crying”.[11]
[11] Family Report paragraphs 39, 40
Ms B also said as follows:
With regards to how Mr G treated him, [X] said that on one occasion Mr G threw out one of his toys. He described another occasion when he had built something out of a cardboard box and Mr G kicked a whole in the side of it and said to him, “ that’s fixed”. [X] said “I’m still really scared of him”.[12]
[12] Family Report paragraph 41
[Y] described witnessing family violence when speaking to Ms B. She described witnessing a fight between Mr G and the maternal grandfather in the home. She said she and [X] were in the lounge room and she said to [X], “Quick, come and hide.”
[Y] was also a victim of violence. She told Ms B that Mr G would “Squeeze us, which would hurt”, and there was also the incident referred to earlier where [Y] reported that Mr G had twisted her wrist. [Y] made other complaints about Mr G which were more examples of meanness by Mr G than family violence.
The effect on the children of this exposure to family violence has been quite extreme and serious.
[X] told Ms B that he felt unsafe in the mother’s house, that he was so scared he was unable to sleep in his own bed and he was still scared at the time of the report interviews in August 2012. He said that the father’s house in contrast was safe.
Ms B was told by the people to whom she spoke that while [X] was living with the mother he was anxious and had facial tics and had experienced bouts of extreme anger, sleeplessness, head-banging and running away from the mother’s care. [X] was reported to have expressed thoughts such as “I wish I wasn’t here. I wish I hadn’t been born.”
[Y] told Ms B she was scared in the mother’s house and the people to whom Ms B spoke made mention of [Y] being extremely withdrawn when living with the mother and exhibiting panic when she did the wrong thing, displaying sexualised and adultified behaviours and language and being unable to sleep independently.
Ms T told Ms B that the children were worried about Mr G, were directly exposed to the incident of self-harm by the mother, were acutely aware that the suicide attempt was because she saw Mr G with another woman and had experienced diminished feelings of safety in the mother’s care and increased feelings of safety in the father’s care.
The father said that after the children came into his care initially they exhibited signs of distress such as [Y] asking if all the doors and windows were locked, [Y] having disrupted sleep patterns and calling out for him in the night, the children being aggressive to each other and coming into his room and wanting to sleep in his bed.
Mrs C, the paternal grandmother said – and it is important to remember that she was not required for cross-examination and her evidence was not challenged – that when [X] first came to live with the father he was an extremely angry little boy and the only way he seemed able to cope was to be defiant. She said that [X] showed no respect for family members on a daily basis and had a constant nervous clearing of his throat which he did not seem to be aware of. Mrs C said that over time this had disappeared.
Mrs C said that [Y] had appeared to be an upset, withdrawn little girl who cried a lot over simple things.
Interestingly both Mrs C and Mrs R said that it was their view that generally children should live predominantly with their mother, so they were not witnesses predisposed to give evidence in support of a change of residence for the children.
The maternal grandfather and step-grandmother told Ms B that they believed the children had been substantially impacted on by their exposure to family violence by Mr G and the associated impacts of the mother’s mental health and its effect on her protective and parenting capacities for the children.
They expressed concerns about the impact on the children of Mr G’s direct treatment of them and said that Mr G would terrorise the children. They said for example that if the children forgot to turn their bedroom lights off Mr G would remove the light bulbs and force them to sit in the dark. The maternal grandfather and step-grandmother said that the children had displayed persistent emotional and behavioural distress and had more frequently sought their physical affection and had expressed wishes not to return to the mother’s care.
I did not have the benefit of a report from a psychologist about the children but the totality of the evidence makes it clear enough that the children have suffered psychological harm as a result of their exposure to family violence. There is considerable force in Ms B’s opinion that the children endured prolonged feelings of threat and fear in the mother’s care which impacted on their development, learning and well-being.
Ms B expressed the opinion that if these feelings continued then the development trajectory for the children was likely to be very poor, and there is considerable force in this opinion as well.
Ms B’s opinion was that the children needed to live in a reparative environment as a result of what they had experienced and she recommended in her report that they live with the father and not spend overnight time with the mother. Ms B was concerned about the fact that the children had experienced sleep disturbances and sleep issues such as not being able to sleep in their own beds.
I am satisfied that even though seven months have passed since the children commenced living in a reparative environment with the father it is highly likely that they would find it difficult at present to spend overnight time with the mother given what they experienced in her home.
Their distress would be compounded if the mother failed to relate emotionally to their distress and failed to empathise with them. If this occurred then it is highly likely that spending overnight time with the mother would be detrimental to the children.
Ms B agreed with this assessment of the situation during cross-examination and expressed the opinion that it would be preferable to be slow and cautious about reintroducing overnight time.
One of my concerns about the mother is that she does not seem to accept much responsibility for what has happened to the children. She perceives herself as having been a victim of a combination of her mental illness and the violence perpetrated by Mr G. She did not show much understanding, either in her affidavit or when talking to Ms B or at the hearing, of the fact that although she might have put it all behind her because her relationship with Mr G was now over that other people might not and the children might not so easily be able to forget what had happened.
The best the mother was able to say in her affidavit was that:
[I am]…mentally and emotionally stable which now places me in a good position to nurture my children and support them in their recovery from the turmoil they had to experience during my mental illness problems.
Ms B was concerned about the mother’s lack of insight and understanding into the effect of the family violence on the children and she said as follows:
The mother appeared to minimise the children’s experiences of the family violence. For example, she said that the children have only witnessed one occasion of physical violence by Mr G, and on all other occasions the children have been in bed. The mother dismissed the notion that

Mr G ever directly treated the children poorly, and rather, claimed that the children probably miss their relationships with Mr G’s parents and daughter.
The mother also demonstrated minimal understanding of the impact of the family violence on the children. For example, while she conceded that there has been an impact, she identified one of the major difficulties for the children as “having to share me with him”. The mother conceded that the children have been scared at times, however, quickly dismissed that the children would have any ongoing fear because they have not had contact with Mr G in approximately a month and because she reassures them and has ‘safety plans’ in the home.
When asked about the specific impacts on the children of the issues of family violence the mother said that she believes that [Y] may have developed “trust issues with men”. With regards to [X]’s behaviour the mother dismissed any correlation between these issues and the issues of family violence and claimed that [X] has exhibited behavioural issues since he was two years old and said that his recent issues “have been no worse”.
The mother also denied that there was any adverse impact of her ‘suicide attempt’ in March 2012 on the children because i) they did not see her ingest the tablets, and ii) they did not visit her in the mental health unit. When asked whether she believed that this incident would have further impacted on the children’s feelings of safety and security in her care, the mother was unable to comment. She then expressed the view that people are judging her unfairly because she has a mental illness; she believes that her views are not being taken into consideration and that everyone is forming an opinion “for the other side”. [13]
[13] Family Report paragraphs 60, 61, 62, 64
Ms B was not challenged about the accuracy of her report about what the mother said to her.
The mother has a very unrealistic view of the situation. This is what she said in her affidavit:
I can certainly assure [the father] and other concerned parties that the children would be totally safe in my care and control, and as a further support mechanism, apart from my treating therapeutic rehabilitation process, my parents love and adore my children and would never allow any harm to come to them.[14]
[14] Mother’s affidavit paragraph 36
I have the greatest respect for the maternal grandfather and step-grandmother, but they were unable to prevent harm coming to the children in 2011 and 2012. The maternal grandfather was seriously assaulted by Mr G on two occasions in 2011. The fact that the mother believes that the existence of the maternal grandfather and step-grandmother is going to prevent harm coming to the children indicates that the mother has a very unrealistic view of the entire situation.
The mother made a general allegation that the father perpetrated family violence during his relationship with her. She gave no particulars about what allegedly occurred and I cannot place any weight on that general allegation.
The mother also alleged that the father had harmed [X] by throwing him and causing bruising. The father denied that any such thing had occurred and I cannot be satisfied on the balance of probabilities that it did occur.
In regard to family violence orders there is one in place until 2014 for the protection of the mother and the children from Mr G. There is also a family violence order in place for the protection of the maternal grandfather from Mr G.
Family violence orders do not necessarily offer a protection against family violence. They only do so if they are respected, and during cross-examination the mother conceded that there were times in 2012 when she had contact with Mr G and I think on one occasion allowed the children to do so in breach of a family violence order.

I must consider whether it is preferable to make the order least likely to lead to further proceedings.
One of my concerns in this matter is that the relationship between the parents is not especially good at present.
The mother struggles with the idea that her role in the children’s life might be permanently diminished and seems quite resentful about the fact that this might be so. I am concerned about whether the mother will readily accept orders that allow her only limited time with the children.
Communication between the parents is poor and the problems are not all on one side. There have been some acrimonious email exchanges in the past and sometimes the father has not replied to the mother in quite the calm and collected manner that he should have.
Those are the sort of problems which can result in a matter coming back to court either on a contravention application or an application to change orders.
I must consider any other relevant matter and I note here that the maternal grandfather and step-grandmother are a positive factor in the children’s lives.
The children have a good relationship with them and they love and care for the children. They were not always been able to protect the children from exposure to violence perpetrated by Mr G, that is true, but it might be that there was a limit to what they could do in a difficult situation.
After the maternal grandfather and step-grandmother sided with the father in 2012 the mother did not speak to them for a considerable time, so they are not in an easy position, but they are a positive in the children’s lives. Their relationship with the children ought to continue. If the children’s time with the mother continues to be limited the children will through the maternal grandfather and step-grandmother have an additional opportunity to maintain a connection with the maternal family.
It is regrettable that the relationship between the father and the maternal grandfather and step-grandmother came under strain in the latter part of 2012. I do not blame the father for this and I do not blame the maternal grandfather and step-grandmother for it; it was an unfortunate disagreement about the interpretation of the orders. However historically a good working relationship has existed and there were the beginnings of a restoration of that prior to the hearing.
My one concern about the maternal grandfather and step-grandmother is about whether they have a realistic view of the mother. The maternal grandfather in his affidavit said that he thought that the mother had shown remorse for exposing the children to violence. I did not see any sign of that myself and I am a concerned that the maternal grandfather and step-grandmother might be too ready to trust the mother again, but that issue that was not really explored during the hearing.
I now come back to the primary considerations in s.60CC(2) and they are:
i)the benefit to the children of having a meaningful relationship with both of the children’s parents; and
ii)the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
I am required by s.60CC (2A) to give the greatest weight to the need to protect the children.
It is generally of benefit to children to have a meaningful relationship with both of their parents. A mother and a father are different people. They have different interests. If children can obtain love and nurture and guidance from both of these people then they are the luckiest children in the world.
As Ms B rightly pointed out however children can have a meaningful relationship with a parent and a nurturing relationship which provides them with love and guidance without spending overnight time with that parent. They can have a meaningful relationship with both parents even if they live predominantly with one and spend much less time with the other.
This consideration therefore does not assist me to resolve the issues in dispute.
I must consider the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
It was the mother’s case that whatever might have happened in the past Mr G was now out of her life and there was no risk of the children being subjected to or exposed to family violence in the future.
I cannot be satisfied, despite the father’s suspicions, that Mr G is still in the mother’s life and during cross-examination Ms B expressed the opinion that if Mr G had been out of the mother’s life for six or seven months the chances were increasing that the relationship would not resume.
There was no evidence that the mother had re-partnered with anyone else and certainly no evidence that she had re-partnered with another violent man and therefore at present there is no risk of the children being exposed to family violence in the mother’s care.
I cannot tell what the future might hold. The mother was in a violent relationship with Mr G for a considerable time and there is always a risk that she might re-partner with another violent man but that is the highest I can take it on the evidence.
The mother made an allegation about the father having abused [X] and having committed acts of family violence. I cannot find on the balance of probabilities that any such events occurred and I do not consider that the children are likely to be exposed to abuse, neglect or family violence in the father’s care.

Parental Responsibility

Pursuant to s.61DA of the Family Law Act I am obliged to apply a presumption that it is in the children’s best interests that the parents have equal shared parental responsibility for them, absent a finding that one of the parents or a person living with one of the parents has engaged in family violence or has abused the children.
Mr G committed some serious acts of family violence and he was living with the mother at some point, but it is not entirely clear to me whether he was living with her when he committed the various acts of family violence.
It seems to me likely that he was on at least one of those occasions and that the presumption does not apply, but if I am wrong about that I also note that the presumption can be rebutted by evidence that it would not be in the children’s best interest for the presumption to apply.
The father sought an order for sole parental responsibility and the mother an order for equal shared parental responsibility. No oral submissions were made about this issue but it was referred to in each parties’ case outline document.
I always dislike removing parental responsibility from a parent who is going to remain involved with children and the mother is certainly going to remain an important part of the children’s lives.
I cannot necessarily foresee all the major long term decisions which will need to be made about children. I might take away from a parent inadvertently the right to have a say about something very important such as whether a child travels to a dangerous overseas country or even whether a life support machine is turned off.
This is a case however in which decisions may need to be made about the children sooner rather than later and in particular it may be necessary to decide whether the children attend counselling. The mother is facilitating counselling at the moment but sooner or later the parents are going to be out of the court system and further decisions about counselling might have to be made.
I have to consider whether the parents will be comfortable sharing decision making responsibility for the children and will be able to discuss major long term issues and attempt to reach agreement, with each of them listening to the input from the other and putting forward good child-focused proposals about the children.
I have concerns about the parties capacity to communicate and about whether the mother will be able to put forward good child-focused solutions for the children.
Over quite a lengthy period of time the mother demonstrated a serious lack of judgment concerning the children. She was still hoping to reconcile with Mr G when these proceedings commenced. For a lengthy period of time she demonstrated no capacity to prioritise the needs of the children over her need to have a relationship with Mr G. Whether this was because of her mental illness or whether it was because she was a victim of family violence or because of a combination of both does not really matter. Whatever the reason she was unable to focus on the children and she made poor decisions which directly affected them.
I am also concerned about the mother’s lack of empathy with the children.
To ensure that the children’s immediate foreseeable needs are properly met whether or not the mother has further issues with family violence and mental health I intend to make an order that the father has sole parental responsibility for decisions concerning the children’s education and their medical and psychological treatment.
Apart from that I am going to make an order for equal shared parental responsibility, so there will be some things the father can make decisions about on his own and other things such as any issue concerning the children’s names or overseas travel or unforeseen things which the parents will have to consider together and try to reach agreement about.

Conclusion

The parents agreed at the outset of the hearing, although I am sure it was not something the mother was happy about, that the children should continue to live primarily with the father, and on the basis of the evidence that I have heard that is the only order I could have made.
The father was there for the children in mid-2012 when the mother was still not ready to end her relationship with Mr G. He has done a good job of caring for them since the interim orders were made in August 2012 and I have confidence in his parenting capacity overall, whereas I have concerns about the mother’s parenting capacity even though her relationship with Mr G is over.
The issue I need to decide is the amount of time the children should spend with the mother. I am not bound to apply the provisions of s.65DAA of the Family Law Act because I have made a hybrid order about parental responsibility. I must simply consider which arrangements are likely to be in the children’s best interests.
The mother’s proposal was that the children should spend five nights per fortnight with her.
The mother’s counsel submitted that the things favouring this outcome were that the mother’s relationship with Mr G was behind her, she had undergone counselling and she had mended her relationship with the maternal grandfather and step-grandmother. The mother was now in a secure place in her life. There was nothing to suggest that the children were unhappy about spending time with her as they were currently doing and the father had conceded the mother was a good parent prior to separation. This should give the court confidence that the mother would parent the children well in the future if orders were made as she proposed.
I would go so far as to say that the mother struggles to understand why there should be any opposition to her proposal. In her mind the difficult days are over and it makes no sense to her that she should continue to have limited involvement in the children’s lives.
A benefit to the children of spending more time with the mother is that it would better ensure that they developed a strong sibling relationship with [Z]. More frequent time with the mother would give them more exposure to the different things she has to offer them and if they spent more time with the mother, including overnight time, she would be able to do a greater range of caring tasks for them which she is able to do at the moment.
If the children spent more time with the mother it would better ensure that they were able to spend frequent time with the maternal grandfather and step-grandmother, whose relationship with the father has been strained recently and it would also ensure that they spent regular time with other members of the mother’s extended family.
There is some merit in all these arguments and I cannot find that the mother’s relationship with Mr G is continuing but I do still have concerns about the likely impact on the children of making the orders proposed by the mother.
During 2011 and 2012 the children were exposed to some very traumatic events including traumatic events which happened at night. The children made it very clear to Ms B in August 2012 that they did not feel safe in the mother’s home and did not trust the mother to keep them safe.
In the mother’s mind the problems are over because Mr G is off the scene but it is very unlikely that the children have emotionally arrived at the same point of confidence and this concerns me given my finding that the mother lacks empathy with the children.
The mother lacks an appreciation of what the children have been through. She lacks an understanding of the impact of the children of what has happened to them. She is not sensitive to their needs. She perceives herself has having been a victim of Mr G’s violence. She does not perceive the children as having been victims. I am concerned that if the children spend greater time with the mother, including overnight time, that she may not relate properly to any distress they might show while in her care. Even one negative experience for the children while in the mother’s care could result in further psychological harm for them and they have been subjected to so much harm already in the last couple of years.
Ms B’s opinion was that any change in the children’s time with the mother should happen slowly. She did not consider that there should be any rush to restore overnight time. She did not put a timeframe on when restoration of overnight time might be appropriate but said that in her opinion given the children’s ages and their history of spending time with their mother they would be able to maintain a good relationship with her even if they did not spend overnight time with her.
I need to return at this point to the fact that prior to the hearing commencing the mother applied for an adjournment. She proposed that I make an interim order that she commence spending five nights per fortnight with the children and obtain an updated family report before making a final decision about the matter.
The father opposed the adjournment and I declined to grant it, but I want to explain a little bit further why in my view it was not appropriate to do as the mother proposed.
It was not appropriate because there was undisputed evidence that prior to August 2012 the children were exposed to serious family violence in the mother’s care. There was evidence that this exposure had had a severe adverse impact on the children and Ms B’s opinion in August 2012 was that the children needed to be an in a reparative environment for some time in order to overcome what they had experienced.
In her trial affidavit the mother claimed that her relationship with Mr G was over but it was clear from the father’s affidavit that he was suspicious that the mother still harboured feelings for Mr G and might have been in contact with him.
There are occasions when it is appropriate to test an increase in time before embarking on a final hearing but this was not such a case. The claim that the mother’s relationship with Mr G was over and that she was now at a different point in her life needed to be tested before any consideration could be giving to extending the children’s time with the mother, and the only way to test those claims was to conduct the hearing.
The hearing has been conducted and I have made findings and one option open to me now is not make final orders but to make interim orders and perhaps get another report before making final orders.
For the following reasons there is some attraction in doing this.
I am not be prepared at present to order that the children spend five nights per fortnight with the mother. There was nothing to suggest that the children’s relationship with her had vastly improved. There was nothing to suggest that such an increase in time would be in accordance with the children’s views. There was nothing to suggest that they would feel safe in the mother’s home at night. There is a considerable risk that doing too much too soon would be detrimental for the children and added to that I have concerns about the mother’s day to day parenting capacity.
Right at the moment I would not even feel comfortable making an order for overnight time. The children have been through enough, it has impacted severely on them, they have long felt unsafe in the mother’s home and although the mother is confident that Mr G is gone for good it might take a long time for the children to become confident that this is the case.
The evidence did not suggest that the mother would be likely to appropriately comfort and empathise with the children and assist them if they were frightened and nervous and acted out if they had to sleep at the mother’s home.
I intend to order that the children spend time with the mother more or less as proposed by the father but that is not necessarily ideal for the longer term. It will mean that the mother will not have any holiday time with the children. There may be some ways of getting around this, for instance the father might agree to the maternal grandfather taking the children away for a few days with the mother going along as well, but difficulties like this mean that the orders I make cannot necessarily stay the same indefinitely.
The orders will need to be reviewed in the future and I therefore need to consider whether it would be preferable to make interim orders only and to obtain another report at some later stage to see how the children are travelling, how the mother is travelling, and whether there have been any fresh difficulties in the mother’s life before making final orders
The downside of making interim orders after a final hearing is considerable however. The matter remains in the court system. It costs the parties a lot of money if that happens. They usually have to keep their solicitors engaged and letters are often written between solicitors over the six or 12 months while the matter remains on foot.
I am particularly mindful of the impact the cost of this might have on the father because he is the sole financial provider for the children. The other downside of making interim orders is that it sometimes means that people store up grievances for use in further court proceedings instead of raising them with the other party as they come up and talking them through.
I am not going to make interim orders. The orders will need to be reviewed they do not have to be reviewed by the court. I intend to order that by no later than 12 months from today the parents commence attending family dispute resolution to review the operation of the orders and to consider whether any change to the orders would be appropriate, including a change which allows the children to spend overnight time and holiday time with the mother.
I intend to order that the parents arrange in conjunction with attending family dispute resolution for the children to attend upon a counsellor so that the parents can obtain some objective information about how things are going for the children and about the possible impact on the children of any change to the orders.
I intend to order that the parents make a genuine attempt to resolve any dispute between them about a change to the orders, but if they are unable to reach agreement after making that genuine attempt, then either parent shall have liberty to make an application to the Court to change the orders and it is not the intention of the Court that they be prevented from doing so by the rule in Rice & Asplund.

I certify that the preceding two hundred and thirty-seven (237) paragraphs are a true copy of the reasons for judgment of Judge Terry.

Associate:

Date: 08 May 2013

[2013] FCCA 174

26 March 2013

Key Legal Topics

Areas of Law

Family Law

Negligence & Tort

Legal Concepts

Injunction

Remedies