BAILEE & MCKAYLA

[2016] FamCA 1125

FAMILY COURT OF AUSTRALIA

BAILEE & MCKAYLA [2016] FamCA 1125

FAMILY LAW – CHILDREN – Application for the children to reside with the father – Where the children are aged eight and their mother is their primary carer – Where one child has a significant health problem and requires constant monitoring and assistance – Where the children have been denied a meaningful relationship with the father – Where the father sought a change of residence for the children as recommended by the expert  – Where the children have expressed their wish not to have any time with the father – Where the mother is not willing to facilitate a relationship between the children and the father – Where it is not in the best interests of the children to order a change of residence to the father’s care.

FAMILY LAW – FAMILY VIOLENCE – Where there are findings of family violence against the father – Where the presumption in s 61DA of the Family Law Act of equal shared parental responsibility does not apply – Where the mother is granted sole parental responsibility for the children – Where the mother has alleged that the father sexually assaulted the children – Where the expert opined that the children could not retain the memories which they were alleged to have at such a young age – Where the expert believed some comments by the children were indicative of having been fabricated by the mother – Where the mother’s allegations that the father sexually assaulted the children have not been made out.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61DA, 65DAA

In the Marriage of Rice and Asplund (1979) FLC 90-725
APPLICANT:	Mr Bailee
RESPONDENT:	Ms McKayla
INDEPENDENT CHILDREN’S LAWYER:	Evans Family Lawyers
FILE NUMBER:	CAC	188	of		2012
DATE DELIVERED:	20 December 2016
PLACE DELIVERED:	Sydney
PLACE HEARD:	Canberra
JUDGMENT OF:	Le Poer Trench J
HEARING DATE:	19 – 23 October 2015; 2-3 November 2015; 28 June 2016; 12-13 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Tonkin
SOLICITOR FOR THE APPLICANT:	Strong Law Pty Ltd

COUNSEL FOR THE RESPONDENT:	In person
COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER :	Mr Stag
SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER :	Evans Family Lawyers

Orders

1. All previous parenting Orders are hereby discharged.

2. Ms McKayla (“the mother”) is to have sole parental responsibility for the children of the parties B and C, born ... 2008 (“the children”).

3. There is no order for the children to spend time with the father.

4. The father is permitted to send letters, cards and presents to the children as he sees appropriate.

5. The mother is to provide to the father information about any change of mail and email address for the children and herself.

6. On the first day of each calendar month the mother is to provide the father with a report which details the children’s progress in life, involvement in school and extra-curricular activities, and general information which she would anticipate a parent of the children would be interested to know.

7. In July and December each year the mother is to send recent photographs (no less than 3) of the children to the father by either email or ordinary post.

8. In July and December each year the father is permitted to send recent photographs (no more than 6 in total) of himself and members of his family to the children. The photographs may be sent by electronic means or in hard copy. The mother is to provide the children with any such photographs provided.

9. The father is to provide the mother with information about his mail address and email address and ensure any change in those addresses is conveyed to the mother forthwith.

10. In the event of the mother changing the children’s school she is to notify the father of such change as soon as the new enrolment has been accepted by the proposed school.

11. The mother is to provide the father with copies of the children’s school reports within seven (7) days of her receiving same. The copies may be scanned and sent by email or sent by ordinary post.

12. The Court recommends that each of the parents seek individual therapeutic counselling to assist them in accepting the outcome of the proceedings.

13. Upon the children turning 12 years of age the father has leave to seek any variation of these parenting orders which he requires.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bailee & McKayla has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (C

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CAC 188 of 2012

Mr Bailee

Applicant

And

Ms McKayla

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

1. The application before the Court is that of Mr Bailee (“the father”) seeking parenting orders in respect of the children B and C, who are twins born in 2008 (“the children”). The respondent to this application is the mother, Ms McKayla (“the mother”).

2. At the time this matter came before the Court, the father had not seen the children since December 2009, following an incident between the parties which led to the mother obtaining an Apprehended Domestic Violence Order (“ADVO”) against the father.

3. This is a parenting case involving the care of twin girls now aged eight years. There are no winners in this case. Although the mother may momentarily consider she has had a victory, it comes at a significant immediate cost and probably an even greater long-term cost to all involved. The Orders which I have made will exclude the subject children from being able to develop, at this time, a meaningful relationship with their father. It will leave the children living in an environment which is an anathema to their being able to have any positive thoughts about their father. They will remain in an environment which has allowed them to believe their father is an evil child abuser and woman basher.

4. As these girls grow older and emotionally stronger it is to be hoped that they will develop the inner strength to be able to defy their mother’s clear ambition that they have no relationship with their father and, through their own initiative, engineer a way to get to know who he is.

5. In some cases where similar facts have existed to the facts in this case it has been possible for the court to make orders which change residence so that the children live with the parent who has been emotionally and psychologically prevented from having a relationship with children. This is not one of those cases as the facts and findings set out hereafter demonstrate.

BACKGROUND FACTS

1. The father and mother commenced a relationship in approximately December 2005. The father currently lives in Town Y, NSW. The mother lives in Town D NSW, on the outskirts of Canberra, on a 40 acre block of land in a one bedroom house. Her mother Ms M’s house, a three bedroom dwelling, is on the same block of land. On the last day of the trial the mother informed the court she and the children had moved, or were soon to move, to the larger house.

2. The mother asserts that the relationship with the father ended in May 2008, prior to the birth of the children. The father considers that the relationship ended in either May 2009 (asserted in his affidavit of 7 February 2012) or December 2009 (asserted in his affidavit of 1 May 2012).

3. The girls B and C live with their mother on the rural property in Town D. They share that property with their maternal grandmother. In about July 2016, the mother’s boyfriend/possible long-term partner moved onto the property where he resides in a caravan.

4. The child B suffers from diabetes, which requires vigilant management 24 hours a day. Both girls attend a public school. There does not appear to have been any crisis for B in relation to her diabetes whilst she has attended at school, however, the mother said she is often telephoned by school authorities seeking advice about some aspect of the child’s condition and she does, at times, have to attend at the school to administer care to the child.

5. The mother works in a full-time public service position in Canberra. Her work hours have a degree of flexibility which allows her to leave to attend to B’s medical needs should that be required.

6. The father works a full-time job and has another part-time job. His family live in Town K in rural NSW. The paternal family consists of the father’s parents and his two sisters, Ms S and Ms R. Both sisters are married and have families of their own.

7. There is a dispute between the parties as to whether they lived together at the mother’s home and the extent of the father’s involvement in the children’s care after their birth. The mother asserts that the parties never lived together, although the father spent some time at her home following the children’s birth. She said that from the birth of the children until the latter part of 2009 the father visited her house once or twice a week, frequently at a time that was past the children’s bed time. The father provides various accounts as to the extent to which he lived at the mother’s home. In his affidavit of 7 February 2012, he deposed to living with the mother from January 2008 until about October 2008 for five nights a week. In his affidavit sworn 1 May 2012, the father said that he stayed at the mother’s home seven nights a week for a period of nine months after the children were born. In that same affidavit, the father deposed that he stayed at the mother’s house four nights a week for 18 months after the children’s birth. The father said that while he lived with the mother he attended to feedings, changing nappies, grocery shopping, and other household chores.

8. The mother alleges that there was severe domestic violence between the parties and that the children have witnessed violence from when they were babies, which is denied by the father. The mother asserts that during an altercation between the parties at her home on 13 April 2009, the father caused her to suffer a fracture of her collar bone. She alleged he slammed her to the ground and held her down by pushing in her the area around her shoulder. The police attended the mother’s home on this day at the request of the mother. The father asserts that the mother snapped his phone and bit him during the argument between the parties. He alleges the police had wanted to press charges against her but did not do so at his request.

9. On 8 December 2009, the mother called the police and obtained a provisional Apprehended Domestic Violence Order (“ADVO”) against the father after he broke into her home while she was not there. The matter was listed for hearing before the Local Court on 14 December 2009. The Court facts sheet outlined:

   The accused, [the father], and the victim, [the mother] were together for about two years. As a result of this relationship the accused and the victim have two 18 month old month twin girls. In December 2008 the victim ceased the relationship with the accused, however allows the accused to sleep over in the lounge room two nights a week as an opportunity for accused to spend time with his children.

   On Tuesday 8 December 2009 about 0500 hours, the accused, [the father] drove to the victims house at [the mother’s address].

   The accused parked his vehicle and knocked several times on the front door and the sliding glass door.

   Whilst doing this, the accused was screaming loudly.

   When no persons answered the door, the accused has kicked in the front door, causing damage to the door. The accused has entered the house to look for the victim and their children. The accused has left a short time later.

   Upon seeing the accused leave, the victim has left her mother’s house, which is on the same property as her own house, and walked down to her house.

   The victim sighted the damaged door and contacted Police.

   Police arrived a short time later. Whilst speaking to the victim, the accused has knocked on the side glass door.

10. The facts sheet also outlined that the father told the police during interview that he went to the mother’s house to use the toilet, and, believing the mother was inside the home and ignoring him, kicked the door in to gain entry. The father said he used the toilet and then looked for the mother and the children, but drove away when he realised they were not home.

11. The mother ceased permitting the father to spend time with or contact the children following the incident in December 2009.

12. The parties attended a Family Dispute Resolution Conference which was held at a Legal Aid Office on 29 April 2011. On this same date, they entered into a parenting agreement that provided for the children to live with their mother and spend supervised time through a contact centre with their father. The parties anticipated that the children’s time with their father would take place for two hours every second week and would continue until otherwise agreed. The agreement noted that the mother had asked B’s godmother, Ms L, who was also referred to in these proceedings by her first name, to assist in introducing the children to their father and to do so by meeting with him and the children each second Sunday morning in a playground. It was intended that Ms L would continue to provide this assistance for three months. The agreement also noted that the mother was happy for the paternal grandparents to attend the visits that occur in the contact centre and to visit with the children at the O region provided they gave prior notice. The final paragraph of the agreement provided that:

    It is the intention of [the mother] and [the father] that these arrangements will continue for three months. Their intention is to discuss changes to these arrangements: including removing the need for someone to be present with the father, extending the length of time the children spend with their father, and making the time fortnightly, with the advice and assistance of ARCK program professionals.

13. The mother also alleges that the children have made disclosures to her that suggest sexual abuse of the children by the father. The mother has made reports to the Department of Family and Community Services about the children’s disclosures and her concerns that the child B may have contracted an STI.

14. The first visit between the father and the children since December 2009 occurred at the contact centre on 3 December 2011. The children reportedly became distressed and ran out of the room shortly after the father’s arrival. The mother did not allow the children to participate in further contact sessions after this incident.

15. On 16 December 2013, Registrar Parker ordered that pursuant to s 69ZW of the Family Law Act 1975 (Cth) the Office for Children, Youth and Family Support (ACT) and the NSW Department of Family and Community Services provide the Court with a report concerning their involvement with the children. This report is an Exhibit in these proceedings and is referred to as “the s 69ZW Report”. The matter was also set down for hearing, noting that the father had not spent any time with the children for a number of years and the serious allegations of abuse raised by the mother.

16. On 23 January 2014, Orders were made which provided that the children would live with their mother and the mother would have sole parental responsibility. Order 4 of those Orders provided:

    4.The children will spend time with their father in the presence of their paternal grandparents or at least one of their paternal grandparents (such grandparent to have undertaken and to complete training in dealing with [B’s] diabetes) as follows:

    a.From 4:15pm until 5:15pm or such further times as the mother might in the circumstances arrange on two alternate Wednesdays, the first of such Wednesdays being 29 January 2014 and the second being on 12 February 2014. 

    b.Thereafter the children will spend two hours with their father on each alternate Sunday morning from 9am until 11am (unless the parents otherwise agree). 

17. The contact was to occur in  D Park in New South Wales unless otherwise agreed between the parties.

18. On 21 March 2014, the father filed a Contravention Application regarding the failure of the mother to allow him to spend time with the children pursuant to the above Orders on 29 January 2014, 12 February 2014, 22 February 2014 and 9 March 2014. The parties’ conflicting accounts of these visits are explored later in these reasons.

19. On 1 December 2014, the parties consented to Orders which provided that they would continue to engage in a therapeutic process as recommended by Dr J; the mother to attend with the children and the father to attend alone. It was intended that Dr J would facilitate initial meetings and communication between the father and the children including the provision of gifts and letters and other items considered appropriate. It was also intended that Dr J may facilitate initial meetings and communication between the paternal grandparents and the children, and would provide written feedback to the parties through their solicitors regarding the therapeutic process. The therapeutic process was to be reportable and Dr J’s reports have become Exhibits in these proceedings.

20. Interim Orders were made on 8 April 2014 which provided that the children were to spend time with the father on every second Sunday commencing on 27 April 2014 and every second Sunday thereafter for periods of two hours. At least one of the paternal grandparents was to be present on each occasion the father spent time with the children.

21. The first supervised contact visit between the father and the children pursuant to the April 2014 orders was scheduled to occur on 10 May 2014. The father attended the contact centre but was advised that although the children had been delivered about half an hour earlier, they were not prepared to meet with him. The contact visit did not proceed.

22. Dr J’s first report was dated 14 August 2014. Dr J strongly recommended that there should be no attempt at handover directly between the parties as “their rigid beliefs and lack of insight into their responsibility in negotiating with each other will most certainly create conflict and further expose the children to harm, including further building their fear of their father”.

23. In her second report, dated 22 September 2014, Dr J opined that it was difficult to know how to proceed with assisting the children as their beliefs about serious danger from their father and his parents appeared to be highly rigid and highly polarised. She stated that given the difficulties in scheduling appointments with the mother to bring the children to see her, due to the mother’s unavailability, she did not think therapy was viable at that time.

24. Dr J did, however, have further appointments with the mother and the children on 6 and 11 December 2014 and 15 January 2015. She also met the father on 13 December 2014.

25. In her report dated 16 January 2015, Dr J reported that she had not seen strong evidence that the mother was supporting the process outside therapy. She anticipated that the children would not be in a position to have direct contact with the father for some time yet, and it may at least be a number of months before they tolerate written correspondence from him.

26. In her most recent report, dated 15 June 2015, Dr J outlined that she had had very little involvement with the family over the past five months due to the limited time that the mother could make the children available for appointments. She reported that since the last report, the mother attended an appointment by herself on 2 February 2015 and with the children on 16 February 2015 and 2 March 2015. Dr J had not had any further sessions with the father’s paternal family and had only briefly spoken to the father on the phone. Dr J stated she was uncertain of the value of the ongoing attempts to engage the children in therapy given the mother’s reluctance to fully engage in the process herself.

1. Further interim Orders made on 22 June 2015 provided that the children were to spend time with the father’s sister Ms S and her children for a two hour period on the first Sunday of each month commencing on 5 July 2015.

Independent Children's Lawyer’s Minute of Order

1. At the time the Independent Children's Lawyer rose to make submissions he presented a minute of order which it was submitted the Court could make. That minute provides as follows:

   PROPOSED MINUTES OF ORDERS

   BY THE ICL

   1.Pending further order, the children [B] born … 2008 and [C] born … 2008 live with the mother.

   2.The mother have sole parental responsibility for the said children subject to the following:

   a.The mother will forthwith advise the father of the names and all contact details of all treating medical specialists, general medical practitioners and any psychological therapist or counsellor attended by the children; and

   b.The mother be restrained from changing the children’s school from [D] Primary School pending the conclusion of the children’s primary education without prior written consent of the father; and

   c.This order will expressly permit the father to contact or attend upon any of the children’s treating medical professionals and attend at or contact the children’s school and extracurricular activity providers, and to obtain information about the children’s attendance, participation, treatment and any other matter relevant to the children.

   3.        The father will spend time with the children as follows:

   a.On two consecutive alternate weekends commencing 14 November 2015 between 9am to 4pm Saturday, such time to be in the presence of and at the home of the paternal aunt [Ms S];

   b.On the weekend of 12 & 13 December 2015 between 9am Saturday to 4pm Sunday such time to be in the presence of and at the home of the paternal aunt, [Ms S];

   c.From 9am 26 December 2015 to 4pm 2 January 2016 with such time to be in the presence of and at the home of the paternal aunt, [Ms S];

   d.        From 9am 16 January to 4pm 23 January 2016;

   e.Commencing the first weekend of term 1, 2016 and each alternate weekend thereafter from the conclusion of school Friday to the commencement of school Monday, and if Monday is a public holiday, then to the commencement of school Tuesday;

   f.Commencing in the term 1, 2016 school holiday period, and for each NSW school holiday period thereafter, for one half of the holiday period as agreed between the parties, and failing agreement, commencing 9am the middle Saturday and concluding with the return of the children to school at the commencement of the next school term;

   g.If not otherwise a period of time with the father, on the Father’s day weekend from the conclusion of school Friday to the commencement of school Monday;

   h.Commencing in 2016 and each year thereafter on the following special days:

   i.At Christmas from 3pm Christmas Day to 5pm Boxing Day;

   ii.On the children’s birthday if falling on a school day from after school to 6pm;

   iii.On the children’s birthday if falling on a non school day from 9am to 1pm.

   i.At such other times as may be agreed between the parties in writing.

   4.For the purposes of these Orders, the mother will do all acts and things and will ensure that the children are ready and settled into the father’s care (or such other member of the paternal family as is required) at the commencement of each period of time the children are to spend with the father, including to be available to participate in the commencement of the father’s time to facilitate the handover of the children as required.

   5.In the event that the mother fails or refuses to facilitate the father’s time with the children pursuant to Order 3 above, the matter be relisted before the Court with the view that the children’s living arrangements revert to the children living with the father.

   6.        Both parties be and are hereby restrained from the following:

   a.Denigrating the other parent in the hearing or presence of the children;

   b.Allowing any other person to denigrate the other parent in the hearing or presence of the children;

   c.Discuss, show or provide copies of any documents filed in these proceedings to the children;

   d.To discuss in the hearing or presence of the children any aspect of the current proceedings, including but not limited to any evidence given in the proceedings;

   e.To use any other name for the children other than the surname “[Bailee]”.

   7.Both parties will keep the other advised of a contact telephone number, email address and residential address and any change in those details forthwith, and parties will thereafter communicate with each other in writing in respect to the children, other than in the event of a medical emergency where parties are permitted to telephone each other in respect to the children.

   8.These proceedings be adjourned to a date and time as advised by the Court.

   NOTATIONS

   A.The Court notes that it is the intention of these Orders that the children remain living with their mother, subject to the success of the “spend time” arrangements as set out in Order 3.

   B.       In the event that the mother fails or refuses to facilitate the children’s time with their father in accordance with these Orders, the matter will be re-listed for a final day of evidence and submissions for determination of the change of residence application of the children, filed by the father.

   C.The Court notes that it is the preliminary view of the appointed ICL, that in the event that the “spend time with” arrangements fail, the children should live with their father and that the father have sole parental responsibility of the children.

   D.Nothing in notation C is intended to bind the ICL in making any further submissions as to the living arrangements of the children or from proposing an alternate Minutes of Orders in respect to the future living arrangements of the children.

The Father’s Minute of Order

1. The father filed with the court the following minute of the order prior to the commencement of the hearing:

   1. That all previous parenting orders are discharged.

   Recovery Order

   2. Pursuant to section 67U of the Family Law Act 1975 a Recovery Order issue directed to the Marshal of the Family Court of Australia and all officers of the state and federal police of the Commonwealth of Australia, AUTHORISING THESE AGENCIES ONLY to enter and search any premises or places, and to stop and search an vehicles, vessels or aircraft for the purpose of finding the children, [B BAILEE] (born … 2008) otherwise known as [B McKayla], and [C BAILEE] (born … 2008), otherwise known as [C McKayla] (“the children”) with such assistances as they may reasonably require and if necessary by force to recover the children and return them to the Applicant Father.

   Parental Responsibility

   3. That the Applicant Father have sole parental responsibility for the children [B] and [C] born …, 2008 (“the children”).

   4. That the Applicant Father shall advise the Respondent Mother of any major decision he makes pursuant to this order and that such notice shall be provided in writing.

   5. That the Applicant Father shall provide the Respondent Mother with school reports for each of the children within seven days of such becoming available to him.

   6. That the Applicant Father is to keep the Mother advised of the identity of any health professionals involved with the child/ren and to authorise those persons to provide her any information that she may seek.

   7. That the Applicant Father is to notify the Respondent Mother as soon as possible, or in any event within 24 hours, if the child/ren suffers serious illness or hospital admission whilst in their care.

   8. That the Applicant Father is at liberty to provide a copy of these Orders to any school that the child/ren attend and any treating medical practitioner or psychologists or counsellor that the child/ren attend upon.

   Live with

   9. That the children live with the Applicant Father.

   10. That from the date of compliance with the Recovery Order 2 herein, the Paternal Grandmother shall reside in Canberra for a period of at least 6 weeks to assist the Applicant Father with the care of the children.

   Spend time

   11. That from the date of compliance with the Recovery Order 2 herein, the children will spend time with the Respondent Mother as follows;

   a. For a period of 12 weeks, the Mother shall spend no time with the children and is restrained from approaching and/or communicating with the children;

   b. For the following 4 weeks, the Mother shall be at liberty to telephone the children once a week after school for a period of no more than 20 minutes at a time to be agreed in writing between the parties and failing agreement from 5.30pm to 5.50pm on a Tuesday afternoon.

   c. For the following 4 months, the Mother shall spend a period of 2 hours on the first Saturday of each calendar month with the children supervised through [the contact centre];

   d. For the following 4 months, the Mother shall spend a period of 2 hours on each alternate Saturday with the children supervised through [the contact centre];

   e. For the following 4 months, the Mother shall spend a period of 3 hours each alternate Saturday with the children supervised handover to occur through [the contact centre];

   f. For the following 4 months, each alternate Saturday from 9am to 5pm with supervised handover to occur through [the contact centre];

   g. From thereafter, each alternate weekend on a Saturday from 9am to 5pm and Sunday from 10am to 3pm with supervised handover to occur through [the contact centre].

   12. That the Applicant Father shall have leave to suspend the Respondent Mother’s time with the children on the following basis;

   a. That such suspensions occur during school holiday periods;

   b. That such suspensions occur for no more than one block of three weeks in any year; and

   c. That the Applicant Father shall provide the Respondent Mother with six weeks’ notice by email and provide the Respondent Mother with makeup up time, the Respondent Mother to nominate such makeup time by email.

   13. That the Father will engage the services of a psychologist or as otherwise recommended by Dr [J] for the children to assist with the change in the circumstances.

   Restraints

   14. That the Respondent Mother be and is hereby restrained from approaching and/or communicating with the children unless in accordance with these Orders or as otherwise agreed in writing between the parties.

   15. That other than for urgent medical treatment or in accordance with these orders the Respondent Mother is restrained from taking the children to any medical or psychological practitioner, or treatment provider.

   16. That the Respondent Mother is restrained from attending any school in which the children, or either of them, are enrolled unless otherwise agreed in writing between the parties.

   17. That both parents are restrained from denigrating the other, or any member of the other’s family, in the presence or hearing of the children and shall remove the children from the presence of any third party who engages in such conduct.

   18. That each parent keep the other informed about their current address and telephone number and shall notify the other of any changes thereto 7 days prior to any such change.

   IN THE ALTERNATIVE

   1. That the parents have equal shared parental responsibility for the children.

   2. The children live with the Mother.

   3. The children spend time with the Father as follows;

   a. Week 1:

   i. from Friday after school to Monday before school;

   b. Week 2:

   i. From Wednesday after school to Friday at the commencement of school;

   4. Order 3 shall be suspended during every gazetted NSW school holiday period from the conclusion of school on the last day of term until the commencement of school on the first day of the following term.

   5. The Father’s time with the children pursuant to Order 3a at the conclusion of the gazetted NSW school holidays being the first week of each school term.

   6. That during school holiday periods, the Father shall spend time with the children as follows unless otherwise agreed in writing;

   a. For Term 1, 2 and 3 gazetted NSW school holidays, during the first week of the holidays;

   b. For Term 4 gazetted NSW school holidays;

   i. In 2015 and each alternate year thereafter for the first three weeks of the school holiday period;

   ii. In 2016 and each alternate year thereafter for the last three weeks of the school holiday period.

   7. In the event that the children are not otherwise doing so in accordance with these Orders, and unless otherwise agreed in writing, the children will spend time with the Father on the following special days;

   a. Fathers’ Day from 5.30pm on Saturday to 5.30pm on Sunday;

   8. In the event that the children are not otherwise doing so in accordance with these Orders, and unless otherwise agreed in writing the children will spend time with the Mother;

   a. Mothers’ Day from 5.30pm on Saturday to 5.30pm on Sunday;

   9. On each of the children’s birthdays each year, the parent with whom the child is not living will make the children available to spend time with the other parent as follows;

   a. If the child’s birthday falls on a weekday then from after school or day-care until 6pm;

   b. If the child’s birthday falls on a weekend then from 9am to 1pm.

   10. That unless otherwise agreed in writing, handover will occur as follows;

   a. the Father shall collect the children from and deliver them to school;

   b. Otherwise all other handovers shall occur at [the contact centre].

   11. The Mother is to keep the Father advised of the identity of any health professionals involved with the child/ren and to authorise those persons to provide him any information that he mays seek.

   12. Each parent is to notify the other parent as soon as possible, or in any event within 24 hours, if the child/ren suffers serious illness or hospital admission whilst in their care and each parent is at liberty to contact any doctor, hospital or other medical professional treating the child to obtain information.

   13. Each parent is to advise the other promptly of any significant medical issue involving the child/ren when they are in their care.

   14. These orders are to act as sufficient authority for each party to obtain at their request and cost from the child’s school, doctors or any practitioners any information regarding the progress, welfare, care, condition and treatment of the children.

   15. That both parents are restrained from denigrating the other, or any member of the other’s family, in the presence or hearing of the children and shall remove the children from the presence of any third party who engages in such conduct.

   16. That each parent keep the other informed about their current address and telephone number and shall notify the other of any changes thereto 7 days prior to any such change.

The mother’s Minute of Order

1. Shortly prior to the commencement of the hearing, the mother filed with the court the following minute of order:

   1.That the children [B] and [C] born … 2008 live with their mother.

   2.        That the mother have sole parental responsibility for children.

   3.That the mother provide the father with information relating to the children’s health and education twice a year in writing. Information be provided at the end of semester 2 and semester 4 of the school year.

   4.That there be no orders for the children to spend time with the father.

   5.That if the Court determines the children should spend time with their father, it be limited to 2 occasions per year, in the company of at least one of the fathers sisters for two hours from 12am to 2pm on each occasion. (the fathers other family members and friends are free to be at these visits)

   6.        Visits to take place in a pre-determined public venue

   7.        Handover of children will be to fathers’ sister(s).

   8.         If the fathers’ sisters are unavailable or unwilling to supervise these visits, then supervised access will take place at [the contact centre] in Canberra.

   9.        In December the father to nominate three dates (and venue if applicable) in February and August each of the following year with the mother to select the most suitable of these dates.

The Issues

1. The single expert Dr G has conditionally recommended that the children be placed with the father and that a residence order be made in his favour. There would need to be a period of time following such an event where the children had no contact with their mother. Thereafter there may have to be an extensive period of closely supervised time for the children to spend with the mother.

2. The father proposes that if the residence order is made in his favour then he would move the children to Town K where he would live with his parents for a period of time yet to be defined. The children would need to change schools.

3. The questions to be determined in this matter include:

   ·Is a change of residence a move of last resort necessary to allow the children to have a relationship with their father?

   ·What impact would such a move have on the children?

   ·Does the father have the capacity to effectively parent these children in the circumstances in which they will come into his care? 

   ·What are the chances that the move of residence will change the children’s view of their father?

   ·If the move proves entirely unworkable because the children do not adapt, what is the prospect of being able to return them to their mother’s care unharmed by the experience?

   ·What toll will any order made by the court have on the children? Is the potential harm which might be visited upon the children through a change of residence greater than the harm sought to be avoided, namely, the loss of a relationship with their father?

   ·In the event that the court determines the detriment accruing to the children of a change of residence is greater than the benefit sought to be achieved what orders should then be made?

Evidence

The Father

1. In addition to the reports of Dr J, Dr K, Ms F and the s 69ZW Report, the father sought to rely upon the following documents:

·  Affidavit of the father sworn 7 February 2012;

·  Affidavit of the father sworn 1 May 2012;

·  Affidavit of the father sworn 19 March 2014;

·  Affidavit of the father sworn 11 November 2014;

·  Affidavit of the father sworn 14 August, 2015;

·  Affidavit of the paternal grandmother sworn 8 November, 2014;

·  Affidavit of the paternal grandmother sworn 19 March 2014;

·  Affidavit of the paternal grandmother sworn 22 May 2014;

·  Affidavit of the paternal grandfather sworn 19 March 2014;

·  Affidavit of Ms R sworn 13 August 2015;

·  Affidavit of Ms S sworn 14 August, 2015;

·  Affidavit of Ms R sworn 23 June 2016;

·  Affidavit of Ms S sworn 23 June 2016; and

·  Affidavit of the father sworn 24 June 2016.

Affidavit of the father sworn 7 February 2012

1. The father outlined that the parties met just prior to Christmas of 2005. At that time, the father was renting in Town Y NSW and the mother was living in a granny flat on her parents’ property in the O region NSW.

2. In November 2007, shortly after the mother fell pregnant, the father bought a property at Q region NSW (“the Q property”).

3. The father deposed that from January 2008 until about October 2008, he lived with the mother at her home and after the birth of the children, spent time with the mother and the children on Sunday, Monday, Wednesday, Thursday and Friday nights. On Tuesday nights and Saturday nights, the father would stay at the Q property to attend to the farm animals there. The father said that in this time he supported the mother in every way possible, including attending to feedings, changing nappies, grocery shopping and other household chores.

4. The father stated that both parties were in full-time employment during this time and, after the birth of the children, the maternal grandmother, who lived in a house on the same property, assisted the parties with the care of the children. The father asserts that following the separation of the parties in or about May 2009, the relationship between him and the mother remained amicable until about December 2009.

1. In relation to the incident on 7 December 2009 which culminated in the mother obtaining an AVO for her protection against the father, the father asserted that he only attended the mother’s premises to use the bathroom. The father said that the previous night, there had been a dispute between the parties at the mother’s home and he could not stay the night there. The father said that he asked the maternal grandmother if he could stay at her house for the night but the maternal grandmother refused. The father spent the night in his car two streets away from the mother’s home. The father deposed that the next morning he tried to use the toilet in the mother’s home but the door was locked. The father said that he thought that the mother was inside ignoring him and deposed that he lost his temper and kicked the mother’s door open. The father said that he left the house after using the bathroom.

2. The father stated that it was only when the mother obtained an ADVO against him that he realised that there was no possibility of him and the mother reconciling. He said that he paid for the repair of the door. The father deposed that he deeply regretted his actions and that he has been denied access to his children since this incident.

3. In relation to the incident that occurred between the parties on 13 April 2009, the father deposed that the mother woke him up at approximately 4.00 am in relation to issues she had with what she saw on his mobile phone, as she was going through his mobile phone at that time. An argument ensued and when the father tried to take the mobile phone from the mother she refused to hand it over and bit his right thumb, causing it to bleed. The mother snapped his phone in half and called the police on her phone. The police arrived approximately half an hour later. The father asserted that when the police arrived, the mother told them that he had broken her collarbone. The father said that this was the first time he had heard of the allegation of a broken collar bone. The father deposed that after interviewing both parties separately, the police wanted to charge the mother but the father pleaded with them not to so and they did not press charges.

4. The father deposed that about two weeks after this incident, he travelled with the mother and the children to Town K for a family reunion with the paternal family. The paternal grandfather asked the mother why she had her arm in a sling and the mother said she was woken up by barking dogs and had gone to attend to them, but slipped on wet grass and fell and broke her collar bone.

5. The father denied the mother’s allegations that he has not attempted to spend time with the children and deposed of the following events.

6. In December 2009 he instructed his solicitor to contact the mother and request permission to take the children to Town K for Christmas. The request was refused and no counter proposal to enable the father to spend any time with the children was made.

7. In February 2010 the father asked a mediator to contact the mother to request permission to take the children to Sydney for the christening of his nephew. This request was refused and no counter proposal to spend time with the children was made by the mother.

8. On 27 February 2010 the father said his parents visited the children. The mother was present throughout the visit as was the maternal grandmother. The father deposed that since this time, his parents reported they have telephoned the mother in an attempt to visit the children but the mother would not provide them with a suitable time. The father said that his parents again visited the children in Town Y on 29 November 2010 and the mother was present throughout the visit. It is common ground that this visit occurred.

9. In March 2010 the father said he requested, via a mediator, permission from the mother to take the children to Town K for Easter with the extended paternal family. The request was refused and no counter proposal was made.

10. The father deposed that he organised for a mediation between the parties for March 2010 but the appointment was cancelled by the mother two days before the scheduled date.

11. The father’s solicitor wrote to the mother on 2 December 2010 and to Legal Aid to attempt to facilitate the father spending time with the children.

12. On 27 January 2011, the father’s solicitor received a response from the mother’s solicitors advising that any time to be spent by the father with the children must be supervised, at the father’s cost, due to his propensity to violence and mental health issues. 

13. The father said that he agreed to participate in a Family Dispute Resolution process on 1 March 2011 and the mother and he entered into a parenting agreement on 29 April 2011. The parties agreed that the father could spend time with the children, initially at a contact centre for a period of three months. The father deposed that there was a considerable delay in securing a position at the contact centre but on 25 November 2011 he was advised that a visit could be arranged for 3 December 2011.

14. The father said he arrived at the contact centre on the morning on 3 December 2011 and was taken to meet the children. The father deposed that when he was about half way across the room where the children were, the child B ran out of the room crying, and the child C followed her about ten seconds later. The children were not returned to the supervised visit.

15. On 11 January 2012 the mother’s solicitor wrote to the father’s solicitor and stated:

    My client’s instructions are that the children were so distressed on the first occasion at [the contact centre] that the staff at [the contact centre] were only prepared to give it one more try. This was to be on 17 December. However, prior to that date the children were considerably stressed and started making what seem to be disclosures of inappropriate behaviour. Consequently my client notified [the contact centre] that she would not be presenting the children. She understood your client knew that information.

    My client is very concerned about the children’s safety and about their reactions- first to your client’s father and then to your client. She has been referred to the child protection authorities and to the Child at Risk Assessment Unit.

    Previously we have informed you of the children talking about the ‘yukky man’ after seeing their grandfather. My client has formed the belief that this was based on the children’s experience of their father and that when they saw your client approaching [the contact centre], they made the connection between their own memory of the ‘yukky man’ and their father.

    My client has made it clear that she will not willingly make the children available to see your client. My client understands that your client may bring an application to the Court. Please note that we can accept service on her behalf if he does so.

16. The father deposed that he attended the contact centre on two occasions following 3 December 2011 and on each occasion the mother did not attend with the children.

17. It is the father’s belief that the children have not been permitted to have a relationship with him and the paternal family. The father deposed that as he is from an Italian Catholic background and has a large extended family, family gatherings such as christenings, Easter and Christmas are important events in the paternal household.

18. With regard to the assertions by the mother regarding the father’s mental health, the father stated that he has attended upon Dr U and a psychologist, Ms N. He said neither has informed him that he suffers from any mental illness. The annexed report from Dr U dated 16 December 2009 stated that the father “has been treated for depression but in my opinion is not a danger to himself or others”.

Affidavit of the father sworn 1 May 2012

1. The father set out the following evidence in response to the mother’s affidavit of March 2012.

2. The father denied the mother’s assertion that the parties never lived together at her residence. He asserted that he stayed at the mother’s property in the O region seven nights a week for a period of nine months after the children were born. He also maintained that the parties were in a relationship from December 2005 to December 2009.

3. The father asserted that he made the following contributions during this period:

   a.Paid for nappies and clothing for the children and for household groceries for an 18 month period;

   b.Collected and split firewood for the wood heaters during the winter months to keep the children warm;

   c.Paid the mother $50 per week toward the costs of her medication while she was pregnant, from 4 January 2008 to 30 May 2008, amounting to a total of $1,100;

   d.Paid the mother $650 per month from June 2008 to July 2009 following the birth of the children, amounting to a total of $9,100;

   e.Paid $350 per fortnight from 11 June 2009 to 15 October 2009 for baby-sitting the children, amounting to a total of $3,500;

   f.Provided the mother with approximately $2,500 to assist with the care of the children.

4. The father denied the mother’s assertion that there was no relationship between the parties after the birth of the children. He deposed that he attended the birth of the children and also attended to house and farm duties during the mother’s stay in hospital, and stayed with the mother four nights a week for an 18 month period after the children were born. He deposed that he would go straight to the mother’s house after finishing work at 4.00 p.m. and was often at the property before the mother returned from work. The father asserted that he did all the yard-work and would then collect the children from the home of the maternal grandmother. The father said that the mother would return home on most nights at 7.00 p.m. The father stated that the relationship between him, the mother and the children only ended when the AVO was issued against him in December 2009.

5. As to the mother’s evidence that the visits by the father gradually reduced in 2008 and the father would usually visit while he was travelling for sport, arriving after the girls were asleep, the father deposed that the period referred to by the mother was approximately 17 weeks in duration during the sport’s season. He asserted that the mother attended some of the games with the children and that during this time he was staying at the mother’s place seven nights a week.

6. The father denied the mother’s allegations that she told him, in November 2008, she did not want him to stay overnight and that he had threatened, in response, to take the children away from her and she would never see them again. The father deposed that the mother mentioned to him in October 2009, the start of his sport’s season, that she did not want him to stay overnight.

7. With relation to the mother’s allegations involving the “yucky man”, the father said that he had never heard the children using this expression to him or to his parents.

8. The father said, in response to the mother’s evidence that she had received a call from the father’s solicitor in December 2009 and was advised the father would be taking the children to Town Y for Christmas, the father said that he had no knowledge of this. He deposed that he had tried to make arrangements to take the children to Town Y on three occasions but the mother did not permit this.

9. As to the mother’s account regarding the parties’ attempt at mediation through a Family Relationship Centre, the father deposed that in early February 2010 he attended an interview with a mediator who then proposed to contact the mother over a period of six weeks. The father stated that from the mediator’s reaction to his contact with the mother he was under the impression that he regarded the situation as futile. A s 60I Certificate was issued by the mediator.

10. The father then addressed the mother’s evidence regarding the attendance of the parties at a family dispute resolution conference at a Legal Aid Office on 29 April 2011, resulting in the making of a parenting agreement. The father deposed that the agreement provided that the contact centre would supervise contact and that time would commence in a short space of time, but that this was subsequently delayed by over nine months due to the contact centre’s waiting period. He said that he was frequently in contact with the contact centre in the hope of finding a vacancy but nothing was available until December 2011.

11. In relation to the mother’s account of the first visit scheduled at the contact centre on 3 December 2011, he deposed that the children did not know him and were uncomfortable when they saw him because he had been denied contact since December 2009. He stated that he had never heard the children use the expression “yucky man” in reference to him or to any member of his family.

12. In relation to the mother’s account that the children were clinging to her upon her arrival back at the centre, told her that he was a “yucky man” and were subdued, tired and upset after the visit, the father said that there was nothing that he said or did that would have caused them to react in the way alleged.

13. The father said when he attended at the contact centre on 17 December 2011 it was clear to him that the mother would not be prepared to assist in facilitating any contact between him and the children.

14. The father denied any suggestion that he had sexually interfered with the children. He was of the belief that having not seen the children since December 2009, any statements alleged by the mother to have emanated from the children in 2011 or the following years were fabricated by the mother with the aim of preventing his contact with the children.

Affidavit of the father sworn 14 August 2015

1. The father deposed that in around June 2015, following the Consent Orders of 1 December 2014, which provided for the continuation of therapeutic counselling by Dr J with the children, he was informed by Dr J that “I have very little to report. Therapy has ceased at this stage. [The mother] cancelled the last session and we haven’t booked any future sessions.”

2. The father stated that once the funds of the Independent Children's Lawyer were expended for the therapy sessions that did occur with Dr J, he paid one half of Dr J’s outstanding fees.

3. On 22 June 2015, Deputy Chief Justice Faulks made Orders that the father’s sister Ms S and her children spend time with C and B on the first Sunday of each month, commencing on 5 July 2015, between 12 noon and 2.00 p.m. The father deposed that after these Orders were made, he became aware that mother could not attend the visits on the dates specified in the Orders apart from the long weekend commencing 4 October 2015.

4. On 3 July 2015, the father’s solicitors wrote to the mother requesting that the time scheduled on 5 July 2015 be deferred to the following Sunday 12 July. The mother responded that she was not available on that Sunday and that the visit would have to take place as scheduled on Sunday 5 July or would need to be deferred to the first Sunday of August, pursuant to the Orders. The father said that he subsequently instructed his solicitors to notify the mother that his sister and her children were unable to attend the scheduled visits in August or September 2015. The father stated that his alternate proposals for different dates or attendance by different family members at the visits were not agreed to by the mother.

5. With respect to his mental health, the father deposed that he does not suffer from any mental illness.

6. As to his financial circumstances, the father was employed by Company V in Canberra and worked from 8.00 a.m. to 4.30 p.m. Monday to Friday. He had been employed by Company V for two years. The father deposed that he also worked at a service station on a casual basis and had been working there for four years. The father deposed that he has never been fired or terminated from any employment nor has he had problems with work colleagues.

7. With regards to his living circumstances, the father resides at Town Y in a “bedsitter” which was described by him as a “large bedroom, dining room, lounge room all in one”. He deposed that no one else lives at the property or stays overnight. The father said that if the children were to live with him following the conclusion of these proceedings, he would move to a two bedroom unit or house so that the children would sleep together in a separate bedroom. He said that he has internet and phone access at his current residence and would arrange for this if he moved to a new residence with the children. The father was also in the processes of organising and setting up Skype.

8. The father deposed that he had made enquiries around Town Y and was aware that there is a high vacancy rate. He was of the belief, based on these enquiries, that he would be able to secure a rental property almost immediately if the children were to commence living with him.

9. The father said that his parents were considering providing him with assistance to purchase a property to house him and the children within the next year to 18 months. He anticipated that he may purchase a property in the Canberra, Town Y or Town D region and that his parents would continue to reside in Town K but would visit regularly.

10. The father confirmed that he pays child support to the mother. He said that arrears accrued around August 2014 due to a re-assessment by the Child Support Agency based on an inaccurate taxable income assessment. The father said that he challenged this assessment and this resulted in a lower assessment of the child support payable by him to the mother.  He deposed that he has been paying the assessed child support together with contributions to the arrears since that time. Annexed to the father’s affidavit is a Child Support Account Statement dated 18 July 2015, for the period 20 June 2015 to 17 July 2015. The statement shows a payment by the father, by way of salary deduction, since the last statement of $1,637.16 and a closing balance of $1,876.15.

11. The father also gave evidence that he was arranging to undertake a course on parenting skills in Canberra. He deposed that if the Court orders that the children live with him, his mother has offered to come to Canberra and assist him with their care for the first period of six months, or however long is necessary, to enable the children to adjust to the new arrangement. The paternal grandfather, sisters and their families may also stay overnight with the father from time to time.

12. With regards to the children’s schooling, the father outlined that D Primary School, where the children currently attend, is approximately a 20 minute drive from Town Y. He plans to facilitate their continued attendance at this school and would also consider moving to Town D to decrease the travel time for the children. The father outlined that he had made enquiries regarding the availability of before and after school care at the school and planned to make use of this service when his mother was not staying with him, so that he could attend work.

13. In terms of supervision for the children, the father deposed that his mother or sisters would be able to care for the children, as could C’s godmother, if he was unavailable.

14. In relation to the children’s health and medical treatment, the father was aware that B is diagnosed with Type 1 diabetes and that her condition requires frequent medical supervision and prescribed medication. He deposed that in around 2014 he had attempted to obtain a concession card to purchase equipment and medication for B at a subsidised rate; however, he was informed by the National Diabetes Services Scheme (“NDSS”) that the mother would not agree to this. The father said that he was told by the NDSS that he would not be provided with a concession card without obtaining a Court order. Annexure “D” to the father’s affidavit is a letter from the Paediatric and Adolescent Diabetes Service dated 20 June 2014, confirming that he had undertaken diabetes education sessions with a Paediatric Diabetes Educator and a Paediatric Dietitian between January and July 2014. The father stated that he attended the final training session at the Canberra hospital since the date of the letter. The father was not aware of any ongoing medical treatment for the child C. He deposed that if the Court ordered that the children live with him, he would attend upon the children’s current general practitioner to obtain information on their medical histories.

1. As to the children’s extra-curricular activities, the father said that if the children were to live with him, he would facilitate them attending their current extra-curricular activities and would encourage them to participate in other activities that might interest them. The father deposed that he would pay for these activities and would transport the children to and from the activities in his car or with the assistance of his mother or C’s godmother. The father stated that he would not require the children to participate in extra-curricular activities whilst they were spending time with the mother.

2. The father then addressed the issue of interstate and overseas travel and deposed that he was not in a financial position to travel overseas. He proposed that neither he nor the mother travel overseas with the children. With regard to interstate travel, the father stated he would travel to Town K to see his extended family with the children at least twice a year and to Sydney to visit his sister and her children at least once a year.

3. Under the heading “My concerns” the father outlined that after reading the report of Dr G he was concerned about the long-term effects on the children of growing up without a relationship with him and his extended family. He stated that if they were to live with him, he would facilitate the children having a relationship with the mother and the maternal family.

Affidavit of the father sworn 24 June 2016

1. The father swore an affidavit in these proceedings on 24 June 2016 in which he deposed to the following.

2. The father commenced spending time with the children on 14 November 2015 pursuant to orders made by this court on 13 November 2015.

3. On 14 November 2015, the father spent time with the children at Z Play Centre. Ms S and her family were present, as was the mother and her friend Ms L. The father deposed that the children remained out of his sight for the first 45 minutes but later became more relaxed, although still maintaining their distance. The children did not approach him or attempt to engage with him and he did not want to press them by approaching them or make them feel uncomfortable. Towards the end of the visit, the children were playing in the enclosed basketball area and the father approached to gauge their reaction. The girls appeared resentful that the father was there as they looked like they wanted to continue playing, and when the father left the area they returned and resumed playing. Although there had been no direct interaction, the father felt as though it was a significant improvement on the time spent previously with the children.

4. On 5 December 2015 the father spent time with the children at Questacon accompanied by Ms S and her family. The mother and her friend Ms L were also present. The father said that upon his arrival, the mother ignored him and did not greet him. He said that the children did not seem worried that the father was there. The children appeared uncomfortable with his presence and maintained their distance from him for the entire afternoon. The mother did not encourage the children to interact with the father, nor with Ms S or her family. Ms S and her husband made effort to interact with the mother and Ms L. The children appeared to be interacting very well with Ms S’s children.

5. On one occasion, the child C was operating a device and the father stood behind her, watching. The child did not appear to be aware of the father’s presence. The child B ran up and dragged C away by the arm. C did not realise why B was doing this until she saw the father behind her.

6. The father believed that visit to be “a step backwards from the previous visit at [Z Play Centre].”

7. On 12 December 2015, it was arranged for the father to spend time with the children. Ms S could not attend that visit to supervise and it was therefore cancelled.

100.On 3 January 2016, the father spent time with the children at Town K City Park. Ms S and her family were also present. The mother arrived with the children and was accompanied by Ms L. The father deposed that B in particular seemed reluctant to spend time at the park without the mother or Ms L, but C did not seem concerned about staying at the park without them. The mother provided the father with insulin, a glycogen needle and asthma spray, but insisted that the father use his own blood glucose monitor. The father quickly drove to the nearest pharmacy and purchased a monitor.

101.Approximately 20 minutes after the mother and Ms L left the park, the children hid at the top of the slide about eight metres above the ground. The father said that Ms S and her husband spent approximately 40 minutes persuading the girls to come down. Once they had settled, the children were very active and engaged with Ms S and her family. Ms S was able to check B’s blood glucose levels six times. The father gave instructions to Ms S whilst she performed the test.  

102.The father deposed that the children appeared relatively comfortable with his presence, in that they did not show any fear of him, although they maintained their distance from him. On one occasion the father suggested a game to them, but they shouted at him to leave them alone. The mother then returned at approximately 3.45 p.m. to collect the children.

103.On 16 January 2016, the father spent time with the children at the National Arboretum. The father’s sister Ms R supervised this visit with her husband and children. During changeover, Ms R and the father asked the mother what B had eaten for breakfast and what her blood glucose level was. When the mother left, the children proceeded to play on the playground. Ms R’s daughter X went to play with the children. The child B yelled at X to “go away” and X began crying uncontrollably. The father deposed that this was upsetting for everyone and X had been excited to play with the girls as she had known about them for years.

104.The children climbed into one of the pods on the playground and stayed there for approximately two hours. Neither the father nor Ms R was able to see the state of B’s pump or check her blood glucose level. They decided to call the mother, but it took 30 minutes to reach her by phone. She was eventually reached and returned to the Arboretum at 1.00 p.m. to check B’s blood and the children then had lunch.

105.After lunch the children appeared to be more comfortable in the father’s presence, although they maintained their distance for the rest of the afternoon. They did not attempt to engage in conversation with the father. They actively engaged with Ms R and X.

106.On 30 January 2016, the father spent time with the children at the National Arboretum. Ms R and her son P were present to supervise, along with the children’s godmother Ms W. On that occasion, the father deposed that everyone interacted well, the children interacted well with Ms R and P. They kept their distance from the father and did not speak to him but enjoyed playing with the others.

107.The child B allowed Ms R to check her blood glucose levels. The children drank water and the food provided to them. B also allowed Ms R to adjust her insulin pump while the father gave her instructions. B would not allow the father to touch the pump. The girls appeared very comfortable and did not appear agitated for the rest of the afternoon. They did not seem to have any concerns about whether their mother was going to come back or not.

108.The father asked if they wanted him to push them on the swings, but they said no. As he approached closer, B jumped off the swings and ran away.

109.On 13 February 2016, it had been arranged for the father to spend time with the children with changeover to occur at Suburb I shops. The father arrived at approximately 20 minutes prior to the scheduled changeover time. The father asked the mother to put the girls in the back of Ms W’s car, but the mother refused. The father and Ms W had organised to take the children to see a movie. Immediately after the mother and Ms L left, the children ran off in different directions. The father said he and Ms W had to run after them. The children than ran into the library.

110.The father made a series of phone calls to the mother to ask her to return and assist with putting the children in Ms W’s car. The father deposed to having called the mother 14 times. At approximately 10.40 a.m. six to eight police officers arrived and informed the father that they were responding to reports that a child had been abducted. The father assumed that a member of the public called the police when witnessing him chasing after the children.

111.Whilst the father was speaking to police, the mother returned. She tested B’s blood glucose level and gave her a bolus dose. As soon as the mother left again, the children ran away. The father said Ms W ran after the girls and the father followed the mother. They informed the mother that the children had again run back into the library. The mother did not seem concerned and left. The children attempted to leave the library which prompted the father and Ms W to remain in the lobby of the library in case they tried to leave. During that time Ms W and the father periodically checked on the girls inside the library. B would not allow Ms W or the father to check her blood glucose levels. Ms W told the father that she was able to make limited conversation with the girls during which one of them called her a “smart arse”. The children would not allow Ms W or father to go near them.

112.The father called the mother again that afternoon as he was not able to check B’s blood glucose levels. The mother arrived with Ms L and checked B’s blood. The mother and Ms L then took the children to McDonalds and the father and Ms W accompanied them. They remained there until 4.00 p.m. when the mother left with the children. During that time, the children interacted well with Ms W but did not speak to the father.

113.On 5 March 2016, the father spent time with the children at the National Arboretum supervised by Ms S. Ms W was also present for two hours of the visit. On this occasion, the father deposed that the girls were not interactive at all. They did not interact with Ms S, unlike on previous occasions, and they did not interact with Ms W. On one occasion one of the children called Ms S a “smart arse”. The children did not speak to the father at all. The children ran out of the playground on various occasions, they refused to have anything to eat or drink, and B refused to allow them to check her blood glucose levels. The mother arrived at 2.00 p.m. to check B’s blood sugar levels and she gave them something to eat and drink. They left at approximately 4.00 p.m.

114.On 9 April 2016, it had been arranged for the father to spend overnight time with the children at Ms S’s house. This could not occur as Ms S was not able to facilitate overnight time. The father deposed that he attempted to arrange, through his solicitors, for the children to spend time with him in Town Y. The mother’s solicitors responded indicating that if the visit could not occur in Canberra, that it would be cancelled. The father did not spend time with the children on this occasion.

115.On 23 April 2016, the father arrived at the Arboretum at 9.30 to spend time with the children. At approximately 10.15 he received a text message from the mother saying, “Hi I am outside [the supermarket] and it is now 10.15 where are you? Due to prior commitments I am not able to wait much longer. Please advise.” The father attempted to call the mother upon receiving this message. He deposed to having called the mother nine times and that it went to voicemail each time. The father had understood that changeover was to occur at the Arboretum. The father was able to get in contact with the mother and asked her to remain at Suburb I until he arrived. She said she could not wait as she had other commitments. They left and the father did not spend time with the children on that occasion.

116.On 7 May 2016 the father was due to spend time with the children. The father understood that changeover was to occur at Suburb I. The father tried to contact the mother that morning to ensure there was no misunderstanding about changeover. The mother did not respond. When the father spoke to the mother she advised that they were at the Arboretum. The father asked for them to wait 15 minutes so he could get there from Suburb I. The mother did not wait. Upon arriving at the Arboretum at 10.37 a.m., the father deposed that he drove past the mother on the service road to the car parking area outside of the cafeteria.

117.The father deposed that on 27 April 2016, his solicitors received correspondence from the mother’s solicitors advising that the children were visiting Brisbane on the weekend of 21 May 2016. The father caused his solicitors to reply to the wife’s solicitor on 3 May 2016 consenting to the children travelling and proposing make-up time, including additional make-up time for previous missed time with the children. The mother agreed to make-up time on 14 May 2016 but refused to allow further make-up time. The father deposed that:

Although I did not believe that [the mother] had made any real effort to engage in negotiations and she had not complied with my requests for make-up time or details of the trip, I decided that I would not object to the girls going to Brisbane as I did not want to deprive them of a vacation.

118.On 14 May 2016, the father spent time with the children at the Arboretum. The mother and father exchanged information about what the girls had eaten for breakfast and B’s blood glucose levels. After the mother and Ms L had left, the father called ACT Ambulance and gave them a warning about what may happen later in the day if he was not able to check B’s blood.

119.The father deposed that the children quickly proceeded to the play equipment without acknowledging the father. The children would not engage in conversation with him and did not accept water or food from him. B did not allow the father to check her blood levels and constantly yelled at him to “go away”, “you’re an idiot”, “I don’t want to speak to you”. B also kicked the father about 15 times. The father said that she also “came close enough to spit at me. She had not done this at previous visits”. B also threw wood chips at him.

120.The father deposed that it did not appear that the children were afraid of him, because otherwise he did not think that they would approach him and act in such a provocative manner. The father consistently told the children that it is not appropriate behaviour but B took no notice and only yelled back. C also yelled at the father, but has not hit or kicked him.

121.At approximately 10.30 a.m. the children left the playground and ran down the hill towards a pond. The father followed and contacted ACT Police as he was concerned about where they would go. He lost sight of the girls at the bottom of the hill. The mother arrived at 1.00 p.m. and took the girls home. She did not offer to take B’s blood sugar levels and give her something to eat before encouraging them to continue to spend time with the father. The father deposed that he had sent various text messages to the mother and tried to call her on various occasions during the visit. 

122.On 4 June 2016, the father spent time with the children at the Arboretum. During changeover, information was exchanged with the mother regarding what the children had eaten and what B’s blood glucose level was. When the mother left, the children ran down the hill to the pond. The father followed them and contacted the ACT Police. The girls then returned to the cafeteria.

123.The father deposed that the girls ran away from the playground area and returned on three further occasions. He said he realised that they only continued to run away if he was chasing them, but if he did not chase or follow them, they would return of their own accord.

124.The children refused to engage in conversation with the father and refused to take food or water from him. The children also used foul language towards the father. The child B swore at the father, Ms R, Ms S and Ms W. She called the father “a fucking idiot”. The child C said very little and only responded when the father spoke directly to her. She also swore and insulted the father. Various text messages and phone calls were made by the father to the mother during this visit.

125.The father deposed that on previous occasions, the mother has returned to the Arboretum to give the children something to eat and check B’s blood glucose level before making them stay. The mother no longer does this. The father deposed that “[the mother] arrives and simply leaves with the girls without making any attempt to extend my time with them.”

126.Later in June 2016, the father spent time with the children at the Arboretum. The mother, Ms L and another male who the father did not recognise attended. They remained at the Arboretum during the visit. The mother asked the father if he had any activities planned as it was raining and cold outside. He did not. The father said that B told him to “go away” so he sat on a separate table away from the girls. He sat watching the girls and said they appeared agitated. The father deposed that he did not want to approach the girls because he did not want them to run away. The children went back and forth between the table they were sitting at and the mother’s table. The children asked the father what activities he had for them. He responded “I have some photos here that I can show you” and the children ran away.

127.The father said that he asked the girls if they wanted anything to eat for lunch, but they grabbed their jumpers and walked away before he could speak to them. He also asked them if they wanted to go to the novelty store and look for something to do.

128.The father deposed that at midday two different males that he did not recognise walked up to the girls’ table with two boxes and said “happy birthday” to the girls. The father deposed that the girls spoke to these men but did not interact with them. He said that on previous occasions he had seen the girls interact and laugh with people who were strangers that they had met in the playground.

129.The girls did not interact or engage with the father for the remainder of the afternoon. They left shortly after 4.00 p.m.

130.The father deposed that there have been a number of issues regarding the medical equipment required for the child B whilst he is spending time with the children. The mother had sent correspondence to his solicitors asking them to confirm that the father has the necessary medical supplies to provide care for the child. The father instructed his solicitors to respond, saying that he did not have all of the medical supplies as he had only spent very limited time with the girls. His solicitors informed the mother that she would need to provide the equipment and that the father would not be taking out insurance over the child’s insulin pump. The mother, through her solicitors, insisted that the father take out the insurance and suggested that the father could purchase his own pump. The father said that pursuant to court orders he was not required to provide medical equipment nor take out insurance or place money in trust. The father requested further information from the mother as to her insurance policy over the pump. The mother did not reply.

131.The father proposes that if the residence of the children is changed, he would move to Town Y immediately and move in with his parents. They have a four bedroom house where he can live with the children on an interim basis until he is able to obtain appropriate housing for the three of them. The father deposed that he has made enquiries with the local Public School and would be able to enrol the girls there. The school has a diabetes officer who could offer appropriate care to B while at school.

818.In relation to this question, the mother submitted that the children have lived with her for their entire lives, and it is all they know. The mother has been their sole carer and provider. In their mother’s care, they have an extended family for support and care.

819.The mother submitted that the damage to her of the children moving residence would be highly traumatic. She submitted that such a move would result in the destruction of the children’s trust in her, and that the children’s health conditions could get worse.

820.She submitted that the children are very settled in school, and that the school has put many special supports in place to accommodate B’s learning difficulties and her diabetes. In the mother’s submission, these supports would be impacted by a change in residence.

821.The children also have dogs and horses at their home.

822.The mother submitted that a change of residence would result in a loss of relationship with the children’s extended maternal family.

Does the father have the capacity to effectively parent these children in the circumstances in which they will come to his care?

823.The mother submitted that the father has not shown that he is able to manage B’s diabetes, as he has not been able to get near her. She submitted that the father does not know how to manage B’s diabetes the way that she has been taught to do so. The mother submitted that the father is not capable of engaging with the children on their level.

824.The mother made submissions with respect to the father’s current work schedule and submitted that even if he were to take time off work, his employment is unlikely to be as flexible as the mother’s. B’s diabetes requires constant attention and communication with the school, which requires flexible work hours. 

What are the prospects/chances that a change of residence will change the children’s attitude to their father?

825.In the mother’s submission, the prospects of success are extremely poor.  The children have no emotional attachment to the father or the paternal family. Getting the children to engage with the paternal family during access visits has been of minimal success. The mother submitted that she has concerns in relation to the paternal grandparents.

If the change of residence proves unworkable because the children do not adapt to living with their father what are the prospects of being able to return them to their mother’s care?

826.The mother submitted that once the initial move is made, the children would then have to re-build a relationship with her and possibly also with the external maternal family.

827.The mother submitted that another concern would be that if the children were to be returned to her care after time spent with the father, that the things they were accustomed to may change. She provided the example of the horses getting put down, or people dying.

What toll will any order made by the court have on the children (considering all options)?

828.The mother did not make any submissions directed at this question.

Is the potential harm to be perpetrated upon the children through a change of residence greater than the harm sought to be avoided, namely, the inability to have/develop a meaningful (or any) relationship with their father?

829.The mother submitted that the potential harm to the children in changing their residence would be greater than the harm that is sought to be avoided.

830.The children currently have no meaningful or positive relationship with the father or the extended paternal family. The children are content, happy and secure in their current environment. The children have male role models in their life who are willing to mentor and support the children.

831.I asked the mother what orders should be made in respect of permitting a relationship between the children and the father, if no orders for their change of residence are made. The mother said that the father should send cards to the children, and that he should have supervised, limited contact with the children. The mother conceded that the father should be provided with copies of school reports, and photographs if he wants them.

Relevant Law

Legal principles

832.The principles governing this case are set out in the Family Law Act 1975 (Cth). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.

833.I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).

834.I will also be guided by section 60B which sets out the objects of the part of the Family Law Act dealing with the children and the principles underlying it.

835.I am required to consider matters set out under section 60CC(4) and (4A) of the Family Law Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.

836.Section 61DA(1) requires that:

…  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.

Subsection (2) sets out the circumstances in which the presumption does not apply. This includes cases where there is evidence of abuse of a child or family violence. The subsection states:

(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.

Subsection (4) provides as follows:

…  The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

837.Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent, where the Court is proposing to make an order that the child's parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

838.In addressing the considerations set out in sub-section 60CC(2), I take into consideration the terms of sub-section 60CC(2A), which requires me to give greater weight to considerations set out in paragraph (2)(b).

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

839.Sadly, the children in this case have been denied a relationship with their father which could be described as a “meaningful relationship” as that term was obviously intended to be applied by the legislators. The detail of this statement is set out in the descriptions of attempted interaction between the father and the children over the last five years.

Additional considerations

(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

840.The children, I accept, have voiced a clear wish not to have any time with the father and probably are rejecting of any relationship with him, at least to the extent they would be willing to state at this time.

841.I find that given the circumstances in which the children have lived under the influence of their mother and maternal grandmother, it is not possible to know what the children’s real wishes might be or what the children might think about their father had he been portrayed accurately to them over the last five years.

(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);

842.The children have a very close and probably enmeshed relationship with their mother, as described by Dr G. The children also have a strong and close relationship with the maternal grandmother.

843.The children have no positive relationship with the father or any of his relatives. I find, however, that their relationship with the father and his relatives has been manipulated by the mother and her desire for the children not to associate with the father or his relatives. 

(c)     the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i)  to participate in making decisions about major long‑term issues in relation to the child; and

(ii)  to spend time with the child; and

(iii)  to communicate with the child;

844.This consideration only really requires attention so far as the father and his family are concerned. The father has not been permitted to have any decision-making participation so far as the children are concerned.

845.The mother has failed to consult with the father about any aspect of the children’s lives since at least the time the parents separated. The father was not consulted about the choice of school for the children nor has he had any opportunity to participate in any decision involving the children’s health and, in particular, B’s health.

(ca)    the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

846.Although the mother sought to establish the father had not paid child support as he was required, I do accept the father’s evidence in relation to the cause of the arrears. I accept that he will pay child support as required in the future.

847.The mother has clearly been the person who has been responsible for meeting most of the cost of supporting the children.

(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;

848.Ultimately, this consideration has been one of the pivotal matters to be considered. Dr G has conditionally recommended that, subject to the Court’s acceptance of particular facts, the children should live with the father. I have concluded that the effect upon the children of such a change of residence at this time would be catastrophic for the children. They must be seen to hold the same view of the father as their mother at present. They are very attached to her (particularly B) and have apparently assumed all her opinions of the father.

849.The mother, I find, holds no positive view of the father. She clearly believes he is incompetent as a parent, has no capacity to engage with the children, has a limited and dangerous understanding of how to care for B’s diabetes, and is a violent angry man with an explosive temper. She has described a number of these views to persons with whom she has had to engage and the views have been recorded. Some examples of what has been recorded are in evidence. The mother on some occasions sought to distance herself from the recordings.

850.If I am correct in finding that the children (if they are enmeshed with their mother) must have taken on many of her views and opinions, then to place the children in a household where he will be their primary care giver, and where they will have very restricted time with their mother, will place them in a place where they will be highly anxious, traumatised and psychologically at risk of damage. So much must be the conclusion arising from the above. If I am incorrect and the prospect of the children suffering in such a manner is just “a chance they may do so” (rather than a probability they will do so), then the risk of harm is such that in my view the children should not be subjected to such a risk.

(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

851.If there was to be a change of residence so the children live with the father, he proposes that he would live, at least for a time, with his family in Town K. This would mean the mother would have a considerable distance to travel to have her limited time with the children.

852.If the father was to have time with the children then again it seems that at least part of that time would have to be exercised in Town K. That would involve travel from the Canberra area to Town K for the mother, the father and the children. The children and the mother would have to travel to Town K and back in one day. In the circumstance that could be onerous depending upon how frequently it would be required.

(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

853.The single expert has opined that each of the parents has the capacity to care for the physical wellbeing of the children. I accept the mother has been a very good carer for the children in difficult circumstances. Caring for B with diabetes, I accept, has been very onerous upon the mother who has had to attend to B nearly every night and so experiences broken sleep. At the same time she is holding down a full-time responsible job.

854.The concern I have, which is clearly based primarily upon the evidence of the Dr G, relates to the mother’s impact upon the psychological wellbeing of the children. She has provided them with an emotional environment where she has influenced them to reject any relationship with their father.

855.I am not satisfied that the father has the capacity at this time to care for B’s diabetic condition. I agree with one of the concerns of the mother in this regard. He has rejected the mother’s chart which she follows to monitor and stabilise B’s condition. The father has undergone training so that he can attend to B’s condition, however, she has not permitted him to carry out any of the necessary procedures. Further, he demonstrated he does not understand the impact of certain foods upon her condition (for example, the grape incident). There was also an occasion when the children were in Town K ostensibly under the care of the father where B had not been fed a snack or meal as the mother had requested.

856.I do not accept that the father could, at this time, adequately manage B’s diabetic condition on his own, even if she was prepared to let him attempt to do so.

857.I note that Dr G concluded the father did have significant obsessional and compulsive personality traits yet still recommended he was capable of being a full-time carer for the children.

(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

858.The children are female children of eight years of age. The father proposes to be caring for them on his own, perhaps with the occasional help of his friend Ms W and others, but primarily the task would be his. A time would be expected to arrive over the next few years when the girls commence puberty. I am not satisfied the father could deal with that competently on his own. If the children had adequate contact with the mother then that would alleviate my concern, however, there must be a question in this case whether that would be possible if there was a change of residence to the father.

(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

859.This consideration does not apply to this case.

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

860.The criticism of the mother in this case is the role she has played in the formation of the current presentation of the children when exposed to the company of the father. I find that in this regard the mother has not acted as a responsible parent to the children.

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

861.The mother has described herself to certain persons (who have recorded her statements) as having been “bashed” by the father. On the other hand, when given the opportunity to describe any violence she suffered at the hands of the father she told Dr G that he had not struck her he had only “chested her”.

862.There are, however, incidents of behaviour by the father which must be seen as violence. There was the occasion when he struggled with the mother to recover his phone which she was refusing to give him as he had requested. There is also the occasion when the father kicked in the door of the mother’s house.

863.In addition to those matters I accept there were verbal arguments between the parties which were probably loud and profane.

864.I accept that the mother’s shoulder/collarbone was injured in a struggle between the mother and the father. I accept the children would have been impacted by the father’s action in kicking in the door of her house. Although the children were not present I find that they would have heard about the incident by being present when it was discussed by the mother with other persons. They also probably saw evidence of the action.

(k)     if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

(i)      the nature of the order;

(ii)    the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)     any other relevant matter

865.The mother sought a family violence order through the NSW police following the incident when the father kicked in her door. The father was charged and convicted of malicious damage. He paid for the repair to the mother’s door. There had been an interim ADVO, however, the evidence is silent as to whether that became a final order or for how long it operated.

(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

866.The order which can be made should, if possible, conclude the litigation, however in this case it may be that only a respite for a few years can be achieved. This will be explained later.

(m)     any other fact or circumstance that the court thinks is relevant

867.The other facts which have be taken into account are set out in the conclusion.

Balancing of all considerations under Section 60CC and the defined issues

868.Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will be most unsatisfactory when considering the long-term best interests of these children, however, I conclude it is necessary at this time to remove the onerous aspects of litigation which affect the children and the parents, until such time as the children are older and better able to manage a relationship with their father if the mother will permit that to occur, or perhaps better able to manage a transfer of residence to the father.

Section 61DA

869.This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies.  The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.

870.The presumption does not apply where there has been family violence.  In this case there has been family violence as has been set out earlier.

871.Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.

872.The section further provides in sub-section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.

873.In this case there is no reason for the presumption not to apply and neither parent seeks that. Each seeks an order for sole parental responsibility. The Independent Children's Lawyer advocates for such an order because the parties do not have the capacity to negotiate any agreement.

874.I find that the relationship between the parents is so poor that it would be entirely inappropriate to make an order for equal shared parental responsibility.

Section 65DAA

Section 65DAA(1)-(4)

875.This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility. The section also requires the Court to consider other configurations of time for the children to live with and spend with each parent or relevant person.

876.I propose to make an order for sole parental responsibility. It is not in the best interests for the children to spend any time with the father at this time as explained in these reasons.

Section 65DAA(5)

877.This section requires the Court to consider whether it is reasonably practicable for the children to spend equal time or substantial and significant time with each parent. This section will not require further consideration in this case.

Conclusion

878.I conclude that, notwithstanding the mother’s assertions/protestations that she does support the children having a relationship with their father, that is not a true reflection of her real views about that matter. I conclude that if the mother could possibly erase from the children’s minds any knowledge of the man who is their biological father she would do so. Her latest move to introduce Mr YY into her life and that of the children’s is, I suspect, probably part of her plan to entirely exclude the father. I fear that given the mother’s personality, as revealed to me over many days in Court, the prospects of longevity of the relationship with Mr YY are poor. Mr YY has a business which involves earthmoving. The mother’s evidence is that commensurate with the event of Mr YY moving his caravan next to her house, he has commenced to carry out earthmoving activities on the mother’s property. This unfortunately raises a concern for me that the mother’s primary reason for developing the relationship with Mr YY is to avail her of his earth moving business at no financial cost.

879.In the introduction to these reasons I set out some matters which I considered needed to be addressed in the determination of this case. Those matters I now specifically address taking into account the determinations which I have made above.

880.It is important to remember that Dr G’s recommendation was conditional. That is, that the Court would consider a transition of the children to the father in circumstances where the Court was confident the father would be capable of providing for the biological, medical, psychological and social needs of these children. I regret to say that with children as challenging as the ones under consideration I do not have the confidence which Dr G says would be necessary to order a change of residence.

881.I also find myself in agreement with the Dr J expressed during her oral evidence in this matter. I have set out earlier what she said about the reason she concluded that for these children placing them with the father would be more damaging to the children than leaving them in their mother’s care and having no contact with the father.

882.The Independent Children's Lawyer submitted there was a very fine line between the benefits to the children of changing residence to leaving the children with the mother. He described it as 51 per cent to 49 per cent. With such a fine balance (with which I do not agree) it is not appropriate in my view to embark on a radical experiment which would be required in this case.

883.Issues to be addressed included:

·Is a change of residence a move of last resort necessary to allow the children to have a relationship with their father?

·What impact would such a move have on the children?

·Does the father have the capacity to effectively parent these children in the circumstances in which they will come into his care? 

·What are the chances that the move of residence will change the children’s view of their father?

·If the move proves entirely unworkable because the children do not adapt, what is the prospect of being able to return them to their mother’s care unharmed by the experience?

·What toll will any order made by the court have on the children? Is the potential harm which might be visited upon the children through a change of residence greater than the harm sought to be avoided, namely, the loss of a relationship with their father?

·In the event that the court determines the detriment accruing to the children of a change of residence is greater than the benefit sought to be achieved what orders should then be made?

884.I now turn to determine the issues I posed to the parties as above set out.

Is a change of residence a move of last resort necessary to allow the children to have a relationship with their father?

885.I conclude that a move of residence at this time is not the last resort to enable the children to have a relationship with the father. I conclude that this can be delayed until the children are a little older. I conclude that there should not be any further consideration of change of residence, absent any extraordinary event occurring, before the children have past their twelfth birthday. There are orders which can be made in the interim to keep alive in the children’s minds the fact they have a father who wants to spend time with them.

What impact would such a move have on the children?

886.If the children were to be moved to the care of the father at this time I conclude on the balance of probabilities it would be very traumatic for them for the reasons already set out herein. Further there is a real possibility, bordering on a probability, that the children would refuse to engage with him. For B such a situation could be dangerous to her health.

887.Does the father have the capacity to effectively parent these children in the circumstances in which they will come into his care? 

888.I have very real doubts as to the father’s capacity at this time to be able to properly care for the children with the extent of emotional turmoil which they are expected to suffer upon such a change being effected, and also with B’s diabetic condition.

889.Although I am sure he would provide food, clothing, shelter and schooling which would be adequate, I am not confident he has the ability to connect with the children on an emotional level which would be necessary were he the sole parent to the children.

What are the chances that the move of residence will change the children’s view of their father?

890.It must be acknowledged that this is a possibility. Clearly it is the main purpose of any proposed change. In this case, however, there is a clear possibility that the children’s view of their father is so ingrained by the mother’s interaction with them that they may refuse to engage with him at all and merely exist on their own combined society as close twin siblings. This is an unknown fact.

If the move proves entirely unworkable because the children do not adapt, what is the prospect of being able to return them to their mother’s care unharmed by the experience?

891.It is clear that the children could be returned to their mother if the move proved not to be successful. However, I do accept the mother’s submission on this point that it is probable that there would be some distance in the relationship caused by the separation. Clearly the longer the separation the more likely it will have some lasting impact upon the relationship between the children and the mother and each child may react differently.

What toll will any order made by the court have on the children? Is the potential harm which might be visited upon the children through a change of residence greater than the harm sought to be avoided, namely, the loss of a relationship with their father?

892.I conclude that the potential cost to the psychological and physical health of the children of requiring them to change residence at this time is too high a price for them to pay. The potential harm which is sought to be avoided (possibly never to have a relationship with their father) may well lead to a greater harm to the long-term emotional development of the children. This is a case where the children will be harmed by the Court doing nothing to enable the children to spend time with the father as well as if the Court does order them to spend time with their father.

In the event that the court determines the detriment accruing to the children of a change of residence is greater than the benefit sought to be achieved what orders should then be made?

893.I conclude that the detriment accruing to the children of changing residence is greater than the benefit to be achieved at this time. I propose to make orders which I consider will put the least pressure on the children, that the mother may well reluctantly tolerate and ultimately leave open the window of possible relationship in the future.

894.I conclude, after considering and weighing all of the matters set out above, that there is considerable inherent risk attached to a change of residence for the children from their mother to their father. Where the Court is required to determine which of the proposals of the parties or the available orders the Court could make, irrespective of the parties’ proposals (this simply recognises the court is not restricted to making orders sought by each party or the Independent Children's Lawyer), poses the least risk to the children, the weighing of the advantages and disadvantages of each possible outcome, needs to be carried out and a conclusion reached. Unfortunately the known circumstance will frequently outshine the unknown, even though the known circumstance may carry significant disadvantage to the children.

The advantage of making an order for change of residence:

895.The advantage is that the children would at least have a chance to get to know their father untrammelled by the opinions of their mother being reinforced by her presence.

The disadvantage of making an order for change of residence:

896.The disadvantage is that the children will not cope with the change. B may suffer a relapse of her diabetic condition. She may not permit the father to treat her. The children may retreat into their own society and not permit the father to interact with them in any real sense. There would be a change of schools. This is a change from the current school which clearly is able to deal with B’s condition. The children would be separated from their pet dogs and horses which are a large part of their lives. The children would have to be isolated from their mother, the person with whom they have a very close and enmeshed relationship. They would also be isolated from the maternal grandmother.

897.There would need to be a change of medical providers if the father moved to Town K which is his plan at least initially. If he then moved back to the Canberra area he might return the children to their current school if he could manage the travel and other logistics necessary to support their attending that school.

The advantage of making any other order providing for the children to spend time with the father

898.The advantage is that any form of contact will potentially advance the children in being able to get to know their father if the mother permitted them to do so.

The disadvantage of making any other order providing for the children to spend time with the father (including recognition contact)

899.The disadvantage is that it exposes the children to further behaviour on the mother’s part which reinforces the children’s understanding of their mother’s abhorrence of the father and his family.

The possibility of making any other order which might advance the relationship between the children and the father

900.It is possible to make orders which do not involve any direct contact between the father and the children. This may well shield them to some extent from their mother’s view of the father and allow them to quietly absorb some positive information about their father. It may also serve to maintain the father’s interest in the children and pursuing a relationship with them if he receives regular provision of information about them.

901.In this case I ultimately and sadly reach the conclusion that the children’s known circumstance prevails over the unknown circumstance of the children living with the father. In particular the following aspects stand out as significantly working against a change of residence.

a.B has a very significant medical condition which needs to be physically monitored at a very high frequency. This no doubt is attributed, in part, to her young age.

b.The father’s proposals for the care of the children have a degree of uncertainty which leads to discomfort in making an order for the children to live with him. The particular aspects which raise concern include:

·Will he actually take the children to Town K and live with his parents until the children recover emotionally from the change of residence?

·What will be the influence of the paternal grandfather on the father and the children while they live with him?

·How much actual day to day support will the father need from his parents and his sisters in caring for the children?

·Will the children adapt to the father’s personality and method of interaction with the children?

·Will the children change schools and attend school in Town K? If so for how long will they attend that school?

·What accommodation will the father have at Town Y? One of the father’s stated plans is to share a caravan with the children until suitable accommodation in a flat can be found.

·If the father is living in Town Y will the children attend the school they are currently attending? Although the father has said he would send them back to their current school will he actually be able to manage the logistics of such an arrangement.

·What will be the reaction of the children in returning to their current school under a regime which sees them living with their father and seeing their mother under very strict supervision?

·What will be the impact upon the children of having to leave behind their ponies and dogs?

·How will the children cope with restricted/possibly no contact with their mother during the early part of the change of residence?

·Does the father have the skill and ability to parent the children if they are in an elevated state of trauma occasioned by the change of residence?

The Orders to be made

902.I therefore propose to make the orders in relation to parenting as set forth above.

903.The mother will have sole parental responsibility for the children. I will make orders for the provision of information to the father about the children’s development interests and achievements. I will make orders which enable the father to communicate with the children in writing, provide photographs of himself and his family and also send them gifts.

I certify that the preceding nine hundred and three (903) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 20 December 2016

Associate: 

Date:  20 December 2012