Barker & Barker - [2008] FMCAfam 156

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARKER & BARKER

[2008] FMCAfam 156

FAMILY LAW – Parenting – application by mother to relocate interstate – application not granted – sole parental responsibility to father – equal time with parents – neither parent has provided emotional support to children in the past – impact of psychologically ill parent upon children.

FAMILY LAW – Property – significant 75(2) adjustment in wife’s favour.

Family Law Act1975 (Cth), ss.60CC(2), (3) and (4), 61DA, 65DA(2), 75(2), 79.

Ferrero & Ferrero (1993) FLC 92-335

Applicant:

MS BARKER

Respondent:

MR BARKER

File Number:

PAC 3560 of 2007

Judgment of:

Henderson FM

Hearing date:

5, 6 & 7 February 2008

Date of Last Submission:

7 February 2008

Delivered at:

Parramatta

Delivered on:

27 February 2008

REPRESENTATION

Counsel for the Applicant:

Mr Thistleton

Solicitors for the Applicant:

Veritas Legal, Parramatta

Counsel for the Respondent:

Mr Johnston

ORDERS

THE COURT ORDERS THAT:

Parenting Orders

The mother is injuncted and restrained from removing the children’s permanent place of residence outside the Sydney metropolitan area.
The children, Z born in 1998 and P born in 2002, are to live with the parents as follows:
(a)With the father from after school or after school care Monday
10 March 2008 to the commencement of school or before school care Friday 14 March 2008;
(b)With the mother from after school or after school care Friday
14 March 2008 until the commencement of school or before school care Tuesday 18 March 2008;
(c)With the father from after school or after school care Tuesday
18 March 2008 to 8.00 pm on Monday 24 March 2008;
(d)With the mother from 8.00 pm on Monday 24 March 2008 until the commencement of school or before school care Monday
31 March 2008;
(e)With such cycle to be repeated thereafter;
(f)With the father for four weeks of block holiday time each year as agreed, failing agreement, two weeks in June and two weeks in the January school holidays in odd numbered years and 2 weeks in April and two weeks in September/October in even numbered years;
(g)With the father from 10.00 am the Saturday after school breaks up until 11.00 am Christmas day in even numbered years;
(h)With the father from 11.00 am Christmas morning and for a period of 14 days thereafter in odd numbered years; and
(i)With the father at other times as agreed between the parties.
The children are to live with their mother at all other times not otherwise specified in these orders.
The father to have sole parental responsibility for the children.
The mother is ordered to carryout all speech therapy homework for P as set by his speech pathologist and take him to all appointments made by the father when he is in her care.
For each alternate year commencing 2009 and each odd numbered year thereafter the mother be permitted to spend four weeks in Melbourne with the children in the January school holidays.
The mother be permitted to take the children to Melbourne at other times whilst they are in her care pursuant to these orders on condition that:
(a)The father is notified in writing of the dates and times the mother intends to take the children to Melbourne;
(b)The children do not miss school; and
(c)The intended trip does not interfere with the father’s time with the children.
The father must notify the mother within 24 hours on each occasion he makes a sole parental decision including, but not limited to, schooling and education, medical, health, and religious matters.
The father to do all acts and things and sign all documents necessary such that the mother may receive from any school that the children attend copies of their school reports, parent-teacher interviews, newsletters and the like.
The mother be at liberty to contact the children’s health professionals to discuss any ongoing treatment or therapy for the children.
The parents attend a post separation course with an outside Agency convenient to their home and complete same within 6 months.
The parents take advice from the outside Agency in relation to specific counselling for Z as recommended by Ms Greenfield. Ms Greenfield’s report may be released to Z’s counsellor and the outside Agency.
Any cost associated with carrying out orders 10 and 11 to be borne by the father.
Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

Property Orders

The husband pay to the wife within six weeks of the date of these orders the sum of $215,100.
Thereafter the parties retain all items of property and personalty including shares, furniture and fixtures and superannuation that are in their possession or name absolutely.
In the event the husband fails to pay the sum to the wife as specified in orders 15, or as otherwise agreed, the parties agree to list the property for sale at auction with Partridge Real Estate, Northmead, at a price of $500,000. From the proceeds of sale at auction the parties to pay:
(a)The current mortgage on the former matrimonial home;
(b)Agent’s commission, solicitor’s costs and the usual conveyancing fees and usual adjustments on the conveyance;
(c)The sum of $215,100 to the wife; and
(d)The balance to the husband.
In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then pursuant to s.106A, a Registrar or Deputy Registrar of the Federal Magistrates Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.
These Orders have amended pursuant to Rule 16.05(2)(e) of the Federal Magistrates Court Rules (2001).

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT

PARRAMATTA

PAC 3560 of 2007

MS BARKER

Applicant

And

MR BARKER

Respondent

REASONS FOR JUDGMENT

Introduction

The matter of Barker was heard by me on the 5^th, 6^th and 7^th February 2008. Mr Thistleton of Counsel represented the applicant wife and

Mr Johnston of Counsel represented the respondent father.
The applications before the Court concerned division of the parties’ property together with parenting orders.
The most significant issues in the matter concerned parenting.
The mother wishes to move with the children to Melbourne to be with her large extended family. The mother is the only one of her seven siblings who lives in Sydney. The mother has significant health and mental health issues.
If the mother is permitted to move to Melbourne and the father follows, which he conceded he can do, then the mother says there should be a form of equal time with the children and their parents.
If the mother is not permitted to move to Melbourne with the children then she contends the current order being alternate weekends and school holidays with the father remain in place.
The mother says the parents should have equal shared parental responsibility.
The mother will not move to Melbourne without the children.
The father opposes such a move. He seeks that the children primarily live with him in Sydney.
In the alternative he proposes there be a form of equal time as recommended by Ms Greenfield, Family Consultant.
The father seeks sole parental responsibility for the children due to the mother’s lack of following through with P’s speech pathology, conduct at the children’s school and general parenting and care issues which have caused him concern.
The mother opposes such an order.

The evidence

The wife’s evidence at the hearing was as follows:
a)The wife’s affidavits filed 20 June 2007 and 21 August 2007 and her financial statement;
b)Her oral examination and cross-examination;
c)Affidavits of the wife’s two sisters who attended the hearing in person and were cross-examined, Ms G and Ms A;
d)Affidavits of the wife’s treating GP, Dr R, dated 24 September 2007 and a psychologist, Dr D, who were each cross-examined via telephone;
e)Exhibit W1: Annexure A to her affidavit of 27 January 2008 being a list of house prices she has researched in Sydney and Melbourne; and
f)
Exhibit W2: a bundle of documents in relation to P’s speech therapy including a report from his speech pathologist

Dr O.
For the husband I read the following:
a)His affidavits filed 20 August 2007 and 14 January 2008 and his financial statement;
b)The affidavit of the paternal grandmother who was not cross-examined;
c)The husband tendered many exhibits:
i)Exhibit H1: H Centre documents regarding medical treatment of his wife,
ii)Exhibit H2: Dr R’s notes,
iii)Exhibit H3: Internet downloads from the NRMA website as to times and distances of places in Melbourne and Sydney and handwritten notes as to house prices,
iv)Exhibit H4: Nxxx School records in relation to P and Z,
v)Exhibit H5: Nxxx After School Care notes in relation to P and Z
vi)Exhibit H6: The husband’s affidavit of 31 July 2007 paragraph 228 and the wife’s affidavit of 25 August 2007 paragraph 55, and
vii)Exhibit H7: The wife’s HECS debt as at the date the parties purchased their home in June 1999.
There were two Court exhibits:
a)The report of the Court Expert Julie-Anne Greenfield marked Exhibit C1. Ms Greenfield gave evidence over the phone in addition to her report.
b)Exhibit C2: The agreed list of assets and liabilities.

Short chronology

The wife was born in 1970 and is currently 37 years of age. The husband was born in 1972 and is currently 35 years of age.
The parties met in Newcastle in 1993 and commenced cohabitation in 1994. The parties were married in March 1996.
The parties’ child Z was born in 1998. She is currently nine years of age.
In April 1999 the parties purchased a house at Nxxx. The husband’s parents provided $30,000 towards the purchase of the property and for renovations.
The parties’ child P was born in 2002. He is currently five years of age.
In September 2002 the wife was made redundant.
On 2 April 2005 the parties separated.
On July 2005 the husband withdrew $30,000 from the mortgage account without the wife’s knowledge and paid it to his parents.
On 11 November 2005 the parties entered consent orders for the children to live with the wife and for the husband to spend time with the children each alternate weekend and for two weeks of block time and other defined times.
The parties attempted reconciliation. By January 2006 the husband determined the marriage was over and the wife suffered a mental break down and was hospitalised.

Parenting

Background facts

It is common ground that since physical separation in April 2005 the children have primarily lived with their mother and have spent no less than alternate weekends and two weeks of school holiday time with their father. It is clear the mother has been the children’s primary carer.
The parties attended reconciliation counselling. The marriage breakdown has been very difficult for both of them. When the wife became aware the husband was no longer interested in reconciliation in January 2006 she had a significant mental breakdown and was taken to Cxxx hospital. The wife was hospitalised for a short period of time and then returned to her role as the children’s primary carer.
The husband is in full-time employment and works for a major bank. His income has increased during the marriage.
The wife has four degrees and is a highly qualified school teacher. The wife is a skilled artist according to her husband. The wife had been able to obtain work as a school teacher during the marriage and since separation but it has been of a short term casual nature.
As the evidence unfolded it became clear that the wife has significant health difficulties, of a physical and psychological nature. The mother is perpetually sad. The mother demonstrated her volatility during the hearing. The mother cried on many occasions, she flew off the handle at times and had a sad and overburdened affect. The mother admitted she is volatile and is desperate to move to Melbourne as she believes having her family around her will help improve her perpetual sadness and unhappiness.
Dr R lists the mother’s health issues. Diabetes controlled by diet, low iron levels, astigmatism, sciatica, asthma, significant depression which first appeared in 2000 and from which she made a recovery, post-natal depression after P’s birth for which she presently takes 150mg of Zoloft a day. Both physically and mentally the mother has challenging issues to deal with as well as the care of two young children who themselves have their own difficulties.
The wife has diabetes which can be controlled by diet. From Exhibit H2, Dr R’s notes, the wife was referred to a dietician, Ms I, on

2 February 2006
.
Ms I reported that the mother had a very limited range of food preferences, ate very few and a limited range of vegetables, preferred food with a high glycemic index and which were low in calcium. As I read Ms I’ report the mother was not at all receptive to the dietician’s suggestions of food choices which would help control her diabetes, result in weight loss and improve her general health. The mother was not receptive to the idea she needed to improve her diet by eating a greater range of vegetables, and food with a low glycemic index and increase her calcium intake.

Z is a quiet child, somewhat introverted and shy. This appears from Ms Greenfield’s report. Ms Greenfield describes her as overburdened by her parents’ dispute. Ms Greenfield reported that neither parent has been emotionally available to the children because of the parental dispute and the unresolved difficulties of the separation. The father has moved on emotionally however the mother is still suffering the effects of the separation.
From this evidence it is clear neither parent has been able to protect Z from their own dispute. They have been very much caught up in their own world rather than focussing on the needs of their daughter. The difficulty for Z is that her parents’ dispute and her mother’s sad demeanour have impacted upon her at school with her relationships.
Z reports being teased at school. Z still sucks her thumb at school which has resulted in teasing. Z told her teacher in May 2006 she hated school and was moving to Melbourne. Z told Ms Greenfield she worries about her mother and that her mother might get sick.
Her mother’s response to the school issues has been to go into full battle mode to protect her daughter. The mother has attacked every school teacher that Z has had. This method has also been employed by the mother for P’s difficulties at school.
In 2007 the mother verbally attacked Z’s teachers Ms P at a parent-teacher night. This attack was witnessed by the father and caused him significant embarrassment. The consequence of the mother’s very poor behaviour has been that the mother is no longer permitted to attend parent-teacher interviews with the children’s teachers and can only do so in the school principal’s office.
The mother’s conduct at Z’s school has been less than helpful for the child. The mother admitted in cross-examination she tells the children she cannot cope, she cries, they cry and everyone is upset. It is at this time the mother talks of the move to Melbourne.
I accept that from separation and up until early 2007 the father played a minimalist role in the children’s education and day-to-day care. He left these matters entirely to the mother to deal with on her own. It is clear she was, and is still unable, to cope with this significant challenge and responsibility on her own. Thus, there is fault by both parents.
The result is we have children who have suffered and continue to suffer from their parents’ marriage breakdown and the negative impact of that upon their emotional and physical well being.

The mother enrolled P in after school care for 2007 with his sister. One of the questions asked was does your child have any other needs. The mother answered in her own handwriting:
“[T]hat his communication was poor and hard to understand at times but pretend you do”.
I found that evidence distressing. Both parents must have known his communication difficulties before he attended formal education yet neither of them did anything to address this significant disability for their son. The parents permitted P go to school when he was unable to make himself understood.
P was directed to the school counsellor by his teacher in June 2007 due to his poor behaviour and intelligible speech.
A recommendation was made that he attend speech therapy. Exhibit W2 is P’s speech pathology report from Dr O. She reports “he is a bit of a loner and plays alone”. That is hardly surprising if the child cannot communicate and make himself understood. Little children are not particularly sympathetic to other children who are different from them. Yet neither the mother nor the father sought to address this obviously significant issue until it was raised by the school in June 2007. P has had 16 detentions since 2007 for biting, pushing and poor behaviour.
Neither parent impressed me with their lack of attention to their son’s needs prior to June 2007. Once the father was made aware of this issue he has been most proactive in ensuring his son receives the treatment he needs. It is the mother who continues to cause me real concern regarding P’s speech pathology and other matters.
The mother puts herself forward as the children’s primary carer and the parent most in tune with their needs. The issue of P’s lack of understandable speech was raised with the mother by the principal of Nxxx School on the 26^th June 2007. The principal’s notes in Exhibit H4 reveal that the mother said “as she is a school teacher she can fix anything”. The mother cannot fix anything merely because she is a teacher. I formed the view that the mother still does not think P’s poor speech is a real issue for him. His father does.
In cross-examination the mother was asked whether she thought having this issue addressed was important for P she said: “Well I can understand him”. That is not the attitude of a responsible parent who understands her child’s needs are at times different to her needs.
The mother told the court counsellor that she is not in favour of P’s speech therapy. He is too tired at the end of the day and wants to come home and play. She could not afford the speech therapy cost and has him on a waiting list for a free service. That was not the truth.
The father was paying the cost of his private speech therapy, had taken over P’s speech appointments and homework because the mother would not. The mother did not tell the truth on these issues perhaps because she believes the truth does not support her application to move to Melbourne. I am unsure.
P’s speech pathologist, Dr O, said in her assessment dated December 2007 that:
“P has sleep aponia and needs to consult an ENT Consultant. If he maintains regular and consistent therapy his prognosis is good.”
It is crucial, according to Dr O, that “his therapy be consistent”.
The mother and father agreed P needed speech therapy. The father asked the mother to arrange for therapy and that he would pay the cost. The father had to press the mother on many occasions after June 2007 to arrange speech therapy. It was not until late August that the mother made the first appointment for P.

The mother took him to the first four or so sessions. Her interest, enthusiasm or belief that this was needed fell off. P missed out on his speech pathology in November and December. The father made alternate appointments and informed the mother. The reason the mother gave for missing on of his appointments was that she had a prior arrangement to see distant family relatives who were in Sydney.
The mother decided P needed a break from speech therapy during the Christmas school holiday because he was tired. That is contrary to

Dr O’s opinion that the child needs constant and reinforced work and his work must be done consistently.
The mother said she was only doing P’s speech pathology homework occasionally. When asked why the mother said she considered herself a professional and had made the decision as a teacher that she was able to give him what he needed.
The mother was asked precisely what was it that Dr O said needed to be done. The mother said:
“I had to make funny noises for P”.
At that point I intervened. I said to the mother:
“By funny noises M’ame do you mean phonics?”
She said:
“Oh yes, that’s the name of it”.
I said:
“Phonics is the way we pronounce words and letters to make ourselves known”.
The mother thought this was amusing. I was unimpressed by the mother’s lack of understanding of the process of speech therapy.
The mother then said: “Sometimes P said he did not want to do it” so she would let him off. That is not the conduct of a parent who is able to put the needs of a child before her own. It is difficult to get children to do things they do not want to do at times. A parent must persist. It takes effort, energy and consistency. It is crucial P be able to speak as clearly as possible for his future well being, and in being able to obtain work and maintaining himself as an adult.
It is apparent that the mother does not follow the advice of experts and consistent with her comments to the school principal believes she can fix anything because she is a teacher.
I found it distressing that the parents believed that their little boy could go to big school not being able to communicate and that this would not cause him problems. That the father, knowing the mother’s poor attitude to expert opinion of her children’s needs and having seen her poor behaviour at parent-teacher night still left it up to her to arrange speech pathology. That the mother took many months before she even arranged the speech pathology. That the mother did not follow the regime of homework set by Dr O and believed she knew better is concerning. That she did not take the child to his appointments because she said P needed a break and on another occasion to see distant relative is concerning.
The mother’s explanation of not being able to afford the therapy was that she had to put the cost onto her credit card each week. The father would reimburse her every two weeks and she would accrue interest. At $50 a session the interest accrued would be negligible. I do not accept the mother’s evidence. Taking P to therapy was a big effort for the mother and it was she, not P, who needed the break.
The father could have made an arrangement to pay the therapy costs directly to the speech pathologist. He conceded he should have dealt with this issue in a better way. However, the difference is the father conceded his faults in the witness box. He agreed he could have handled this matter in a way to make it easier for Ms Barker but, most importantly, to ensure P did not miss out.
The parents’ lack of co-operation and lack of communication which is so evident in this matter has come to the fore as P has not had consistent speech pathology as his speech pathologist said he must.
I do not accept the submission of Mr Thistleton that this is a draw and both are as bad as each other. The mother is the one who puts herself forward as the primary carer, the parent most in tune with the children yet failed to carry out this very important task. The mother did not try to make an alternate payment arrangement with Dr O such as “my husband will pay it directly” but chose the easy way out for herself and P missed out. The mother could not make one concession on any issue. It was always someone else’s fault.
The father has taken up the slack and I have no doubt P will continue with his speech therapy and set homework.

Parenting capacity

It is clear from the father’s evidence that he had been a parent who, although physically available and able to assist has from separation up to mid June 2007, a period of two-and-a-half years left the parenting role and the decision making to the mother. He agreed this was so in the witness box. That decision by the father has had repercussions for his children and for Ms Barker, their mother.
It became clear to the father, by at least June 2007, that Ms Barker had not coped at all well with this in effective sole responsibility and, in hindsight, he agreed it was an unfair on the mother and the children.
In the consent orders the parties negotiated regarding their children in 2005 the father only sought two weeks holidays. School children have ten weeks holidays. Thus, the father in moving on with his own life minimised his available time and involvement with his children. His involvement post separation was much less than his involvement during the marriage.
He laid blame for this in part at the feet of the mother. I do not accept that criticism. It suited the father after separation to have limited time, being alternate weekends and two weeks school holidays, with his children and enabled him to recover from the marriage breakdown and be as emotionally well as he is today.
The mother had no such luxury. The mother has shouldered the lion’s share of parenting from separation up to June 2007. The father had not attended a parent-teacher night until 2007. This behaviour may also have suited the mother initially as it gave her the opportunity to parent her children as she saw fit with no interference from the father. This approach by the parents has not had a positive outcome for them or the children.
The father’s concerns about the mother stem in part from his loss of trust in the mother. That initially arose because she had a termination which he believed had been a spontaneous miscarriage. The mother has been unable to regain his trust and I found the mother was not trustworthy in many respects.
As the evidence unfolded I found I could place little or no reliance upon the mother’s version of events in the past which then caused me difficulties in accepting what she asserts she will carry out in the future.

Mother’s proposals

The mother says that if she cannot relocate to Melbourne she will stay in Sydney with the children. I accept that evidence. Her reasons for relocating is that she wants to be close to her family who can give her support to care for the children and enable her to return to the workforce. It is her case she cannot cope with looking after the children on her own in Sydney. I accept that evidence.
One difficulty I have is that the mother says if she is permitted to relocate to Melbourne and the father goes to Melbourne she will agree to a form of equal time but will not agree to a form of equal time if she is to remain in Sydney. The mother wants the same orders to continue. However these are the orders under which she is not coping.
The mother has no explanation for this illogical approach because there is no explanation. It is the mother punishing the father because she cannot do what she wants, move to Melbourne. Although she says she cannot cope with parenting these children alone, and the father does not want her to continue to do so, if she does not get what she wants she will put the children in the unenviable position of being cared for by a parent not coping in order to punish the father. This bespeaks of a very immature attitude by the mother.
The mother says she has her family support in Melbourne. I accept that she has their emotional support. Members of her family were in Court. I accept the father does not understand this loud, boisterous and flamboyant, Italian family. He disputes how much help she will receive and is concerned because the family members fight, do not talk at times for months and years. This is the mother’s family. They are her brothers and sisters. I accept that the mother would want to be close to them.
However, it is also clear from the evidence that none of her family can be physically available to her to care for the children because they have their own families to care for and/or she will not be able to afford to live in any close proximity close to her sisters. Thus, the physical assistance which the father and the paternal grandparents can give daily and weekly is not available to her in Melbourne. Psychological and emotional assistance is.
Ms Greenfield says in her report that the mother will be more accepting of the assistance her family can give her in Melbourne and less resistant to that which the father and his family can and have offered. That shows great insight by Ms Greenfield into the mother’s character. The mother is resistant to many things. The dietician’s recommendations to her, resistant to the need for P’s speech pathology, the need for him to have consistent, ongoing therapy and homework every night, resistant to attempts by the school to address difficulties her children are having.
As an example. In Exhibit H4 P’s teacher reported he is always sleepy and tired. The mother said that was because of the time he spent with his father. P spends time with his father each alternate weekend and not during the week. The evidence is the mother could not have the child in bed before 9.00 pm. Further he was diagnosed with possible sleep apnoea by Dr O which would also account for his tiredness. These are the reasons he is tired. It has nothing to do with the time he spends with his father.
On not one occasion in giving her evidence or in her affidavit did the mother make one concession that she is at fault in any way for any difficulties she or the children are having.
This attitude that it is always somebody else’s fault is in direct contrast to the husband. He admitted he has not been the hands-on father he should have been since separation. That, in hindsight, he should not have left the responsibility for his children to his wife alone and that this was not fair on the children or his wife. He conceded he has failed to take up opportunities to be involved in his children’s lives and that he has made mistakes in the past.
The father was able to give many positive examples of his wife as a good person. He described her as loving her children very much, being highly creative and gifted in the arts area, being focussed on a job that she likes and when she is involved she has a very good work ethic. He was proud of her achievements in obtaining her last degree because she obtained a job at Exxx and he said:
“I was so proud, it was just fantastic. We all were proud. Who wouldn’t be?”
Yet, in her notes to her doctor and her psychologist Dr D, the mother complains that the father was not supportive of her further education. I find the evidence is entirely to the contrary. The father was proud of her achievements in her further education.
The mother was referred to Dr D, a clinical psychologist, just after her breakdown in January 2006. The referral was in January 2006 and it was not until May 2006 that she was able to see Dr D. This was a free service. The mother ceased seeing Dr D in October 2006 and has not seen her or any other psychologist since that time. Yet to

Ms Greenfield and her own doctor, Dr R, the mother indicated that she was still seeing a psychologist. Nothing could be further from the truth.
The mother has not seen a psychologist for 18 months despite clearly needing this assistance and presenting as not being able to cope in her present state. From Dr D’ oral evidence the reason the mother stopped going to see her was that the mother told her she was going to Melbourne. As the service was free and there were other people on the waiting list if the mother was going to Melbourne Ms D would not be able to assist her.
Thus, what the mother would have Ms Greenfield and her own GP believe was that she had an ongoing, continuing relationship with her psychologist which was not true and, in circumstances where the service was free and may have significantly helped the mother. Both Ms Greenfield and Dr R were taken aback with this revelation.
The mother said that the father had prevented her from going to Melbourne on a number of occasions since separation. She said she wanted to go at Christmas 2005 and he wouldn’t let her go.
There is nothing in the consent orders preventing the mother taking the children to Melbourne on her time. Secondly, the consent orders specifically ensured the children were with their mother for Christmas 2005.
The father’s evidence was that this was specifically done so the mother could go to Melbourne with the children. She had booked tickets but did not go because she had a fight with one of her sisters. This is set out in Exhibit H6 paragraph 228 of the father’s affidavit of 31 July 2007.
The mother responded to this affidavit by her affidavit of 25 August 2007 at paragraph 55. In her affidavit the reason she gave for not going to Melbourne at that time was because her sister Ms G was moving house and she had nowhere to stay. Her answers in cross-examination before me were inconsistent with her affidavit of 25 August 2007. She said the reason was that the father said to her:
“You cannot take the children interstate without my permission and if you do I will call the police”.
So she just left it. The mother lied to the Court.
The mother said the father prevented her from going to significant family events in April and September 2006, January 2007 and other times and told her that if she went interstate he would call the police and have her arrested. I accept the father did say something like: “You can’t take the children to Melbourne permanently to live”.
I can understand why the father may have said that to the mother. The mother told Dr D she was gong to Melbourne in 2006 and Z told her teacher she was going to live in Melbourne in 2007. In those circumstances it was quite understandable that the father was concerned that the mother would take the children permanently to live in Melbourne.
I do not accept that the father prevented her from going to Melbourne in 2005 with the children or at any other time for a holiday.
The mother’s evidence of her abusive childhood caused me real concern. She has described to her psychologist and a doctor at Cxxx Hospital that she had a very abusive childhood. Her father was abusive and an alcoholic. That is not the evidence of her sister Ms G. When that scenario was put to Ms G she said:
“Did he (the husband) say that?”
The reply:
“No that it what your sister told us” came as a real shock to Ms G.
The relevance of this is to show the mother’s inability to discern truth from what she wants to believe. The mother is not a witness of truth.
The mother may not purposely tell untruths. It may be her perception of reality. The difficulty I have is that the mother’s reality is having a significantly negative impact on the children. She has convinced herself that she must go to Melbourne to become well. Yet has shunned assistance she was offered in Sydney at no cost, of free psychological treatment.
The mother has shunned the father assisting her in the care of the children if she remains in Sydney but he can have almost equal time in Melbourne.
The mother does not accept the importance for P of speech therapy and has not followed the expert’s regime.
The mother has not taken any responsibility for the situation she and her children are in. She has complained too and cried in front of the children, burdened them with her problems, told them she cannot do this any longer, she cannot cope and the children have cried in front of her.
The mother did not tell Ms Greenfield or her GP that she was crying in front of the children and they cried with her. She has placed an enormous burden on these children when she had available to her psychological help, a husband and grandparents willing and able to help her. The fact the mother chose not to use these resources for the ultimate benefit of her children is hard to accept. It has not assisted in her case to live in Melbourne.
I find the mother has knowingly at times inflicted upon her children the consequences of her behaviour as she believes her behaviour will result in her living permanently with the children in Melbourne. Both

Ms Greenfield and Mr Thistleton say that the mother must be permitted to go to Melbourne so that she can regain her health.
The mother said she does not ask the father for help because he will refuse. When pressed on when this has occurred her evidence was of her ringing the father on a weekday some hours or so before she needed help. Understandably he could not assist her. I formed the view that the father would gladly take up an arrangement where he can spend more time with the children and, if given sufficient notice, on an ad hoc basis as well. It suits the mother to be able to say the father does not assist her.
The mother said to me that she wanted P to see the school counsellor as she was concerned of the effect on the child of the marital break up. Yet it was clear from the counsellor’s notes she never followed up that issue with him and it was not part of his assessment. P went to the school counsellor because no one could understand him and his behaviour at school was problematic. The mother made up that evidence before me.
The mother said that P’s behaviour has improved at school. It has not according to the school records. She said that he has had a few detentions. He had 16 detentions in 2007. The mother would not even admit that the description of P’s behaviour by Ms Greenfield was of a difficult child with some real control issues. The mother said

Ms Greenfield was merely describing a normal five-year-old child. This is Ms Greenfield’s description:
“26. P (aged 5 years and 6 months) has just finished his first year at school. He was quite difficult to control during the report process, running all over the place, vocalising loudly and shrilly, and often not following instructions…His speech was quite difficult to understand and he did not speak in sentences.”
However he was
“…quite confident and played with the assessment equipment with a great deal of imagination and absorption.”
Clearly as noted by his speech pathologist P is an intelligent child but exhibits his frustrations in not being able to get thoughts and ideas out and be understood by those around him. Something the mother or father did not click into until the school raised it with them.
The mother would not admit that her son had problems. When it was put to her by Mr Johnston she said: “No he hasn’t”. The facts are to the contrary. The mother cannot admit her son’s problems and thus how can I or the father have confidence she will address them? Even when her son’s problems are pointed out by experts the mother has a very lax approach to addressing them.
When it was put to the mother that P was quite hard to understand she said: “Yes, but I understand him”. That comment succulently sums up the mother as a parent. All perspective is from the mother needs and best interests. Her capacity to understand matters from the children’s perspective or their best interests is so limited as to be almost non-existent. It is merely fortunate that many of the mother’s choices coincidentally are best for the children.
I accept the father had not addressed the important issue of P’s speech either prior to June 2007. However the difference is when the school brought it to his attention he acted.

When the issue of P missing speech therapy due to her decision to see distant relatives was raised the mother cried and said: “I am so upset, I am so upset”. I accept she was upset not because P missed out on therapy but that she had been found out and had not put the needs of her children before her own needs.
The mother was asked why she had not discussed these issues with the father. She said: “My solicitor told me not to discuss speech therapy with the father.” That is a fabrication. The mother’s solicitor did not say any such a thing. The mother apologised to her solicitor later. However, this is a further example of the mother’s attitude and conduct when she is caught out. She will blame others and does not take responsibility.
The mother said she had spoken to her children about the matter in that she said she loved them, wasn’t coping, needed her family support, wanted to go to Melbourne and had to go to Court to have that decision made for all of them.
The mother agreed she told the children their father did not want them to go, that he would not help around the house and she could not look after the house and garden. The mother told the children she needed help and support. The mother denied she was using the children’s shoulders to cry on.
I find the mother uses the children as an emotional crutch as is reported by Ms Greenfield.
The mother clearly talks about Melbourne all the time to the children. At this point the children have had very little to do with their family in Melbourne. Z has been to Melbourne twice, P once and other relatives have come up to Sydney at other times. It is inconceivable Z would nominate Aunt L as her favourite person in the family report when the evidence is she may have seen her three or four times in her life. Z’s view must have come from the mother.
The mother blames the father for this lack of contact with her family in Melbourne. I do not accept that evidence. The wife has had fights with her sisters and father, brother and at times has not spoken to her family for years or months at a time.
I cannot rely on the children’s wishes in the family report that they want to live in Melbourne. Neither of them have any idea what the consequence of such a move will be. I accept Mr Johnston’s submission that this is the mother’s view and not the children’s view.
I also accept Mr Johnston’s submission that Z sees her mother as sad and unhappy in Sydney and that if she goes to Melbourne she will be happy. The mother finally agreed that that was the case. This is further support for why I cannot rely on the children’s wishes in the family report.
The mother only believes that the father has asked for the children to live with him because she wants to live in Melbourne. That is not correct.
The father’s initial response was to stop the mother from permanently living in Melbourne with the children and for a form of equal time. The father’s change to primary residence and sole parental responsibility has come about after he read subpoenaed material and was strengthened by the evidence adduced at the hearing.

Experts’ evidence

Any assessment made by an expert from a history given by the mother is fraught with danger because the mother is not an accurate reporter of history. This makes it very difficult for me to rely upon an opinion based on the mother’s version of events if they are not independently supported or agreed by the father.
Although the mother deeply loves her children she is so enured with her own emotional difficulties and so focussed on her own emotional needs that, as Ms Greenfield said, she has not been emotionally available to the children.
Ms Greenfield opined in her report that the father was positive and open and that is how I found him. He was very open to suggestions of how he could improve his parenting style and was very positive about his parenting role in the future.
He told Ms Greenfield that if he had to he would move to Melbourne to be with his children because he was most concerned that Ms Barker was unable to cope with caring for the children on her own. The husband is not happy to move to Melbourne, but would do so, and is confident he would retain his position with the bank. He is not happy or relaxed about moving given his supportive family live in Sydney. He has no connection with Melbourne and it would be a significant upheaval for him and the children. But commensurate with his commitment to the children, he would move to Melbourne.
Ms Greenfield said that Z is an overburdened child and the parents need to work together to relieve her of these burdens and provide her with specific counselling. The mother needs support to carry out her parental role and Ms Greenfield said that, although the father was clearly able and capable of giving that support the mother would not accept support from him but would from her family.
The difficulty with this evidence is that her family can give her very little physical, practical support. Emotional support, yes. There is also my concern about the mother again falling out with her family.
Ms Greenfield was not surprised that the mother had done nothing to arrange some form of counselling for herself and for Z as this was consistent with her attitude to P’s speech pathology.
Ms Greenfield was most concerned that if the children were separated from their mother for a lengthy period of time they would worry about her due to her unhappy demeanour in front of them. Ms Greenfield opined Z needs sensitive professional handling to shed her of her parents’ burdens and that the mother’s wellness is intermingled with the children’s wellness due to their close relationship. However,

Ms Greenfield said she did not see the mother’s wellness be completely bound up with moving to Melbourne.
Ms Greenfield believed that if I gave the father sole parental responsibility this would disempower the mother and she may be decompensate.
Dr R’s evidence was that she believes the mother has done well psychologically and has carried out all her counselling. It was put to Dr R:
“What do you think was the counselling the mother had?”
Dr R said:
“Well she has gone quite often to the counsellor in the last year or so and she comes to see me regularly.”
Dr R was taken aback when it was put to her that the mother had not seen a counsellor for 18 months.
Dr D, psychologist, said the mother told her:
“She wanted to move to Melbourne in September 2006 so I did not pursue further counselling with her. In hindsight it would have been wise to put the mother’s name on the waiting list.”
Dr D said the mother needed further counselling but she had not seen her since September 2006. She agreed the mother telling the children she was not coping and she and the children crying was not good for their emotional health.

Father’s proposals

The father believes that the children should live with him and see their mother alternate weekends. He was pressed on this issue by

Mr Thistleton. In particular he was pressed on whether Z, in particular, could handle not seeing her mum for two weeks.
The father said that he believed it would be hard for Z but thought she would cope in the long run. He said if he believed he could trust his wife to put the children’s needs first and carry things out with the children such as P’s speech therapy then shared care would be best. He wanted the children to have an available mother and a father.
However, the father said having heard the mother’s evidence and reading subpoenaed material from the school, Dr D and Dr R, he has become even more concerned about the mother’s truthfulness and reliability when it comes to the children. After having heard the evidence and reading the subpoenaed material I understand his concerns.
The father knows P has some behavioural problems. The father is anxious to address these difficulties for his son. That and other matters have been the motivation for the father to bring his application which is that the children primarily live with him and he has sole parental responsibility. I can understand why the father has sought the orders he has.
The father makes complaint that the mother does not feed the children a varied and healthy diet. I accept his concerns. It is clear that from the dietician’s report the mother has a limited range of foods and does not like vegetables. I cannot see the mother cooking food she does not like even if it is beneficial for the children. It would be inconsistent with her attitude towards other important issues such as child speech therapy, counselling for herself and Z’s difficulties at school.
The father said he regularly found three or four treats in the children’s lunch box consisting of Kit-Kats, Mars Bars, lollies and sandwiches of hundreds and thousands. The mother’s explanation was the children only get one treat a day and two treats for an excursion. Either the mother is not telling the truth or is not cleaning out their lunch box each day.
The mother said she gave Z hundreds and thousands if she ran out of vegemite or Devon. I do not accept that evidence. The mother pays little attention to her own diet and that is reflected in the lack of attention to the children’s diet.
The mother agreed that at the father’s home, which is his parents’ home, the children get a wide variety of food as their grandmother cooks.
The mother is very critical of the father living with his parents. She asserts he does not care for the children and leaves this up to his parents. I fail to see the basis of this criticism. Z named her grandmother has her third closest person after her brother P as a favourite relative. It is clear the paternal grandmother is a very stable influence on the children, was a great source of assistance when the parties lived together and is much loved by the children.
The mother agreed that the father plays games with the children, teaches them how to ride bikes, plays outdoor cricket and the like. She did not accept he has a relationship with Z through music. I accept that he does. The mother had no other positive thing to say about the father.
The father said at separation he agreed with Ms Barker that the children should live primarily with her. He did so as that was how it was during the marriage. He had accepted the mother’s position that as she was the children’s primary carer and a trained school teacher she knew best. I accept his evidence because the mother told the Court, the children’s school teachers and P’s speech therapist the same thing.
At separation the father continued to engage in his activities of playing play tee-ball on the weekends and going out with friends. These are not activities that have been available to the mother. Thus, the mother’s complaint of the father’s selfishness since separation has some real grounds.
I was most concerned that when Ms Barker became so unwell in January 2006 the father who had at that time 13 weeks long service leave chose not to take leave and care for the children. He left Ms Barker’s care to his mother and some of her sisters and left the children in the full-time care of their mother. It was his obligation as a parent to take time off work to care for the children and to assist his wife to regain her health. That he did not do this was selfish and uncaring of him.
The father was asked why he left the children with their mother after her breakdown in January 2006. He answered:
“I’ve had a good hard look at myself as a parent and a person and the children and it has taken me a long time to reach my decision. It is not an easy decision that the children are better placed with me.”
I accept the father’s conduct would be the complete opposite today in the unhappy event the mother had a breakdown. I accept that in January 2006 the father believed that it was the mother’s role to primarily care for the children and his role was to care for them alternate weekends and for two weeks in the holidays. Now he says he will gladly take four weeks holiday with the children. He has the capacity to purchase extra leave. He has 13 weeks long service leave.
The father conceded that in relative terms he has been living the Life of Riley in comparison to the mother. This is one of the aspects of the father that I found most refreshing. He made concessions which were against his interests because he told the truth. He has come to a realisation of his responsibilities and failures as a father and a husband in the past. He has thought out how to overcome his failings and put in place strategies to deal with his children’s needs.
The father said he has become more aware of his responsibilities as a parent since 2007. Counselling he is undertaking has assisted him with that realisation as has:
a)attending the children’s school,
b)reading the subpoenaed material from the school concerning the mother’s behaviour,
c)his observations of the mother’s behaviour at parent-teacher night in 2007,
d)the concern he has about the mother’s lack of encouragement of P’s speech pathology,
e)the children’s diet,
f)the mother burdening the children with discussions and difficulties they as parents have with each other,
g)the mother’s general mental health and her failure to address her mental health by continuing counselling, and
h)the mother’s failure to be honest with the father and not carrying through with their agreements such as P’s speech therapy.
The father’s conclusion is that at present he cannot see anything other than for him to have primary care and sole parental responsibility. This will protect the children and allow Ms Barker the time to become well. The father is very concerned to protect the children. That is the balance as he sees it.
There is much force in the father’s position. He has thought carefully on these important matters and struck the balance he believes is best at this time. He said it would be best if he and Ms Barker shared the care and decisions for the children but that cannot work at present.
The father’s thoughtful and considered position is in stark contrast to the mother’s emotional pleas and demeanour.
The father impressed me as accepting responsibility for his conduct in the past and its consequences. There is no acceptance by the mother of any responsibility for difficulties with the children or her health management. The mother demonstrated no insight into changes needed by her in the future to address her problems other than moving to Melbourne.
The father agreed it would be better for the mother if she had full-time work that fitted in with the care of the children and that the mother’s continuing illness is not good for the children. He agreed that the arrangement in place that the children live with their mother and spend alternate weekends with him does not work. The mother made no such concession if she continues to live in Sydney only if she lives in Melbourne.
The father said he could go to Melbourne, would get a job at the bank and that he could relocate. All concessions against his interests that the children and mother remain in Sydney. The mother made no concession which she did not see was in support of her move to Melbourne.
The father agreed he had serious misgivings about Ms Barker’s long term ability to maintain a relationship with her family given the fights she has had with members over the years. The mother did not speak to one sister for two years during the marriage. Her father did not attend her wedding and the mother did not go to Melbourne at Christmas 2005 because she had a fight with Ms G. This is a volatile woman as shown in the witness box. The father’s concerns are well grounded.
The husband conceded that this volatility may be the way the family relates. He agreed Ms Barker’s family are different to his family.
The father agreed that there is more to adult-sibling relationships than being physically available to assist in the care of children and that his wife being in Melbourne close to her family would be of an emotional and psychological assistance to her. She will have a brother and sisters in society and that will be a comfort to her. He agreed that if she went to Melbourne it was possible her spirits and morale will be uplifted. The issue for the father was how long such an uplifting would continue because of his past experiences with Ms Barker and her family.
I accept the father’s evidence that it is very hard for him to accept Ms Barker’s position now with her family from what Ms Barker has told him about her family, her own emotional and personal problems, family relationships and upbringing in the past. Ms Barker’s stories to the father, her psychologists, her doctor, and the H Centre notes of the difficulties and problems with all her family members are consistent and can only have come from her. They came as a surprise to her sister Ms G.
The father has not been physically or emotionally available to the children in the past. He is now emotionally and physically available to them and willing to take up his full share of parental responsibility. The father will reluctantly move to Melbourne if the mother is permitted to move. This is the strength of his commitment and resolve.
I am most concerned whether the mother will ever become emotionally available to the children without significant therapy which she has rejected to date.

Wife’s sisters

The wife’s sister, Ms G was cross-examined. She said she just wants Ms Barker and her children to be down there with them in Melbourne. Ms G really had no idea of the mother’s life in Sydney, no idea of the children, no idea of the problems the mother has faced, her health issues, and disagreed entirely with the mother’s view of her family.

Ms G is a lovely woman and the father has a positive view of her. However, there is little depth of a relationship with Ms Barker.
Ms A was called. She lives alone in a two bedroom home and is happy for the mother and the children to stay as long as they need to. Ms A, like Ms G, impressed me as caring and intelligent women with her own career. Again she has had very little to do with the mother in Sydney and knew very little of her life or issues.

Findings

Dr R, Dr D and Ms Greenfield agree that moving to Melbourne will greatly assist the mother because her family can give her help which she is able to accept. The mother believes this will help her and therefore she will be helped.
However, the evidence is that the mother has had significant falling out with members of her family over the years even when she has not lived in Melbourne. I see nothing that comforts me that there will be a change to that pattern if she moves to Melbourne.
The mother glossed over these past stories of family problems with

Ms Greenfield. Her position was that this is a family that will give me support. Perhaps they will, I do not know. The problem is that

Ms Barker is an unreliable witness.
I can imagine a scenario of everyone in Melbourne, the mother falling out with one or more of her siblings and again feeling isolated, unhappy and upset. This then leaves the children and father in a vulnerable position without the stability and support of the paternal family with whom the children are closely emotionally attached. The children, particularly Z, are significantly attached to the paternal grandparents.
The paternal grandparents have been a great support for this young couple, not just with the children, but also assisting them to purchase their home. If the children move to Melbourne the relationship with their grandparents and their cousins and Aunt N, the father’s sister, and her husband will be difficult to maintain. I do not accept that these children have a relationship of any significance with their maternal family. That does not mean they could not, should not or will not, but they do not at this time.
Z told Ms Greenfield her grandmother was her second favourite adult. Having regard to my finding that Z could not possibly have the depth of relationship with Aunt L to make her the favourite adult I find the paternal grandmother is Z’s favourite adult person. Z did not list her parents as her favourite people.

The mother said to Ms Greenfield that he is “not a good father and not a good dad”. In evidence before me she said he is now a good dad because he is showing an interest in the children. The family report was prepared from interviews in December 2007. The hearing was early February 2008. The father has had a rapid rise in the mother’s estimation. I do not accept the mother’s evidence at the hearing.
The mother does not think that the father is a good father. She believes he over disciplines the children, has not supported her, is manipulative of her, controlling of her and demeaning of her, does not have the children’s best interests at heart and is seeking to have the children live with him to get back at her. That is what the mother thinks and that is what she has told the children. The mother’s about face in the witness box is not credible.
The mother said the father abandoned her. I accept that view. Both the children say that the father yells at them and I accept that and it is inappropriate behaviour. The father accepts this is inappropriate.
Since 2007 the father had been an involved and hands-on parent. He was described in the school notes as ‘quite reasonable’. This is in stark contrast to the mother. The father understands Ms Barker’s depression and her symptoms as he had discussed this with his counsellor. The father has taken steps to address issues and is clearly mentally well and the most stable parent. The mother has taken no such steps to assist her to become well and failed to take up free counselling.
The father agreed that shared care or substantial care in Sydney or Melbourne would be better than the current arrangement. He still thinks at this time the children should live with him. He conceded that even if his wife was not coping, if there was shared cared, it probably would be ok because there would be significant time with him and the children.
It is clear from the family report that the children are primarily attached to their mother. Z said she wants to live with her mother:
“because she will help me if I don’t understand something. She will explain it to me and do whatever she can for me”.
As reported by Ms Greenfield Z is a little bit angry with her parents, they have let her down. They have not been emotionally available to her and has been embroiled in their difficulties. The father has addressed this issue. The mother has not and laid all blame on the father, the school or anyone but her self.
Neither the mother nor the father was included as Z’s favourite people. Both parents were shocked as they should be. They have brought about this situation and no-one else. They must address this.
I agree with Ms Greenfield’s assessment that now the mother’s marriage has broken down she may have idealised her relationship with her family as that is the only support base which is acceptable to her. The mother’s family relationships are untested and have at times been non-existent. It is self-evident the mother needs support in her parenting role and I accept the support she receives in Melbourne will be more acceptable to her than any support she receives from her ex-husband or his family.
The father seeks to rebut the presumption of equal shared parental responsibility on the basis that he and his wife do not communicate, the wife is incapable of following through decisions the parties have been able to make, and he has lost faith and trust in the wife to carry out any agreement they reach or act in the children’s best interests when that is in conflict with her needs.
Both the mother and father agreed they would go to a course designed to assist them in communication as parents and a course in relation to discipline as they clearly have different ways of disciplining the children.

The law - parenting

Section 61DA deals with equal shared parental responsibility.
Section s.61DA provides that when making a parenting order the Court must apply a presumption that it is in the bests interests of the child for the parents to have equal shared parental responsibility.
The presumption does not apply if there are reasonable grounds to support a finding that a parent of a child has engaged in (a) abuse of the child or (b) family violence.
The presumption may be rebutted by evidence that it would not be in the interests of the child that the child’s parents have equal shared parental responsibility.
The determination of what is in the best interests of a child is set out under ss.60CC(2), (3) and (4).

Primary considerations:

Ms Greenfield’s recommendations were that the mother be permitted to re-locate to Melbourne provided the father re-located as well and that the children spend weekly time with their father approaching something close to equal time.
The mother’s contention is that if she is not permitted to relocate to Melbourne the present orders continue.
The father’s contention is that the children live primarily with him in Sydney and the mirror image of the present orders applies, that is that the mother has time with the children each alternate weekend, and for school holidays.
Maintaining such orders whether the children live in Melbourne or Sydney would not positively promote the benefit to the children of their present meaningful relationship with each parent.
This is a matter where it is in the interests of the children that time with their parents is shared as much as is possible having regard to the father’s work commitments and the geographic location of the parties. The father conceded as such. The mother would only concede as such if everyone lived in Melbourne.
I will not make an order that the children spend alternate weekends and some holiday time with one parent no matter whether they live in Sydney or Melbourne. This is the current arrangement and it is not in the children’s best interests.
There is a pressing and urgent need to protect these children from psychological harm being their mother’s untreated mental health issues. Their mother has exposed these children to psychological harm and the father let this situation continue far longer than was responsible. I accept there is no abuse, neglect or family violence issue of real concern.

The additional considerations:

Parental responsibility

Both parents have failed to carry out their parental responsibility in the past. I am satisfied the father will do so in the future. I am not satisfied the mother will ever have that capacity and does not have it at present.
The father is at this time the only parent able to promote the children’s needs regarding medical, schooling and the like. The mother when given an opportunity was unable to carry out her responsibility to P and maintain his speech therapy regime. The mother could not or would not carry out a responsibility to herself in relation to diet or ongoing free counselling.
The mother’s health is not robust and she suffers from psychological and emotional issues. I accept she is isolated from her family.
These parents both love their children but have failed to fulfil their parental responsibilities to them in the past. The father by not assisting the mother in the care of the children when she was so unwell in January 2006 and permitting the children to be in her sole care with little ongoing support from him. The mother in failing to continue counselling after September 2006, failing to put P’s needs for speech therapy above her needs and view that she was able to give P all that he needed, attacking Z’s teachers for Z’s problems at school rather than addressing issues in a realistic and honest way.
The mother has lied on significant issues such as the father stopping her taking the children to Melbourne in Christmas 2005, her continuation with ongoing psychological therapy, reasons for P’s tiredness at school, P’s behaviour at school, her family life to name but a few examples.
An example of the mother not following or accepting experts’ advice and direction is in relation to P. The school counsellor spoke to the parents about P and he was very much against him repeating kindergarten. His expert view was that it is in Year 1 the children start to learn concepts of maths, times tables, reading, writing and they become more task oriented. If a child is to repeat it is better to repeat Year 1 than kindergarten.
The mother flatly refused to accept that advice. The father understood what was being said and agreed he did not want P to repeat kindergarten. The mother’s implacable attitude to this and many other matters of parenting is one of the reason the father seeks sole parental responsibility.
If I do not make an order today for the father to have sole parental responsibility I am concerned that this matter will come back to Court. I find the mother has demonstrated little ability to follow through treatment for her children recommended by professionals unless their recommendations accord with her own views. She does not tell the father the truth. The mother is not reliable when it comes to the children.
In those circumstances there is a grave risk of this matter returning to Court and the children again missing out on necessary therapy unless sole parental responsibility is given to the father.
I will give the father sole parental responsibility and he will be required to notify the mother on each and every occasion he makes a parental decision such as schooling, medical, health, education and the like.
It is clear that Z wishes to primarily live with her mother and the father’s contention that the children live with him and spend alternate weekends with their mother would not be an order in her best interests.
I will not make an order that the children primarily reside with their father.
Secondly, whether the mother is living in Melbourne or Sydney the children not having at minimum significant and substantial time with their father would not be in their best interests.
The issue for decision by me has distilled down to whether the mother and the children live in Melbourne. The father will follow the children if I permit such a course.

Living in Melbourne

These children need both parents to co-operate in their care. The mother cannot maintain what has been sole parenting in Sydney or Melbourne. The mother has been unable to cope since separation. The father is ready, willing and able to take on his share of parenting responsibility.
The children have a much burdened relationship with their mother. Her sadness, unhappiness, the breakdown of her marriage, living in Sydney and her ill health has significantly burdened these children. The children are emotionally detached from their mother and father.
The father has recognised this and is seriously addressing his responsibility to protect the children from these adult matters.

He attends counselling and is ready to be more involved in the children’s day-to-day lives. With the children spending more time with their Dad in day-to-day activities such as bathing, feeding, taking to and from school, homework and the like this emotional detachment is likely to evaporate.
Addressing the issue of detachment of the children from the mother is more problematic. The mother’s mental health must significantly improve. To do this the mother must be amenable to professional advice and compliant with a management regime. I do not see she has managed to do this in the past with, for example, improving her diet and maintaining counselling.
The children have a strong emotional attachment to their grandparents and paternal family with whom they are close. They do not have any thing approaching such a relationship with their maternal family in Melbourne.
I find that the father has a willingness and ability to promote the children’s relationship with their mother and has seriously thought about his proposal to give the mother a chance to become well so that she can co-parent the children. I am satisfied he will promote a positive view to the children of their mother.
I do not see that the mother has the same capacity. The mother has a very negative attitude to the father as a parent, a husband and a man. She had few positive things to say about him. She has run the father down to her family, psychologists, doctors, court counsellor, teachers and the like. Blaming P’s tiredness at school on him spending alternate weekends with the father is just one example of her negative attitude to the father. Telling her psychologist the father did not support her educational endeavours is another fabrication.
There will be a significant affect on the children if they are removed to Melbourne. They have never lived in Melbourne. They will change schools which may be an eventuality in any event but they will be changing to the Victorian school system which is a far greater change than merely changing schools within New South Wales.
They will be taken away from their friends. Most significantly they will be taken away from their paternal family. The children will leave the stability, consistency, love and care shown by their maternal family on a regular basis to be placed within the volatile relationships of the mother’s family. This is not something they have ever experienced. The children will suffer loss at being separated from their grandmother in particular.
There is a real practical difficulty and expense of the children spending time with their paternal family in Sydney if they live in Melbourne.
Neither the mother nor the father has demonstrated a capacity to provide for the emotional and psychological needs of their children separate to their own in the past. I see in the father a capacity to do so in the future. The mother will not have this capacity until or unless she becomes well.
I am of the view that the children living in Melbourne permanently is not an order in the children’s best interests for the following reasons.
I am not satisfied that if the mother lives in Melbourne she will undergo necessary treatment which she has had an opportunity to have here in Sydney for 18 months and failed to take up. It is crucial the mother undergo consistent and targeted counselling to address her emotional and psychological problems.
Secondly, I do not accept that she will not fight with or fall out with her family as she has in the past. If that occurs there is a distinct possibility she will be as isolated in Melbourne as she is in Sydney without the historically consistent assistance of the paternal family.
I accept that today she believes she will be emotionally supported and feel happier living in Melbourne. However what will be the consequences for her and the children if the patterns of her past are repeated in the future.
The mother is volatile, unpredictable and manipulative. I have found she is not a witness of truth and I have not accepted her evidence where it conflicts with the father’s. I am concerned, as was Ms Greenfield, that the mother has idealised her family relationships in Melbourne having been content for the last ten years or so to have little to do with them unless they came to visit her.
I, like the father, do not trust nor accept the mother’s evidence on these important matters. The mother has little insight into her own condition and is resistant to advice and professional help. I do not see that the mother is capable of making rational and proper decisions for herself or the children when her emotions are involved.
I formed the view that the children would be emotionally harmed if they moved to Melbourne permanently as they will be distanced from their paternal family who have been a great support and assistance to the parents and with whom the children are closely and emotionally attached and bonded.
The fact that the mother is more easily able to accept her family help than help the father and the paternal family will give is not the gravamen of the issue. I will not sacrifice these children’s important relationship with their paternal family and their life in Sydney because the mother’s feelings of wanting to live in Melbourne.
I will not require the father to uproot his life to follow the children when I am not satisfied such a move will be in the children’s best interests or will even work to assist the mother as she believes today it will.
Had the mother used her best efforts to help herself and continue counselling, followed a recommended dietary regime, been honest with the father regarding the children’s schooling issues and pursued P’s speech therapy with any real commitment my decision may have been different. I may have been able to find that the mother had a capacity to put the children’s needs first, work towards helping herself and thus have been able to rely upon what she tells me is best today, namely, that she live in Melbourne with the children. It is the mother’s evidence, her behaviour and her conduct that has caused me to form this negative view of her as a parent.

Conclusion – parenting

On the basis of these findings the children will be remaining in Sydney. It is in the children’s best interests that there is a form of equal time and shared care with their parents. This will ensure P is taken to his speech therapy and the mother will be ordered to carry out his homework as instructed by the speech therapist.
The orders I will make are that the children spend time with their father from after school Thursday to 8.00 pm Monday in week 1 and from after school Monday to the commencement of school Wednesday in week 2. Otherwise, the children to live with their mother.
The father to have four weeks of block holiday time with the children each year as agreed, and failing agreement, two weeks in June and two weeks in the Christmas period.
Each alternate year commencing 2008 and each even year thereafter the mother be permitted to at minimum spend time in Melbourne with the children for four weeks in January in addition to any other times she may spend in Melbourne with the children.
The Court notes that the father is agreeable to the mother spending time with the children in Melbourne provided he is notified of those dates and times and the children do not miss school nor that this interferes with his time with the children.

Property

Background facts

As to accommodating herself and the children I accept that, unless the mother receives the entire equity in the former matrimonial home of some $365,000, she will not be able to afford a home in Sydney in any close proximity to Nxxx due to her lack of borrowing capacity.
The husband has the control of managed funds held for the benefit of his parents’ five grandchildren. He was happy for the mother and he to have control of those managed funds. I see no need to make such an order. The father is a truthful witness and will ensure that those funds will be maintained properly. I will not change the current arrangement.
The husband has paid $12,000 in legal fees. The mother has paid $60,000. That may in part reflect their different personalties. The wife is extremely needy. The husband is competent and capable.
The husband would like to buy the wife out of the home. If I determine the husband is to pay the wife more than figure of $175,000 then it is likely the home will have to be sold. The parties have agreed on sale terms and conditions.
The husband agreed the wife would have to move to an outer suburb of Sydney in order to buy a home due to her low borrowing capacity. The husband’s parents might be able to help him to retain the home but he has not approached them on that issue.
The husband agreed when he withdrew $30,000 to repay his parents without telling the wife that this was the wrong thing to do. He said he did not tell the wife he was going to do this because he knew she would disagree. His parents had not asked for the money and would have had the money returned to them at the end of the day. It was poor conduct on his part and would have put further pressure on the wife who was already suffering under financial hardship and from feelings of abandonment.

The husband’s contention is that the $30,000 his parents lent the parties assisted them in being in a position to buy their first home and although that principal sum has been repaid it still represents a significant financial contribution by him to the matrimonial pool.
The wife agreed that the $30,000 loan by the husband’s parents had helped them to buy a property. She believed that they would have been able to save a deposit and buy a property themselves within a few years. That evidence is hard to accept.
At the time the parties purchased the property the mother had a $5,000 HECS debt and the year before it was nearly $9,000. They had no significant savings. Thus, the parties were repaying a significant debt as well as supporting themselves and their child. The wife was working and paying tax as was the husband. I do not accept that the parties would have been able to save a $30,000 deposit in the time frame asserted by the wife. The $30,000 loan was used for the deposit and to affect urgent bathroom repairs on the home and make it liveable.
The husband said in his affidavit that he and his wife did about two-thirds of the work on the home as to repairs, maintaining and renovating and his family the other third. The wife did not agree.
The wife said her family helped as her sister Ms G and her husband were living in Sydney at that time and did so for two years. I accept there was some help given but nothing like the assistance given to the parties by the husband’s family which is continuing. The husband’s family have supported this couple financially and in the care of the children.

I reject the wife’s evidence on this issue and accept the husband’s evidence.
I accept the wife is actively seeking work as a school teacher. Having regard to her affect in Court if that affect was repeated at an interview I accept it would be difficult for her to obtain full-time work. The wife needs to focus on her health and needs to get well if at all possible.
The agreed list of assets and liabilities is:

Asset

Value

Matrimonial home

$485,000

Shares in the husband’s name

$18,257

Wife’s car

$2,000

Less mortgage

$171,402

Total

$333,855

Husband’s superannuation

$76,000

Wife’s superannuation

$61,000

No superannuation splitting order is sought.

The law - property

In a property application under section 79 I am required to take a four-stage approach. Ferrero & Ferrero (1993) FLC 92-335.
The first stage is to identify the matrimonial property, its value and nature.
The second stage is to assess the value of the parties’ contributions expressed as a percentage of the value of their assets to the acquisition, maintenance, conversation and renovation of their matrimonial property, having regard to the factors under s.79(1)(a), (b) and (c).
a)Section 79(1)(a) is an assessment of the parties direct financial contribution;
b)Section 79(1)(b) is an assessment of the indirect contribution; and
c)Section 79(1)(c) is an assessment of the value of each parties' contribution as a parent and homemaker during the marriage.
The third stage under s.79(4)(e) is to determine whether, having regard to the factors under s.75(2), I ought vary the assessed percentage entitlement of either party to take into account their future needs.
The fourth stage is to look back at the consequences of the proposed orders to determine if they are just and equitable in all the circumstances.

Findings

There is no doubt that without the injection of the $30,000 by the husband’s family it would have been difficult for the parents to buy the home when they did. However that money has been repaid.
I will allow the husband a 2.5% adjustment in his favour being the value of the contribution by the husband’s parents’ of the $30,000 they gave to the parties in buying and renovating the home.
I do not see any significant difference in the parties’ income that would result in an adjustment for one party over the other. This gives a contribution based entitlement of 52.25% to the husband and 47.25% to the wife.
In relation to parenting and homemaker the wife has made a superior contribution to the husband during the marriage and for that amount I give her 2.5%. This makes the parties’ contributions to the marriage in the past equal at 50%.
The s.75(2) factors are the significant factors.
I have made an order that the parents have shared care of these children and an arrangement approximating equal time. The father will continue to pay the mother child support.
The mother is clearly highly educated and talented, however, has not had full-time work for some time. I accept she has applied for many positions as a school teacher but has not been successful. That may be in part due to her mental health which issue she must address to become well.
The father on the other hand has a position which has seen his salary increase to its present level of $90,000 per annum and it is a secure and long term position. He will continue to contribute to superannuation which will increase.
He has a borrowing capacity that the wife does not and he will continue to be in a vastly superior financial position to the wife for some years to come even if the wife regains her health and a full-time position.
If the wife regains her health she may be in a position to earn an income of $50,000 a year as a teacher. The husband will always have a higher income than the wife. In those circumstances I find that I should make a further adjustment of 15% for the wife’s s.75(s) factors. This leaves the division of the matrimonial property of 65:35 in the wife’s favour.
The net equity to be divided between the parties is $334,000 in round figures. The husband is desirous of buying the wife out and I am prepared to give him that opportunity.
This would require the husband to pay to the wife $217,100. She has a car worth $2,000. This leaves the husband paying her $215,100 if he wishes to retain the home.
The fourth stage is to determine whether these orders are just and equitable in all the circumstances.
Given the parties have equal care and spending almost equal time with the children, that the wife has a capacity to work and is well educated yet presently unwell I find these orders are just and equitable in all the circumstances. I will give the husband the option to pay her $215,100.

I certify that the preceding two hundred and sixty-four (264) paragraphs are a true copy of the reasons for judgment of Henderson FM

Associate: Maryrose Portelli

Date: 27 February 2008

Asset	Value
Matrimonial home	$485,000
Shares in the husband’s name	$18,257
Wife’s car	$2,000
Less mortgage	$171,402
Total	$333,855
Husband’s superannuation	$76,000
Wife’s superannuation	$61,000