BECKLER & REDMILLS

[2021] FCCA 68

FEDERAL CIRCUIT COURT OF AUSTRALIA

BECKLER & REDMILLS [2021] FCCA 68

Catchwords:
FAMILY LAW – Parenting – final hearing – three children of relationship – mother has criminal history involving domestic violence – father seeks two younger children live with him in Town B in New South Wales – mother seeks all three children live with her in Suburb C in Queensland.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC

Cases cited:

SS & AH [2005] FamCA 481

Applicant: MR BECKLER

Respondent: MS REDMILLS

File Number: NCC 1412 of 2016

Judgment of: Judge Spelleken

Hearing dates: 28, 29 & 30 April and 11 June 2020

Date of Last Submission: 6 July 2020

Delivered at: Brisbane

Delivered on: 21 January 2021

REPRESENTATION

Counsel for the Applicant: Mr Cooper

Solicitors for the Applicant: McNeilly Lawyers

Counsel for the Respondent: Mr Nguyen

Solicitors for the Respondent: Richardson McGhie

Counsel for the Independent Children's Lawyer: Ms Christie

Solicitors for the Independent Children's Lawyer: Legal Aid Queensland

ORDERS

1. That the Father have sole parental responsibility for the children X born in 2008 (“X”) and Y born in 2013 (“Y”).

2. That the Mother have sole parental responsibility for the child Z born in 2006 (“Z”).

3. That both parents prior to making a major long-term decision for the children shall:

   (a)In writing, seek the views of the other parent; and then

   (b)Allow seven days (7) for the other parent to respond in writing to that parent; and then

   (c)Consider the views of the other parent as provided in writing; and then

   (d)Advise the parent without parental responsibility for the relevant child in writing as to their decision and reasons for their decision.

4. That the child Z live with the parent and spend time with the other parent in accordance with her wishes.

5. The parent with whom Z lives shall have sole parental responsibility for Z.

6. That the children X and Y live with the father.

7. That X and Y communicate with the parents as follows:

   (a)By telephone FaceTime each Wednesday and Sunday with the mother to initiate calls on Wednesdays at 6.00pm (NSW time) and the father to initiate calls on Sundays at 6.00pm (NSW time); and

   (b)On a child’s birthdays with the parent who does not have the child who is celebrating their birthday in their care to initiate the call at 6.00pm (NSW time); and

   (c)On Mother’s Day if the children are not otherwise spending time with her, with the mother to initiate the call at 6.00pm (NSW time); and

   (d)On Father’s Day if the children are spending time with the mother, with the father to initiate the call at 6.00pm (NSW time); and

   (e)On Christmas Day with the parent who does not have the children in their care to initiate the call at 6.00pm (NSW time);

   (f)The parents will facilitate all reasonable requests by the children to contact the other parent;

   (g)The parents will facilitate all reasonable requests by the children Y and X to contact Z;

8. The father is to ensure that X and Y are afforded privacy during their telephone communication with the mother and/or Z and is restrained and an injunction issue restraining the father from:

   (a)Timing the telephone calls;

   (b)Recording the telephone calls;

   (c)Interrupting the telephone calls.

9. That X and Y spend time with the mother at all times as agreed between the parents in writing and failing agreement, as follows:

   (a)For at least one (1) weekend in each New South Wales school term in New South Wales, with the time to commence by no later than midday on Friday and conclude no earlier than midday on Monday with the mother to provide the father with one (1) month’s written notice of the weekend she proposes the children spend term time with her;

   (b)In 2021 and each odd numbered year thereafter:

   (i)for the entire New South Wales Easter school holiday period with X and Y to be returned to the father by no later than 5:00pm on the second last day of that school holiday period;

   (ii)For half of the June/July New South Wales school holidays; and

   (iii)For half of the September/October New South Wales school holidays;

   (iv)During Summer New South Wales school holidays from 21 December to 9 January;

   (c)In 2022 and each even year thereafter:

   (i)For half of the New South Wales Easter school holidays;

   (ii)For half of the New South Wales June/July school holidays; and

   (iii)for the entire New South Wales September/October school holidays period with X and Y to be returned to the father by no later than 5:00pm on the second last day of that school holiday period;

   (d)During the New South Wales Summer holidays from 9 January to 21 January;

   (e)That the child Z spend holiday time with the Father pursuant to her wishes;

   (f)Changeovers are to occur as follows:

   (i)For term time:

   A.the mother is collect and return Y and X to and from D Contact Centre at City E and if the Contact Centre is not available, then at McDonald’s F Shopping Mall, City E and the mother is to meet the costs of the Contact Centre;

   (ii)For school holiday time:

   A.the mother is collect Y and X from D Contact Centre at City E and if the Contact Centre is not available, then at McDonald’s F Shopping Mall, City E and the mother is to meet the costs of the Contact Centre;

   B.At the conclusion of the children’s time with the mother, the father is to collect the children from a Contact Centre nominated by him in the greater Brisbane area with the father to meet the costs of changeover at the Contact Centre, and in the event the Contact Centre is not available, then at the McDonald’s closest to the mother’s residence; and

   (iii)The mother and father are not to approach each other at changeover.

10. That the mother and father are to use their best endeavours to coordinate Y and X’s school holiday time with the mother to coincide with Z’s school holidays.

11. Each parent will notify the other by text message within two (2) hours of any child/ren requiring medical attention or counselling, being diagnosed with a serious or ongoing illness, receiving emergency medical treatment or being hospitalised; and

    (a)Such notification will include the name and contact details of the treating medical practitioner, psychiatrist, psychologist or counsellor or hospital.

12. Each parent will notify the other by text message within twenty-four (24) hours of any of the child/ren being enrolled in any school, sporting or extra-curricular activity; and

    (a)Such notification will include the name and contact details of the school or sporting or extra-curricular activity provider.

13. The parents authorise each other to receive all information that would normally be provided to a parent regarding the child/ren from the following:

    (a)Medical practitioners;

    (b)Dentists;

    (c)Psychiatrists, psychologists and/or counsellors;

    (d)Schools;

    (e)Sporting and extra-curricular activity providers.

14. That provision of a sealed copy of these orders is sufficient authority pursuant to order 13 herein.

15. That neither parent will consume alcohol to excess while the children are in their care.

16. That neither parent is to discuss adult issues or these proceedings with any of the children, either in-person or electronically or allow any other person to do so.

17. That the mother will continue to participate in counselling until such time as her psychiatrist, psychologist or counsellor advises in writing that counselling is no longer required; and

    (a)The mother shall provide the father with a copy of the written confirmation from her psychiatrist, psychologist or counsellor that counselling is no longer required.

18. That the Independent Children’s Lawyer be discharged upon the expiration of the appeal period.

19. That all outstanding applications be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

NCC 1412 of 2016

MR BECKLER

Applicant

And

MS REDMILLS

Respondent

REASONS FOR JUDGMENT

Introduction

1. The mother and father agree that their oldest child Z, now 14, should continue to live with the mother and spend time with the father in accordance with her wishes.  There is some dispute at to the wording of an order for the living and time arrangements for Z and how an order for her parental responsibility is framed but it is not anticipated that Z will change her views about living with and/or spending time with the father in the short term.  The real dispute between the mother and father is whether X, now 12, and Y, seven, should continue to live with the father in Town B, New South Wales, or move to Brisbane to live with the mother.

2. The father asks me to make an order that X and Y live with him and spend time with the mother during school holidays.  That order is supported by the Independent Children’s Lawyer.  The mother asks that X and Y live with her.  At the hearing the mother proposed that the father, on written notice to her, spend two weekends per month with the children but in Queensland with such time to be from after school Friday to before school Monday.  It was also suggested during the mother’s cross-examination that the children in school term time fly to New South Wales to spend time with the father in Town B rather than him spending term time in Queensland.  I note however that in the order proposed and in the written submissions filed on behalf of the mother she only proposes time during the school holidays and not during the school term.  In relation to the time any of the children spend with the other parent, it is important to note that the mother and father reside approximately six hours drive from each other, the father living in Town B in New South Wales and the mother in Suburb C in Queensland.

Background and Procedural History

1. The father is 44, born in 1976 and the mother is 42 born in 1978.  The mother and father commenced cohabitation sometime in 2003.  As mentioned earlier, their first child, Z is 14 born in 2006, she was followed by X in 2008 and Y in 2013.  The mother and father separated sometime in late 2013.

2. The father has continued to live in Town B with his parents while the mother and children moved on several occasions resulting in several changes of schools.  It is the father’s case that between separation in late 2013 and the filing of his application in May 2015 the mother had moved on six occasions.  Whilst the mother acknowledges moving on many occasions, she does not accept she moved on six occasions.

3. Prior to separation, the older children were attending at daycare and school in Town B, however Z was moved as a result of bullying at the school to a private school in Town G.  After separation I understand, they were moved to a public school at Town H, another at Town J and then after the mother commenced a relationship with Ms K, the mother moved, the father says without notice to him and without his consent, many hours away to Queensland when the children were enrolled in another school.

4. The mother claims that during the relationship the father was violent and smoked marijuana daily, including in front of the children and consumed alcohol to excess.  She also alleges that on two separate occasions, as a result of the father’s violence towards her, she required medical treatment.  The first occurred on 17 June 2006 and is referred to in the Independent Children’s Lawyer’s tender bundle volume 1 at page 45.  The mother suffered injuries after the father pushed her while pregnant with Z.  The notes in the tender bundle say this:

   17/07/2006 Domestic violence-non ROSH Concern was reported that the mother [redacted] last night with injuries after being pushed and knocked over by the 8yo's father, and the mother fell to the floor placing undue pressure on her abdomen while pregnant The father visited the mother [redacted] and agreed to see the mother's mental health worker for counselling support

5. On 21 December 2014, the father was convicted of common assault (domestic violence offence) committed against the mother which resulted in the mother obtaining on 2 June 2015, a 12 month Apprehended Violence Order (“AVO”) against the father. 

6. There seems to be some dispute as to the arrangements made, or lack thereof, for the children to spend time with the father after separation, the mother claiming that she made arrangements whereas the father’s case is that he spent time with the children as the mother allowed.  On 21 February 2014 the father says he and the mother attended mediation and agreed to a Parenting Plan which provided for the children live with the mother and spend alternate weekend time with him.  The father argues however that the mother did not always comply with that Parenting Plan.  It is the mother’s case that she did not attend mediation but rather signed a document prepared by the father.

7. The mother and father agree that Z in 2014, was diagnosed with an auditory processing disorder.

8. It is clear from the evidence of the mother and father, subpoenaed documents and reports prepared by experts in this matter, that from late 2014 and certainly until and beyond the father commenced proceedings in May 2016, there was significant conflict between the mother and father in relation to the living and time arrangements for the children.  The father was also concerned prior to commencing these proceedings that the children were exposed to escalating violence in the mother’s relationship with Ms K.

9. Both the mother and father, prior to and throughout these proceedings, have also raised concerns about the other’s behaviour at changeovers.  In January 2015 the mother made a statement to the police that on 11 January 2015 there was an incident where she alleges the father removed her keys from the ignition of her motor vehicle and then pushed and grabbed her. 

10. In April 2015, the father claims he was contacted by a friend of the mother who informed him that the mother was now living in Brisbane and that there had been a violent altercation between the mother and Ms K.

11. In October 2015 there was an incident that occurred at the home of the paternal grandparents.  It is alleged that she attended at the paternal grandparents’ home demanding the return of a gift given to them some years before.  When the grandparents attempted to explain that they no longer had the item, she kicked and broke the door.  The police were called and as a result an AVO, which was consented to without admission by the mother, was put in place to protect the paternal grandfather.  The mother was also charged with malicious damage and received a fine.  At paragraph 32 of the mother’s affidavit filed 26 July 2016, although the mother admits to kicking the front door, she claims she did so out of anger.  She also alleged, which is denied, that the paternal grandfather grabbed her by the throat on that occasion and that her former partner Ms K had to intervene.

12. In December 2015, the father says he received a text message from a Ms L, a previous employer of Ms K, referring to the mother’s violent behaviour towards Ms K which resulted in Ms K having a black eye.  The mother’s response to that allegation was that Ms L was bullying Ms K due to her sexuality and that Ms K had a black eye after playing rugby league.

13. In the affidavits of the maternal grandfather Mr M and his wife Ms N filed in May 2016, they refer to witnessing a violent incident between the mother and Ms K witnessed by the children which involved kicking and punching.  Again the mother denies this incident occurred in the way it is described by Mr M and his wife. 

14. It is the father’s case, it seems supported by court documents that the mother stopped the children’s contact and communication with him between February 2016 until late April 2016.  As mentioned earlier, just prior to this time, the mother in late 2015/early 2016 had informed the father that she was moving with the children to Town B, however instead moved them to Queensland.

15. On 4 May 2016 subpoenaed documents from police detail the mother’s assault of Ms K:

    On 4 May 2016, the Respondent (the Mother) has driven the Aggrieved (Ms K) to the Town O Train station. The Respondent started making the same accusation from the night previous. The Respondent and the Aggrieved argued for about 20 minutes.

    During the argument the Victim has attempted to exit the vehicle and leave. The offender has pulled the victim back into the vehicle by her belt. The offender has pushed the victim over the centre console so her back was arched and she used both hands to strangle the victim for about 30 seconds. Whilst this occurred, the victim’s body was convulsing.

    The victim exited the vehicle and attempted to say goodbye to the children.  The offender exited the vehicle and confronted the victim. The offender took hold of the victim and punched her twice to the head. The offender pushed her down and held her down on a bench seat where she abused her further.  This offence was witnessed by a lady passing by and she contacted the police).

    The Aggrieved has attempted to get out of the vehicle and the Respondent has pulled the Aggrieved back into the vehicle and used her hands to choke the Aggrieved around her neck. The Aggrieved has managed to get out of the car and run away. The Respondent has followed her in her vehicle, yelling and screaming at her…Police observed red marks around the Aggrieved’s neck. Police observed her children in the back of her car, they appeared visibly upset and were crying.

16. This incident resulted not only in the mother being charged with assault but the police also applied for a domestic violence order on behalf of Ms K naming the mother as the respondent.  That order was made on 9 May 2016 with the consent of the mother but without admission. 

17. On 7 May 2016, the father claims that the mother contacted him and asked him to collect the children because she could not cope with caring for them any longer.  She told the father that the children could live with him and she would spend time with them in the school holidays.  The father says when he asked the mother where she was so that he could collect them, she refused to tell him and then later denied this conversation even occurred.  The father says that the mother contacted him again 12 May 2016 and told him that she had now reconciled with Ms K and was no longer prepared to surrender the children to him.

18. On 24 May 2016, the mother was sentenced by City P Magistrates Court to a period of 15 months’ probation for the common assault and domestic violence on Ms K on 4 May 2016 as described earlier.

19. The father says as a result of concerns for the children’s safety and to prevent their exposure to violence in the mother relationship with Ms K and because the mother had interfered with his time with the children, he filed the initiating application in these proceedings at the Town G Local Court on 25 May 2016.  The application was supported by an affidavit of himself, a notice of risk and affidavits of his father and the maternal grandfather.  In that application the father sought an order that the children live with him, he have sole parental responsibility for them and that they spend supervised time with the mother.

20. Shortly thereafter, on 2 June 2016, the mother applied for, and was granted, a temporary protection order against the father after the expiry of the AVO made in New South Wales on 2 June 2015 referred to earlier.  That application was later dismissed however, the father says because the mother failed to attend at the hearing.

21. The father’s application in these proceedings first came before the Town G Local Court on 31 May 2016 when it was transferred to the Federal Circuit Court in Wauchope.

1. On 20 June 2016, the application came before Judge Myers, who transferred it to the Federal Circuit Court in Brisbane.  The mother was also ordered to file a response, supporting affidavit and notice of risk by 11 July 2016.  Judge Myers also ordered that an urgent child inclusive conference be allocated.  The following notations were also made to the order:

   B.The father brings an application the three (3) children live with him in circumstances where he says there are serious issues relating to family violence in the mother’s household and otherwise general neglect.

   C.It is the father’s position and that is supported by the paternal and maternal grandfathers that the mother is failing to provide for the children and they have had significant absenteeism from school and having perhaps attended upon six (6) schools in the last six (6) months.

   D.It is the view of the court there needs to be an urgent Child Inclusive Conference in the matter particularly where there are allegations the child Z, who is nearly 10 years of age is unable to read.

2. On 1 July 2016, a Mr Q filed an affidavit in support of the father’s application.  In that affidavit he claims that be a friend of the mother, that she had made threats of self-harm and that he was concerned for the children’s welfare as a result.  In the mother’s affidavit filed 27 July 2016 however she denies Mr Q was her friend and says she had had no contact with him for the previous 18 months.

3. The matter came before Judge Vasta on 12 July 2016 in Brisbane.  Again the mother was ordered to file her response material by 27 July 2016.  A child inclusive conference was listed for 29 July 2016.  The matter was then further adjourned to 17 August 2016.

4. The mother filed her response, supporting affidavit and notice of risk on 27 July 2016.  In that response she sought final orders for equal shared parental responsibility for the children with the father, that they live with her and spend time with the father one weekend per month and all of the school holidays.

5. Ms R conducted the child inclusive conference on 29 July 2016.  Ms R’s concerns are discussed later in these reasons.  She did recommend in the interim that time between the children and the father recommence to include extended weekends.

6. In the subpoenaed material the records of the Department of Child Safety on 4 August 2016 express concerns about the children’s exposure to violence between the mother and her partner Ms K.  I acknowledge in this regard however page 60 of the Independent Children’s Lawyer’s tender bundle volume 1 which refers to a review undertaken by City P District SCAN dated 10 May 2016 which determined that there was no evidence to suggest that the children had suffered or were at risk of suffering significant harm and that there were no serious or compelling concern for the wellbeing of the children at that time.

7. On 17 August 2016 after hearing from the mother and father, Judge Vasta made orders for the children to live with the father.  The mother was ordered to deliver them at McDonalds at Suburb S  and in the event she failed to do so, a recovery order would issue.  His Honour also ordered that the children spend time with the mother in the Town G/Town T area during the school term and otherwise during the September 2016 school holidays outside of the Town G area.  An Independent Children’s Lawyer was also appointed at this time.  The matter was further adjourned until 27 October 2016.

8. The mother and father in affidavit material filed after the changeover both blame the other for the conflict that occurred between them in the presence of the children to give effect to his Honour’s orders for the children to move to the father’s care.

9. When the matter was next before the court on 27 October 2016 further orders were made for the children to spend time with the mother from 19 to 23 December 2016 and the matter then adjourned to 16 February 2017.

10. Yet again there was an issue at changeover on 23 December 2016 at the end of the mother’s Christmas holiday time with the children.  The father alleges that after the children left the mother’s care, she opened the back door of his car and held onto the children crying.  He claims that she then started to yell abuse at him calling him names and threatening to make a statement to police that he had harmed her.  The mother created such a scene, the father says, that he was assisted by strangers who were able to speak to the mother to convince her to leave the vehicle.

11. On 16 February 2017, the mother did not appear at the court and the applications were adjourned to 19 September 2017 with the Independent Children’s Lawyer given liberty to apply to the court prior to that date. 

12. On 18 February 2017, the mother and father attended for interviews with by Mr U for the preparation of the family report recommended by Ms R, the contents and recommendations of that report will be referred to later in these reasons.  I pause here to say however that Mr U did recommend that the children be returned to mother’s care but on the proviso that Ms K not be a member of the mother’s household when the children were in her care such were his concerns about the honesty of the mother and Ms K about violence in their relationship during interview with him for the preparation of the report.

13. The father alleges there was a further incident at changeover on the day of Y’s birthday, in 2017 when the mother arrived early and he says caused a scene including breaking glass in the front door of the grandparents’ home.  It is not in dispute that this led to the mother being charged with destroying or damaging property, sentenced to a 12 month community correction order and the police taking out a second AVO for the protection of the paternal grandfather.

14. On 2 March 2017 the mother contravened a condition of her parole by the dangerous operation of a motor vehicle while pursuing Ms K after a verbal argument when she drove her motor vehicle into a park.  It was recommended in the prosecutor’s report dated 21 March 2017 that the probation order made on 24 May 2016 be revoked and the mother be sentenced for her original offences.  On 23 March 2017, the mother was released on parole by an order of the City P Magistrates Court.

15. On 25 April 2017, Ms K made a statement to police that the mother subjected her to common assault by hitting her in the head and kicking her, strangulation with an electrical cord, rape and sexual assault by forcefully penetrated her anus with her big toe and twisting the external portion of her vagina.

16. The mother’s parole was suspended on 26 April 2017.  On 4 May 2017 the mother was incarcerated in V Correctional Centre.

17. On 29 May 2017 a protection order naming the mother as a respondent for the protection of Ms K’s mother Ms W was made by the City P Magistrates Court.  In that application Ms W alleges that the mother had threatened to run her over in a car and slice her neck.

18. On 12 July 2017 the mother did not enter a plea to charges of common assault, domestic violence, assaults occasioning bodily harm, choking suffocation strangulation and rape, sexual assaults, torture and contravention of domestic violence order.  The mother was then remanded in custody.

19. Documents before the court indicate that on 15 August 2017 the mother was involved in a prisoner on prisoner assault where she allegedly used a rolling pin in the assault.

20. The father’s application was before the court again on 19 September 2017 when the mother did not appear and then again on 14 February 2018 when it was adjourned for further mention to 26 July 2018 with the following notation:

    A.On the next Court date the Court is considering making final orders giving sole parental responsibility to the father, that the children live with the father and the children spend time with the mother as can be agreed between the parties and upon reasonable conditions that are imposed by the father and that the parties attend Family Dispute Resolution prior to returning to the Court. If the matter is not resolved at Family Dispute Resolution then the mother is at liberty to file a new application.

21. The mother was released from custody on 25 June 2018.

22. The matter next came before me on 26 July 2018 where it was established that the mother had only recently been released from custody.  I made orders for the father to file an amended initiating application and for the mother to then file an amended response.  I also made an order for the children to communicate with the mother by telephone on their birthdays and for the Independent Children’s Lawyer to arrange a Legal Aid Conference prior to the next mention date of 13 September 2018.

23. On 13 September 2018 I made orders for the parties and children to attend another child inclusive conference on 28 November 2018.  I also directed the mother to file and serve an application in a case setting out the precise orders that she sought by 11 October 2018.  The father was directed to file a reply to that application by 8 November 2018.  The mother failed to file that application.

24. Ms AA conducted a child inclusive conference on 28 November 2018 which will also be discussed later in these reasons.  It was not recommended that the children return to the mother’s care but rather further enquiries be made for information from Corrective Services and the mental health services assisting the mother.  She did suggest that supervised time between the children and the mother could be a safety measure over a maximum of three contacts and then over a period of six months she suggested the children gradually increase their time with the mother to re-establish their relationship and that the court review the matter in six months.

25. With the assistance of Ms AA’s recommendations, when the application came before me on 5 December 2018 I ordered that the children spend time with the mother supervised at D Contact Centre at City E and then adjourned the matter for mention to 17 April 2019.  On 17 April 2017 I ordered that the Independent Children’s Lawyer arrange a family report to be available when the matter was to be mentioned again on 12 September 2019.

26. It is the father’s case, which will be discussed in detail later, that after the mother’s release from prison in mid-2018 escalating in 2019, Z who up to that time had been settled in his care and at school became rude and disobedient and her behaviour at school escalated to the point that she was suspended on at least a couple of occasions.  The father believes that this was as a result of her telephone communication with the mother outside of the times ordered by the court.

27. In November 2018, the mother commenced a relationship with Ms BB.  The mother was cross-examined at trial as to whether she is still in a relationship with Ms BB.  In the mother’s trial affidavit she explained that she does still reside with Ms BB and that they plan to marry after these proceedings are finalised.  Ms BB has a son from a previous relationship, CC, now aged seven.  The mother, Ms BB, CC and now Z reside in Ms BB’s five bedroom home at Suburb C.  Ms BB was a member of the Armed Forces but is now employed by Employer DD, who are contracted to the Employer EE.  Ms BB swore an affidavit in these proceedings on 9 August 2019 but was not required by the Independent Children’s Lawyer or father for cross-examination at the trial.

28. The mother with the agreement of the father spent some supervised time at a contact centre at City E with the children, the records of which are contained in the tender bundles from the Independent Children’s Lawyer. 

29. On 26 June 2019 the parties and children attended upon Ms FF for interviews for the preparation of the first of two further family reports prepared by Ms FF.  That report was filed with the court on 9 July 2019.  Neither parent at that time were suggesting that the younger children should leave the care of the father however both the mother and father were concerned about Z and wanted to manage a transition for her into the mother’s care.  It seems that at least the father was of the view that this should happen at the end of school year.  Ms FF at paragraphs 102 and 103 of her first report expresses a concern that Z had no real understanding of the impact of a move on herself and her siblings to her mother in that she would have to re-establish herself into a new school, develop new friendships, join new sporting groups and face unknown headwinds in her peer group which would be even more challenging given her auditory processing disorder. 

30. She suggested that Z believed she may be happier living with her mother because her mother’s approach was less authoritarian than her father’s.  She also raised a concern about challenges for the mother given her personality type.  At paragraph 104 she indicated that both parents feared that Z may be at risk of self-harm or harm from others if she places herself in risky situations to influence the outcome of what she wants.  It was for that reason that they agreed, at least at that time, that Z could move, and that the steps to be taken to transition her to her mother’s care be explained to the children as soon as the parents had signed consent orders or such orders were determined by the court.

31. Further in relation to the transition to the mother, at paragraph 105 of her report, Ms FF recommended that the parents keep communicating about Z and any transition to the mother’s care and that they both keep an open mind about where she should live and how she spends time with the other parent as Z may change her mind in the future about where she wants to live.  Given that she would be 13 years and six months at the beginning of 2020 and would have spent more time with the mother on holidays she suggested that both the mother and father would need to double check with her that she still wanted to transition to the mother’s care at the beginning of 2020.  It was for that reason that she recommended that Z move to live with the mother from the week before school starts in 2020 provided Z still wanted to make that move.

32. At the conclusion of her report, in relation to the children’s time with the mother, she recommended that the children spend time with the mother for two weekends in each of the remaining 2019 New South Wales school terms with that time to occur at Town B from 5pm Friday to 5pm Sunday.  She also suggested that they spend one week of the September 2019 school holidays with the mother, although this did not occur because of a disagreement between the mother and father about changeover.  She also suggested two weeks of the Christmas school holidays with the mother collecting the children on 27 December 2019 and returning them on 10 January 2020.  The children’s Christmas time with the mother did occur, however Z’s time with the father at Christmas was cut short after an altercation with the father.

33. On the first weekend of unsupervised time there was an issue between the mother and father.  The father alleges that the two girls had sports games on that weekend and the mother did not take them to their games but they stayed with her to watch Y play sports.  The father acknowledged in interview for the preparation of the second family report with Ms FF that the children told him they enjoyed their weekend with the mother.

34. On Saturday 28 August 2019, on the first weekend of unsupervised time, at about 8:30pm, the father alleges he found the children standing in the beer garden at the pub alone.  He said that the mother was at the surf club a few hundred metres away where they had a birthday celebration for Z and the mother did not know the children were at the pub.  It is the mother’s case however that Ms BB had taken the younger children to the local hotel to use the toilet and they were at all times supervised by an adult. 

35. On the second weekend of unsupervised time, there was an incident at changeover, described differently by the mother and father in their affidavit material, although it is agreed that Y did not want to go back to the father.  The father explained to Ms FF in interview for the second report that he left Y for about 20 minutes with the mother then returned to pick him up and Y came back into his care.  The father also explained that Y was very tired after the second weekend visit.  He also complains that after that second visit he received two pages of allegations from the mother’s lawyer all of which he alleges were false.

36. In relation to those two weekend visits, the mother complained to Ms FF that the father was resistant, for example would not let her collect the children from school but instead delivered them to her accommodation.  She complained that on the first occasion they came to her with Coles shopping bags with dirty pyjamas and Y’s dirty uniform and a soiled pillow.  She said that on the first weekend Y was ill for his sports game, Z had a temperature and did not play sports so they watched Y play sports.  She alleged that X was heavily infested with head lice and when she text the father in relation to same, he replied “sort it out”.

37. In relation to the changeover when Y was resistant to return to the father, she said that he refused to get in the car and wanted to go home with her.  She complained that the father made the transition difficult.  She alleges, but the father denies, that he became angry and told Y “you’re going to fucking regret this Y” and “you fucking wait until you get home’.  She also says that Y was frightened, shaking and crying and worried that his father would hit him.  Ms BB then, on the mother’s case, took Y inside to calm him down.  Z then rang the mother and told her to have Y at the front and said that he was going to “cop a flogging” from the father.  When the father returned the mother alleges, again the father denies, that he told the mother “get the fuck out of my face and of course I’m fucking angry”.  She says that before she could get Y’s seat belt on or shut the door the father reversed back and sped off.  When she tried to contact the father to check the children were ok, he refused to answer the call.  Z called her the next day to say that the children were ok and that she had slept with Y that night to comfort him.

38. On 12 September 2019 I made an order for the children to spend unsupervised time with the mother from 6 to 11 October 2019 in Queensland and then listed the matter in my trial callover on 14 November 2019 with directions for the filing of material.

39. As mentioned earlier Z’s behaviour both at home and at school deteriorated significantly from very late in 2018 through 2019.  The mother and father had agreed with Ms FF, as mentioned above, that Z should transition into the mother’s care and both would have been aware, certainly by 9 July 2019 when Ms FF’s report was filed that Ms FF had made a recommendation that the mother and father check in with Z at the end of 2019 and then if she still wanted to move to the mother’s home that be arranged at the commencement of the 2020 school year.  I will provide detail of the deterioration of Z’s behaviour at least at school later in these reasons.  It is not in dispute however that Z ran away from the father’s home on two occasions prior to September 2019.  The New South Wales Police and New South Wales Family and Community Services (“FACS”) became involved and eventually the mother’s partner collected Z from Town B on 24 September 2019.

40. The children did not spend school holiday time with the mother as ordered from 6 to 11 October 2019 for reasons that are described differently in the material of the mother and father.  It seems that there was an issue in relation to changeover which was the subject of much correspondence between the mother’s and father’s solicitors at the time.

41. At the trial callover on 14 November 2019, I was notified that Z, was living with the mother and had been living with her for about two months.  I made a Chambers order on 26 November 2019 to list the matter for a three day trial and for the Independent Children’s Lawyer to arrange for an updated family report.

1. The parties attempted mediation at a dispute resolution conference on 11 December 2019 and reached an interim agreement for time in the December 2019/January 2020 and April school holidays and for telephone communication. 

2. The two younger children did not spend time with the mother in the April 2020 school holidays nor did Z spend time with the father in that period as the mother and father seemed to agree, sensibly because of the COVID-19 restrictions it was not appropriate.  The mother later however says that she did not agree to forego that time and through her solicitors tried to organise that time. 

3. There was a significant incident between the father and Z in the December 2019/January 2020 school holidays when resulted in Z returning early to her mother.  The younger children did spend time with their mother during the December school holidays.

4. At interview for the second of Ms FF’s family reports on 19 February 2020, the younger children expressed a strong wish to live with the mother and Z told Ms FF that she did not wish to spend time with the father.  In that report she recommended that all three children live with the mother and that they spend time with the father for half of the school holidays and for one weekend a month in the area the children are living with the father to provide one week’s notice of his intention to exercise that time.  She also proposed that the mother and father share parental responsibility for all three children.

5. Due to the current health situation around COVID-19, I brought this matter back for mention on 31 March 2020 and discussed with the solicitors about the arrangements for the conduct of the trial.  I made amendments to the filing of trial material and directions for the trial to occur by electronic means.

Documents relied on at trial

1. The father filed his case outline on 22 April 2020 and relies on the following documents:

   a)His initiating application filed in the Local Court on 25 May 2016 and in this Court on 7 June 2016;

   b)His amended initiating application filed 22 April 2020;

   c)Affidavit of non-filing of FDR certificate filed in the Local Court on 25 May 2016 and in this Court on 7 June 2016;

   d)The affidavit of himself filed in the Local Court on 25 May 2016 and in this Court on 7 June 2016, then his further affidavits filed on 15 April 2020 and 22 April 2020;

   e)Affidavits of Mr M filed in the Local Court on 25 May 2016 and in this Court on 7 June 2016 and his further affidavits filed on 11 August 2016 and 15 April 2020; and

   f)Affidavit of Ms GG filed on 15 April 2020.

2. The mother relies upon her case outline filed on 22 April 2020 as well as the following documents:

   a)Her affidavits filed on 27 July 2016, 3 December 2018 and 14 April 2020; and

   b)Affidavit of Ms BB filed on 9 August 2019.

3. The Independent Children’s Lawyer relies on their case outline filed on 22 April 2020 as well as the following documents:

   a)Child Inclusive Conference Memorandum by Ms R dated 3 August 2016;

   b)Affidavit of Mr U filed 27 April 2017;

   c)Child Inclusive Conference Memorandum by Ms AA on 28 November 2018; and

   d)Affidavits of Ms FF filed on 9 September 2019 and 17 March 2020.

4. The Independent Children’s Lawyer also tendered two bundles of subpoenaed documents as well as a document that I refer to as the third bundle which includes reports from Z’s high school at Suburb C.

Issues in Dispute

1. The issues in this matter are as follows:

   a)The impact on X and Y moving to reside with the mother;

   b)The risks to X and Y remaining in the father’s care;

   c)The risk to Y and X in the mother’s care;

   d)The children’s wishes; and

   e)The separation of siblings.

The impact on X and Y moving to live with the mother

1. It is not in dispute that Y and X have experienced significant upheaval and disruption to their lives since their parents’ separation.  At separation Z was seven, X five and a half, and Y not yet one.  Despite there being a Parenting Plan in place a few months after separation which provided for the children to live with the mother and spend time with the father every second weekend from 4:30pm on Friday to 4:30pm on Sunday, the children’s time with the father was not consistent.  The father claims that the mother continually changed the length of time the children were able to spend with him and that she often collected the children earlier than provided for the Parenting Plan.  The mother’s case is that she did support the children’s time with the father, but on many occasions he failed to spend time with the children and when he did spend time with them, he would contact her to collect them earlier than planned.

2. The mother moved the location of the children on several occasions and within a short period, including a move from New South Wales, some six or seven hours away to Queensland.  These moves resulted in at least four changes of school for the older children between 2013 and 2016.

3. As mentioned in the background to these reasons, prior to separation Z had commenced her schooling at Town B Primary School before changing to private school in Town G where the father says she was progressing well.  X had commenced kindergarten in the Town B/Town G area.  At interview with Ms R for the first child inclusive conference in July 2016, Z describes having attended Town J, HH School, Town B and Town H schools and was currently at JJ School.  Of course after moving to live with her father, she again changed schools back to Town B Primary School.  

4. It is not in dispute that during the time that the mother had a relationship with Ms K, the children were exposed to extreme violence.

5. As a result of an order by Judge Vasta on 17 August 2016, the children who had not spent consistent time with the father to that point, moved to live with him and spent limited time with the mother prior to her incarceration on 4 May 2017.  Between 4 May 2017 and 25 June 2018, while the mother was incarcerated, there was no time or communication with the mother other than the exchange of some correspondence.

6. After the mother’s release from prison, they spent approximately eight periods of supervised time with the mother, two weekends in late 2019 of unsupervised time and school holiday time at Christmas 2019/2020 but not at Easter 2020.

7. Z left the father’s home in September 2019 in circumstances which in my view, were not handled at all well by either the mother or father and certainly not in the way suggested by Ms FF particularly given they both expressed at interview with Ms FF concerns about the harm that might come to Z if she places herself in risky situations to influence the outcome of what she wants.  Z’s deteriorating behaviour both at home and at school which intensified until her move to her mother would have caused a certain amount of distress to the younger children.

8. The children were introduced to the mother’s current partner, Ms BB and spent limited time with her and her son CC during some weekend time and school holiday time with the mother.

9. When Y and X were placed in the father’s care in August 2016, they were three and eight years respectively.  At trial they had been residing with the father and paternal grandparents for just short of four years and I accept, which is not dispute not even from the mother, that they were settled in the father’s home and at school. 

10. In my view despite interruptions to their time with the father after separation and that their mother had been their primary carer prior to them moving to their father’s home by Judge Vasta’s order on 17 August 2016, during the period Y and X resided with the father and grandparents, they did develop a close and loving relationship with them.  The development of this relationship can be seen from the various expert reports in this matter over a period of almost four years.  

11. At interview for the preparation of the first child inclusive conference with Ms R on 29 July 2016, approximately two and a half years after separation and with inconsistent time with the father and grandparents, the father acknowledged that he did not know Y, then three years and five months, very well. When Ms R asked X about time with her father and other questions relating to her father, she answered that she did not know or did not remember. Ms R recommended, no doubt to address the need for the children to have a relationship with the father, that the time between the father and the children recommence, initially by extended weekends visits.

12. The children were interviewed by Mr U for the preparation of the first family report in February 2017 some six months after they had been placed in the father’s care. Whilst in the summary of his findings, Mr U opined that the children had a significant and meaningful relationship with their mother at paragraph 142 he said the children did have a relationship with their father.  Whilst referring to the father as “stand-offish” and the children not overly enthusiastic in their interactions with him, he did believe that they had the capacity to develop a significant and meaningful relationship with the father and that they would benefit from that relationship.

13. At interview with Ms AA for the preparation of the second child inclusive conference memorandum on 28 November 2018, X described her home with the father and the paternal grandparents as normal.  She described going places with the father and going on boats and riding bikes.  Y told Ms AA that he had not seen his mother in a really long time but did not know why.  He said he likes living with his father because they have bikes and motorbikes.  He described wanting his mother “to live in her house and that he stays” with the father.  In her observations Ms AA said that the children were observed to interact well with the father and to have a good understanding and identity to both parents.

14. In Ms FF’s first family report prepared in July 2019, Y told her that he did not remember living with his mother, that he likes his Nan and Pop and that if he has things close to his heart he wants to talk about, he talks to his father.  At that point he was still sleeping in the same bed as the father.

15. X in interview with Ms FF said that if she has things close to heart she wants to the talk about, she talks to her grandmother, although clearly indicated to Ms FF that she wanted to see more of her mother and spend time with her, she talked about her friends and sport at home and did not want to move.

16. In Ms FF’s observations of the children with the father, she reported that the father engaged in play with X and Y, Z leant in physically close to the father and whispered to him how to play and all the children were confident, relaxed and settled. In her evaluation at paragraph 92, she opined that the children have positive relationships with the adults in their lives including their grandparents and that their lives have been settled, predictable and well-supported living with the father with the help of the paternal grandparents.  It is noted that the mother at that time did not propose that the two younger children move to her care and she and the father agreed that eventually Z would move to the mother’s care.

17. In this regard, Ms FF also opined at paragraph 89 that the three children have a positive relationship with both parents and she observed the children to have a warm rapport with each parent and that the parents and children all spent time in the waiting area for the duration of the day.

18. I note also that the mother described in interview for this report the children having a brilliant relationship with the paternal grandparents, particularly the paternal grandmother.

19. I acknowledge that after spending some supervised time and then two weekends and one lot of unsupervised school holiday time with the mother, Ms FF in her second report dated March 2020 after interviews in February 2020 and after a significant deterioration in the parents relationship, described at paragraph 106 that the children have a good relationship with the paternal grandmother.  Y, in interview with Ms FF, described the father as getting mad, that they stay at home all day, and expressed a wish to live with the mother.  X also expressed a strong wish to live with the mother and the father being angry with her.

20. At paragraph 164 of Ms FF’s second report, she referred to Y as a sensitive and emotional child who still sleeps with his father and is fearful of his father and transferring between his parents, although once handovers are accomplished he appeared to have settled with the father. At paragraph 165 after describing Y missing his mother and her emotional nurturing, she also said that he would miss his father if he lived with his mother.

21. The settled and stable environment the children enjoyed with their father and grandparents, at least until the end of 2019 and prior to then spending Christmas school holiday time with the mother in 2019/2002 is also supported by reference to Y and X’s school records to the end of 2019.  Those records which are all before the court are contained in the Independent Children’s Lawyer’s tender bundle volume 1 from pages 132 to 141 and 147 to 156.  They record that the children, including Z up to the end of 2018, consistently performed well at school whilst in the father’s care.

22. Y and X’s 2019 school reports also speak to them being stable and settled at school and performing well. 

23. Y’s Semester 2, 2019 report records:

    He is a friendly and cheerful classmate who always has a smile on his face. He always participates in all learning activities and attempts all tasks with a positive approach.

24. X’s Semester 2, 2019 report states:

    X has been a positive student all year, contributing to the development of a friendly classroom environment. She always has a smile on her face even when faced with challenging problems and tasks. This attitude assists her to learn to the best of her ability.

25. Y has only ever attended at Town B Public School, he commenced in kindergarten there in 2018.  X commenced there in Year 2 after coming into her father’s care.

26. The Independent Children’s Lawyer, supported by the father, argues that there is an inherent risk and that it would not be in the children’s best interests to move from where they have been settled for many years, attending school and doing well and of course moving a significant distance from their father and grandparents.  It is also not in dispute that the distance between the father and mother’s home would not allow for the children to spend substantial and significant time with the father if they lived with the mother.  This would result in Y and X spending only a few weeks in a year with their father and grandparents.

27. Much was made in the submissions on behalf of the mother that the Independent Children’s Lawyer’s concerns about the impact on the children of a significant change to their living arrangements and the school they attend was not put to Ms FF, in fact it is not in dispute that the Independent Children’s Lawyer did not ask any questions of Ms FF.

28. Of course ultimately it is a matter for me after assessing the risks if any of the children remaining with the father and/or moving to the mother to decide whether the benefits of X and Y moving to their mother would outweigh what I accept would be a significant disruption for them. 

29. The mother acknowledged under cross-examination from Mr Cooper and the Independent Children’s Lawyer that the risk to Y and X leaving their settled environment and changing schools was huge.  It is not correct however to indicate that Ms FF did not consider the impact on children of a move to their mother.  Whilst it is not specifically referred to in the second report, Ms FF under cross-examination from counsel for the mother acknowledged that she did not make the recommendation to move the children to their mother lightly.

30. In this regard I also note Ms FF’s real concern expressed in her first report not only for Z, but also the younger children moving to the mother’s care.  Ms FF in that report opined that the children’s lives had been stable, predictable and well-settled living with the father with the help of the paternal grandparents.  At paragraph 102 she referred to the fact that neither parent suggested that the younger children leave the care of their father.  In relation to the impact on Z moving to the mother, she said:

    I do not believe Z has any real understanding of the impact on such a move on herself or her siblings.

    Further in that paragraph she opined that she was reluctant to remove Z from her stable and settled environment.

31. At paragraph 103 she expressed concern that if Z moved to Brisbane she would have to re-establish herself at a new school and develop new friends, join new sporting groups and face new headwinds in her peer groups.  

Risks in the father’s household

The father’s alcohol use

1. Ms FF in her second report identified that there was some risk to Y and X’s emotional and physical safety if the father drinks when they are in his care.  The mother has consistently raised concerns about the father’s alcohol consumption during these proceedings. 

2. In the first child inclusive conference, the mother referred to the father’s excessive use of alcohol.  In the second child inclusive conference with Ms AA the mother again raised concerns that the father drank alcohol to excess and that when they were in a relationship together (which I note was more than two years prior to that interview) the father had developed a pattern of binge drinking behaviours at the weekend.  In response the father informed Ms AA that he drank a few beers most afternoons. 

3. In Ms FF’s report after the children had been living with the father and grandparents for three years Z raised, a concern about the father’s drinking which is recorded at paragraph 80 of that report:

   Z said the father was drunk when they were at a friend's house around Christmas holiday time earlier in the year, and the father punched someone and Z got the children into a bedroom so they could not hear or see the altercation. She said the father broke a glass window because the family locked him outside. When the father wanted to drive home with the children, Z refused as the father was drunk, and could not stand properly. She said the paternal grandparents came and picked up the father from the house, and the children remained at the house for the night, and the paternal grandmother picked them up the next morning. When they got home, there was a punch hole in the garage wall which had not been there before. Z could not remember any other time she saw the father drunk.

4. At paragraph 97 Ms FF says that when the father was questioned about this incident he was defensive and inclined to blame others.

5. I note that Z, who at the time was not happy living with the father and wanted to move to the mother, acknowledged that she could not remember any other time when she saw the father drunk.  Ms FF when referring to the risks to the children from alcohol and drugs, at paragraph 97 opined it (the father’s excessive use of alcohol) does not appear to be a common event and this is why it has stuck in Z’s mind.  Ms FF also noted that the paternal grandparents provided an additional safety net for the children.

6. I note that whilst Ms FF indicated that the other children were present or were at least aware of what was happening in the home on that evening, they did not raise any concerns with Ms FF nor did they raise any concerns with their mother. 

7. The concerns in relation to the father’s drinking were raised by all three children in interview for the preparation of Ms FF’s second report.  It is difficult to understand however from the comments made by the children to Ms FF the period that they are referring to.  They certainly did not raise concerns with Ms FF, nor did Z in June 2019 other than the incident referred to above.  It seems to me, having read the report again, that they may be referring to the period at Christmas 2019/2020 and possibly up until their interview with Ms FF in February 2020.

1. The evidence suggests that Z reported to the mother that during the school holiday period she spent with the father, the younger children and the grandparents, that the father had been drinking from 10am until late everyday and that the children had been with the father for four days in a row to the pub.  At least from Z’s perspective, the father’s drinking came to a head on the occasion that she left his home on 8 January 2020.

2. In relation to the father’s drinking, in February 2020 Y told Ms FF “that they go to the pub all the time with the father and they stay a long time”.  He also described being given an iPad at night to comfort him when his father goes to the hotel.

3. X reported “the father gets “more mad at us” when he drinks at home and at the pub. She described him as being “mad, more mad, then he starts to do silly things”. 

4. Z in interview with Ms FF is recorded at paragraph 124 alleging, (and again this seems to be during the time she was in New South Wales over the Christmas school holidays):

   Z said the father was drinking every night either at home, at a friend’s holiday home, or at the pub. When asked to describe what she meant by her father being drunk, Z said he screams, he tries to be funny, he isn’t his usual self, and he is unsteady on his feet. Z said the father does not get drunk at home, but he would drop them home at 9pm or 10pm, then return to the pub, and come home at 3am. When asked how she knew this, she said she does not sleep well at the father’s house, and neither does X, because they are worried about the father.

5. I accept Ms FF’s concern that there is some risk to the children’s emotional and physical safety if the father drinks when he has the care of the children.  On the evidence before the court however it seems that the father’s drinking may have escalated over the Christmas period when all three children were in his care.  Ms FF refers to the first alcohol-fuelled incident being reported as an unusual incident in her first report.  She also referred to reports of the father’s alcohol abuse as inconsistent.  It seemed unclear to her from the children’s disclosures whether the father is badly affected by alcohol when he has the physical care of them.  She also says at paragraph 146 of the report that the risk to the children of the father’s alleged alcohol use is mitigated by the fact that the paternal grandparents help supervise and care for the children and that she had not heard that the father’s alcohol use is a risk to the children when he drives as he catches taxies to and from the hotel.

6. The mother’s counsel argued that rather than the paternal grandparents acting protectively of the children, they were in fact protecting the father.  There is no evidence in my view however including from the mother that the paternal grandparents are other than child-focused in their supervision and/or care of the children and therefore I do accept that they are a mitigating factor in the father’s household.

7. I have also taken into account, although not placed significant weight on this factor, that the most serious concerns raised about the father’s alcohol use in interview with Ms FF came from Z.  There are in my view and in evidence before the court, examples of Z exaggerating the father’s behaviour towards her.  It would be open to the court therefore in my view to consider that there may have been some exaggeration on her part with regard to the frequency that the father was attending at the pub with or without the children and the level of his misuse of alcohol in that period. 

8. When the paternal grandmother was cross-examined by counsel for the mother about the father’s alcohol use, she did not agree with either Z or the younger children’s version of same.  I found the paternal grandmother to be a witness of credit and place some value on the evidence she gave about the father’s alcohol use at home and his attendance at the local hotel.

9. I also note that the younger children who had been living with the father for some time prior to Ms FF’s first report, did not raise concerns with her in June 2019 about the father’s alcohol use or going to the pub nor is there any evidence from the mother that they raised concerns with her prior to interview for Ms FF’s second report in February 2020. 

10. For those reasons whilst I acknowledge Ms FF’s concerns in this regard I also accept to some extent the argument of the Independent Children’s Lawyer that the timing of the allegations, namely after the children had started spending some unsupervised time with the mother, cannot be ignored and may go to the voracity of the allegations.

Physical abuse  

1. Although in response to a question from counsel for the father, the mother told the court that she was not concerned that the father would ever harm the children, it seems that she may have been the person that called FACS on 8 January 2020 to report the altercation between Z and her father.  Certainly at trial it was her case that the father had assaulted Z on that occasion by grabbing her by the throat, pushing her up against a wall and hitting her on the head with a phone.  At page 103 of volume 2 of the tender bundle the following was recorded from that call:

   The father has assaulted the child Z by grabbing her by the throat and pushing her up against the wall and then hit her with a phone charger in the head, when she tried to run he kept pushing her back, when she did finally get out the door, Y tried to follow her and was pulled back by his hair. The father was intoxicated and wanted to go to the hotel and get some more alcohol which started the abuse as Z refused. The two younger children live with the father and Z lives with her mother due to her fathers ongoing abuse.

2. When the mother was questioned in relation to this incident and her allegation that the father had physically abused Z she told the court that she had a video recording of the incident which confirmed her version of the events of that evening.

3. I also note in relation to this incident that the father in answer to questions from counsel for the mother denied that he regularly swore at the children.  The video was played and suffice to say the father’s behaviour towards Z on that occasion was absolutely inappropriate and the father is clearly verbally abusing Z.  The father can, I accept, be heard yelling at Z saying “You’re full of shit, get your shit and fuck off, you don’t have a fucking brain in your head, stop your fucking stupid yelling and all you do is talk shit”.  I also accept that Z is clearly heard to say “I don’t feel safe here”.

4. What the video does not show however is the father physically harming Z or pulling Y back by the hair.

5. In relation to this incident, page 146 of volume 2 of tender bundle from the Independent Children’s Lawyer corroborates the father’s version that he did not physically harm Z on that occasion.  Those notes read as follows:

   - Police attended and spoke with Z about what had occurred this evening with her Father.

   …

   - Constable KK stated that he sighted no injuries for Z and as mentioned prior, no disclosure was made by Z in regards to any physical violence, only in regards to a verbal argument with her father.

Emotional abuse

1. Ms FF in her second report expressed a view that the father has a detached style of parenting and I accept that the younger children may be feeling disconnected emotionally from their father and are looking to the mother and Z for emotional connection and validation.

2. Comments similar to that, namely the different parenting styles of the mother and father and of the mother being a more nurturing parent, have been made in earlier reports.  Mr U, for example in his report, referred to the father’s laid-back style in his interactions with the children as opposed to the mother’s over-the-top exuberance.  Notwithstanding that observation he did indicate that everyone seemed comfortable in each other’s presence and described the father as having mostly demonstrated a positive attitude towards parenting. 

3. In interview with Ms AA, X said:

   She described enjoying going places with her father and going on boats and riding their bikes.  She said that her mother was always there for her “whenever I was sad” “she would give me a cuddle and make me laugh.”

4. In the first interview with Ms FF she notes that X informed her that if she has things close to her heart she wants to talk about, she talks to her grandmother. 

5. In relation to this issue, Ms FF, in her second report, raised concerns about the following comments from children:

   a)Y said that his father gets really mad at him all the time;

   b)X said that the father would not allow her to take her dog if she lives with the mother and she was worried that the father would get rid of it.  I note the father denies making those comments to X;

   c)Both children complained about the restrictions that were placed on their telephone communication with their mother;

   d)Y also told Ms FF that the father gets really mad at X at home, that he gets into trouble from the father all the time.  Ms FF records that when Y was telling her this he was upset;

   e)Y also said he was concerned that his father would find out he wanted to live with his mother.

6. Although the father denied getting angry with the children and yelling at them, he did not deny that he controls (my word, not his) the children’s telephone communication with the mother.  He admitted that he times the calls and that the calls are on loud speaker.  He explained at trial that the reason for the calls being on loud speaker was out of concern that the mother would swear during telephone calls.  That may or may not be the case however I note that the father despite denying that he swears at the children, was clearly heard to swear and yell at Z during the incident recorded on 8 January 2020.  I also accept Ms FF’s view that the father controlling the children’s telephone communication with the mother in the way that he does displays a lack of insight as to the need for the children to have regular free and open conversation with their mother, particularly given the distance they reside from her and the limited opportunity for them to have face-to-face time with her.

7. Ms FF was also, in my view, justifiably critical of the father complaining about Z having excessive telephone communication with her mother after her release from prison and complains that the mother during telephone calls told the children that she loved them and missed them.  When asked by the mother’s counsel why that annoyed the father, the father said:

   It doesn’t annoy me.  Continual “I love you” for five minutes is annoying; it’s over the top.  But everything else is fine.

8. Again in my view that shows a lack of insight on the father’s part about the emotional needs of the children.

9. It is also relevant in my view however to consider the pressures and events that occurred between interviews for Ms FF’s first report in June 2019 when the children made no complaints about the father being angry and yelling at them and the second report in February 2020 when this was an issue for the children and a concern for Ms FF. 

10. Ms FF acknowledges and it is clear from the trial material of the mother and father that their relationship deteriorated significantly between her first and second reports.  As mentioned earlier, at the time of the preparation of her first report, they both acknowledged the issues that Z was having particularly with self-harming and agreed that it would be appropriate for Z to transition to the mother’s care.  They also both agreed, at least at that time, that the younger children should remain living with the father and grandparents.  The mother acknowledged that the children had settled and were stable in the father’s home.  Other than in relation to concerns about telephone communication which has been an ongoing issue, the mother did not raise with Ms FF or the court that the children had complained, or were concerned about the father being angry, controlling or verbally abusive of them. 

11. Between the interviews for the two reports Z’s behaviour both at school and in the father’s household deteriorated significantly and led to her running away from the father’s home and self placing with the mother in about September 2019.  There was then a terrible incident in the father’s home on 8 January 2020 which involved verbal abuse by the father of Z which was either in the presence of, or certainly within the hearing of the two younger children.

12. The mother rightly or wrongly, justified or not, made a series of complaints via her solicitors to the father’s solicitor about the children’s presentation at changeover in relation to hygiene, a lack of clothing and some medical issues, all of which the father took significant exception to.

13. In November 2019 I listed the matter for trial in April 2020 and made directions for the filing of trial material in the six months leading up to the trial and an updated family report.

14. There were issues between the mother and father not only in relation to telephone time but in relation to the September/October 2019 school holidays when sadly the children were not able to spend time with the mother.

15. I note that in all of the reports, but particularly in Ms R’s report and Mr U’s report and then in Ms FF’s second report, comments are made about the high level of conflict between the mother and father.  Of course this conflict has been ongoing even before the filing of the application.  At times the mother and father are able to reach agreement and discuss issues in relation to the children, but generally the children have been exposed to conflict including significant conflict at changeovers, some the fault of the mother, some the fault of the father, sometimes the fault of both.

16. Ms FF did opine that changeovers for time with the mother between the two reports were particularly difficult for Y however that once handovers are accomplished, he appeared to settle with the father.  She also commented at paragraph 165 that Y would miss his father if he lived with his mother.

17. It can be seen from that chronology that in the eight months between the reports, the mother and father’s relationship, which as at June 2019, was reasonably amicable, completely deteriorated and all three children, but particularly the younger children were exposed to this conflict.  The mother and father also had the added pressure of preparing for trial.  It is also not in dispute and the father acknowledges suffering from depression and Ms FF suggested in her second report if the father was drinking more heavily in this period this may have had some effect on his parenting, making him more angry and frustrated.

18. She did also suggest and expressed some hope at paragraph 170 of her report that once the court has clarified the living arrangements for the children, the tension between the parents may settle and the relationship between the children and their father will repair once the stress of proceedings are finalised.

Risk in the mother’s home

The mother’s mental health

1. The Independent Children’s Lawyer and father make much of the mother’s disclosure, or lack thereof, in relation to her mental health with the various experts in this matter.  I accept that on 28 November 2018 the mother told Ms AA that she had been diagnosed with Post Traumatic Stress Disorder (“PTSD”), anxiety and depression and on 26 June 2019 she told Ms FF, that apart from being on the cusp of borderline personality disorder, she has not been diagnosed with any other mental health concerns, she is not medicated and has not been diagnosed with anxiety or depression.

2. I accept also the submission made on behalf of the mother that Ms AA’s report was disclosed to Ms FF on two separate occasions by the Independent Children’s Lawyer and from that I could draw the inference that Ms FF was made aware of the mother’s diagnosis of PTSD and anxiety and depression despite informing Ms FF that she had not been diagnosed with anxiety and depression.

3. I also accept that if the mother does have stable accommodation, is in a stable relationship, employment as a tradesperson and parental responsibility for both Z and CC, that this may point to, or confirm, the mother’s position that her mental health does not affect her current functioning including as a parent.

4. I do not accept however the submission made on behalf of the mother that the Independent Children’s Lawyer in written submissions is raising concern about the mother’s mental health late in the proceedings and never requested or enquired by way of a psychiatric report to explore any concerns in relation to the mother’s mental health.  The mother’s mental health was raised as an issue for the father particularly with Ms R, but also with Ms AA, in Mr U’s report and the first report of Ms FF.  The fact that the Independent Children’s Lawyer may not have required the mother to attend for a psychiatric assessment does not exclude the mother’s mental health as an issue relevant in these proceedings in deciding whether X and Y should move to their mother’s care.  I also do not accept the submission made on behalf of the mother that I should overlook the concerns raised by the Independent Children’s Lawyer that the mother in her trial affidavit does not refer to her mental health including diagnosis, medication or treatment, given that neither of the father’s two trial affidavits mention that he has suffered from anxiety and depression.

5. The reason, that in my view concerns about the mother’s mental health cannot be ignored, or written off as the mother’s case suggests, is two-fold.  Firstly I agree with the Independent Children’s Lawyer and the father that other than the mother’s affidavit filed 3 December 2018 in paragraphs 44, 45 and 46 and annexures B, C and D she does not refer to any services providing her with support.  The services referred to in those paragraphs were those provided to her whilst she was incarcerated including the MARA Project, which is a reintegration program funded by Corrective Services to assist former female prisoners to reintegrate into society.  A domestic violence prevention program which she attended, I understand, whilst in prison and a resilience course for which she obtained a certificate of completion.  None of those services referred to any counselling, treatment or otherwise for the mother’s borderline personality disorder. 

6. There is also nothing of any significance, or at all, in the mother’s trial affidavit in relation to the treatment and/or services and/or support she has to maintain stable mental health. 

7. My other concern is that Ms FF, in her first report, records at paragraph 23:

   The current risk to the children from either parent in relation to mental ill health appears to be low. The mother has had previous mental health risks.

8. At paragraph 52 Ms FF records that the mother had told her she had attended a psychologist in prison and was diagnosed, as mentioned earlier, on the cusp of borderline personality disorder and received cognitive behaviour therapy (“CBT”).  She referred to still seeing a psychologist, Ms LL, on a mental health plan and this has been ongoing fortnightly for the last four months.

9. Further at paragraph 52 the mother is recorded as indicating that the CBT had really helped in controlling her emotions and thoughts, that she no longer gets “manic” and “out of control” and can see the effect of her behaviour on everyone else.  It is also in that paragraph that Ms FF records that the mother had told her that she had not been diagnosed with any other mental health concerns, either in or out of prison and is not medicated, although she does get anxious and worried about Z, but has not been diagnosed with any anxiety or depression.

10. At paragraph 93 Ms FF explained that in her experience there is no medication that is typically prescribed for her personality type unless there is co-morbidities such as depression or other mental illness diagnosis which is not the case in this instance.  She also opined that the mother was receiving the recommended psychological help for borderline personality disorder.

1. I turn firstly to Z’s decision to move to the mother’s care in September 2019 and the role the mother may have played in influencing Z in that regard.  Firstly in this regard I note that the mother and father both acknowledge difficulties that Z was experiencing in 2018 including self-harm and I have already referred to Ms FF’s first report where she records the mother and father’s concerns in that regard and that they both agreed that at an appropriate time Z should move to the mother’s care.

2. As mentioned earlier, Ms FF raised a concern about whether Z fully understood the impact of a move from her father’s home where she seem settled at school and had been for several years.  She suggested that the mother and father should check in with Z at the end of 2019 to determine whether she still wanted to move and if that was the case that she transition to her mother’s care to commence school in Queensland in 2020.  Ms FF also referred to concerns that she had about the impact on the mother’s mental health by a move for Z to her mother’s home and that has already been discussed previously in these reasons when considering the stability of the mother’s mental health.

   Ms FF’s first report was filed on 4 July 2019.  By that time the mother and father would have been aware of Ms FF’s concerns and recommendations as how best to transition Z to her mother.  I also refer to comments made in Z’s 2018 school reports.  Her Semester 1 report states “Z is a thoughtful and kind member of our class … she has a very good manner with the younger students”.  Her Semester 2 report states:

   Z has had a positive and enjoyable semester this year, she has been increasingly keen to contribute to calls discussion … she has been dedicated and thoughtful leader who often volunteered to do more.

3. Z’s behaviour at school in 2019 however deteriorated significantly and those difficulties again are set out in a table at paragraph 167 of the Independent Children’s Lawyer’s written submissions, so again I will not repeat them here however the concerns include refusing to do work, disrupting class, referring to teachers as a “fucking bitch”, threatening to bash students, disturbing others, vandalising workbenches and running away.

4. This increasingly disruptive behaviour at school, was also but maybe not to the same extent happening at the father’s home where her behaviour was also challenging.

5. It is important to note in this regard, that the mother was released from prison in June 2018.  In December 2018 I ordered the children spend time with their mother supervised at the City E Contact Centre on no more than one occasion each month, and it is clear both from the father’s evidence and also the mother’s evidence that Z was having regular telephone communication with the mother after her release and into 2019.

6. I pause her to indicate that after hearing the father’s evidence and reading subpoena documents from the school, I accept that the father could have been more proactive in supporting Z at school and dealing with her behaviour.  I also accept that both the mother and father could have done more to support Z’s transition from her father to her mother’s care by cooperating with each other and discussing Z’s behaviour together, as suggested by Ms FF in her first report.  The evidence also in my view supports to some extent the father and Independent Children’s Lawyer’s concern that the mother could have done more to support the child’s transition and encourage her to stay as suggested by Ms FF, in the father’s care, until the end of 2019 so that she could start the school year with the mother in 2020, and to determine whether in fact Z understood the impact of a move and still wanted to move from her father to her mother’s care, again as suggested by Ms FF.

7. In this regard I also note Ms FF records in her first report Z telling her that she would get extra attention from the mother if she lived with her but only if the younger children were not there.  Importantly as at June 2019 Z said that things had improved for her since she cut her arm and that things have changed including seeing her mother.  At that time she was clear she wanted to live with her mother but still see her father, paternal grandparents and siblings.

8. In relation to the communication between the mother and Z, about which the father is critical, the Independent Children’s Lawyer in her submissions indicated that there were no text messages before the court between the mother and Z.  I note however that at paragraph 26 of the mother’s affidavit filed 3 December 2018 she refers the court to Annexure A to that affidavit which she describes as a series of Instagram messages between Z and herself. 

9. Whilst I accept that what the mother has annexed is not dated and may not be a complete record of all their communication via Instagram, there are many examples which in my view do indicate that she was involving the child in adult conflict. Those examples are as follows:

   Mother to Z (“M”): You know I would never lie to you baby girl, Ms K sent mum to jail. She told the police mummy beat her up … and I just spent 15 months fighting to clear my name and I won.

   Bub when did the judge say you can pick where you want to live?

   I’m sure its 12 bub”. 

   Z to mother (“Z”): Okay mum so when I’m 12 and I move up there to you do X and Y come and stay heat

   M: Bub let’s find out if it’s definitely 12

   Just fight for what you believe in and always stay true to yourself

   Bub they can’t keep us apart forever

   In response to a discussion about Y and X spending time with the father and the mother questioning whether they remember her:

   Z:I don’t think so, they are too busy hanging out with dad.

   M:that’s okay they will work it out one day.

   M: I hate what he’s done to you guyz

   M: Remember what your dad did when I come to pick you up for Y’s birthday, I can’t trust him bub

   Z telling her mother she just wants a normal family, the mother responds:

   M:If we could just get him to calm down

   Your dad just needs to stop his shit and let me be a part of your life

   No bub you know I have never missed a thing since the day you were born until your dad took you away

   You know if you want you can live with me forever

   Z asking the mother when the matter is next before the court, the mother responding:

   M:Has he said anything about court lately and that your dad is doing this to us

   The mother asking whether Z:

   M:told X you are talking to me?

   Z:no

   M:that’s probably smart

   Z:the only reason is because X is dad’s favourite and dad does not like me talking to you and X will tell dad

   Later in relation to court proceedings:

   M:bub I rang the family court peoples and they couldn’t tell me if there is an age where you get to pick where you live

   Your dad is taking me to court on the 26^th of this month and he only wants me to see you guys when he agrees to it and that he has sole custody which means that you live with him and see me when he says

   I’m going to fight this again

   Maybe talk to him and tell him that you want to have your say

10. In this regard I also note that Z is clearly heard telling the father during the incident on 8 January 2020 “Because I know facts unlike the other kids which you don’t tell anything”, the father then asks “you know facts from whom?”, and Z then replies “because I have read every court order, every single one, you don’t know how much I read”.

11. Taking all of that into account, whilst I accept as argued by the Independent Children’s Lawyer that there is insufficient evidence to find that the mother caused Z to start acting out at school, there is some merit in the view that Z was doing fine until her mother was released from jail and there is certainly evidence which I have referred to that indicates that the mother has involved the child in the dispute with the father and other adult issues, which would have been unsettling for her, particularly in circumstances that at least up to the end of 2018 she was well settled at school, and as indicated earlier made a comment to Ms FF of June of 2019 although she still wanted to live with her mother that things had improved for her,.

The children’s wishes

1. It is not in dispute that in Ms FF’s most recent report records both Y and X in February 2020 expressing a strong wish to live with the mother.  Y told Ms FF that he wanted to live with his mother and X said she strongly wants to live with her mother and although she has good friends at school, she would rather leave them and live with the mother.  These views are different to those expressed by Y and X in June 2019.  Y was happy living with the father and X told Ms FF that she wants to see her mother more and spend time with her but she has friends and sport at home and does not want to move.  I also note in relation to Y’s views, although he wanted to live with the mother as mentioned earlier in these reasons Ms FF was of the view that that he would miss the father if he lived with the mother.

2. In relation to the children’s views, the Independent Children’s Lawyer refers to Justice Buckley’s decision in SS & AH [2005] FamCA at 194  where his Honour set out a number of factors to be considered in the assessment of a child’s expressed wish including:

   a)Age and maturity;

   b)Strength and length of time held;

   c)Based on choice and well thought through;

   d)Result of pressure or emotional attachment; and

   e)Consequences of an order contrary to the child’s view.

3. Firstly in relation the children’s age.  Y in 2019 was six and in 2020, seven.  He is still very young and I accept as observed by Ms FF in her first report when she said that Z at 12 or 13, would not understand the impact on her of a move to live with the mother, that it would be difficult for Y, at six to understand the impact of a move.  This is particularly the case given his comment in an earlier interview with another expert where he said he did not remember living with her and he had spent very limited unsupervised time with the mother up to February 2020.

4. Whilst at 11 I accept that the court might give more weight to X’s views, I still have to take into account when considering her views whether she can fully conceptualise what she will give up and the significant challenges she will face if she leaves the father’s household.  Again she has spent very limited unsupervised time with the mother prior to February 2020.

5. Further in relation to the children’s views, it is the father and paternal grandmother’s case that X and Y have never told either of them that they wanted to live with the mother.  The mother also acknowledged under cross-examination that Y and X had not told her that they did not want to return to their father’s care after spending time with her in Christmas 2019 school holidays or that they wanted to live with her.

6. In response to the Independent Children’s Lawyer’s comment that the children have only expressed a wish to live with their mother recently and had therefore not held that view for a length of time I do note that in earlier reports including Ms R’s child inclusive conference report and Mr U’s report, although they are dated 2016 and 2017 respectively, the children did express a wish to remain or return to the mother. 

7. In Ms AA’s report in November 2018 however, after they had been with their father for just over two years, X described her home as “normal”.  In relation to her mother she said she “happy to see her mother although she had not seen her for a long time but did not know why”.  She described enjoying going to places with her father and going on boats and riding their bikes.  She said that it would be “good to spend time with her mother and she wished that her mother lived closer to her and then she could see both her parents”.  Y also said he had not seen his mother in a really long time and did not know why.  He said he liked living with his father as they have bikes and motorbikes and that he wants his mum to live at her house and he stay with his father.  In June 2019 they did indicate they wanted to live with their mother.

8. Of course as already mentioned it is the father’s case that the mother has influenced the children to tell Ms FF in interview for the second report that they want to live with her.  Whilst there is no clear evidence to suggest that it the case, I have already referred to some concern about the mother’s influencing Z’s deteriorating behaviour at school and moving to her mother in September 2019. 

Separation of siblings

1. Whilst Ms FF did express some concern about Z’s move to the mother’s care and that she would be separated from Y and X, as did the mother and father, the impact on the children of separation was not really discussed in Ms FF’s first report.  I accept that it was an important factor in Ms FF’s decision to recommend that Y and X live together so that they would have the support of each other.  At paragraph 167 of her second report she says:

   In my opinion the children all need to live together to preserve their sibling attachments which are so important in situations of family breakdown, where they rely on each other for support in shared experiences. The bonds they form now as children will lay a foundation for supportive relationships into their future.

2. I accept that this is an important consideration.  I also accept as argued on behalf of the mother, that the Independent Children’s Lawyer and father’s concern that introducing Y and X into the mother’s household that includes Z given her challenging behaviour might cause difficulties for the younger children was not put to Ms FF by the Independent Children’s Lawyer or the father.

3. Whilst I do not have any evidence form Ms FF that this is an important factor or one that she considered, I did hear from the paternal grandmother whose evidence I accept, that when Z was in their household during Christmas 2019/2020 holidays she was disruptive and picked on the younger children.  The grandmother also gave evidence that X and Z’s relationship was sometimes close but sometimes not.  During the school holidays, the paternal grandmother says Z called X a dumb ass and X was crying because Z called her mean names such as retarded.  The grandmother said that Z called Y names such as retard and bum hole.  The father gave also gave evidence that Z was mean to the younger children and X was relieved when Z was gone.

4. In the Instagram communication between the mother and Z referred to earlier, Z referred to how the father preferred to spend time with Y and X and that she felt left out, something that she expressed as well in interview for the preparation of Ms FF’s first report.

5. The paternal grandmother also spoke to Z and X having different personalities describing X as more down to earth, easy going, helpful and harmonious, a happy girl who genuinely enjoys school and has lots of friends whereas Z can be quite irate, emotional and highly-strung and experiences significant and frequent mood fluctuations.   The paternal grandmother also described the household after Z left as “calmer”.

6. I note as referred to earlier that, to the mother’s credit, she reached out to her general practitioner who made contact with her psychiatrist and requested urgent assistance from the psychiatrist given the deterioration in her mental health after Z moved to her care.  It is highly likely in my view that there may be some disruption to the mother’s household if Y and X join that household.  It is also untested as to how Z will cope with her younger siblings in her household and having to share her mother’s attention given this was something of concern to her in June 2019 when she told Ms FF that she would have her mother’s full attention provided her siblings weren’t there, other than for very short periods in school holidays, for over a year.

The family report

1. The mother’s case understandably so, relies heavily on, and asks me to place significant weight on, Ms FF’s view expressed in her second report where she says that it would be in the younger children’s best interests to live with the mother.

2. I accept, as submitted by the mother, that Ms FF’s recommendations change from the first report to the second after taking into account a number of significant changes including:

   a)That Z was living with the mother;

   b)Both X and Y expressed a clear view that they wanted to live with the mother;

   c)All three children had spent much more time with the mother which had progressed from time in a contact centre to unsupervised time;

   d)The mother’s proposal that the children live with her which was not her position in the first report; and

   e)An increased concern regarding the reported risk of the father’s alcohol use.

3. I also accept as argued on behalf of the mother that there were many factors she considered before making her recommendation which are set out at paragraph 1 of the mother’s written submissions.  In my view, having read the report and having heard from Ms FF, it seems that she placed particular weight on the following factors:

   a)The children’s wishes;

   b)A risk to the children’s emotional and physical safety if the father’s consumes alcohol to excess;

   c)The neither parent had been diagnosed with a mental illness that affected their current functioning;

   d)The children were at risk of deteriorating emotional stability in the father’s care and that the mother was better able to provide for their emotional needs; and

   e)The separation of siblings by the father’s proposal.

4. In relation to Y and X’s express with to live with the mother, whilst I accept that it is an important factor to take into account, it is only one factor and I have referred in paragraphs 212 to 219 to the other factors I have to take into account in relation to their views.  I have also placed less weight on particularly Y’s wishes given his age.

5. I also hope I have explained some scepticism I have about the concerns expressed by Z regarding the father’s alcohol use in the second report and the inconsistencies between the two reports in relation to concerns about the father’s drinking.  That of course then raises an issue as to whether or not Ms FF needs to be as concerned as she was in her report that the children’s emotional and physical safety may be at risk if the father drinks alcohol to excess when they are in his care.  I also, as mentioned earlier, accept that the paternal grandmother is a protective factor in the father’s household.

6. I have raised some issues in relation to the ongoing stability of the mother’s mental health, in particular how it was compromised when Z came into her care and there is no independent evidence from the mother’s health professionals supporting her mental health before the court to confirm her attendance for treatment and support and its success. 

7. Ms FF in her second report was of the view that the mother is more likely to support the children’s telephone communication with the father and raised no concerns regarding her commitment moving forward to support the younger children’s relationship with the father if they reside with her.  I do not accept that the evidence would support a finding that the mother will support the children’s relationship with the father moving forward given the concerns that have been raised by various experts referred to already. 

8. Whilst I found that the father is wanting in many respects particularly in relation to telephone communication, in providing emotional support to the children, I have raised my concerns about the in this regard including involving the children in the dispute.

9. I agree that making an order that separating Y and X from Z may not be in their best interests however it is only one factor to take into account and I have referred to some concern that I have regarding the impact on all three children and the mother’s household generally if all three children, CC and Ms BB reside in the same household.

Legal Principles

1. The principles governing my determination in this matter are set out in the Family Law Act 1975 (hereafter “the Act”).

2. Part VII of the Act sets out the objects, principles and matters I must consider when determining what parenting order to make for Z, X and Y.

3. The objects of the Act are set out in s 60B(1) and are there to ensure that the best interests of children are met by:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d)parents should agree about the future parenting of their children; and

   e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

5. Section 60CA provides that when I am deciding to make a particular parenting order, I have regard to Z, X and Y’s best interests as my paramount consideration.

6. Section 60CC outlines the primary and additional considerations I must consider in determining Z, X and Y’s best interests. In considering the primary considerations I must give greater weight to the need to protect Z, X and Y’s from physical or psychological harm, abuse, neglect or family violence.

7. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’, I have considered all sections as required when making my determination but will only refer to those, which in my view, are relevant to the facts and issues in this case.

8. I have also in identifying and considering the most significant issues in this matter dealt with the relevant section 60CC factors including the primary considerations, the children’s wishes, the children’s relationships with their parents and others, the parenting capacity of the parties to provide for the physical and emotional needs of the children, any family violence involving the children and the impact on any proposed change to their living arrangements.

9. A significant factor in this matter which has not been discussed however is the practical difficulty and expense of the children spending time with each other and the other parent.  If the mother and father lived closer to each other, whilst an order for equal time may not be in the children’s best interests given the very difficult communication and problems they have had co-parenting in the past, it would provide the children with an opportunity to spend at least substantial and significant time either with the mother if they remain with their father, or with the father if they remain with the mother.  It would also provide an opportunity for changeover at school given the concerns and the conflict the children have been exposed to at changeovers for some time.  There was some consideration I understand given by the mother to moving closer to the children in New South Wales, however that is not something that she is able to take up in the short term given her stable accommodation and her relationship with Ms BB’s and Ms BB sharing CC’s care.  There was no indication from the father that he would or could reside closer to the mother and he has always lived in New South Wales.

10. The only other factor that has not been discussed is the order which is less likely to result in further litigation.  Given the history of this dispute which is set out in detail in these reasons, I could not with any confidence decide whether making the order proposed by the mother or father would result in more applications including contravention applications filed with the court.

11. In deciding where Y and X should live I have in these reasons identified risks to them in both households.  In the father’s household I accept they are at risk particularly if their father is drinking to excess to not being provided with the emotional support they need and I am concerned about his lack of insight by restricting the children’s telephone communication with the mother.  In the mother’s household their relationship with their father may not be supported and if the mother’s mental health is compromised for some reason, her parenting capacity may be compromised and I cannot be completely confident that they will not be exposed to violence either in the mother and Ms BB’s relationship or between the mother and others.

12. There is no dispute however, even in the mother’s case, that making an order for Y and X to move to the mother’s home will cause them significant disruption.  The mother’s ability to manage that transition and to provide for the physical and emotional needs of all three children is untested.

13. Ultimately it is my view that the impact of a change to the children’s living arrangements outweigh the concerns raised about the risk to them remaining in the father’s household.  For that reason and taking into account all of the other findings referred to, I have decided it is in the children’s best interests to remaining living with their father.  

Parental responsibility

1. The Independent Children’s Lawyer and the parents make different proposals in relation to parental responsibility for all three children.  Whilst I accept that the presumption of equal shared parental responsibility may not be rebutted in this matter, it is my view that that order is not in the children’s best interests.

2. There are many comments made in the various reports in this matter that communication between the mother and father has at times been non-existent and at other times difficult and challenging.  Each parent accuses the other of keeping information from them and/or making important decisions such as relocating the children, changing the children’s school and making medical decisions without consulting the other parent.  There is reference in Z’s school records for example about the school dealing both the mother and father separately rather than jointly.

3. It is my view that it would be in Y and X’s best interests for the father to have sole parental responsibility in relation to those children but require to him to inform the mother of decisions that might need to be made for the children, to seek her input in relation to those decisions, but then to ultimately make the decision and then inform the mother of the decision he has made.

4. The evidence in Ms FF’s report and from other sources including even the father himself and the paternal grandmother indicate that it is highly unlikely that Z will return to live with the father but will remain living with the mother.  For the same reason it is my view that it is in Z’s best interest for her mother to make decisions for her and for that reason I make an order that the mother have sole parental responsibility for her.

5. Given the distance the mother and father reside from each other, an order for equal time and even substantial and significant time is not reasonably practicable.

6. In relation to the children’s time with the mother, despite the distance and the difficulties with changeovers, it is my view, particularly by acknowledging that the younger children, not only wanted to live with the mother but would certainly want to spend more time with her, that it is appropriate to make an order for term time.

7. Given the practical difficulties associated with arranging that time and the children’s exposure to conflict at changeovers in the past, I intend making an order that changeovers happen at a contact centre or if that is not available then at a public place such as McDonald’s.  I also intend, so as to provide the children with the opportunity of maximising term time with the mother to make an order that it occur on at least one weekend each term and in New South Wales.

8. Whilst I acknowledge it was not discussed or proposed at trial, again to acknowledge the younger children’s desire to spend more time with the mother, I will also make an order for extra school holiday time with their mother, such that in one year, they spend all of the Easter school holidays with the mother and in the alternate year, all of the September/October school holidays with the mother.

9. To address Ms FF and the court’s concerns about the father’s restriction on telephone communication, I will be very clear about the orders I make about telephone communication between Y and X and the mother and Z namely that the children have privacy during telephone calls, that the father not time the telephone calls or interrupt the telephone calls or record the telephone calls.  I will however order that neither parent is not to discuss adult issues with the children during those telephone calls or these proceedings in the telephone calls.

I certify that the preceding two hundred and fifty-six (256) paragraphs are a true copy of the reasons for judgment of Judge Spelleken

Date: 21 January 2021