Birch and Birch - [2012] FMCAfam 991

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BIRCH & BIRCH

[2012] FMCAfam 991

FAMILY LAW – Children – both Father and Mother seek that the three children live with them – oldest child’s relationship with Father fractured – equal shared parental responsibility agreed – equal time with both parents not in the best interests of the children – oldest child to spend time with the Father as she chooses – youngest two children to spend significant and substantial time with the Father.

Family Law Act 1975, s.60CC

MRR v GR (2010) HCA 4

Applicant:

MR BIRCH

Respondent:

MS BIRCH

File Number:

ROC 269 of 2009

Judgment of:

Baumann FM

Hearing date:

30 September 2011

Date of Last Submission:

10 April 2012

Delivered at:

Brisbane

Delivered on:

26 September 2012

REPRESENTATION

Counsel for the Applicant:

Mr Smith

Solicitors for the Applicant:

Anne Murray & Co

Counsel for the Respondent:

Mr Galloway

Solicitors for the Respondent:

Burchill Horsey Lawyers

ORDERS

This matter be adjourned for further submissions to 2.15pm on Thursday, 27 September 2012 in the Federal Magistrates Court of Australia at Brisbane.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

ROC 269 of 2009

MR BIRCH

Applicant

And

MS BIRCH

Respondent

REASONS FOR JUDGMENT

Introduction

The longstanding dispute of which these girls now aged 15, 13 and 11, now require the Court to decide which parent should be the primary carer. It is a difficult decision where a number of scenarios need to be considered. The reasons which follow seek to do so.

Competing proposals

The Applicant Father’s proposed orders are set out at Appendix One. The Respondent Mother’s proposed orders are set out at Appendix Two.

Statutory framework

The orders I am asked to make are parenting order and as such the Court must:-
a)Follow the defined legislative pathway being aware of the overarching objects and underlying principles.
b)Be mindful of the requirement imposed by s.60CA that the best interests of the child or children are the paramount consideration, but not the only consideration.
c)Give proper weight to the primary considerations (s.60CC(2)) and the additional considerations (s.60CC(3)) and must also consider the evidence in light of s.60CC(4) and (4A) of the Act.
d)In certain circumstances apply a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
e)When considering whether equal time or substantial and significant time is in the best interests of the child, the Court must consider and make findings as to whether such time is reasonably practicable (see s.65DAA(1) and (2) and MRR v GR (2010) HCA 4).

Contextual history

Although aspects of the history in this matter are controversial, the journey in particular the children, [X], [Y] and [Z] have taken sets the tone for the difficult and finely balanced decision this Court has is required to make.
Statements of fact that follow should be regarded as findings of fact.
The Father is now aged 49 years and the Mother is aged 40 years. The parents married in 1993 and were living in Canada where [X] was born in 1997 and [Y] was born in 1999.
In November 1999, the family decided to immigrate to New Zealand where they lived before moving to Australia in March 2001, residing initially in Brisbane. The family moved to [E] in Central Queensland, where the Father had employment opportunities, in May 2006. Prior to this move, the youngest child [Z] was born in 2001. Even at this stage the family’s journey, it can be seen that by the time the children had moved to [E] in mid 2006, they had lived in three different countries and had been required to adjust to a number of changes which arose from their parents’ decisions.
The tensions in the relationship – and lack of effective communication between the parents, reached a point by April 2008 where the Mother separated from the Father moving herself and the children into crisis accommodation. The Father was very distressed by the Mother’s actions.
At the time of separation, the children were aged 10 years ([X]); nearly 9 years, ([Y]) and nearly 7 years ([Z]).
Strangely, considering the events culminating in separation, the family continued to take a planned holiday to Canada in July 2008. The holiday did not heal the tensions in the adult relationship.
To the parents’ credit, they engaged in mediation after returning from the Canadian holiday, and reached an agreement in December 2008 for the children to live with the Mother and spend time with the Father each alternate weekend and twice during the week on Tuesday and Thursday. The “parenting plan” is Annexure A to the Father’s affidavit filed 4 July 2011.
The Father says that he “felt somewhat compelled to sign the parenting agreement as I was anxious to get a regular regime going whereby I could spend time with my children”. Preceding this agreement, the Father expressed a feeling that the Mother was “curtailing” his time with the girls.
For a few months the arrangements agreed upon at the Family Relationship Centre worked well until early March 2009 when the Mother said (apparently relying to some degree on advice given by her Pastor) that [X] didn’t wish to see the Father.
Not surprisingly, the Father took legal advice and whilst tensions escalated, the Father promptly commenced proceedings in this Court in May 2009. When the matter first came before the Court Federal Magistrate Purdon-Sully ordered the children live with the Mother and that [Y] and [Z] spend time with the Father after school Friday to 8.00pm Sunday each alternate weekend and each Tuesday and Thursday night between 5.00pm and 8:00pm. The orders provided that if [X] “wishes to spend time with the Father then she shall be at liberty to do so”. An Independent Children’s Lawyer was appointed (“ICL”).
Further difficulties with the orders were experienced. The ICL arranged for experienced psychologist Mr S, to assess the family, which he did in interviews which took place in September 2009. A memorandum by Mr S dated 7 September 2009 was produced (see Annexure “E”), in which he gave a preliminary assessment culminating in a recommendation that the children continue to spend regular time with their Father “in a significant and meaningful” manner with “baseline schedule of contact” for one weekend a month for [X]. Mr S opined that the children should be allowed to go to Canada with their Father alone for a Christmas vacation.
On 16 September 2009, Federal Magistrates Jarrett ordered by consent that the three children spend time with the Father in Canada from 17 December 2009 to 15 January 2010.
Mr S, from his report dated 15 April 2010, did not further assess the children after the trip to Canada with the Father – although he appears to have had a discussion with the parents, I infer, by telephone. His report filed 23 April 2010 resulted in final orders being made by consent on 29 April 2010. The orders provided for the children to live with the Mother and for all three girls to spend time with their Father:-
a)every second weekend from 2:45pm Thursday until before school Monday;
b)every Tuesday between 5:00pm to 8:00pm;
c)half of the school holidays and special days like the Father’s birthday.
Importantly, in view of the history, the Court ordered that the parties share parental responsibility including as to:-
“whether the children need further counselling, and which counsellor is appropriate.”
with the parents agreeing on a particular psychologist should be engaged to decide “if further ongoing counselling is necessary or not”.
The children, and the parents, would have hoped the final orders made brought to an end further litigation. Alas, that was not to be the case.
The orders worked reasonably well until 3 February 2011 when an incident at the children’s school occurred. I deal with this event more fully below. The Father holds the belief that the incident was precipitated by the Mother because she became aware of the Father’s intention to spend time with a female Canadian friend from 17 February 2011. Not surprisingly, the increased contact difficulties forced the Father to re-litigate, with the Father filing an application on 23 February 2011.
The Father cannot be criticised in any way for delaying action – his solicitor was constantly sending letters to the Mother (no doubt on his instructions), but was receiving no response. He was consistent in his assertion that the Mother was influencing the children against spending time with him. He had become increasingly frustrated.
Although the initial Application in a Case was essentially an Enforcement Application, the Application relied upon by the Father in May 2011, for the first time, sought that the children live with him and that the children spend time with the Mother in the same regime as the children were then spending time with the Father (being alternate Thursday to Monday; every Tuesday and half school holidays).
Although, after the events of February 2011, the Mother had commenced an application for a Protection Order, the application was withdrawn by the Mother.
The breakdown in time between the Father and the child [X] in particular was the focus of contested interim proceedings heard by Federal Magistrate Cassidy in Rockhampton on 9 May 2011. Unsurprisingly, her Honour arranged at the cost of the Court, for the family to be further assessed by Mr S urgently. On 11 May 2011, Mr S reinterviewed the parties and the children. He published his report on 25 May 2011. He was the subject of cross-examination at the trial held on 29 and 30 September 2011. I deal with his evidence below.
The transcript of the hearing before Federal Magistrate Cassidy on 9 May 2011 was relied upon in the trial – particularly, it seems, to demonstrate that the Mother misunderstood the intent of her Honour’s words, which prompted the Mother to procure letters from the children. On this occasion before Federal Magistrate Cassidy the Mother was unrepresented. Her Honour patiently considered the observations made by the Mother that the children did not wish to spend time with the Father. The arrangements had, by 9 May, broken down. The “letters” from the children tendered to her Honour the following day, on 10 May were Exhibit 1 to those interim proceedings. I expressed concerns about any weight that could be applied to the handwritten documents of the children, which attempt to explain “why I don’t feel safe”.
In short, they allege acts of physical abuse towards the children by the Father – at dates difficult for the children to recall; they alleged the Father was discussing the proceedings (and the engagement of lawyers) with the children. The circumstances in which the Mother procured from the children their statements, makes it difficult for me to apply any real weight to the statements. Counsel for the Mother, at the trial, did not contend otherwise.
Federal Magistrate Cassidy identified that an immediate therapeutic support for these children was necessary. A Mr G offered counselling in June 2011, however time again ceased in August 2011.
The trial in this matter in the Rockhampton circuit was initially listed for July, however adjournments of the hearing meant the trial did not commence until 29 September 2011, concluding on 30 September 2011. The Court regrets the delays in this matter, including the delays in publishing the reasons for judgment.
Whilst reserved for the judgment on 23 January 2012, the Father made an application to reopen the evidence. His affidavit in support of that application confirmed that the Father had not seen [X] on 11 October 2011, and that telephone time, which started well “had petered out”. The younger children [Y] and [Z] spent time with the Father between 2 December and 28 December 2011. For part of the week beginning 19 December the girls stayed with the [omitted] family, as the Father was working. The Father’s evidence (at paragraphs 7 and 8) reveal an “ugly” incident of conflict between the parents in front of the children on 20 December 2011. I accept the Father was by this stage extremely frustrated and disappointed. I accept that the Mother did raise her voice, demanding that the Father “leave her property” or that she would ring the Police – which the Mother did.
With the intervention of the Police, the two younger children returned to their Father to complete their holiday time until 28 December (although at one further time [Z] “ran away again” and [Y] grabbed the phone and rang “000”). The Father alleges (however no further cross-examination on this evidence was undertaken), that the Mother “orchestrated” the event - most likely because the Maternal Grandmother was visiting from Canada at the time.
The Mother responded to the Father’s evidence by affidavit filed 24 February 2012. The Mother makes allegations about the Father’s behaviour and intimidatory verbal remarks by him. Again, the Father was not the subject of cross-examination when the Court took further submissions from the parties on 10 April 2012, in Brisbane. In essence, the Mother continued to assert that she was encouraging of [Z] and [Y] to spend time with the Father. The Mother says that when the younger children returned to her in 28 December 2012, they did not bring [X]’s Christmas presents with them, as the Father allegedly said “if [X] wants them, she can come and get them, she knows where they are”.
Since the further submissions were taken from Counsel on 10 April 2012 (when brief records from Queensland Police about their involvement on 20 December 2012 was also tendered (see “Exhibit 4”), no further evidence or proceedings have been taken. The Court infers that the children [Y] and [Z] continue to spend time with the Father and that, regrettably [X] spends no time with the Father.
Before considering the evidence within the matrix of the relevant primary and additional considerations below, I will deal with the evidence and findings relating to the February 2011 school incident and the evidence of Mr S.

The school incident – 1 February 2011

The Court chooses to make some observations about this event – as it in some ways, demonstrated a turning point in the history of the relationship between the Father and his daughters – particularly [X]. Although the Mother and Father give their versions about the lead up to the events at school, the Court had the evidence of school Principal Mr J – in education for 25 years and a school principal for 12 years, including since the beginning of 2011 of the children’s school [E] School. He was the subject of cross-examination.
Often in cases like this, schools are “dragged into” family disputes. The dividing line between when to support a child expressing a view (contrary to one of the parents) and when to step back is far from clear. The principal made it clear, properly in my view, that he could not be seen to physically force the children to go with the Father – children who were in the sick room on the day and upset. The Mother, who works at the school was comforting them. The principal says “I heard the Respondent say to the girls that they know they had to go with the Applicant and she tried to encourage the girls to go. They continued to refuse”.
The principal indicated to the Father that whilst he was happy to support him with what the Court orders say, he was not going to force the girls into his care. In his role, the principal could do no more. The Father strongly believes the principal could have done more – in a sense inferring that he was actually supporting the Mother identifying opposition to the girls spending time with him.
On this day, despite the Father spending about one hour with the girls trying to persuade them to go, [X] and [Y] left with him however [Z] refused and she went home with the Mother.
The principal says on the 4 February 2011 the children again refused to go at paragraph 12, the principal sets out his observations of the way the Father interacted with the children. The principal was cross-examined by Counsel for the Father on paragraph 12 of his Affidavit, in which he swore that:-
“On or about 4 February, 2011, the girls again refused to leave the school with the Applicant. He was putting a lot of emotional pressure on them to go with him and they were getting increasingly upset by this. I heard him say to them words to the effect that the Court order said they had to go with him. Further, he asked them questions and it appeared if they did not tell him what he wanted to hear he would continue to question them and ask for clarification on what they were saying. This was causing the girls great distress. His method of questioning the girls was cold, logical and clinical. In my opinion he was not interacting with them appropriately given how distressed they were and he was exasperating the situation”.
Under cross-examination, Mr J acknowledged he may have merged some of the events on the 3 and 4 February. Although I accept that the principal did say to the children, words to the effect:-
“if you do not feel safe you do not have to go home with Dad”.
The Father says, by saying such words, the principal was lending his “Authority” to the Mother’s position. Rather with three distressed children in his care, it seems to me the principal was trying to validate their expressed feelings – [Z] having told the Father, in the principal’s presence that “I hate you and I won’t go with you”, on the 1 February 2011.
I accept the Principal’s description of the interaction between the Father and the children as “clinical”. The Father was extremely frustrated and felt his authority as a Father with the benefit of Court orders, was being challenged.
However, I am satisfied that his reactions on that day, although understandable, did exacerbate the issues.
It is the hope of all children who are involved in a conflictual family situation, that their school offers a “sanctuary” from conflict. Schools should be a place where the children can learn and socialise with an absence of parental interference. Whilst the Mother, as a part time [occupation omitted], is entitled to work where she chooses – selecting the children’s school as an employer only fuelled the Father perception of the Mother further enmeshing herself in the children’s lives.
School records were produced (Exhibit 3), and reveal significant absences noted as being “sick” for all the girls. I accept the Father’s concerns in respect of school absences (or high levels of “sickness”) as justified. The Mother, when cross-examined acknowledged significant absences – explaining that “sometimes they are sick” or said “there is a lot of reasons”. She said on occasions the children would kick her and refuse to go to school. This was more so in 2009 and 2010, however she felt these events had reduced during 2011.
The records did not support the Mother’s beliefs – the absences to September 2011 for the 2011 school year were still significant. It is noted that on a number of occasions (eg. 3-6 May 2011), the girls were absent at the same time.

Evidence of Mr S

Mr S had, as the history reveals, an opportunity for a longitudinal assessment of the family dynamics. The original assessment of the individual presentations of the children are instructive. In his email dated 7 September 2009 to the Independent Children’s Lawyer (then appointed), he describes the children as follows:-
“the eldest child presents as intelligent and sensitive with strong feelings – or at least expressions of – discomfort and rejection of her father, while presenting as very loyal to her Mother and championing her to some extent by arguing with her Father on the Mother’s behalf …..The middle child is very bright and precocious…..The youngest child decided she did not want to talk with me, despite encouragement from her Mother….”

These initial assessments were within a context of Mr S being asked to opine about the children spending a holiday with the Father in Canada – which they did at Christmas 2009.
Moving forward through the assessments, by the time Mr S gave evidence at the hearing, he had formed the view that:-
a)Since the previous report, the children’s relationship with the Father had deteriorated.
b)When asked to opine as to the psychiatric state of the parties he declined saying he is not a clinically trained psychologist, and although he has a familiarity with a range of personality disorders, he is not in a position to diagnose either party. To that extent therefore, I must treat Mr S’s opinion that the Mother’s relationship with the children has some “pathological elements” with some caution.
c)The Mother finds it extremely difficult to mask her anxiety, with the Mother believing she and the children have been “injured” by the Father and that she needs “time to heal”. This has created a form of insecure attachment between the Mother and her children.
d)Although the Father showed some insight and genuinely cares for and loves the children, he needs to increase his “sensitivity” to the girls’ issues. I took these comments to means, and on all the evidence I would find, that the Father was not attuned emotionally to these three girls in the same way or to the same extent as the Mother. He often has too much relied upon his “authority” as the Father.
e)The pattern of behaviour of the children is unlikely to change without a change in attitude by the Mother. The risk would be a loss of the children’s relationship with the Father.
f)It is possible and probable that the oldest child could adversely influence the young or children. [X] demonstrated that she is more determined “to prove her Father does not like her”. Mr S acknowledged (although seemingly a little uncomfortable with the labelling of “alienation”), that usually an alienated child would not have a good time with a parent and although he does not necessarily agree that the Mother is deliberately alienating the children, some distancing process is going on.
g)Some of the Mother’s presentation appeared exaggerated about recollections of the Father’s past behaviour – even hysterical at times. The close relationship all three girls have with their Mother would be difficult for them to withdraw from without affect.
I found Mr S’s assessment helpful. A great deal of his report seems to include a range of generic opinion, which whilst interesting, was more an example of theory than an actual connection between the theory and the facts of this case.
When pushed, reluctantly, Mr S hesitated to suggest a change of residence as being the “only way forward”, but said from what he has heard it is “the strongest option”. He accepted, whilst in theory, the change of residence if ordered could be accompanied by a moratorium of time between the children and the Mother, this could have a “brutal effect”.
Counsel for the Mother referred the expert to paragraph 54 of his report, when he said:-
“54. If the court were to change the living circumstances of the children, such that they lived primarily with their father, we could expect to see some significant responses. It might be hoped that making this change would free the children from an anxious attachment to their mother, allowing them to bond more equally with both parents and begin to develop their own individual attitudes and approach to life. While this outcome is possible, it is less likely than one in which both the children and their mother experienced separation anxiety with a variety of negative reactions ranging from sullen withdrawal, the development of various ailments and difficulties, perhaps with school as well as health, through expressions of anger, loss and even trauma, self harming or suicidal ideation, and even active self harm. I would not be surprised if one or all of the children ran away from their father and attempted to return to their mother’s home, and she would find it extremely difficulty to send them back- particularly if further allegations of mistreatment were made about him.”
He said he still held to the views expressed. Of course, paragraph 54 must be read in context with paragraphs 55 to 60, concluding with the stated view that “unless some clear evidence exists to suggest that Mr Birch presents a real threat of danger or abuse to the children, then the Court could give careful consideration to the option of placing children in his care”.
These remarks, made in the May 2011 report, reveal a fairly ambivalent recommendation. I am not surprised by that ambivalence. The issues are finely balanced. The best interest of these three children have been the subject of significant conflict and litigation. The relationship between [X] and her Father is estranged – however she is now 15 years of age and at a quite different developmental stage of her life than [Z] who is only 11 years old.
As I explore below in the assessment of the primary and additional considerations, a change of residence for [X] is not likely to be in her best interests. This then raises, as a matter for consideration whether the siblings should be separated. Even Mr S did not contemplate the effect of that possibility – and the parties did not raise it with the Court. This presents a dilemma which I raise in these reasons below.

Primary and additional considerations

In dealing with the primary and additional considerations, the Court is aware that the amendments to the Family Law Act 1975 which came into effect (in part) in June 2012 expand the definition of family violence and also involved other significant changes. The law, as it applied at the hearing, must be applied and the examination of the best interests of the children must be conducted through the matrix of the s.60CC(2) and (3) prism as previously enacted.

Benefit to the child of having a meaningful relationship with both of the children’s parents

I am satisfied in this case that it is in the best interests of the children [X], [Y] and [Z] that they do have a meaningful relationship with both parties. The evidence reveals that the opportunities the Father has had to nature those relationships have been interrupted. In [X]’s case, those interruptions have materialised into a more strident expression of opposition to seeing her Father – other than on her terms. The evidence at trial and since, demonstrates that maintaining the momentum of regular time has not been easy. Nonetheless, as I set out below, although the Father’s words and strong views have been quite different to those of the Mother, he cares for his children and is their primary male role model. He has, individually, different life experiences and perspectives to share with his daughters and I find, him having the chance to do so, is likely to nurture a meaningful relationship into the future.
The Mother has, since separation at least been the primary carer. They have a well developed meaningful relationship with her. She continues to meet their physical needs. Whether she meets their psychological and emotional needs now, and into the future, lies at the heart of the decision I am asked to make.

The need to protect the children from physical or psychological harm

The Mother asserts consistently that the Father shoved [X] up against a wall and pushed her on a mattress (this occurring during the Canada holiday); yells at the children; has physically disciplined the children and even hit them on the head. She alleges that the Father has been mean to their pets. The Mother says that a combination of these events have made the children “scared” of the Father. I am prepared to accept that the Father has physically disciplined the children (but not excessively) and that he has on occasions spoken to them in a loud voice. I do not accept he is a cruel person likely to vindictively hurt the children’s pets. I am satisfied that his parenting style is more rigid and authoritarian than that of the Mother, who seems quite malleable to the children’s wishes. My assessment of the Father is that when the children do spend time with him, he thinks about involving them in enjoyable activities. With his education background and achievements he is able to engage at a higher intellectual level, on my assessment, than the Mother.
The Mother, as Mr S opines, has developed a more enmeshed relationship with her daughters than might be healthy for them. She certainly expressed a feeling that the Father needs to be “forgiven” for his actions – although this quest for forgiveness seems to stem from the Mother’s spiritual beliefs rather than some true assessments of some inappropriate behaviour from the Father. The Mother, as I explore further below, does find it hard to accommodate the children’s relationship with their Father. She seems confronted by his parenting style and persistence (shared it seems by his legal team who, to their credit, have maintained the pressure on the Mother). The Mother is however, on many fronts, a very capable mother who is actually devoted to her children. It would not be going too far to say they are her whole life and that her role as a parent defines her completely. I am concerned that the history of interruptions to the Father’s time with the girls shows a lack of consistent support of the Father’s relationship with the children. In very blunt submissions filed 13 March 2011, the Father contends that there are a number of clear messages that the Mother should have delivered to the girls, but is unable or unwilling to do so (see for example paragraphs 6, 7, 13). The Father says the Mother’s actions in taking [Z] to the Police Station to “sort this all out” and to have the children prepare letters for Federal Magistrate Cassidy delivered on 10 May 2011, all represent examples of the lack of insight the Mother has into the emotional damage she is exposing the children to. I am prepared to accept the Mother could have, as an unrepresented litigant, misunderstood the words spoken by Federal Magistrate Cassidy. I can not be so generous with the Mother’s actions over December 2011 – and again find her actions concerning.
At paragraphs 57 and 58 of his report, Mr S expressed concerns about “what seemed a dramatic change of attitude to the Father over the space of a few days” (after their letters to the Court), and he went further to say that:-
“Although Ms Birch claims that she has not influenced these children in this matter it is very likely that she has done so, both overtly and covertly … it is very likely that either Ms Birch spoke to the children and told them to reconnect with their Father, despite their concerns, or at least displayed to the children that she approved of such behaviour, perhaps after receiving guidance from her God.”
I accept, at the very least, the Mother has the capacity to influence the children’s behaviour positively to continue to engage with the Father – and should do so.

Wishes

In view of the history of exposure to parental conflict – the Court would need to be cautious in accepting the words the children speak as a genuine expression of their feelings.
For example, even after the February 2011 incident, and the “letters” to the Court in May 2011, the children re-engaged with the Father – and the two younger children had, I find, an enjoyable time over Christmas holidays 2011.
[X] has expressed, both in words and actions, that she does not wish to pursue time with her Father – and I am firmly of the belief that the relationship between this child and the Father needs strong yet supportive therapeutic intervention. I deal with my concerns below about “forcing” [X] at age 15 years to live with her Father and the dramatic negative effect that I think such action is likely to have on his relationship with her and, most likely, the relationship between the siblings. Although Mr Galloway at the hearing expressed some concerns about whether the therapist Ms B has moved from a therapeutic role to a advocacy role, I would still prefer to have the Mother engage a therapist known and connected with this 15 year old girl, rather than to require her to engage in a new relationship. Whether or not forensically, the child has “suicidal ideation”, the child has expressed some concerning thoughts.
The younger children have consistently expressed a desire to remain living with their Mother. I have heard different versions of opposition to spending time with their Father – but simply do not accept that there is a strong foundation for any concerns. I agree the Mother parents much more passively, however the children are at an age where, given the opportunity, they should be capable in discerning the unique qualities that time with their Father enables them to enjoy. The Mother should be more positive about those opportunities – which are likely to lead to the children believing they have the approval of their Mother to spend time with their Father, without thinking they are putting at risk their relationship with the Mother – and even their older sibling.

Relationships

I do not repeat what have already made findings about the nature of the parents’ different relationship with the children. Tragically, it seems, [X]’s relationship with her Father is estranged. Its repair lies in both time and therapy. Although severely tested, my finding on the evidence is that the children [Y] and [Z] still have an intact and meaningful relationship with their Father. The orders I propose to make will give the children that continued opportunity to develop that relationship – and, I speculate, perhaps optimistically, encourage [X] to see the benefit to her of re-engaging with her Father. The incident over the Christmas 2011 presents referred to earlier, is unfortunate. The Father would have been better to send the presents back to the Mother’s home – and make that overt show of affection which the child could assess for herself, more positively. Instead, it fuelled the child’s cynical view of the Father positively.
I have already made findings about the Mother’s relationship with the children. As the children gain greater independence, her at time suffocating approach, could work against her. I believe that the Mother is more attuned to the children emotionally – however this allows her greater capacity to influence their relationship with the Father.
In circumstances where [X] has spent little time with the Father now for over one year, and where, as the eldest sibling, she does have some influence on her younger sisters, the need to consider the sibship relationship looms as a major consideration for the Court. All the evidence points to a strong sibship bond – although as Mr S opined, the children present with quite different personalities. Sibship bonds often endure and comfort a child when they are at odds with a parent or are disengaged. In life, children often come to a point where the believe what their parents said or did (or, for that matter, what they didn’t say or should not have done), was not right. There is every prospect each of these children might individually come to such a conclusion, however, at the current time, the Court would not find it appropriate to separate the siblings, if that were the result of [X] continuing to remain, (as she seeks) to live with the Mother. This finding does weight heavily on the Court’s consideration.

Willingness and ability to facilitate, and encourage a close and continuing relationship between the child and the other parent

This factor along with the next issue of the effect of change, do shape the decision the Court is being asked to make. Put simply, the Father contends strongly that unless a change of residence is ordered, the Mother will not facilitate time such that he will ultimately have no relationship with the children. I should indicate, that despite the level of frustration the Father feels about the Mother’s behaviour, I do find he would still recognise and support the Mother’s relationship with the children, if they lived with him.
There is ample evidence to establish that the Mother has, in my view, demonstrated a lack of ability to facilitate time with the Father. The history speaks for itself. In the absence of any deeper psychological analysis of the Mother (including a psychiatric examination which might have been helpful), whether the lack of ability has a pathological basis is unable to be determined. I have referred to the evidence of

Mr S that the Mother would find it difficult to change her behaviour.
The issue that then arises is whether the only way for the Father’s relationship to be nurtured, is by the children being required to live with him. The effect of such an order would be significant as is dealt with next in these reasons.

Likely effect of any changes

The Father submits that the evidence of holiday time (like the Canada trip and the Christmas 2011 period) reveal that the children can transition into his care for large blocks of time happily. Mr Galloway, nor for that matter did Mr S suggest difficulties would not be experienced – such as the child running away or proving difficult to manage. Certainly, so far as [X] is concerned, even though she has had little time with the Father, the Father still believes an order for her as well must be made. When the suggestion of a moratorium was raised, the Father did not support that notion – describing it as a brutal effect. He sensitively saw such a moratorium as problematic.
The Mother’s minute of order is a reduction of time for the Father from that ordered by Federal Magistrate Jarrett. More importantly, the Mother says that [X] should spend time with her Father in accordance with her wishes. Currently, that manifests as no time, which creates this dilemma for the Court:-
a)Should the Court order for [X] to live with the Father – contrary to her express (if not fully mature) wishes and when, at her age, her wishes have been consistent and are now long standing. If the child was “forced” to live with the Father (which is the way the chid would portray the order), it is in my view likely to break down almost immediately. It would also have an effect upon the younger children who would witness such behaviour in the Father’s home. Despite the Father’s confidence he would handle the situation, his lack of sensitivity to the children’s views in the past creates real doubt as to whether he can.
b)If the Court took the view that the children’s relationship with the Father is still intact (despite the failings of the Mother), then it is possible to order that [Y] and [Z] live with the Father – and rely upon orders made to ensure, in absence of a change of stance by [X], that they maintain their sibship relationship by spending time in their Mother’s home. A separation of these siblings at this stage of their development could be life changing, and the Court would find it difficult to regard it as in their best interests. The positive, of course, is if it did work well, this could encourage better (more compliant) behaviour by the Mother and might act as a catalyst for a change in attitude by [X] and even the Mother.
The third alternative is for the three siblings to remain living with the Mother, but to order that the Father has significant and substantial time – at least each alternate weekend from Thursday to Monday and half of the school holidays. I would regard time each Tuesday (as ordered in 2010) as more potentially disruptive now. The Court could be open to a submission that the children [Y] and [Z] spend even a block of five nights with the Father to ensure he has a real opportunity to cement the relationship with the children after periods of disruption. Certainly, spending this amount of time with the Father and away from the Mother has not really proved to be a difficulty during holidays. This alternative comes with the risk of the Mother not accepting how her actions in the past have harmed the children, such that she continues to undermine the relationship (either overtly or covertly) and by so doing, the Father is put in the same position as he now finds himself.

The benefit of the third alternative is not to reduce all the risks, but rather preserve the prospects of the sibship relationship enduring.
The Court accepts that none of the scenarios painted above are ideal.

Practical difficulties

At the time of the hearing, both parents lived close to each other and, at the time of reopening, the distance had increased to just under 5 kilometres. Some practical difficulties have arisen via the poor and ineffective communication between the parents and some stressors arising from the Father’s work commitments. Quite disproportionately, the Father’s decision to ask the [omitted] family to look after the younger children over part of the December 2011 holidays, created a furore. It should not have – however, as noted a combination of factors allowed the tensions to boil over. In that regard, I do accept the description of the Father’s Counsel Mr Smith on 10 April 2012, that the Mother’s evidence of a “mistaken belief” about the orders (paragraph 28), were completely disingenuous.
Apart from the difficulties poor communication always create, no particular practical difficulties do arise in this case.

Capacity and attitude to parenting

It has already been recorded in these reasons, that the Mother and Father are quite different people who parent differently. Despite the deficits and challenges identified in the Mother’s parenting, the children seem to be reasonably well adjusted. It is concerning, of course, that the Mother has allowed the children to avoid school for at times inappropriate reasons. The children appear to like their current school, and have friends and activities within that school community. As they all progress through their secondary education, school attendance becomes extremely important. If the Court orders that the children remain living with the Mother, it would propose to provide by order a duty upon the Mother to inform the Father if the children (or either of them), spend more than two consecutive days absence from school and the reasons therefore.
The Father both in his affidavits and in his demeanour in the witness box, displayed a clear preference for structure and recognition of his authority. It is not difficult to understand why the children, brought up in the Mother’s home in a more relaxed “do as you wish” environment, might be confronted with the Father’s approach. However, they should not be; as both approaches offer something different yet useful as a model.
Provided the parents were able to find some acceptance of some aspects of the other’s parenting styles, the children would cope. Unfortunately, that has not been the case to date.

Family violence

I am not satisfied that the children have been the subject of family violence other than the witnessing of verbal disagreements and the Father’s, on one or two occasions, physical disciplining. The father does not present to me, on the evidence, as an angry parent – but certainly presents as a very frustrated one. No family violence orders exist.

Making an order least likely to lead to further proceedings

It would be brave indeed to predict that any order I can make – where I have already described the options as less than optimal – will bring further litigation to an end.
During the preparation of these reasons, for the reasons that are apparent, I have contemplated making an interim order. In fact the Father proposed, at one stage of his submissions, that the Court should make a final order for the children to live with him, and that any order for the children to spend time with the Mother be capable of adjustment. The order he sought at Appendix One, has such a character.
After such a journey of litigation, both parents want – and the children deserve – finality. However, where the evidence shows a fractured relationship between the Father and [X] (which I believe is capable of repair), and a relationship between the Father and the younger children that has experienced difficulties because, I find, principally due to the Mother’s behaviour, is a final order achievable?
It would not be appropriate for me to make an interim order unless the parties had a chance to be heard on the form of order – including the need for the Mother to take up counselling options (for which she would be given leave to produce the [Mr S] report and these reasons), and some therapy for the children.

Evaluation

The Court acknowledges that the decision is finely balanced in some respects.
The Mother’s past behaviour is the subject of strong criticism in these reasons and should be. Whether she feared for her own relationship (within an insecure attachment as suggested by Mr S); has unresolved hatred for the Father or some steep challenges to her capacity to separate her own feelings from what she should knows is the best interests of the children – I am unable to say conclusively.
However, in some aspects the Father (perhaps understandably) seeks orders which I believe are likely to cause more harm to the children’s important relationships with each other, then the Mother could impose upon the Father’s relationship.
I actually regard it as a distinct possibility that the children will see the Mother’s parenting as less appropriate as they get older. In one part of the Mother’s testimony she indicated the children rarely (if even) have “sleepovers”. There are other examples of the Mother’s enmeshed relationship. These sensible and intelligent girls are likely, through their Father if given the opportunity, to judge for themselves the values and principles they wish to adopt as they get older. School is an incubator for such thoughts, as are peers and parents.
If, however, the arrangements between the Father, [Y] and [Z] break down again, any residual finding in support of the Mother would probably completely evaporate. It is my hope that would not occur.
I do not oppose, as both parents seek, making an order for equal shared parental responsibility but in my view equal time is not in the best interest of the children or reasonably practicable.
I am persuaded that [X] should be entitled to live with the Mother and spend time, as she chooses, with the Father. The Mother will be required to identify suitable therapy or counselling for himself and [X].
It is, in my view, in the best interest of the children [Y] and [Z] to spend substantial and significant time with the Father and I believe this is reasonably practicable.
Although I would certainly order that the time extend fortnightly from after school Thursday to before school Monday (allowing changeovers to occur at school) extended to before school Tuesday if Monday is a public holiday, I would be prepared to hear submissions about the time commencing from after school on Wednesday.
I see not reason why the children should not spend half the school holidays and share special occasions with the Father.
I will list the matter, having delivered these reasons in writing by arrangement, for further submission at 2.15pm on Thursday, 27 September 2012.
Any further submissions as to the form of the orders can be mad at that time.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Baumann FM.

Date: 26 September 2012

APPENDIX ONE

That all previous Orders be discharged.
That the Mother and Father have equal shared parental responsibility for the major long-term issues of the children, [X] born [in] 1997, [Y] born [in] 1999 and [Z] born [in] 2001 (“the children”) except that the Father shall have the sole responsibility for making decisions about the children’s education and their health care.
That otherwise the parents are to consult each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
a)They shall inform the other parent about the decision to be made;
b)They shall consult with each other on terms that they agree;
c)They shall make a genuine effort to come to a joint decision.
That notwithstanding the provisions of Order 2:
a)The Mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her;
b)The Father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.

Exchange of Information

That the Mother and Father shall:
a)Keep the other parent informed at all times of a contact address and mobile contact telephone number;
b)The Father keep the mother informed of the names and addresses of any treating medical or other health practitioners who treat the children;
c)The mother not initiate any medical or health care for the children without the father’s consent unless in an emergency situation;
d)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This Order authorises any treating medical practitioner to release the children’s medical information to the other parent;
e)Inform the other parent as soon as reasonably possibly of any issues arising that could impact on child/parent relationship.
That the parents irrevocably authorise, by this Order, the schools attended by the children and extra-curricular activity providers to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at the requesting parent’s cost).
That during the time the children are with either parent, that parent shall:
a)Respect the privacy of the other parent;
b)Not question the children about the personal life of the other parent;
c)Speak of the other parent respectfully;
d)Not denigrate or insult the other parent in the presence or hearing of the children; and
e)Use their best endeavours to ensure that third parties do not denigrate or insult the other parent in the hearing or presence of the children.

Time with the Parents

That the children live with the Father in [E] and that the change-over of the residence of the children from the mother to the father is to take place on [date to be inserted].
8.1In order to facilitate the change-over of residence, the mother is to produce the children for that purpose to the father’s residence.
8.2Until the date of change-over of the children’s residence, the mother, and all persons acting or purporting to act on her behalf (other than Mr S) are hereby restrained from informing the children of or discussing with them the proposed change-over.
8.3As soon as Mr S is available after the date of change-over the father and the children shall present at the office of Mr S to discuss the issue of change-over with the children and that Mr S supervise compliance with the above Orders and give to the father and mother such assistance as is reasonably requested by either of them in relation to compliance with and the carrying out of these Orders.
8.4After [Mr S] shall give the Court not later than [time to be nominated by Mr S] from the date of the change-over of the children’s residence under these Orders, or earlier if he considers it necessary or appropriate a report in relation to compliance by the parties with these Orders and in relation to the following matters:-
a)The children’s adjustment to and how they are coping with living in their father’s household;
b)The children’s reaction to and how they are coping with the separation from their mother;
c)Whether any and if so what further Orders for the children to spend time with their mother should be made;
d)Such other matters relevant to the welfare and best interests of the children.
Following the change-over of the children’s residence until further Order the mother’s time spent physically with the children be suspended for (such period as recommended by Mr S) during which time the mother’s contact with the children to be by phone or supervised by the father for such period as recommended by Mr S.
9.1That the Mother commence counselling with a Counsellor to be agreed between the parties forthwith with a view to assisting her to deal with the change in residency and to gain some insight into how her own actions have impacted on the relationship that the children have with their father and that the father if considered necessary by the Counsellor be a part of such counselling.
9.2The question of the mother spending time physically with the children be stood over for further consideration by the Court on a date to be fixed by the Registrar upon receipt of the Report referred to in paragraph 8.4 of these Orders.
That the children be made available for telephone contact with the Mother at all reasonable times when the children are with the Father and similarly that the children be available for telephone contact with the Father at all reasonable times when the children are with the mother. All calls shall be made by both parties (with the knowledge of both parties) to the others landline.
That the children be made available for telephone contact with the mother between 5:00pm and 5:30pm on special days to include:
a)The children’s birthdays (unless a child’s birthday coincides with the time the children would otherwise spend with the Mother);
b)The mother’s birthday;
c)Christmas Day (when the children are in the father’s care).
In the case of paragraph 11(a) the mother will initiate the call to the Father’s landline, and
In the case of paragraphs 11(b) and 11(c) the father will initiate the call to the mother’s landline.

APPENDIX TWO

Final Orders Sought

That all prior Orders of this Honourable Court be discharged.
That the children [X] born [in] 1997, [Y] born [in] 1999 and [Z] born [in] 2001 (“the children”) live with the mother.
That the parties share parental responsibility for the children for the major long term issues of the children including but not limited to:
a)The children’s education (future and current);
b)The religious and cultural upbringing of the children;
c)The children’s health;
d)The children’s names and any changes to same;
e)Any changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with either parent;
f)The children’s discipline and in this regard neither party shall physically discipline the children; and
g)Whether the children need further counselling, and which counsellor is appropriate and the parties agree to be guided by the children’s general practitioners in respect to this issue.
That the parties shall where necessary communicate for the purposes of this term of the order by use of a communication book.
That the children commence counselling with Ms B or any other such counsellor as may be agreed between the parties, forthwith with the view to assisting the children and the father’s relationship.
That the children continue with the counselling referred to in Order 5 hereof, until such time as the Counsellor deems that such counselling is no longer required.
That the parties will engage with the children’s counsellor as and when requested and undertake all acts and things reasonably requested of them by the counsellor to assist the children’s treatment.
That [X] attend upon a psychiatrist, as referred by her General Practitioner or as can be agreed between the parties, until it is deemed by her treating psychiatrist that treatment is no longer required.
That the children [X] spend time with the father as and when can be arranged at the child’s discretion.
That the children [Y] and [Z] spend time with the father as follows:-
a)Each alternate Saturday and Sunday from 9:00am until 5:00pm;
b)Every Tuesday from after school (if the father’s work commitments allow) from 5:00pm until 8:00pm;
c)Thereafter, upon the recommendation of the children’s counsellor, as referred to in Order 5 hereof, that overnight time should commence as follows:
i)Every second weekend from 2:45pm Thursday (pick up from school) until the start of school Monday;
ii)Every Tuesday after school (if the father’s work commitments allow) or from 5:00pm until 8:00pm;
iii)For the second half of the June/July, September/October and December/January gazetted school holidays in even years and the first half of such holidays in odd years;
iv)For the Father’s Day weekend each year, and the father acknowledges that if Mother’s Day falls on a weekend he is due to spend time with the children, his time will be suspended to allow the children to spend the mother’s day weekend with the mother.
That the children, save for [X], be made available for telephone contact with the father each Monday, Wednesday and Friday between the hours of 5:00pm and 8:00pm and that the telephone call is to be initiated by the mother. If the call has not been initiated by 8:00pm the father can initiate the telephone call. All calls shall be made by both parties to the other’s landline.
The child [X] is at liberty to communicate with the father via telephone at all reasonable times, and the child shall initiate such calls.
That the children be made available for telephone contact with the father between 5:00pm and 5:30pm on special days to include:
a)The children’s birthdays (unless a child’s birthday coincides with the time the children would otherwise spend with the father);
b)The father’s birthday with the mother to initiate the call.
That each parent is to advise the other of their residential address and telephone numbers and to advise the other of any changes within 48 hours of such change.
That during the time the children are with either parent, that parent shall:
a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
b)Speak of the other parent respectfully;
c)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
That this Order shall hereby authorise any Doctor, hospital, and/or health professional to provide to either parent any information concerning the health of the children.
That this Order shall hereby authorise any school the children may be enrolled at from time to time and any other organisations the children may be involved with for the extracurricular activities to provide to the father copies of all school reports, weekly newsletters, school photographs, (at the cost of the party requiring same) and any other documents regarding academic progress or achievements of the children and notification of such important events as parent/teacher events, sports days and concerts.
That each parent must advise the other of any medical or other emergency involving the children as soon as practicable in the circumstances.
That the parties enrol in a post separation parenting course within 7 days of the date of these orders and provide a certificate of completion of the course to the other party within 7 days of receipt of same.
That the father enrol in and complete an anger management course and positive parenting program.
Any other Order this Honourable Court deems appropriate.