BLOOM & CHESTERMAN
[2018] FCCA 680
•23 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLOOM & CHESTERMAN | [2018] FCCA 680 |
| Catchwords: FAMILY LAW – Parenting – dispute as to with whom two children aged 12 and 10 live – where mother not adequately facilitated time with father – where mother derogatory of father – where mother is dispelling her fears about father onto the children – where mother holds unshakeable view that she is right and father is wrong – where dynamics brought about by mother are putting children at risk of emotional harm – where if children remain with mother then relationship with father, stepmother, siblings and stepsiblings will deteriorate and cease – Held in children’s best interests to live with father, for there to be a moratorium where children do not see mother for a school term then alternate weekends, half school holidays and special event time with the mother. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DA, 65DAA, pt.VII |
| Cases cited: Johnson & Johnson (2000) 201 CLR 488 |
| Applicant: | MR BLOOM |
| Respondent: | MS CHESTERMAN |
| File Number: | BRC 7796 of 2016 |
| Judgment of: | Judge L. Turner |
| Hearing dates: | 15 February 2018 and 16 February 2018 |
| Date of Last Submission: | 28 February 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 23 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bunning |
| Solicitors for the Applicant: | Pullos Lawyers |
| The Respondent appeared in person |
FINAL PARENTING ORDERS
That all parenting orders and parenting plans made before 15 February 2018 are hereby discharged.
That Order 3 of the final parenting orders made by consent on 15 February 2018 is hereby discharged.
That these orders are to be read in conjunction with the final parenting orders made by consent on 15 February 2018.
That after the delivery of the reasons for judgment, these orders be explained to the children by a family consultant, with the family consultant to be provided with a copy of the reasons.
That it is at the discretion of the family consultant as to whether the children are given the opportunity to say goodbye to the mother.
That forthwith the children [X] born (omitted) 2006 and [Y] born (omitted) 2007 live with the father.
That the father have sole parental responsibility for the children and is to keep the mother informed as to any major long terms decisions made for the children.
That the mother not spend time with or communicate with the children (whether by telephone, text message, email or any other means) until 16 July 2018.
That from the 16 July 2018 the children spend time with the mother as follows:-
(a)That during school terms and commencing Friday 20 July 2018 and every fortnight thereafter from after school Friday (or after school Thursday if Friday is a public holiday or student free day) to 4.00pm Sunday (4.00pm Monday if Monday is a public holiday or a student free day at school) with the mother to collect the children from school at the commencement of time and with the father to collect the children from Relationships Australia Contact Centre at (omitted) at the conclusion of time.
(b)In odd numbered years for the first half of all school holidays and in even numbered years for the second half of the school holidays (with the school holiday period calculated as the period from close of school on the last day of school to 4.00pm Sunday on the Sunday before school resumes) with the mother to collect the children from school if a school day, otherwise all changeovers are to occur at Relationships Australia Contact Centre at (omitted).
(c)If the children are not otherwise with the mother then on the Mother’s Day weekend from after school Friday to 4.00pm Sunday with the mother to collect the children from school at the commencement of time and with the father to collect the children from Relationships Australia Contact Centre at (omitted) at the conclusion of time.
(d)If the children are not otherwise with the mother then on the children’s birthdays and the mother’s birthdays, if a school day from after school to 7.00pm and if a non-school day from 3.00pm to 7.00pm with changeovers to occur at McDonalds (omitted).
(e)In even numbered years from 4.00pm Christmas Day to 4.00pm Boxing Day with changeover to occur at McDonalds (omitted).
(f)In odd numbered years from 4.00pm Christmas Eve to 4.00pm Christmas Day with changeover to occur at McDonalds (omitted).
That the father spend time with the children as follows:-
(a)If the children are not otherwise with the father then on the Father’s Day weekend from after school Friday to 4.00pm Sunday.
(b)If the children are not otherwise with the father then on the children’s birthdays and the father’s birthdays, if a school day from after school to 7.00pm and is a non-school day from 3.00pm to 7.00pm with changeovers to occur at McDonalds (omitted).
(c)In odd numbered years from 4.00pm Christmas Day to 4.00pm Boxing Day with changeover to occur at McDonalds (omitted).
(d)In even numbered years from 4.00pm Christmas Eve to 4.00pm Christmas Day with changeover to occur at McDonalds (omitted).
That if at any time for changeover Relationships Australia Contact Centre is unavailable then changeover is to occur at McDonalds (omitted).
That the parties and/or their nominees may attend changeover and attendance by a person that the other party does not approve of is not an excuse for changeover not to occur.
That at times when the children are moving between the parties’ residences, the party from whom the children are departing must ensure that the following are packed and returned to the other party:-
(a)Any medication;
(b)All school uniforms;
(c)School bags;
(d)Books;
(e)Homework;
(f)Lunch boxes;
(g)Drink bottles;
(h)Children’s mobile phones; and
(i)Any other item of clothing that has been purchased by the other party.
That from the 16 July 2018 the mother, when the children are not in her care, shall telephone the children each Wednesday and Saturday night between 7.00pm and 7.30pm.
That from the 16 July 2018 the children may telephone the mother at any reasonable time.
That when the children are in the mother’s care the father shall telephone the children each Wednesday and Saturday night between 7.00pm and 7.30pm and the children may telephone the father at any reasonable time.
That unless otherwise provided for in the orders, the mother is restrained from posting anywhere on social media any posts regarding the father, his wife, his children and stepchildren and any member of the father’s extended family.
That the parties shall keep each other informed at all times of their residential address and contact telephone number, and shall provide their new address details or new contact details to the other parent within three (3) days of the change occurring.
That the father be at liberty to engage a counsellor or psychologist for the children to assist with their transition to his care, and is not required to consult with the mother as to the selection of the counsellor or psychologist.
That the father may provide, if required, to the children’s counsellor or psychologist or any other treating mental health practitioner for the children a copy of:-
a)The family reports released in March 2017 and November 2017.
b)The final parenting orders.
c)The reasons for judgement.
That the parties be at liberty to contact the selected counsellor or psychologist in order to receive information regarding any treatment plan for the children.
That the parties communicate regarding matters only relating to the children via the “Our Children” website, and may only communicate via text message in the event of emergency.
That the parties be at liberty to travel overseas with the children and remove the children from the Commonwealth of Australia in accordance with section 65Y Family Law Act 1975, provided that:
(a)The proposed period of travel falls within a period in which a children would be living or spending time with that party pursuant to these orders;
(b)The party travels with the children for the entire period during which the children are travelling unless otherwise agreed in writing between the parties;
(c)Each country to which it is intended the children will travel, whether by way of final destination, stopover or in transit, shall be a signatory to the Hague Convention on the Civil Aspects of International Child Abduction and shall not be the subject of a travel advisory warning “Level 3 – Reconsider your need to travel” or “Level 4 – Do not travel” issued by the Australia Department of Foreign Affairs and Trade unless otherwise agreed in writing between the parties; and
(d)The travelling party shall not less than six (6) weeks prior to the intended departure, provide the other party with, a detailed written itinerary of the proposed trip:-
(i)Including the date of departure and return.
(ii)Flight details and times.
(iii)All locations and destinations of travel.
(iv)Details of accommodation for the entire period of travel (including if applicable, the name of accommodation, address and telephone and email contact details:
(e)The travelling party shall not less than four (4) weeks prior to the intended departure, provide the other party with:
(i)A copy of the booked tickets in the party’s and children’s names (either the hard copy tickets or a written confirmation of the tickets from a travel agent or airline) for the departure and return flights;
(ii)Confirmation of travel insurance and overseas health insurance for the travelling party and the children;
(iii)A copy of the full itinerary; and
(iv)Details of an email address or telephone number at which the children and party can be contacted during the trip.
That pursuant to section 11(1)(b) Australian Passports Act 2005, it is hereby ordered that the children [X] born (omitted) 2006 and [Y] born (omitted) 2007 be issued with an Australian travel document.
That pursuant to section 11(1)(b)(ii) Australian Passports Act 2005 and these orders, the children [X] born (omitted) 2006 and [Y] born (omitted) 2007 be permitted to travel outside the Commonwealth of Australia using an Australian travel document.
That the parties will do all acts and things and sign all documents, within seven (7) days of being requested to do so, necessary to make application to the Australia Passport Office (or such other department or instrumentality administering the Australian Passports Act 2005) to enable the children [X] born (omitted) 2006 and [Y] born (omitted) 2007 to be issued with an Australian travel document.
That in the event that a party refuses or neglects to sign any document necessary to issue the children [X] born (omitted) 2006 and [Y] born (omitted) 2007 with an Australian travel document, such refusal will constitute sufficient special circumstances for a party to seek that the Minister administering the Australian Passports Act 2005 give consideration to issuing an Australian travel document pursuant to section 11(2)(a) Australian Passports Act 2005.
That the father retain possession of the children’s passports for safekeeping and if the mother is travelling overseas with the children in accordance with these orders, that the father shall deliver the children’s passport to the mother not less than fourteen (14) days prior to the date of intended departure, and that the mother will return the children’s passports to the father within seventy-two (72) hours of return from any international travel.
That if a party is travelling overseas with the children, the party must arrange for the children to telephone the other party, within four (4) hours of arrival at the intended destination (and any flight stop-over), on each alternate day during the period of the trip, and within four (4) hours of arrival back into Australia.
That it is declared that the children’s permanent and habitual place of residence is the Commonwealth of Australia and that permanent and habitual place of residence is not effected by any travel undertaken by the children outside of the Commonwealth of Australia other than by further Order, of this Court of agreement in writing between the parties.
IT IS NOTED that publication of this judgment under the pseudonym Bloom & Chesterman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 7796 of 2016
| MR BLOOM |
Applicant
And
| MS CHESTERMAN |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties are in dispute as to future parenting arrangements for the children [X] aged 12 and [Y] aged 10.
Agreed orders
At the final hearing the parties reached consent as to the following final parenting orders:-
a)Day to day care for the children when in the party’s respective care.
b)Telephone communication at reasonable times.
c)Provision of information as to schooling and health.
d)Non denigration.
e)Not involving the children in the court proceedings.
f)Not passing information or messages through the children or asking the children about the personal life of the other parent.
g)No physical discipline.
h)No consumption of alcohol to excess.
i)Not exposing the children to illicit drugs or guns and rifles.
j)Acting respectively during changeovers.
Proposals
The father’s preferred position is that the children live with the father, the father have sole parental responsibility, that there be a moratorium before the mother spends time with the children, that the mother spend alternate weekend time during school terms as well as half school holidays and special event time, that changeover occur at a contact centre or school and that the children be permitted to travel overseas.
If the court does not support an order for the children to live with the father then the alternate position is for equal shared parental responsibility for the children, for time during school terms for three weekends out of four weekends, extensive holiday time and special event time, that changeover occur at a contact centre or school and that the children be permitted to travel overseas.
The mother’s preferred position is that the children live with the mother, the mother have sole parental responsibility, the children spend time with the father on alternate weekends during school term as well as half the school holidays and special event time, that all changeovers occur at (omitted) McDonalds, that overseas travel is not permitted and that there be text or telephone communication nightly between the children and the other party.
If the court does not support an order for the children to live with the mother, that the mother spend alternate weekends with the children during school terms, half the school holidays and special event time, that all changeovers occur at (omitted) McDonalds, that overseas travel is not permitted and that there be text or telephone communication nightly between the children and the other party.
Issues
The issues requiring determination are:-
a)With whom are the children to live?
b)What time is to be spent with the other parent?
c)How is changeover to occur?
d)What orders are to be made for overseas travel?
Evidence
In considering this issue regard has been had to:-
a)The material as marked on the court file.
b)The Notices of Risk.
c)The two family reports prepared by Ms C in March 2017 (March family report) and November 2017 (November family report).
d)The exhibits.
e)Oral evidence of the parties.
f)The written submissions of the parties.
g)Part VII Family Law Act 1975.
h)Relevant authorities.
The father is legally represented.
The mother is self-represented.
In accordance with Johnson & Johnson (2000) 201 CLR 488 and Re F Litigants In Person Guidelines [2001] FamCA 348, the court process was thoroughly explained to the mother, and every attempt was made to ensure that there was fair process to the mother during the final hearing.
For the father the following witnesses were called and cross examined:-
a)The father.
b)Ms C (father’s wife).
Ms K, the father’s former partner was not required for cross-examination.
For the mother the following witnesses were called and cross-examined:-
a)The mother.
b)Ms W (the maternal grandmother).
In addition to the parties and witnesses, the family report writer was cross-examined by both parties.
I find the family report writer to be a credible witness and I give significant weight to her oral and written evidence.
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.
Presentation of the parties and witnesses
Before considering the matter further, comment must be made as to the parties and the witnesses.
Father
The family report noted that the father:-
a)Presented as “a sensitive man who is frustrated and emotionally impacted as an outcome of persistent conflict with the mother regarding his time spent with his children” ([34] March family report).
b)“Remained polite and co-operative throughout…a personable man who is committed to maintaining a relationship with [X] and [Y]” ([49] November family report).
During the course of the final hearing, I had the opportunity to observe the father both in an out of the witness box.
The father presented as an almost broken man.
The father was often visibly upset and was intimidated by the mother.
At one point Counsel had to move the chair (to in front of the father) to prevent the mother from trying to stare down the father during her cross-examination.
In his cross-examination the father responded in a thoughtful and measured manner.
Findings
I find the father to be a credible witness who has clearly been worn down by the ongoing dispute with the mother, together with the lengthy court process which has cost the father dearly, not only financially but also emotionally.
I further find that the father is child focused and that his number one priority is for the children to be parented positively into the future and to have a loving relationship with each of their parents.
Ms C
The family report noted that Ms C:-
a)Presented as “an emotionally mature woman who is committed to maintaining her relationship with” the father “and his children” ([62] March family report).
b)Was “polite and co-operative throughout” ([72] November family report).
Ms C presented herself during cross-examination as open, committed and caring.
Findings
I find Ms C to be a credible witness who is supportive of the father.
Mother
The family report noted that the mother:-
a)Presented “throughout the entire assessment process” with a “highly anxious approach….. resistant, defensive and passive aggressive in her communication throughout” ([51] March family report).
b)And at the second interview “remained polite and co-operative throughout” ([60] November family report) although she felt “disgruntled with the recommendations made in the former Family report” and had “perceived the writer had formed a biased and negative view of her…the process was not objective” ([61] November family report).
The family report writer during cross-examination commented that “my impressions of the mother were somewhat similar in the second instance that we met…. was not as anxious but certainly defensive and passive aggressive in her communication”.
During the course of the final hearing, I had the opportunity to observe the mother both in an out of the witness box.
Apart from a few tears where reality hit that the court could order for the children to live with the father, the mother was stoic and assertive in her approach and held an unrelenting view that the mother is right, that it’s her way or it’s no way and that the father is wrong.
The mother had an excuse for every one of her actions (such as not providing time to the father, her social media attack on the father and her being subject to a domestic violence order (DVO)) and in these excuses clearly portrayed herself as the victim where she had been wronged.
Even after she was asked by the court not to, the mother during the final hearing repeatedly stared at the father, often smiling, causing him obvious discomfort.
The mother was not fazed by his discomfort.
The mother is unshakeable as to her negative and denigrating views of the father.
As a consequence the mother believes that her views are correct.
The mother refused to have her beliefs tested, questioned or scrutinised; even after the mother was challenged by the family report writer during two interviews.
Findings
As such I find that the mother is a credible witness as the mother was brutally forthright and direct in her evidence due to these strongly held, albeit, misguided beliefs.
I, however, find that the mother is not child focussed as the mother has no understanding or insight as to how her behaviour negatively impacts on the children.
Maternal grandmother
Upon observing the maternal grandmother in the witness box, it helps explain why the mother is so righteous in holding on to her own beliefs, even if they may not be based on fact.
The maternal grandmother is aggressive and indignant and has set views on everything and her views are the correct views, no matter what is put to her.
Findings
I find that the maternal grandmother (like the mother) is a credible witness, but also like the mother is not child focussed.
The children
Comment must be made as to [X] and [Y]; the children who are the subject of these proceedings.
[X]
The family report noted that [X]:-
a)Is an “emotionally immature young girl who is shy and reserved” and “deeply impacted by her parents high-conflict relationship, highlighting that she has an acute understanding of the dynamics within” ([68] March family report).
b)“Has been enrolled in four (4) separate primary schools to date, highlighting instability in her schooling arrangements” with her intending “to transition to (omitted) School in the 2018 school year” ([69] March family report).
c)Is “an emotionally immature child who is emotionally impacted by her parents’ persistent conflict” ([79] November family report).
[Y]
The family report noted that [Y]:-
a)Was an “initially shy and immature child who experienced some difficulty engaging individually with the writer” ([75] March family report).
b)Was “an emotionally immature boy who lacks self-confidence” ([87] November family report).
c)Has, according to the mother, “been recently diagnosed by a paediatrician with Autism Spectrum Disorder” ([76] March family report).
d)Is having repeated difficulties at school and at the time of the November 2017 interviews (when in Grade 4) [Y] was only permitted to attend “school from 8.45am to 12pm” due to “an outcome of non-compliant behaviour” ([88] November family report).
Findings
I find that the children are vulnerable and susceptible to the ongoing conflict and need stability and calm in their young lives.
Relevant history
I now turn to the relevant history in this matter:-
a)The father is aged 33 and is a stay at home father.
b)Ms C is aged 34 and works fulltime as a (occupation omitted).
c)The mother is aged 35 and is a stay at home mother.
d)In 2004 the parties commenced cohabitation on an “on again off again” basis where there were several periods of separation.
e)As at the time of cohabitation the father had a child from another relationship ([A] now aged 13) who lives with his mother and spends regular time with the father on weekends and school holidays.
f)In 2006 [X] was born.
g)In 2008 [Y] was born.
h)In 2012 the mother moved the children to (omitted).
i)In January 2013 the parties finally separated with the children living with the mother in various places.
j)After separation the father’s time with the children was irregular.
k)In 2013 the mother moved the children to (omitted).
l)In 2014 the mother moved to (omitted) in New South Wales.
m)In 2015 the father commenced cohabitation with Ms C.
n)At the time of cohabitation Ms C had two children ([B] now aged 14 and [C] now aged 16) from a previous relationship living with her.
o)In 2016 the mother moved back to Queensland.
p)Since moving back to Queensland the mother has lived at several locations and moved again just months prior to the final hearing.
q)In August 2016 the father commenced parenting proceedings.
r)In March 2017 the first family report was released which recommended on an interim basis that:-
i)The parties have equal shared parental responsibility for the children.
ii)The children live with the mother.
iii)The children spend time with the father on alternate weekends, school holidays and special events.
iv)The parties complete a post separation co-operative co-parenting program.
v)The mother engage in counselling.
s)In (omitted) 2017 the father and Ms C married.
t)In (omitted) 2017 [D] was born to the father and Ms C.
u)In November 2017 the second family report was released that recommended on a final basis that:-
i)In the event the court determined it was in the best interest of the children to live with the mother then the parties have equal shared parental responsibility for the children and the father spend time with the children on alternate weekends and half school holidays.
ii)In the event the court determined it was in the best interest of the children to live with the father then the parties have equal shared parental responsibility, that for two months the children not see the mother, then the mother spend time with the children three weekends a month, half school holidays and special days.
v)In February 2018 the matter proceeded to a final hearing.
As at the date of the final hearing:-
a)The father is living with Ms C, her children and their child [D] in (omitted).
b)The father is spending time with the children on weekends, school holidays and special events.
c)The mother is living with [X] and [Y] in (omitted).
d)The mother is not in a relationship.
e)The travelling distance between (omitted) and (omitted) is approximately 1 hour 40 minutes each way.
The law
I will now turn to the law.
The principles governing the determination of competing parenting applications are set out in Part VII Family Law Act 1975.
In essence, when making a parenting order the Court must consider what is in the best interests of the child pursuant to section 60CA.
But, as succinctly put by Murphy J in Hardie & Capris [2010] FamCA 1046 at [48]:-
“‘Best interests’ is not the application of a theoretical construct but rather, the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular child… of this parenting relationship.”
As discussed by the Full Court in Moose & Moose [2008] FamCAFC 108 at [66] the role of the judicial officer in making orders which are in the best interests of the child is to determine the best interests having regard to “the matters set out in section 60CC(2) and (3), guided in …consideration of the provisions by the objects set out in section 60B(1) and the principles underpinning it contained in section 60B(2).”
As to the primary considerations and the leading authority of Mazorski v Albright (2007) 37 Fam LR, Brown J refers to such considerations as “the twin pillars”:-
a)Where the first pillar is the importance of children to have a meaningful relationship with both parents; and
b)The second pillar is the need to protect children from physical and emotional harm.
In deciding what is in the best interests of the individual child, sections 61DA and 65DAA come into play, because if the children are the subject to an equal shared parental responsibility order, then equal or substantial and significant amount of time to be spent by the non-resident parent, if reasonably practical, must also be considered.
This distinct pathway, which applies to parenting matters when an equal shared parental responsibility order has been made, is the subject of much discussion by the High Court in MRR v GR (2010) 263 ALR.
Relevant findings
Before considering the section 60CC considerations it is necessary for certain findings to be made on a number of issues.
Parties’ relationship leading to final separation
The parties spoke at length to the family report writer about their ongoing difficult relationship leading up to final separation in January 2013:-
a)“The parties reported that their relationship was turbulent from the onset, advising that regular conflict, hostility and ‘break up’s” had characterised their union throughout” ([4] March family report).
b)The father “advised that they had separated ‘at least ten times’ prior to” the mother “becoming pregnant” reporting that he perceived the mother was “‘always difficult’” to communicate with and that their relationship was never “stable” ([4] March family report).
c)The mother “advised that conflict continued ….. throughout the pregnancy reporting that following an incident whereby” the father “is reported to have ‘stabbed himself’ intentionally during a heated dispute, she ended the relationship, advising that she was approximately seven (7) months pregnant at that time” ([5] March family report).
d)The parties reunited “prior to [X]’s birth, reporting that he was witness to the birth of their daughter. However, she recognised the relationship was unstable” ([5] March family report).
e)The parties separated when [X] was aged 4 months ([7] March family report).
f)The parties remained in contact but the father felt excluded from [X]’s life ([8] March family report).
g)[Y] was conceived when the parties were separated ([9] March family report).
h)Leading up to [Y]’s birth the father had limited contact with the mother and the children ([10] March family report).
i)After [Y]’s birth the parties recommenced cohabitation and moved to (omitted) with the father travelling to and from Brisbane for work ([11] March family report).
j)When [Y] was thirteen or fourteen months old the parties separated with the mother moving away with the two children ([12] March family report).
k)When [Y] was four, the parties recommenced cohabitation in Brisbane ([13] March family report).
l)The parties finally separated in January 2013 ([13] March family report).
Findings
I find based on the evidence that the parties had a tumultuous and fractured relationship prior to separation and the parties were unable to successfully co-parent during this time.
Father’s time with children prior to court proceedings
The family reports note the following about the parenting arrangements up to when the court proceedings were commenced by the father in 2016:-
a)When the parties separated when [X] was aged four months, the mother was reluctant in allowing the father to spend time with the child “as she perceived ‘Mr Bloom was dealing drugs’ and was essentially ‘homeless’” ([7] March family report).
b)The father explained that after this separation as soon as the mother “would say I could see” [X] “I would jump at the chance” but that the mother “applied a punitive approach” to his time with the child and the mother “was always in control” ([8] March family report).
c)Leading up to [Y]’s birth the father had limited time with [X] ([10] March family report).
d)When the parties separated again when [Y] was fourteen or fifteen months old, the father said that the mother was restrictive with the time the father could spend with the children and the mother would regularly “stop me seeing” the children “for stupid reasons” ([12] March family report).
e)After the final separation in January 2013, the father explained that the “parenting arrangements were largely determined by” the mother “reporting she was largely ‘unreasonable, controlling’ and obstructionist during the times he had requested to spend independent time with the children” ([14] March family report).
f)The mother states from her perspective the father “was largely unavailable and irresponsible to supervise the children adequately throughout, reporting that from her perspective she had been required to ‘hound’” the father “to accept the responsibilities that parenting brings and she had been required to ‘force him’ to spend time with the children in order to maintain their relationship” ([14] March family report).
g)In June 2016, the parties reached an agreement after mediation whereby the father spend time with the children on alternate weekends and half the school holidays.
h)The family report writer notes that “ there are disparate views regarding the success of the establishing parenting plan with both parties abrogating responsibility toward the other with regard to its limited success” ([15] March family report).
i)The father said “that from his perspective the devised parenting plan was ineffective from the onset, reporting that on the first scheduled weekend” the mother “had informed him that [X] and [Y] would be unavailable as she was ‘taking them to a friend’s birthday party, which established the tone for ongoing negotiations throughout” ([15] March family report).
j)The mother disagrees “reporting that [X] and [Y] had spent time with” the father “as outlined in the parenting plan” but that “his expectations regarding his time spent with the children were unrealistic, giving due regard to the limited time [X] and [Y] had been in his care throughout and from her perspective his limited ability to care for the children independently” ([15] March family report).
The mother throughout her trial affidavit is highly critical of the father of not spending time with the children, placing the blame on him for being in essence an absentee father.
The mother repeatedly complains about this issue (through her Facebook entries, text and emails) as illustrated by the following:-
a)Facebook entry by mother 26 October 2012 “I’ve fought wit him for yrs to have the kids every 2nd wknd, he’s had them twice this yr an said he won’t take them again coz last time he had them I was at the pub. If he loved his kids an didn’t ignore them to get at me it’d be a different story. I want him to know the kids but I don’t want him in control an me left calming the kids coz he’s an ass”
b)Facebook entry by mother 7 January 2013 “Dear daddy. I miss you a lot because I haven’t seen you for like a long time. And I wish I could see you right now. How are you going over there? Our cat is being crazy right now and she’s gone mental but I wish we had a pet dog and you said you were going to buy us one, you know I really miss you and I want to see you again. And you know [Y] hates you he’s watching horrible histories now’ Love [X]”
c)Facebook entry by mother 15 January 2013 “Tell me why you didn’t call your children for Christmas. Tell me why you haven’t contacted your children for 9 weeks. Tell me why your children don’t have a contact number for their dad. Tell me why your children don’t know where their daddy is. Tell me why I have to calm the kids down and wipe away their tears when they ask for you. Tell me why you cry over missing us but you’re the reason we’re apart. Tell me why you say you love me but just disappear. Tell me what we done to deserve this. I’ll tell you something. It hurts”
d)Facebook entry by mother 2 February 2013 “My daughter jus rang her so called grand father to ask if she could speak to her dad, what does he do? He hangs up on her!! The sooner Mr Bloom signs away his parental rights the better!! Yes he visits his other son but the slag of a mother won’t help out [X] an [Y], probably busy hiring him cars an running after him same as always!! He’s chosen to have nothing to do with the kids an that’s why I’m so angry. They cry an ask me questions that I don’t have the answers to, his whole family covers for him an think his children missing him is a joke. He’s hidden for 3 months, I only want him to sign papers to say he’s never coming back. He still sees his other son an that kids mum is a dirty lying slut so why ignore these pair? I’m done trying to figure it out, jus want it over forever”
e)Facebook entry by mother 29 December 2013 “Shock horror, no one fall on their asses but Mr Bloom is finally giving the dad thing a go and has had the kids since boxing day. What’s going on lol”
f)Facebook entry by mother 28 February 2014 “Typical, the sperm donner is taking his eldest kid to the (omitted) show tomorrow, didn’t want to take [X] and [Y] along. If you see him there, smack him up side the head!! I’ve tried in the past to get him to sign away his parental rights but he refuses. If you can make the effort for one of your children, why not the others, it’s beyond me!! It’s at the point where every time he calls the kids ask to see him, he feeds them excuses and they’ve had enough, they won’t take his calls anymore. Normally it’s the mother stopping contact to play power games but it’s me fighting with him to see them or just disappear again. I’m sick of seeing the kids disappointed and let down by him all the time. You’ve made the decision you want nothing to do with these kids for the 4th time in their lives now, sign away your parental rights, they don’t need you, they don’t ask about you, they know you’re there for [A] and they have guys that actually love them and do stuff for them, just let us be free. The worst thing about you disappearing when we lived on the (omitted) was I never knew when you would just show up, now there’s a bat at my door waiting for you coz that’s the only greeting you’ll receive. I’m done with this shitty fucked shit you pull allll the time, I’m sick of the kids being reminded over an over again just how low you really are and how much more you love [A] over them. Just sign the damn papers and the four of us can be happy!! Doesn’t matter what job title you end up with, doesn’t matter how much money you make, you’ll always be a cunt through the eyes of these kids from your actions towards them”
g)Facebook entry by mother 1 June 2014 (showing a photo of the father) “This is Mr Bloom. Unfortunately I have two kids to him. He’s had no contact with them for over a month now. Trying to find him so he can simply sign his parental rights away. He done the same thing last year to the kids only it went on for 6 months and I found him at his grandmother’s funeral. He is not a parent and I want him off my children’s birth certificate. Thank you for any help”
h)Facebook entry by mother dated 31 October 2015 “Why now? 4 months of nothing, not contacting your children and you call this morning and leave your number??? We don’t want it, you’re not a Father, you’re not anything He’s in town!! I’m freaking out, wants to meet me at 3, we moved 14hrs away from the cunt. I’m furious right now. I hope he crashes and dies”
i)Text message mother to father August 2016 “The kids have been quite impressed with your cash so I told them how you got it. They have morals and are looking are judging you. I love how you make out I kept the kids from you when you’ve never given a damn about them, does Ms C give you more allowance for your act? My mate sent me that pic for you, couldn’t be truer”
The evidence however supports (through her Facebook entries, text and emails) that it is the mother who repeatedly interfered in the father spending time with the children as illustrated by the following:-
a)Facebook entry by mother 12 January 2014 “Try and do something nice and tell my ex he can take all the dvds to discover that the slimy fuck also ran off with all my xbox games!! If you’re unfortunate enough to meet a Bloom from (omitted), I suggest you run!! The WHOLE lot of them are users and liars, some come with added trait of being thieves. Can’t wait to live my life away from low scum fucks such as the Blooms. No way in hell will my children be exposed to those backward fucks ever again in their lives It’s heartbreaking. I’d love for my children to be loved by their dad but unfortunately he just doesn’t We moved to nsw last year to stop this cycle of crap. The kids are doing so great without him, when he’s involved in their lives, we’re constantly harassing him trying to find out when he’s going to spend time with them… I’m not fighting with him to be a dad any longer, he’s going to have to pay his maintenance debt and take me to court now. [X] is 10, she’s cried everyday since he first made contact… I hate it”
b)Facebook entry by mother 13 February 2014 “You can call 30 times from a private number, I’m not letting you talk to [X] till you give your phone number. We had the best day, she didn’t ask for you once. You can keep your number to yourself and I’ll keep my precious babies all to myself. You’re not a dad, have fun with your life”
c)Text message mother to father 3 December 2015 “Don’t tell me what’s a good idea and what’s not when it comes to my children, yes they’re mine, I’m the only person they’ve been able to rely on. You are extremely selfish, why hype them up over presents when you’re not going to be seeing them? [Y] is convinced you’ll show up, it’s the one time of year you make an effort to see them. Zero contact with you was the happiest moments of our lives, I know these kids better than anyone and you are not a father to them, you disappoint them in ways you don’t even realize. We’re done with suffering from your bullshit. Just stay away. And we won’t be here January. I have no intentions of telling you where we’re going, the kids are unaware as I don’t want them telling you. I don’t owe you a thing. You had more than enough chances to be a dad and you never wanted to, it’s too late now. Why is it when we lived in Qld he never had the time of day for them and now he’s trying to make out he’s a dad?? The only kid that can count on him doesn’t belong to me, mine are still waiting for their pair of Nikes and to be worth every 2nd weekend, they’re worth all my weekends so he can fuck off already. Sorry for the ramble, just want him to let us be happy now and stay away”
d)Facebook entry by mother 4 December 2015 “It gets easier as they get older and realize what a piece of shit their dad really is, how anyone can treat their children by the way he does is beyond me but luckily my babies have an awesome mummy x”
e)Text message mother to father 9 June 2016 “You’ve let her down as a dad in the worst possible way, I don’t even know if allowing you another chance is worth the risk. I didn’t want you to know we’re back, you’ve caused a lot of hurt to my children, I’ve worked overtime to fill the gap you left in them, don’t make me regret you seeing the kids, too many ppl will be out for your blood and I won’t hold them back. I’m worried about when it all stops, you changing your number and disappear all over again… I’m serious about (omitted) and your junkie mates, I don’t have scummy people around them and I expect you to do the same. Are you living with a partner or friends?”
f)Text message mother to father 12 June 2016 “It’s going to take time for her to want to see you, she’s not ready but I hate seeing her cry and you are the reason for her tears. I didn’t track your ass down, you contacted us. I’m not doing this, claim the teenagers as your own and stay the fuck away from my kids. I have a daughter here that’s absolutely shattered from your neglect. I have a son here who up until now believed you genuinely gave a fuck about him, don’t ring back until Wednesday is the response he gets.. You haven’t changed one bit, this was just a show for your piece of shit gf”
g)Text message mother to father 13 June 2016 “You’ve lied to your gf about why you don’t see your kids, tell her some more lies coz you’re not seeing them again”
h)Email mother to father’s solicitor 3 August 2016 “I have told Mr Bloom he’s not having the children for 2 nights again as I can’t take every 2nd Monday off work. As a result of the events that took place and the lack of care [X] received, I am only allowing one night per fortnight for the children to be in his care until Mr Bloom can show he’s being responsible with them. Since the weekend, [Y] is being more disruptive in class, the teacher is at her wits end, Mr Bloom wasn’t willing to go halves in a private pediatrician with me to get the school the help they need with [Y]. I might lose my job after having this week off to look after [X]. I just expected better from Mr Bloom and Ms C. Both [X] and [Y] claim it wasn’t them that drove past my place but I’m not sure if he’s coached the kids into saying that. A black jeep with a man identical to Mr Bloom and even wearing the same blue long sleeve shirt is just too many coincidences. He hasn’t come over so it’s not that big of a deal, just everything else is”
i)Text message mother to father 8 August 2016 “Hahahaha, all I have to say to you is good luck. 110% not giving them for 2 nights again. You’re not the parent who has been there for them and you neglected [X]’s needs when she was ill, you failed to tell me she was ill. As stated earlier, take me back to mediation or court coz you have zero power in the situation and it’s all about what’s best for the children which is fuck all time with you. You have me, I really don’t give a fuck. These are my children. I’m the only that’s sacrificed things for them and put their wants and needs first. You have zero power over me. Be grateful I’m even allowing one night per fortnight. You want 2 nights, show you’re going to be responsible coz you haven’t yet. I’m done with the shit honestly. Visitation will resume once we go back to mediation and the piece of paper says on night per fortnight or simply take me to court. That’s your options. Take me to court coz I’m done with your bullshit”
j)Email mother to father’s solicitor 11 August 2016 “I have great concerns regarding Mr Bloom’s contact with my children. I was delighted when he finally decided he’d like to spend time with the children and even more happier to learn his new girlfriend wasn’t a junkie like his previous girlfriend”
k)Email mother to father’s solicitor 12 August 2016 “As he cannot provide adequate care for my children and he refuses to accept one night per fortnight until court proceedings, the children will not be available to him until finalization of court proceedings”
l)Undated text message “The first time you scare my children will be your last as they won’t want to come back. You want 2 nights, show you’re going to be responsible coz you haven’t yet. I’m done with the shit honestly. Visitation will resume once we go back to mediation and the piece of paper says on the night per fortnight or simply take me to court. That’s your options”
Findings
I find based on the evidence that leading up to the court proceedings, the father’s time with the children was at the discretion of the mother and that the mother failed to facilitate and interfered in facilitating appropriate time between the father with the children.
I further find based on the evidence that the mother has been disparaging and denigrating towards the father through these social media exchanges.
This is certainly illustrated in the Facebook entry of January 2014 which reads “Quick question, does anyone know if you can hire a suicide bomber for a family function? Not my family, for an entire lot of low life scum. Not one decent soul exists in that family” referring to the father and his family.
Father’s time with children after court proceedings commenced
Since court proceedings were commenced in August 2016 the following has occurred in respect to the father’s time with the children:-
a)In October 2016 the court ordered on an interim basis that the father spend with the children each Sunday from 10.00am to 5.00pm.
b)In December 2016 the parties reached interim consent orders whereby the father spend time with children each alternate weekend from 10.00am Saturday to 4.30pm Sunday as well as special event time and a week during school holidays.
c)In December 2016 the mother ceased the alternate weekend time as set out in the court orders because the father brought his brother to a changeover (the brother having remained in the car without talking to the mother).
d)From December 2016 the father spent some day time periods with the children on three occasions in February 2017.
e)The father explained to the family report writer that the mother “continues to ‘dictate’ his parenting arrangements. He advised that he understands he has ‘gone along with’” the mother’s “requests between December 2016 and to date ‘just so I can see my kids’, advising that any alternative would involve him not spending time with [X] and [Y] due to the availability of a contact centre” ([49] family report).
f)After 19 February 2017 the mother ceased time with the children on the basis that the children did not want to see the father and that [X] was upset as Ms C was pregnant and the father and Ms C were getting married ([25] March family report).
g)During the family report interviews in March 2017 the mother refused the father the opportunity to supervise the children during the time the mother was being interviewed for the report ([27] March family report).
h)In April 2017 the parties reached interim consent orders whereby the father spend time with the children each alternate weekend from after school Friday to Sunday afternoon as well as special event time and school holiday time with the court ordering for changeover at school and (omitted) McDonalds.
i)Spend time with arrangements since these orders were made have been problematic with the children refusing at times to attend and some spend time with periods not occurring.
The family report writer concluded that the father’s “time spent with [X] and [Y] has been largely informed by” the mother “with her providing her own assessment of the presenting risks” ([88] March family report).
Despite being under the scrutiny of the court, the mother continued with her Facebook entries, emails and texts criticising the father and interfering with his time with the children as illustrated by the following:-
a)Undated text message “Kids die from asthma, you have 3 cats inside the house, cat fur is one of his asthma triggers? No, not acceptable. I want a photo of [Y] holding the medication, not something you found off Google images. Withholding the children’s medication is frowned upon in the court. You have never been present when [Y] has had an attach so I request one last time for you to send a photo where I can see the milligrams and not something off Google images”
b)Undated text message “So first you refuse to purchase the medication for [Y] and now you are refusing to let me know the dosage you purchased. You have not dealt with seretide. I need to know the dosage to discuss it with [Y]'s Dr. Ms C should have taken the photo I provided which clearly shows [Y]’s sir name and dosage. This is important, high doses of seretide are dangerous. Stop the games”
c)Undated text message “I was again subjected to Ms C’s intimidating looks whilst simply collecting the children, even though I had clearly requested she not be present. Twice you have breached the Tpo now”
d)Text message mother to father 29 October 2016 “Again, you failed to take adequate care of [X] while she’s sick, she’s asleep already. Anyone can be a fun parent but only a real parent puts their child’s health as top priority. These neglectful actions seem deliberate, irresponsible and I won’t tolerate it, neither will the court”
e)Email mother to father’s solicitor 30 October 2016 “Great, have a party for [Y] for his birthday, have a party with the kids just for the fun of it but when one of the children seriously ill, you put their health and well-being first, and do as I have done, an postpone the party until the children are well. Mr Bloom will not having contact with the children when they are ill in the future, I refuse to expose them to irresponsible and careless actions when they need rest and recovery. [X] expressed to her father she is ill, I spoke to him via telephone call and he was deceitful. Ms C was deceitful filling out the communication book. Ms C administered [Y] nurophen when he is asthmatic. Ms C is not to assist in the care of the children as she is a threat to their health and well-being. Ms C is not to write in the communication book as she is not a parent to either [X] or [Y] and she is deceitful. I am very protective of [X] and [Y], I will not tolerate anyone in this situation being deceitful or administering dangerous medications to the children. I would like to know what punishment [B] and [C] received for attacking [Y]. I expected Mr Bloom to provide the same level of care to [X] and [Y] that they receive at home and I am deeply concerned for the lack of care Mr Bloom and Ms C provide ”
f)Email mother to father’s solicitor 4 November 2016 “My versions of events? The ONLY words I know are true are those spoken by the children. These are not my versions of events but the truth of what actually happened that day as told to me by [X] and [Y]. Why would they lie about what happened, honestly? Your client has never had parental responsibility of these children before by his own choice, if there is another event where your client is encouraging the children to push each other over, if Ms C’s teenagers are ‘accidentally’ attacking [X] and [Y] and your client is untruthful regarding these events, or if the children are administered dangerous medications again, I will have no choice but to stop contact between your client and the children. I refuse to risk [X]’s and [Y]’s safety and health by reckless behavior and I will deal with whatever the judge decides to do but I will not allow harm to come to the children for you, your client nor the judge”
g)Email mother to father’s solicitor date 4 February 2017 “Mr Bloom breached our written agreement by bringing his brother to changeover to further intimidate me. Both you and your client aren’t acting in the best interests of the children or you client would drop the drama and simply spend time with the children but instead, here we are with court date after court date, email after email, drama after drama. Mr Bloom gave [X] a lunchbox as part of her Christmas present, she was crying to me as she does not wish to spend every weekend with her father, she does not wish for him to pick her up nor drop her off at school. He has given no thought or care in regards to what the children want and they are suffering emotionally as a result, scared that they will be forced to spend time with him when they do not wish to and have no time with myself. It’s not fair on them. I do not wish to discuss the matter further unless you are wanting to discuss mediation, settle out of court, dropping of the tpo, something I need to do for the access centres, anything else I am not interested in”
h)Text message mother to father 22 February 2017 “Congratulation on your engagement and baby, how much did Ms C pay for her ring? A couple things, why didn’t you get [Y] a pair of shoes? Why wasn’t [Y] aloud to bring his (omitted) that he won home? Why didn’t you let me know [Y] wanted to come home early? [X] is heart broken by your news, I wish you had of been a bit sensitive to her and made today about her and not about Ms C for once”
i)Text message mother to father 10 March 2017 “Our communication is only child focused, except for when you push for Ms C to be present. I refuse to have any contact with your solicitor, especially considering you are trying to make me pay for it, some nerve”
j)Text Message mother to father 10 March 2017 “You’re hell bent on destroying my life and I don’t even understand why, if you any kind of decent person you would have kept in contact with the children no matter who your gf was, chosen them over drinking on weekends. I refuse to cop the blame for your decisions of abandoning the children. 4:30 (omitted) is agreed in writing via text. All you need to do is keep your promises with the kids, spend one on one time with them and stop pulling your shit with me. All 3 of your affidavits are so full of lies I choke each time I read one. Grow up already”
k)Email mother to father’s solicitor 16 June 2017 “Please ensure your client does not bring anyone else to changeovers, now and in the fute, just as he has requested from myself. I am unaware why his partner insists on being present, merely to make false claims for the Temporary Protection Order. It’s time this circus closed down and everyone focused on the children’s needs. I do not wish to see Ms C, or any of Mr Bloom’s future partners/friends as I am uninterested in his life and wish he would become uninterested in my life and stay ff my Facebook page and stop asking the children if I have a boyfriend as my life is none of his business. He is extremely scared of Mr Bloom and upset not wishing to spend time with his father. I am at the Police Station to ensure, without a doubt, your client is unable to make false allegations regarding myself and due to our extreme physical domestic violence past, I am scared of your client’s actions towards myself. I am not withholding [Y], I am concerned for my own safety and well within my right to have changeover happen in a safe environment. There is never a question of the children wanting to return home to myself so Sundaers happen without incidence. You have made threat after threat against me today and prevented [Y] from obtaining theequires. This is a form of control and abuse against myself. [Y] and I at the Police Station for changeover and I am not meeting with him elsewhere today”
l)Facebook entry by mother 20 June 2017 “What do you do when you have a little girl heartbroken an crying that she wants her daddy to come home but her daddy is soon to be married, mum has explained that even if daddy wasn’t getting married he still wouldn’t be allowed back in and mummy and daddy are at war with one another? Mummy jus wants daddy to stop and consider the kids feelings once in awhile. With a mummy that gave up on daddy years ago and a daddy hell bent on revenge, there’s a little girl not ready to accept the changes that are coming in both households. Just wish we could fast forward to where all the shit has stopped and the kids are happy, doesn’t look like that’s happening anytime soon though”
m)Text message mother to father September 2017 “Can you explain to me why you think our children have to go to bed half an hour before every other child in the house but you thought it was appropriate to tell them your ‘little Johnny’ jokes about the frogs ‘fucking wrecked them’ and the black women in church who got a bible thrown at her face ‘bullseye’. Highly inappropriate and racist. As much as you don’t like mine and the children’s heritage, WE ARE ABORIGINAL AND PROUD. So you and Ms C were racing in separate vehicle’s and then you and Ms C begun arguing once you got home… Not good enough!! I will be bringing this to the attention of child services and my solicitor”
n)Email mother to father 22 October 2017 “I am really concerned about the way you have been treating [Y], the communication book is for you and I only, the children aren’t to know what is in the book, yet you stood over [Y] and yelled at him to keep his mouth shut to me, flicking through the communication book swearing and threatening him because ‘there’s pages and fucken pages of everyting that goes on in my house and you aren’t to tell your mother a fuckle thing’. I am absolutely mortified [Y] got into my car earlier this afternoon and started crying because of that incident. He cried and begged me not to tell you what he says to me because you petrified him. Your abuse needs to stop for the children’s sake. I have tried reasoning with you, I have offered advice on what I feel will help the children being happy to go spend time with you, threatening them is only creating more problems. Can you please fix the tiles in your bathroom that [X] sliced her foot on before their next visit. Can you please also put a door on her bedroom so she can get changed in her bedroom and also have some privacy whilst she visits you”
o)Email mother to father 1 November 2017 “At the end of the day, these are our kids. The closest I’ve come to “co-parenting” with you was at the school when Ms C and I had a really good chat about the kids concerns, would have been nice for you to join the discussion rather than yelling at me and threatening me with your solicitor in front of the kids. I don’t understand the whole court drama when I’ve never stopped you seeing the kids and I tried for years to get you to spend time with them. You didn’t come up last week when [X] was in hospital with a neck injury and you’re not coming up for [Y]’s birthday, I’m the one that has to make up excuses for you to the kids why you aren’t coming, then defend myself against your outrageous allegations in court. I look forward to the day you drop the nonsense or court is over, whichever comes first. I look forward to the day the kids are excited to take your calls and spend time with you, until then I’ll continue to encourage the kids to call you and point out your good qualities in an attempt to get them excited about going to your place”
p)Email mother to father 23 November 2017 “Does that sound like an enjoyable afternoon to you? Do you honestly think having the children travel 45 minutes to the centre and then 45 minutes back the same way they just came for no apparent reason other than your pure stubbornness, having them shower at your Aunties home, whom the children have only met twice, do you honestly think that is acceptable? Where are you intending the children have a shower and get ready at? Are you supplying their clothes and accessories for the disco? How are you physically doing to get them ready in time after being held up in Friday afternoon traffic? Why are you not considering the travel time for the children and the fact you know both [X] and [Y] dislike travel? You are potentially adding an extra hour and a half travel time for the children before the children are able to attend the disco and then travel an hour and a half after their school disco. Again, this is not child focused. Why cause [Y] unnecessary stress by him having to attend the access centre? Do you honestly think this will be an enjoyable afternoon for the children? ”
q)Email mother to father 29 November 2017 “I am concerned in regards to the way Ms C’s daughter is dressed today and the amount of make up she is wearing. What the rules regarding makeup in your home for [X] and does [X] dress in a similar way whilst she is in your care? I do not approve of [X] dressing in a similar manner to what Ms C’s daughter is wearing today. It is concerning, as a parent that noticed [X] and [Y] talking to you, made a comment to me at how trashy your partner looked, I explained that was your stepdaughter and this parent was shocked a child is allowed to dress in that manner ”
r)Email mother to father 8 December 2017 “You refuse to co-parent, you refuse to discuss anything with me directly. Had you of chosen to communicate with me we still could have worked something out so the children could attend both events, as things didn’t go your way, you simply say no. You weren’t losing out on time so I still fail to see why you refuse my offer”
s)Email mother to father 12 December 2017 “Are you going to be reasonable and drop the nonsense of three days you are pushing for? You have the children the first weekend school resumes. It would be really great if you started being reasonable considering it was always you that changed your number and stopped contact with the children, you have never been denied time with them before court”
t)Email mother to father 6 January 2018 “In life things happen, that’s how life works, you can’t control when things happen, they just do. I’m a little bit confused as to why a family report it says you are able to have flexible parenting with Ms K but you’re unable to do the same with me as I’m ‘too rigid with the orders. Judge Turner will have more than enough to deal with, if you simply communicated with me and actually listened to the children’s fears whilst in your home, we wouldn’t need this drama of court, yet here we are. You an my mother both live in the same town, why can’t you simply allow the children 2 hours with her or something? This not the only time weekends will to change, the only children that don’t have a say regarding when they’ll spend time in your place is [X] and [Y]. The majority of [X] and [Y]’s visits with you, [A], [B] and [C] aren’t even present, why? I really wish you would drop all the nonsense. You legally blackmailed me with your barrister into dropping my Domestic Violence Order against you with the bargaining tool that you would drop your application for full custody of [X] and [Y]. Your barrister also cunningly had the Domestic violence order of 18/11/2016 made into an order with has a no contact order. There is no such thing as no contact when you are co-parenting. You have lied non stop, every step of the way. When does the shit end? Seriously, when? Every time I attempt to negotiate with you, it’s an absolute drama for no reason. Enough already”
u)Email mother to father 22 January 2018 “I find it disappointing you did not call the children today to find out about their first day at school and [X]’s huge milestone of starting high school. I have encouraged them to call you but they are disappointed you made no effort for them today”
The mother’s lack of insight as to what the children will lose if they remain in the mother’s care is clear from the following written submission by the mother” It would be a gamble to remove the children from their current environment simply to place them in an environment of similar nature with no additional benefits to the children. The benefit of having a meaningful relationship with” the father “can still be facilitated with further understandings of the children’s needs and a strategy put in place that sees them comfortably have regular contact with” the father.
I find that this comment reinforces that if the children stay with the mother the situation will not improve and is likely to get worse for the children.
I find, however, that the father does have the capacity to bring about a positive change for the children and to place them in a position where they can have a content and fulfilling life surrounded by all that love them.
During cross-examination the family report writer spoke of the father talking about “the strengths of Mr Bloom with respect to co-parenting, that he currently demonstrates an ability to co-parent with his partner, if the court accepts the evidence of his former partner. He co-parents a child in that respect. The father has demonstrated his ability, if the court accepts that, that he is able to foster a relationship with both parents. And so when I look at the balance of the risk for the children living in the father’s care versus living in the mother’s care, I perceive that the father can foster a relationship with both parents”.
I find that if the children live with the father, then the children can grow up maintaining and enjoying relationships with both parents, their stepmother, their half siblings, their stepsiblings and the respective extended families.
I, therefore, find that it is in the best interests of the children to live with the father.
As that issue has been determined I can now address the issue of parental responsibility and the mother’s time with the children.
Parental responsibility
During the final hearing the parties each considered orders for equal shared parental responsibility.
The evidence supports that co-parenting is not achievable.
This then leads to the question as to whether parents who cannot and may not ever be in a position to co-parents can then equally contribute to making long term decisions for the children.
History shows that it has been the mother who has made all the long term decisions for the children with little or no consultation with the father and that any involvement by the father has been problematic.
The main issue preventing any meaningful discussions on major long term decisions has been the inability of the parties to communicate effectively.
For a time the parties used a communication book but the mother informed the family report writer that she used the book to capture “information relating to the children and their wellbeing in this document as ‘evidence’” of the father’s “negligent parenting, advising that she perceived her comments were justified and appropriate to the situation” ([57] family report).
The family report writer noted that the mother “was not open to any discussion that challenged her views in this area, advising that she perceived the information she had documented sought to protect her children from harm during the times they spent in the father’s care” ([57] family report).
The father disputed the effectiveness of the communication book offering “multiple examples at interview” of the mother “misinterpreting and allegedly incorrectly reporting events, using the Communication Book, she has provided to the Court as an example of such” ([47] March family report).
The mother “perceives her communication with” the father “as being “respectful” and that the father “is merely unwilling to accept her views regarding the children” ([70] November family report).
The father disagrees explaining that the father “has moved to the position of no longer wanting any communication with” the mother “due to what he perceives is her disrespectful and immature co-parenting behaviour. He reported that comments placed on Facebook regarding his infant son’s name, combined with” the mother “allegedly denigrating of his wife, had become ‘the final straw’, impact his willingness to interact with her” ([58] November family report).
Ms C explains that since the Facebook entries regarding [D] that she has formed the view that the mother “is unable to understand the implications of her actions; and or understand that her behaviour is offensive, advising that any attempts to build a relationship with her have broken down due to the mother’s alleged actions in the recent months” ([76] November family report).
When questioned about the Facebook entry the mother said that the father “had ‘no right to stalk my Facebook anyway’” and “that neither her, or” the father “have mutual Facebook friends, and that she perceived the father’s behaviour was a breach of her privacy, advising that she does not perceive she should be required to justify her actions in this regard” ([58] November family report).
Conclusion
I find that the presumption of equal shared parental responsibility as set out in section 61DA has been rebutted pursuant to section 61DA(4) as the evidence supports that it is not in the best interests of the children for the parties to have equal shared parental responsibility.
I make this finding based on the following:-
a)The parties cannot communicate effectively, if at all.
b)The mother is unlikely to respect the father’s opinions as she holds a poor view of the father as a parent.
c)If the parties cannot agree, then the children will be exposed to conflict between the parties as well as exposure to the mother’s negative views of the mother and her beliefs that the mother is the only one who knows best.
I find that it is in the best interests of the children for the father to have sole parental responsibility.
The orders include provision for the father to keep the mother informed as to the major long term decisions made for the children.
Mother’s time with the children
Moratorium on time
In her recommendations the family report writer suggested “a two (2) month moratorium period is adopted whereby [X] and [Y]’s time spent with Ms Chesterman is suspended whilst the children integrate into the father’s home”.
During cross-examination when looking to the mother’s negative behaviours the family report writer commented that “my worry, your Honour, in the event that the court made a finding that the children live with the father, I have some concerns that the behaviour would continue – I talk about that in my report – about not seeing an abatement there. I have – one of the recommendations within my report, in the event that the court made a finding that the children live with the father, I would be recommending a period of moratorium of time between – in order for the children to resettle. But I maintain my worry, your Honour, that in the event that the children live with the father, that we would still continue to see these behaviours occurring, and the level of over involvement of the mother about what occurs in the father’s home”.
The family report writer suggested that a longer than two month period might be more appropriate stating that “there’s potential for longer. The posing of two months I had aligned around the times of the trial and decisions being made and school holidays, looking forward with respect to my particular report at the time that that was made, the children would have had some intense time with the father. Typically we offer a three month period, you know, in our professional recommendations. What I know for [X] and [Y] is that’s something for them that’s going to be difficult in that transition, and I know for the mother, she will be incredibly anxious in the event that the children were outside her care, and so at a minimum, a two month period of moratorium would be offered. However, I would be certainly open to a, you know, longer period of time”.
I adopt this recommendation for a number of reasons:-
a)The children need to be given space to adapt to their new surroundings, including living in the father’s household, attending a new school and making new friends.
b)This will enable the children to attend counselling to assist in adjusting to the changes in their living arrangements and their lifestyle.
c)The mother needs time to reflect on her situation and adjust to living as a single person.
d)This will give the mother an opportunity to seek some counselling, as was first suggested in March 2017 in the family report.
e)This will avoid the children being subjected to any negative influence or fall-out from the mother during this re-establishment period for the children in the father’s household.
f)This will avoid the children from being exposed to any conflict between the parties.
I, therefore, find that it is the child’s best interests for there to be a moratorium for the first term of school that the children are with the father and for time to commence with the mother after the June/July school holidays in 2018.
Time and communication with the mother
Although not bound by the requirement of substantial and equal time as required by section 65DA due to there not being an order for equal shared parental responsibility, I find that it in the best interests of the children, at the conclusion of the moratorium period to spend frequent time with the mother.
The family report writer initially recommended three weekends in every four week block during school holidays together with half school holidays and special event time.
At the final hearing the family report writer reflected on the recommendation and thought that alternate weekends may be better for the children because “from a developmental perspective of the children, they’re emerging towards adolescence, and they’re going to start having friends and sporting activities and other, you know, recreational pursuits. So I think alternate weekends is something that would be suitable. The challenge for the children from their developmental perspective is around their ability to be able to interact in their communities around weekend times and be able to participate in sport and other recreational pursuits. I think from the perspective of time with each parent, there is some challenges when there’s an hour and a half drive between, and location”.
Conclusion
I have in essence adopted the proposal of the father for spend time with arrangements and where the father has not included special event time I have turned to the mother’s proposal.
The only significant change is that all school holidays are to be equally shared including the Christmas school holidays as this will provide certainty for the children and routine as to their time with each parent.
These spend time with arrangements will be effective once the moratorium period has concluded.
Further orders have been made for telephone communication twice a week and when the children wish to call.
Changeover
During cross-examination the family report writer explained “I have some significant concern with respect to the exposure of these children……to conflict during the handover transition that the father had attempted to attend the school, and that didn’t prove successful. We were having a handover at McDonalds, and that didn’t prove successful and we’re starting to see this, you know, refusing to go, which then becomes really, really unstructured and difficult, and then, you know, this parental interference during those times. I have some real concerns for the children with respect to their exposure to that conflict. You know, it’s in a public space when that’s occurring. They’re seeing both their parents, you know, in conflict with one another, and also there’s not a smooth transition then to the parent’s care, so that doesn’t establish, you know, a relationship with Mr Bloom that’s then positive, because we’re seeing this forcing of children to go. I struggle to understand, you know, this requirement to force children to go, and effective parenting decisions are around how are you going at dads, and this is – it’s positive and that’s where we’re going. This is not what’s happening for these children, and so my interpretation of that, your Honour, is that the children are playing then on the conflict that occurs within, and there’s some level of attention seeking behaviour and some level of, you know, buying into, you know, the dispute. The children there are ingratiated into the conflict between the parents. From my perspective…. that’s extremely abusive”.
As to where changeover is to occur, the family report writer comments “a contact centre is certainly one of those locations. But I think we need to be child-focused around what that looks like. But I think in the – rather than for me to provide my commentary, in the absence of things that I would not want to see, rather than what we would see, it would be extremely detrimental for those children to watch, you know, one particular parent extremely upset and then unable to separate. So that would be something that a process of, you know, the children leaving one parent and then transitioning to another, from my perspective, needs to occur. So it’s not done with two parents in the same location”.
Conclusion
The parties should only have contact with each other as a last resource.
Therefore, the orders reflect most changeovers at school and the contact centre at (omitted).
Where this is not practicable or not possible then changeovers are to occur at McDonalds either in (omitted) or (omitted), so that the parties can share the travel.
Overseas travel
The father wants the opportunity to travel overseas with the children.
The mother is vehemently opposed.
The mother in cross-examination expressed concern that the father might relocate overseas although there was no evidence of that being a reality.
The mother conceded that she might be agreeable to some overseas travel provided she has full details and [Y] wants to go.
Conclusion
I find that there is no basis for the mother to prevent the children from travelling overseas.
I have, therefore, adopted the orders proposed by the father which are sensible and practicable.
Other orders
In order to give effect to the essence of the orders, other orders have been made adopting the proposed orders of the father.
I certify that the preceding three hundred and seventeen (317) paragraphs are a true copy of the reasons for judgment of Judge L. Turner
Date: 23 March 2018
Key Legal Topics
Areas of Law
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Civil Procedure
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Administrative Law
Legal Concepts
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Judicial Review
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Standing
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Procedural Fairness
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Natural Justice
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Abuse of Process
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