Bowden and Bowden (No 2)

FAMILY COURT OF AUSTRALIA

BOWDEN & BOWDEN (NO 2)

[2012] FamCA 1084

FAMILY LAW – CHILDREN – Best interests – parental conflict – sole parental responsibility or equal shared parental responsibility – the time the children should spend with the father

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Evidence Act 1995 (Cth)

M & M (1988) 166 CLR 69
In the Marriage of B & B (1993) FLC 92-357

APPLICANT:

Mr Bowden

RESPONDENT:

Ms Bowden

INDEPENDENT CHILDREN’S LAWYER:

Cathleen Corridon, Solicitor

FILE NUMBER:

DUC

428

2010

DATE DELIVERED:

21 December 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

18 September 2012 - 24 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Baczynski

SOLICITOR FOR THE APPLICANT:

Ian G Hone

COUNSEL FOR THE RESPONDENT:

Ms Theoharopoulou

SOLICITOR FOR THE RESPONDENT:

Altavilla Vessali Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Buchanan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Cathleen Corridon

Orders

(1)All previous parenting orders be and are hereby discharged.
(2)The mother have sole parental responsibility for the children L born … September 2006, Y born … June 2008 and G born … February 2011 and the mother shall advise the father in writing or by email within 7 days of parenting decisions made in relation to schooling, religion and health.
(3)Except as provided for hereafter the children live with the mother.
(4)L live with the father during school terms as follows:
(a)From after school Thursday to before school Monday each alternate week commencing February 2013; and
(b)From after school each alternate Thursday until the commencement of school on Friday commencing February 2013.

(5)Y live with the father during school term as follows:
(a)From after school or kindergarten Thursday to before school or kindergarten Monday each alternate week commencing February 2013;
(b)From after school or kindergarten each alternate Thursday until the commencement of kindergarten or school on Friday commencing February 2013.

(6)G live with the father as follows:
(a)From 10:00am to 4:30pm Thursday and from 10:30am to 5:00pm on Saturday each alternate week commencing December 2012 save and except for those times during the 2012/2013 summer holidays when L and Y are in the mother’s care;
(b)From 10:00am to 4:30pm Wednesday and from 10:00am to 7:00pm each alternate Thursday commencing February 2013;
(c)When G attains 2 years of age from 10:00am to 4:30pm Thursday and 5:00pm Saturday to 5:00pm Sunday each alternate week for a period of 4 months, from 10:00am to 4:30pm Wednesday and from 10:00am to 7:00pm each other alternate Thursday;
(d)After 4 months from 10:00am to 4:30pm Wednesday and from 10:00am Friday to 5:00pm Sunday each alternate week for a further period of 4 months and from 10:00am to 7:00pm each other alternate Thursday;
(e)After 8 months from 10:00am Thursday to 5:00pm Sunday each alternate week and from 10:00am to 7:00pm each other alternate Thursday.
(f)When G attains 3 years of age from 10:00am Thursday to 10:00am Monday each alternate week and from 10:00am to 7:00pm each other alternate Thursday;
(g)When G attends kindergarten or school, during school terms from after kindergarten or school Thursday to before school Monday each alternate week and from after kindergarten or school to 7:00pm each other alternate Thursday.

(7)The father communicate with the children by telephone each Monday between 5:00pm and 5:30pm and during school holidays the mother communicate with the children by telephone each Monday between 5:00pm and 5:30pm when they are with the father.
(8)L and Y live with the father for half of the school term holidays commencing 2013 as agreed and failing agreement, the first half.
(9)G live with the father for half of the school term holidays commencing 2014 as agreed and failing agreement, the first half.
(10)L and Y live with the father during the 2012/2013 school summer holidays as follows:
(a)From 5:00pm Friday 21 December 2012 to 5:00pm Friday 28 December 2012; and
(b)From 5:00pm Friday 4 January 2013 to 5:00pm Friday 18 January 2013 when the father will be at liberty to take the children with him to NSW.

(11)L and Y live with the father for half of the school summer holidays commencing 2013/2014 as agreed and failing agreement, the first half in odd years and the second half in even years.
(12)G live with the father each alternate week during the time L and Y live with the father in the 2013/2014 school summer holidays.
(13)G live with the father for half of the school summer holidays commencing 2014/2015 as agreed and failing agreement, the first half in odd years and the second half in even years.
(14)The children live with the father at such other times as may be agreed in writing between the parties.
(15)The children spend time with the father as follows:
(a)Father’s Day from 10:00am to 5:00pm if the children are not living with the father on Father’s Day;
(b)On the children’s birthdays and the father’s birthday for 4 hours on a non-school day as agreed and failing agreement from 10:00am to 5:00pm and for 2 hours if on a school day;
(c)From 4:00pm Christmas eve to 4:00pm Christmas day 2012 and each alternate year thereafter;
(d)From 4:00pm Christmas Day to 4:00pm Boxing Day 2013 and each alternate year thereafter;
(e)From 4:00pm Good Friday to 4:00pm Easter Saturday in 2013 and each alternate year thereafter;
(f)From 4:00pm Easter Saturday to 4:00pm Easter Sunday in 2014 and each alternate year thereafter; or
(g)As may be otherwise agreed in writing.

(16)The father’s time with the children be suspended as follows:
(a)On Mother’s Day, if the children are otherwise with the father on that day from 10:00am to 5:00pm;
(b)On the children’s birthdays and the mother’s birthday if the children are with the father on those days for 4 hours on a non-school day as agreed and failing agreement from 10:00am to 2:00pm and for 2 hours if on a school day;
(c)From 4.00pm Christmas Eve 2013 to 4.00pm Christmas Day 2013 and each alternate year thereafter if the children are otherwise with the father
(d)From 4.00pm Christmas Day 2012 to 4.00pm Boxing Day 2012 and each alternate year thereafter if the children are otherwise with the father;
(e)From 4.00pm Easter Saturday 2013 to 4.00pm Easter Sunday 2013 and each alternate year thereafter;
(f)From 4.00pm Good Friday 2014 to 4.00pm Easter Saturday 2014 and each alternate year thereafter; or
(g)As may be otherwise agreed in writing.

(17)The mother and father each do all things required by R Contact Centre Suburb T to enrol in the changeover program with the mother and father to share the costs of R Contact Centre.
(18)Upon being accepted into the changeover program at R Contact Centre all changeovers that cannot be accommodated at either school or kindergarten be accommodated by R Contact Centre occur at R Contact Centre Suburb S, when R Contact Centre Suburb S is unavailable changeovers occur inside Dairy Bell, Suburb U and other family members or friends must not be present at changeovers and in the event that the mother or father is unable to attend, one person shall facilitate changeover on that person’s behalf.
(19)The father be at liberty to attend any school function or parent/teacher interviews, separate from the mother, to which parents are ordinarily invited.
(20)The mother authorise the children’s schools or kindergartens to provide to the father, at his expense, copies of all reports, photographs, notices and all other material provided to parents.
(21)The mother and father each are at liberty to travel with the children outside the State of Victoria when the children are in their care pursuant to these orders upon advising the other parent at least 14 days prior to travel in writing or by email of the details of the travel and contact details.
(22)The mother keep the father informed of all medical and allied provided treating the children and authorise the father to obtain information from such providers.
(23)In the case of a medical emergency affecting any of the children, the mother advise the father as soon as practicable and allow the father to visit the affected child as agreed between them.
(24)The mother is and is hereby restrained from changing the children’s surname.
(25)The mother and father do all acts and things and sign all necessary documents required by Births, Deaths and Marriages to amend the record of the Birth Certificate of the child G as G T BOWDEN and in the event that the father fails to sign the necessary documents, the mother’s signature alone shall be sufficient to amend the Birth Certificate.
(26)The mother and father are hereby restrained from denigrating the other parent, discussing these proceedings to or in the presence of any of the children or within their hearing, from allowing them access to any documents relating to these proceedings and allowing any other person to do so.
(27)The mother advise the father as soon as practicable by no later than 14 days after, any enrolments of the children in school, kindergarten or crèche.
(28)Save for the purpose of paragraph 18 hereof or in the case of an emergency the mother and father are hereby restrained from attending the children’s school on the school days when the child is in the other parents care or changeovers at school.
(29)The father, as authorised by the mother, make his best endeavours to obtain a separate reading book from L’s school.
(30)The mother and father be at liberty to enrol the children in one sporting activity each per season, advising the other parent of such enrolment and ensure the children attend the sporting activities each week when the children are in their respective care.
(31)The mother ensure, to the greatest extent possible, that all appointments with Early Intervention Childhood Services for Y be made only at times when Y is in her care.
(32)The mother and father engage with the Child Protection Society or the Department of Human Services to receive assistance to build insight into the impact of adult conflict on children and to manage the children’s behaviours.
(33)The Independent Children’s Lawyer be discharged.
(34)That all applications be otherwise dismissed and removed from the list of cases awaiting hearing.
(35)Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create, and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order as set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS CERTIFIED
(36)Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor acting as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DUC 428 of 2010

Ms Bowden

Applicant

And

Mr Bowden

Respondent

REASONS FOR JUDGMENT

Introduction

The history of the parties’ relationship is characterised by significant and ongoing conflict which involves the children and the parties’ extended families. The parties have found it almost impossible to reach agreement about anything. They have not even been able to agree about what their daughter’s middle name should be and are involved in proceedings at the Victorian Civil and Administrative Tribunal (“VCAT”) with respect to that issue.
The parties each make allegations against each other of family violence witnessed by the children, including physical, verbal and emotional abuse of each other and the children on an ongoing basis and over many years. They each make allegations of sexual abuse, the mother against the father and the father against the mother’s brother. They each allege that the other party has failed to promote their relationship with the children and the father in particular alleges that the mother has made allegations and used these proceedings to shut him out of his young children’s lives. There have been numerous proceedings for intervention orders and for parenting orders in this Court.
The father in this case is 47 years of age and is a student. The mother is 36 years of age and is engaged in home duties. Their children are L who is 6 years of age, Y who is 4 years of age and G who is approximately 22 months old.
The parties commenced their relationship in November 2004 and were married in November 2005. They separated the first time in October 2010 when the mother was approximately 5 months pregnant with G. They reconciled in December 2010. It was following that reconciliation that the family moved to Melbourne. They separated finally in April 2011.
The parties during the course of the hearing were able to reach agreement with respect to many of the issues in dispute. However the history of their relationship and the litigation following the breakdown of that relationship gives me little confidence that the parties will in any real sense be able to parent cooperatively for the benefit of their still young children. The ICL prepared a detailed minute of proposed orders which reflected the parties agreement with respect to all but the following issues which I must determine:
a)Whether as proposed by the ICL the mother should have sole parental responsibility or as proposed by the father there should be equal shared parental responsibility;
b)Whether the children should live with the father four or five nights per fortnight and which nights that should be;
c)How the weekly time G spends with the father should be incrementally increased and in particular when she should spend the same time with the father as her brothers;
d)Whether G should spend overnight time with the father this Christmas;
e)When G should start spending the same holiday periods with the father as her brothers; and
f)Whether any time G spends with the mother’s brother should be supervised by the mother or some other responsible adult.

Documents Relied Upon:

The applicant father relied upon the following documents:
·    His Amended Initiating Application filed 31 August 2012
·    His affidavits filed 14 July 2011
·    His affidavit filed 31 August 2012
·    His affidavit filed 17 September 2012
·    The affidavit of Ms I filed in the Local Court at J Town and sworn 3 November 2010
·    His proposed final orders
The respondent mother relied upon the following documents:
·    Amended Response filed 16 July 2012
·    Her affidavit filed 16 July 2012
·    Outline of Case filed 12 September 2012
The Independent Children’s Lawyer relied upon the following documents:
·    Affidavit of Dr D filed 30 August 2011
·    Affidavit of Dr D filed 28 February 2012
·    Outline of Case filed 6 September 2012
·    Minute of proposed orders
·    The Family Report of Ms H dated 20 August 2012
In their affidavits of evidence-in-chief both the father and the mother purported to adopt the evidence contained in their earlier affidavits. Rule 15.06 of the Family Law Rules 2004 (Cth) provides that an affidavit filed with an application may be relied upon in evidence only for the purpose of the application for which it was filed. Whilst I can dispense with compliance with this Rule I had in this case previously made orders for the filing of affidavits upon which each party sought to rely. When the matter was listed for Mention before me on 3 September 2012 I brought this issue to the attention of Counsel for the mother who indicated at that time that the evidence upon which her client relied was contained in her affidavit filed 16 July 2012 and that she would not seek leave to rely upon her earlier affidavits. The father has had two opportunities to file affidavits setting out his evidence. The first of his affidavits filed in accordance with my order, albeit it was late, was filed on 31 August 2012. On 14 September 2012 I heard the father’s application for an adjournment of the proceedings. Although I did not accede to his application for an adjournment other than to delay the commencement of the hearing by a day I did give the father leave to file a further affidavit as it was his case that the affidavit prepared by his former solicitor was deficient. The husband in both of his affidavits referred generically to his previous affidavits. I ultimately ruled that neither party be permitted to rely upon their previous affidavits as forming part of their evidence in chief.

Legal Principles

The objects underlying the provisions of Part VII of the Family Law Act 1975 (Cth) relating to children are set out in s60B(1) of the Act as follows:
The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects are outlined in s60B(2). They are that unless it would be contrary to the best interests of a child:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The paramount consideration when making a parenting order is the best interests of the child or children the subject of that order (s60CA). In determining what is in that child or children’s best interests the Court must consider both the primary and additional considerations set out in s60CC(2) and (3) of the Act. Section 60CC(4) requires the Court to consider the extent to which each of the parents has fulfilled or failed to fulfil their responsibilities as a parent and must have regard to the circumstances since separation (s60CC(4A)).
The analysis of these statutory considerations of what is in the best interests of the particular child in the particular circumstances of the case must be made in a way that is consistent with the objectives and the principles underlying those objectives, the primary considerations directly taking up the first two of those objectives.
There is a statutory presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s61DA). The presumption is rebuttable if the Court is satisfied that it is not in the child’s best interests for the parents to have equal shared parental responsibility.

Family violence is defined as:
conduct whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances is a reasonable person it those circumstances would fear for, or be apprehensive about his or her personal wellbeing or safety” Abuse in relation to a child is defined as “an assault, including a sexual assault of the child which is an offence under law, written or unwritten in force in the State or Territory in which the act constituting the assault occurs” or “ a person involving a child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person. (s4(1)).
When that presumption applies and the Court makes an order for equal shared parental responsibility, the Court is then required to consider firstly whether it is in the child’s best interests and reasonably practical to spend equal time with both parents (s65DAA(1)) and if not, whether it is in the best interests of the child and reasonably practical to spend “substantial and significant time” with each of the parents (s65DAA(2)).
The fact that a case involves an allegation of sexual abuse does not alter the Court’s paramount obligation to determine what is in the child’s best interests and to make orders that will best promote that child’s best interests (M & M (1988) 166 CLR 69 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ )
In In the Marriage of B & B (1993) FLC 92-357 the Full Court referred to the principles to be applied in cases involving allegations of sexual abuse and said (at 79,778) as follows:
The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is: “that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
The ‘unacceptable risk’ test is therefore the standard used by the Family Court “to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access” (M & M (1988) 166 CLR 69, 78 (Supra)). In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in allowing access outweighs the possible benefit to them from that access.

The Evidence

The relevant standard of proof in this case is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may taking account in applying that standard of proof, the Court must take into account:
a.the nature of the cause of action or defence; and
b.the nature of the subject–matter of the proceeding; and
c.the gravity of the matters alleged.
In this case I have considered all of the evidence and had the benefit of observing the appearance and the demeanour of the father, mother and those witnesses who were required for cross-examination. I have given careful consideration and make my findings having regard to all of the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.

Children’s Best Interests

It is convenient in this case to consider the issues in the context of the principle and additional considerations.

(a) the benefit of the child having a meaningful relationship with each of the parents

Ms H, the Family Consultant, observed that both “[L] and [Y] have clearly had the opportunity to form significant relationships with each of their parents as both parents did not work outside of the home and both participated in caring for the children, until they separated”. G is in a different position to her brothers as her parents separated a matter of months after her birth and her primary attachment is to her mother.
The issue in this case is not that the children don’t love each of their parents or would benefit from having a meaningful relationship with them; it is the impact of their parents’ ongoing conflict upon them and their parents’ inability to parent co-operatively for the benefit of their children. Ms H recommended that the children need to have stability and consistency and that in her view the parents have clearly demonstrated that a shared care arrangement will not provide the children with the stability and consistency they require. She concluded that the children need to live predominantly with one parent and spend regular and significant time with the other parent.
Ms H recommended in her report that given G’s age her primary attachment is to the mother, and that as it was her view that the siblings should live together, then all three children should live primarily with the mother. She further recommended that L and Y should spend time with their father each week from Friday at 4.00pm through to Saturday at 5.00pm, each alternate weekend from Friday at 4.00pm to Sunday at 5.00pm and part of each school holidays.
The ICL’s proposal, adopted by the mother, and the father’s proposal reflect Ms H’s recommendations in so far as they both provide for the children to spend the majority of their time with the mother. The ICL proposed that the children spend from after school on Thursday until the commencement of school on Monday one week and from after school on Thursday until 7.00pm each alternate Thursday. In the alternative the mother proposed that the children spend one overnight in one week with the father and three nights overnight in the other week, a total of four nights per fortnight albeit a different configuration. The father proposed that the children spend from after school on Thursday until the commencement of school on Monday one week and from after school on Thursday until the commencement of school on Friday in the alternate week. In the event that the Court was to order that he only spends four nights per fortnight he preferred the ICL’s proposal. The difference between the proposals of the ICL and the mother and that of the father is one night per fortnight and I am satisfied that whichever proposal is adopted it will promote a meaningful relationship between the father and the children.
Ms H in cross-examination said that the ICL’s proposal provided for the children to spend “…regular and significant time with their father…” She also said that she thought that it was reasonable to consider a fifth night notwithstanding her recommendation that the children should live primarily with one parent but that it would be preferable that it be towards the end of the week.
It was put to Ms H that a 5 out of 14 nights regime was in effect shared care. She disagreed and said that “…[L] and [Y] appear to have a very positive, a very close relationship with their father, and these children need both their parents, but because of the ongoing and the entrenched and the at times escalating animosity and conflict that exist between these parents, their lack of ability to communicate effectively around their children, and at times, their lack of capacity to prioritise their children’s needs over their own ongoing conflict, has led me to suggest that they need to be primarily with one parent rather than another.” It was her view that although 4 out of 14 nights would meet the children’s needs, 5 out of 14 nights would be preferable.
The proposal with respect to G is predicated upon her age and her developmental needs. The parties agree upon that proposal save for two aspects. The first is when G spending overnight time with the father should commence and the second is how soon G should be spending the same time with the father as L and Y both during term time and during the school holidays.
The ICL proposed that G spend time with the father as follows:
a)From 10.00am to 4.30pm Thursday and from 10.30am to 5.00pm Saturday each alternate week;
b)From 10.00 am to 7.00pm each alternate Thursday;
c)From 4.00pm Christmas Eve to 4.00pm Christmas Day 2012
d)When G attains 2 years of age from 10.00am to 4.30pm Thursday and from 5.00pm Saturday to 5.00pm Sunday each alternate week for a period of 4 months and from 10.00am to 7.00pm each alternate Thursday;
e)After 4 months from 10.00am to 4.30pm Wednesday and from 10.00am Friday to 5.00pm Sunday each alternate week for a further period of 4 months and from 10.00am to 7.00pm each alternate Thursday.
f)After 8 months from 10.00am Thursday to 5.00pm Sunday each alternate week and from 10.00am to 7.00pm each alternate Thursday;
g)When G turns 3 from 10.00am Thursday to 10.00am Monday each alternate week and from 10.00am to 7.00pm each alternate Thursday; and
h)When G attends kindergarten or school during school terms from after kindergarten or school Thursday to before school Monday each alternate week and from after kindergarten or school to 7.00pm each alternate Thursday.
The mother essentially adopted the ICL’S proposal save and except that she did not agree that G as an exception should spend Christmas Eve with the father, whereas the father sought to bring the whole timetable forward. He proposed that overnight time commence in December 2012, and include overnight on Christmas Eve, rather than as proposed by the ICL when G turns 2. The father’s proposal is further that when G turns 2 she start spending two consecutive nights with the father each alternate week rather than in June as proposed by the ICL. That in June 2013 G start spending 3 consecutive nights in each with the father each alternate week rather than in October 2013 as proposed by the ICL and that in December 2013 she start spending 4 consecutive nights with the father in each alternate week rather than waiting until her 3^rd birthday as proposed by the ICL. In effect the father’s proposal would have G spending the same overnight time with the father as her brothers after 8 months whereas the ICL and the mother proposed that this should not take place until G turns 3. Consistent with his proposal that the children should spend 5 nights per fortnight with the father rather than 4, the father also proposed that G should stay overnight each alternate Thursday rather than being returned to the mother at 7.00pm. Finally the father proposed that once G started attending kindergarten that she spend the same time with the father as proposed for L and Y.
I am satisfied that whichever proposal is adopted G will have the opportunity to develop a meaningful relationship with the father but that given her age the introduction of overnight time requires the timetable to have regard for her age and ability to manage the separation from her mother who is her primary attachment.
The respective proposals were put to Ms H. Although she initially said that she thought that it might be too soon for G to stay overnight with the father she ultimately conceded that as G would be turning 2 years old on 9 February, a matter of weeks later, that it didn’t make sense that the first overnight had to be after she turned 2 rather than on Christmas Eve. In all of the circumstances I am satisfied that G will benefit from spending what is very special time with her brothers on Christmas Eve and that given that it is proposed that she start spending time overnight with the father on a regular basis a matter of weeks later there is no real reason why she could not on a one off occasion spend Christmas Eve with the father.
Ms H expressed quite strong reservations about the possibility of G spending 4 nights overnight with the father before she turns three. She said that she thought “...four nights, even for a child who is under three, is an extensive period to be away from the primary carer and I would suggest that the four nights not occur until she is three, but I think that to look at introducing more than one single night in a fortnight would be something she would be able to manage well and would probably be in her best interests to prepare her for spending two nights consecutively and then three nights consecutively.” It was her view that even if G is only two she could manage 2 single overnight stays.
The ICL proposed that during the summer school holidays in 2013/2014 G spend each alternate week with the father. Her time with the father during the summer school holiday to coincide with L and Y’s time during the 2014/2015 summer holiday period. The mother adopted the ICL’s proposal however Counsel for the father submitted that it would be “easier for everyone” if G started spending the same extended holiday periods with the father as the two boys in 2013/2014. Given Ms H’s evidence that 4 nights for a child under 3 “is an extensive period away from their primary carer” I do not agree that it would be in G’s best interests to spend the even more extended period away from the mother as proposed by the father.
Ms H’s evidence was measured and well considered and I place significant weight upon her evidence. There was nothing in cross-examination that caused me to question Ms H’s evidence or the weight I should place upon it.
Having regard to all of the evidence and in particular the evidence of Ms H I am satisfied that both L and Y should spend 5 nights per fortnight with the father commencing at the start of the 2013 kindergarten or school year, being 4 nights in one week and one night in the alternate week. I am also satisfied that although it would not be in G’s best interests to bring forward the timetable for overnight time with the father as he proposes I do accept that her time with the father each alternate Thursday should extend to Friday morning once she commences regular overnight time with the father following her 2^nd birthday. I am satisfied that, as suggested by Ms H, it would be beneficial for G to spend this time with her father in the company of her brothers.
Ms H’s preference was for the overnight in the second week to be on Friday night as this would be likely to be less disruptive for the children however she also conceded that either proposal could work and that is was ultimately up to the parents to make it work. Given the nature of the relationship between these parties I am satisfied that the father spending time with the children in the alternate week on the Friday night, returning them on Saturday morning would represent a significant intrusion into the mother’s time with the children which in the circumstances of this case I do not consider appropriate.

(b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to abuse, neglect or family violence

There have been various allegations of sexual abuse raised by both parties during the course of these proceedings. Allegations by the mother based upon what she believed were the children exhibiting signs of sexual abuse and statements made by the children that they may have been exposed to sexual abuse in the father’s care, and the allegation that L has been sexually abused by the mother’s brother Mr K. In the letter from Ms N the DHS Protective Worker to the Court she noted that DHS had “…not been able to identify evidence of the children experiencing sexual harm” either in relation to the father or for that matter the mother’s brother.
Notwithstanding that the father accuses the mother of continuing to drum up evidence of sexual abuse against him, the mother said that she had accepted the findings of DHS with respect to the allegations of sexual abuse and did not seek to ventilate the issue as part of her case. The father on the other hand, notwithstanding the advice of DHS, and on the basis that the children are at risk of being sexually abused by the mother’s brother, sought orders that the mother be required to supervise the time the children spend in the presence of her brother.
The father deposed that “...DHS arranged the intervention of the Victoria Police Sexual Offences and Child Abuse Investigation Unit (SOCIT) at Suburb M to interview L in relation to matters which had become known to them, being a disclosure by L of playing “games with [Mr K]” which involved pulling each other’s pants down and cleaning the kitchen. He did not, as is reported by DHS, depose to the fact that DHS consulted with SOCIT after the father reported his concerns to DHS. In the SOCIT interview L identified Mr K as having touched him on the buttocks and genital areas. He said that despite the allegations the Police determined not to take the matter any further. A decision which he said he was “astounded” by.
Following a Visual and Audio Recorded Evidence interview (VARE) with L at Suburb M Police Complex, SOCIT concluded that there was no role for the Police and that they would not be pursuing any further investigations. DHS reported having conveyed this information to the father on 6 July 2012 and that it was confirmed by SOCIT with the father during the week commencing 16 July 2012. The father not being satisfied with the outcome of the investigation issued an Application for an Intervention Order against the mother’s brother prohibiting him having any contact with the children. The proceedings before the Children’s Court were discontinued on the basis that this Court was seized of the matter.
The father also deposed that “in the course of the proceedings in the Children’s Court of Victoria the detail of what was alleged against [Mr K] became clearer to me. I ascertained that what was alleged was that [Mr K] had inappropriately touched [L] on the penis in the backyard of [Mr K’s] home and then shortly after snuck up behind [L] inside the house and again fondled his genitals.” The father deposed that he was concerned that the decision by SOCIT not to pursue the matter was influenced by the fact that the mother’s other brother worked for SOCIT and that another person who had been present at L’s interview was a friend of the mother’s.
DHS reported that although L did disclose one incident of alleged touching by Mr K “he presented as believing that this was accidental and presented it in circumstances consistent with this”. It is clear from the transcript of the VARE interview that during that interview L was asked whether he could tell the interviewer anything good about his Mr K. Although he said no he also said that he could not tell him anything bad about him either. He said he did not play with Mr K but then said he liked playing cars, trucks and helicopters with him. He was asked whether he had “...ever told dad about [Mr K] touching your penis” to which he replied that yes he had and when asked why said “because he didn’t want his [Mr K] to do it again”. Although there was no time frame for this incident when he was asked where it had happened he said in the backyard at Mr K’s house when no-one else was there. L described Mr K sneaking up behind him and touching his “willy”. When asked to show the interviewer he pointed to his penis. He was also asked whether Mr K had touched his skin or pants and he said skin and pants. He later said that Mr K’s hand had not touched his skin. Significantly he said that it was an accident and that when he went inside to get a glass of water Mr K said he was sorry to which he replied that he would never do it again. Notwithstanding the father’s view that Mr K had touched him on the penis in the backyard of his home and then shortly thereafter snuck up behind him inside the house and fondled his genitals it was quite clear from the VARE interview that what he was saying was that it had happened only once. He said that he had not told the mother and somewhat surprisingly that he had not told the father because he “…knew about it before it happened”.

L appears to have been questioned extensively and repeatedly asked leading questions. His answers were somewhat confused and at times inconsistent however, although I have some concerns about the interview process, I am satisfied on the balance of probabilities that the incident was, as reported by L, an accident and not an attempt by Mr K to sexually abuse L.
The mother’s case was that she should not be required to supervise or be in substantial attendance at those times the children are in contact with her brother. I raised with the parties the possibility of such an order for a limited period not because it might be necessary to protect the children but as a possible means of reducing one of the many areas of conflict between the parties. However it is clear from the mother’s evidence and not disputed by the father that the children and in particular L, have a very close relationship with their cousin O, who is Mr K’s son. Although the father suggested that an order for supervision would not prevent the children maintaining contact it is also clear from the mother’s evidence that if such an order were to be made that her brother would not want to expose himself to the risk of further allegations and that their would be little or no contact between the two families.
In circumstances where I am satisfied on the balance of probabilities that the alleged incident between L and his uncle Mr K was an accident I am also satisfied that the benefits of that family relationship far outweigh the risk to the children, if any, of sexual abuse. I do not in those circumstances propose to make an order requiring any supervision of the children’s time with the mother’s brother Mr K.
Both the father and the mother also make significant allegations of family violence and abuse of the children as against each other. For the most part they both deny each other’s allegations save that the mother does admit that in September 2010, after unsuccessfully trying various disciplinary techniques, she did smack L on the bottom.
It is the husband’s case that the mother’s allegations, including the allegations of sexual abuse, are all part of a concerted plan by the mother to have him removed from the children’s lives. In summary he says that the incidents described by the mother did not occur or if they did occur it was the mother who was the aggressor and that she is describing her own behaviour and attributing it to him. He said that she had a vindictive nature and that she may, even if not currently, have had some kind of mental disorder as demonstrated by her violence both towards him and the children and what he says was her propensity to exaggerate.
There are a number of aspects of the case and the father’s evidence in particular which suggest to the contrary. The mother’s proposal for the father to spend time with the children generally accords with the ICL’s proposals based upon the recommendations of Ms H the Family Consultant. It cannot be said in those circumstances that the mother is trying to remove the father from the children’s lives. The mother also consented to a variation of the Intervention Order to permit the father to collect the children from school. There is also a certain irony in the mother’s ability to accept that the allegations of sexual abuse against the father had not been substantiated given the father’s ongoing commitment to his case that L has been sexually abused by the mother’s brother in the face of the clearly expressed views of SOCIT and DHS to the contrary.
The husband’s manner when being cross-examined was arrogant, dismissive and at times he was quite discourteous to Counsel in the matter. He had great difficulty giving direct answers to the questions he was asked attempting to avoid the answers which he clearly anticipated might not fit his case. His answers were on occasions quite disingenuous.
An example of this was when it was put to him that he had refused to attend an appointment with a nutritionist to discuss L’s weight and diet. He denied that he had refused and explained that he had not wanted to involve L in any further assessments. However it was then put to him that the appointment was for him and the mother and not L to which he then replied that he hadn’t wanted to attend an appointment with the mother. He offered no explanation as why if that was the case he had not made his own appointment to see the nutritionist. The simple answer and I find accordingly is that despite his complaints about the mother acting unilaterally he did refuse to attend the appointment when he was asked by the wife to do so.
Even when his answers could quiet easily be demonstrated to be inaccurate he still found it extremely difficult to make concessions. Another example was his denial and in fact insistence that it had not been necessary for the mother to make an application to the Court as to which school L should attend. The father repeatedly insisted that they could have reached an agreement and relied upon correspondence from his solicitor to the mother’s solicitor. The letter from the father’s solicitor to the mother’s solicitor dated 8 December 2011 makes it clear that with the knowledge that the mother had booked L into S School in Suburb U the father booked L into B School he said because he would “.. not be able to afford to share the costs of a private school” and he said noting that neither of the parties are practising Catholics and that therefore he did not see why the children should attend S School. The letter concluded in relation to this issue as follows:
As such please seek your client’s instructions as to whether she will consent for the child to be enrolled at [B School] next year or this matter will be brought to the attention of the court.
The conclusion I draw from that correspondence is that if the mother did not agree with his choice he would be taking the matter to Court. It is hard to see how the father could say in those circumstances that the mother did not need to go to Court and could have settled the matter on any other basis than by agreeing with the father.
It is also clear from the evidence that at a time when the parties had not been able to reach agreement and there had been correspondence passing between their respective solicitors with respect to which school L should attend the father made an application to the Suburb P Magistrates Court for an Intervention Order. Although the father denied that this was just tit for tat he did not offer any explanation that would otherwise explain why he had done so. The first of these applications which was issued on the 23 January 2012. In that application the father said that the intervention order was needed he said because:
The respondent attends places where she knows I will be. she then claims I am harassing her. These incidents are happening when I have full family court ordered time with my children. The orders also reflect that family members are not to be present. The respondent also drives past my house and follows my mother and children in her car. She arrives at events I am attending with the children and claims to have family and friends watching me. She also claims to have cameras and hidden devices in my house. I think these incidents will occur again because there has been a consistent pattern of behaviour over the past 15 months. Incidents are occurring more frequently even though court orders are in place.
The return date of that application was 10 February 2012. The mother attended but the father failed to do so. He initially gave evidence that he had written to both the Court and the mother prior to the 10 February 2012 to advise them that he would not be proceeding with the matter and that he had decided not to proceed for the sake of co-parenting. He later conceded that he had not notified the mother or the Court.
On 16 February 2012 I ordered that the father and mother do all acts and things necessary to enrol L at S School. On 27 February 2012 after that order had been made the father filed a further Application for an Intervention Order. The reasons he gave for that intervention order were exactly the same save that he added that “…even though court orders are in place since last application Respondent has attended our son [L’s] primary school to have the enrolment stop which occurred on 2 February 2012”. Whilst the father suggested that it might have been a “typo” I do not accept his explanation. The date for hearing of that application was 16 March 2012. The father did not proceed with his application on that date and again said he withdrew in the interests of co-parenting. There is little or no evidence of any genuine effort by the father or any commitment to as he calls it to “co-parent”. I am satisfied that this was an example of what the mother described to Ms H as the father using Court events to terrorise her .
Apart from what these examples say about how I should view the father’s evidence they are clear examples of his total failure to co-operate with the mother in parenting these children.
The mother’s evidence on the other hand was more compelling and she demonstrated significantly more insight into her own behaviour and her part in the conflict and how it impacts upon the children. The mother was clearly quite nervous and appeared somewhat overborne by her circumstances and by the father which from my observations and his evidence is not surprising. Despite that from my observations of her evidence she reflected upon the questions she was being asked and attempted to answer truthfully and make concessions where it was clearly appropriate to do so. One example was her evidence about having recorded the children which she readily conceded was inappropriate.
Where she made allegations about the father they tended to be more specific and detailed. The examples she gave are supportive of her case that the father continues to be both verbally and emotionally abusive of her and that his behaviour makes it impossible for them to effectively parent the children together notwithstanding that she has wanted to “move on.” These include the following incidents:
a)The mother deposed that on 1 April 2011 she and the father were driving with the children in the car. The children were behaving boisterously and the mother says she said to the father they needed to look at strategies to address the children’s behaviour and aggression. She says the father became upset and angry and said “I guess you are going to blame it all on me” to which she replied that she thought they should discuss the matter when they got home. The father then said “fuck you” and then said that “it’s no wonder husbands drown their children in dams and throw them off bridges with psycho bitches like you”. The mother said she was alarmed at the father’s comment and said to him that she could “...not believe that you said that in front of the children.” She understood the father to be referring to two recent incidents when fathers had killed their children. The father did not in his affidavit in reply to the mother’s affidavit deny this incident. During his appointment with Dr D he told Dr D that he said “you know what I think I understand how some men might get to the point where they drive into a dam.” Dr D says that the father told him “he had come to a point of realisation that a person could be pushed to such a degree that they felt helpless”. In cross-examination the father denied any mention of throwing children off bridges although he did admit the part “…about driving into dams.” The father denied any intention of harming the children. Dr D described the father’s comment as “…intemperate, careless, insensitive, relatively impulsive and inappropriate”. I accept the mother’s evidence about what the father said on this occasion and I also accept that whether the father referred to both children been thrown off bridges as well as “driving into dams” the mother is likely to have perceived such comments as a threat.
b)The mother deposes that the father called her insulting names such as “maggot”, “moron”, “fat lazy bitch”, “evil bitch” and “Satan” on a daily basis and that he would do so in front of the children. This was put to the father in cross-examination and he denied making the statements attributed to him by the mother or being verbally abusive at all. However the father did admit sending the mother a text message in which he said “…fuck you, you fat bitch”. The father, when asked whether he thought there was anything wrong with this message said “I probably shouldn’t have sent it, I should have cut my ties from [Ms Bowden] a long time ago and not engaged in a lot of these conversations” and justified his actions on the basis that he was frustrated after a series of what he said were 10 – 15 phone calls. This text message is significant both for what it demonstrates about the father’s attitude towards the mother and his lack of insight in relation to his own behaviour but also because the language he uses is exactly as the mother deposes and lends weight to her evidence.
c)The mother deposes that on 8 December 2011 she attended L’s pre school Christmas concert with her mother, her mother’s husband and G. The father was also present and approached the mother and her family with Y in his arms notwithstanding the Intervention Order which prohibited him from approaching within 5 metres of the mother. The father admitted being in breach of the Intervention Order. When asked why he approached the mother he initially said that the orders gave him responsibility for the children at the time and that the mother had the children in her time and that if she was so frightened and needed an Intervention Order she should stay away from him and not compromise him with that order. He agreed that he said words to the effect that she shouldn’t be there and that she had to go. However a little later when it was put to the father that he did not want the mother there he said that he did want her there and as they had commenced co-parenting programmes he thought that perhaps they might co-parent. The father said that although he could see that the mother’s family were as he said acting as a “blocker” or a “buffer” he wanted to go over and sit with the mother only to discover that the mother was putting him at risk and did not want to play “happy families”. He said that having done the parenting course he knew that he and the mother needed to co-parent. He did however concede that after he and the mother did not have the sort of communication that would allow that to happen. He also made it very clear that he wanted to see the children and be a father and that it was the mother’s fault that this was not happening. The father’s evidence about this incident was inconsistent and in all of the circumstances of this case totally disingenuous. I do not accept that the father approached the mother on this occasion in an attempt at co-parenting.
As I have already discussed I found the father’s demeanour in the witness box to be quite arrogant, dismissive and on occasions quite aggressive. This behaviour adds some weight to the mother’s allegations about his behaviour. One example is when he gestured to the mother’s mother who was sitting in Court whilst he gave evidence. When asked about it he said that he had just waved to her because she smiled at him however it was clear from his evidence that he did not like the mother’s mother and I do not accept that his gesture towards the mother was intended to be a friendly gesture on his part.
Whether it is as a consequence of the father’s lack of insight or ability to reflect upon the part he has played in the conflict or a deliberate attempt on his part to mislead, in so far as there are conflicts between the evidence of the father and the mother, I prefer the evidence of the mother.
Ms H said in her report that “...the family violence as described by each of the parents appears to be consistent with what the empirical research describes as situational couple violence as distinguished from coercive-controlling violence”. She described situational couple violence as being “...commonly characterised by common disagreements, including disagreements in relation to children. They frequently result in hostile verbal exchanges, including insults, threats and unrealistic demands from each parent that the other parent accept their point of view. At times these verbal exchanges may escalate into intermittent physical violence initiated jointly or by one of the other party. In these relationships, power is relatively balanced and each refuses to submit to the other’s rules or demands. After separation, the physical violence is likely to decrease significantly, although the couple continue to have difficulty communicating and co-operating in respect of the children. The parents are also likely to continue to have polarised views regarding what is best for the children”.
Dr D described the father as a man “...who could be prone to immature emotional reactions whilst under stress, and a tendency towards engaging in tit-for-tat sarcastic and provocative exchanges.” He said that it was “concerning that [Mr Bowden] holds such deep-seated and inflexible ill-feelings for [Ms Bowden]” and he anticipated that “…[Mr Bowden’s] resentment towards [Ms Bowden] may compromise his capacity to engage in meaningful and fruitful dialogue in the interests of the children.” Dr D also opined in the context of his assessment of the mother that she had indicated that she wanted to form an amicable relationship with the father in the interests of parenting the children but that “…this may prove quite difficult given [Mr Bowden’s] underlying resentment following such a sustained period of acrimony”.
My observations of the evidence of both the father and the mother accord with those of Dr D. Whilst historically this might have been what Ms H described as “situational couple violence” from my observations and assessment of the evidence the mother has now demonstrated a commitment and some capacity to move forward and prioritise the interests of the children whereas it is clear from the father’s evidence that his ongoing resentment of the mother prevents him from doing so. I am satisfied that he continues to be focussed on what he perceives to be the ongoing battle with the mother and has developed little or no insight into the effects of that behaviour either upon the mother or the children.
In all of the circumstances of this case it is essential that I make orders that protect the children from the ongoing conflict between their parents and I am satisfied that as recommended by Ms H the most appropriate way to do that is for the children to live predominantly with one parent and that in this case it is appropriate that it be the mother not simply because she is G’s primary attachment figure but also because she has now demonstrated some insight into the issues her children faced, her part in that and what is required to promote the children’s welfare.

Additional Considerations

(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding ) that the court thinks are relevant to the weight it should give to the child’s view

The father described L and Y as “enjoying the time they spend with him, always pleased to see him and often reluctant to return to their mother.” The mother described the children as initially having some difficulty separating from her following the orders made on 4 August 2011 but that they had soon settled into the routines.
Although L did make it clear to Ms H that he wants his parents to stop fighting neither he or the other two children have expressed any views as to which of their parents they want to live with. Even if they had it is clear from the evidence and in particular the evidence of Ms H that their parents’ conflict has had a significant impact upon them and any views they expressed would need to be viewed in that context.

(b) the nature of the child’s relationship with each of the parents and any other person

Ms H described both L and Y being “...very excited to see their father in the waiting room and eagerly rushed to hug him.” She also said that later in the day the father spent time with the children in the playroom and that both “[G] and [Y] were very affectionate with him, spontaneously initiating physical contact…[L] was less affectionate and demonstrative but was quite comfortable talking with him…”
She described G as being “clearly delighted” each time she was reunited with her mother and Y as “affectionate” with his mother. She observed that L did not engage spontaneously with the mother “…but did respond when she spoke to him and was compliant with her requests and directions..”
I am satisfied that, notwithstanding the disharmony and what Ms H describes as the parents acrimony, all three children have a good relationship with each of their parents.

(c) the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent
(f) the capacity of each of the child’s parents or any other person to provide for the needs of the child, including emotional and intellectual needs; and
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
(4) without limiting paragraphs 3(c) and (i) the extent to which each of the child’s parents has fulfilled or failed to fulfil, his or her responsibilities as a parent and in particularly, the extent to which the child’s parents have taken or failed to take the opportunity or facilitated or failed to facilitate the other parent participating in decision making about major long term issues and spending time or communicating with the child

I am satisfied based upon the mother’s evidence that she is committed to the maintenance of the children’s relationship with the father. However I am not satisfied that the father has demonstrated the same commitment to the children’s relationship with the mother. An obvious example of this was his application that he be permitted to relocate with the children to New South Wales and that the children spend time with their mother during school holidays. Whilst he ultimately abandoned that application it demonstrates a lack of insight on his part as to the importance of the children’s relationship with the mother that he was of the view that it would be in the children’s best interests.
I have already discussed a number of examples of the father’s capacity to provide for the needs of the children and his inability to prioritise the children’s needs over his own and his unresolved issues with the mother and to take responsibility for his behaviour and its impact upon the children.
Other examples which also highlight this issue include the following:
a)The mother deposes that in the first week after L commenced school the father refused to allow him to attend a BBQ for the families of the prep students and the families of their Grade 6 buddies. She deposed that the father wrote in the communication book “Please make appointment etc in your time. Sun-Wednesday”. Whilst the father said he joined issue with the mother’s evidence he did not himself give evidence about this issue nor was the mother cross-examined in relation to it. In all of the circumstances I accept the mother’s evidence.
b)The mother deposes both she and the father had concerns about Y’s behaviour and that he has attended upon Dr Q, a behavioural paediatrician, on three occasions. The first of those appointments was in June 2011 and Dr Q had advised her that Y had behavioural management issues. Dr Q wrote to the father on 21 July 2011 advising him that Y had been referred to him by his local doctor because of problems with his behaviour and that he was hoping to get the father’s feedback. He enclosed a questionnaire for the father to complete and return to him and told the father he would be happy to speak to him about Y. In cross-examination the father was asked about the letter and initially said he had not received it. He later conceded that he had received the letter but that he had not completed the questionnaire as requested by Dr Q. He said that he had spoken to Dr Q and that he had indicated to him that Y was a normal well behaved child with no behavioural problems. In essence, the father’s position was that he did not have any problems with Y’s behaviour when he was in his care and he was dismissive of the mother’s concerns. In the face of the letter from Dr Q dated 30 April 2012 in which he referred to Y’s developmental and behavioural difficulties the father simply repeated what he said Dr Q had previously told him about Y being a normal well behaved child with no behavioural problems, dismissing the need for any behavioural management program. He said any lack of control on Y’s part was as a result of Y’ age. The impression I was left with was that the father simply would not co-operate with any treatment initiated by the mother.
c)The final example I will refer to is in relation to L’s home reading. The mother deposed that she did not believe that the father was properly supervising L’s homework as his reading record was often returned with blank entries on the days when he is with the father. The mother annexed a number of pages from the reading record to her affidavit. The father said he understood that when L did his reading this would be recorded and pointed out that when L reached 50 and 75 books he had given him an award in the record and signed for it. He agreed that there was a space for parents to make comments at the end of the week as to their child’s progress. He also conceded that there were a number of blank spaces at times when L was in his care and on other occasions he had made a note about L doing karate. Although his evidence was very defensive he ultimately conceded that this was because on some days when L had been to karate there was no time to do his reading. What was perhaps even more concerning was that it is clear that the father used the record book to enter into a debate with the mother about issues that had nothing to do with L’s reading. When it was put to him that it was inappropriate to use the reading record he suggested that he had not been aware that it went to the school and thought it was just for L however when it was put to him that it was inappropriate to make the comments as L might see them he suggested that L only looked at the awards. I am satisfied that it was more important from the father’s point of view to make his point whether that might be embarrassing for either L or the mother and whether or not it exposed L to the ongoing conflict. I am also satisfied that this evidence demonstrates a preparedness on the part of the father to disregard what would appear to be the reasonable request of the mother that L complete his reading homework.
Whilst I do not doubt for a moment that the father loves these children it is clear from his evidence that his ongoing issues with the mother continue to impact upon his capacity to parent in a way that will prioritise their interests.

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from the other parent or any other person

The orders that are proposed by both parties will involve some change in the circumstances of all three children. However, I am satisfied that whether I adopt the father’s proposal or the mother’s proposal the key to the orders I propose to make is that the children will be living primarily with the mother and spend substantial time with the father. This is intended to reduce the children’s exposure to the conflict making that change in balance a positive change from the children’s perspective.

(e) the practical difficulty and expense of the child spending with and communicating with a parent and how that difficulty and expense will affect the child’s rights to maintain a personal relationship and contact with both parents on a regular basis:

This is not an issue in this case.

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other relevant characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait islander child;

This is not an issue in this case.

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

(k) any final or contested family violence order that applies to the child or a member of the child’s family:

As I have previously discussed there are allegations by both the father and the mother of family violence against each other and there have been a number of Intervention Orders made over the course of their relationship and since separation.
Although somewhat reluctantly, the father has agreed to an order that changeover be at R Contact Centre in Suburb S Where otherwise possible changeovers will be at the children’s schools or kindergartens. I am satisfied that the proposed orders will allow for the ongoing relationship between the children and the parents without unnecessarily exposing the parties or the children to the risk of family violence.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

There has been extensive litigation in this case and the children would almost certainly benefit from it being over. Ultimately it is a matter for the parties and how they decide to move forward as to whether there are any further proceedings. Whilst the history of the matter would suggest that it is likely that there will be further proceedings I am hopeful that the orders I propose to make and in particular the order for sole parental responsibility will reduce the matters about which the parties can argue avoid the necessity for further litigation.

Any other relevant circumstance

There is no other relevant issue in this case.

Parental Responsibility

Although in this case I have found that I prefer the mother’s evidence, there would be reasonable grounds on either version of the evidence to believe that one or other of the parents has engaged in family violence and/or abuse of these children and that on that basis I am satisfied that the presumption of equal shared parental responsibility should not apply.
If an order is made for shared parental responsibility the exercise of that responsibility involves the making of decisions about major long term issues in relation to the children (s65DAC(1)(b)). The order requires each of the parties to consult with the other in relation to the decisions they are required to make and to make a genuine effort to come to a joint decision (s65DAC(3)).
Ms H described the father and mother as being “...unable to develop an effective communication strategy enabling them to identify and address their children’s needs collaboratively” and that given their level of communication is so poor it is necessary for one of them to have sole parental responsibility. Whilst Ms H said in cross-examination that she did not have a view about which parent should have sole parental responsibility she also said that it made sense for it to be the parent with whom the children are spending more time.
The father’s evidence demonstrates on many levels a total lack of insight into the effects of the conflict or any capacity to accept or even consider any view other than his own. This includes the matters I have previously discussed such as the decision in relation to L’s schooling, the appointment with L’s nutritionist and the father’s attitude to the advice received from Dr Q.
A particularly telling example is in relation to G’s middle name. The mother deposes that around mid June 2012 she received G’s birth certificate but that it did not state her middle name because the father had refused to agree to her middle name because it includes the mother’s middle name. The father in his trial affidavit said he joined issue with the mother’s evidence and during cross-examination denied that he and the mother had agreed that G’s middle name would be T. This was notwithstanding that in Court documents G is identified as G T Bowden. It is clear from the father’s evidence that what occurred was that when the mother sent the form to him for signing he crossed out the part of the name without telling the mother as a result of which the Registration was completed without any middle name being included. Although the father ultimately agreed in the witness box that he would agree to an order for G’s name to be changed to G T Bowden that of course is after the mother has already issued proceedings at VCAT and in the context of the final hearing in this Court.
I am satisfied having considered all of the evidence and in particular listened to and observed the husband’s evidence during the hearing that there is no real prospect of him entering into any meaningful discussions with the mother about major long term issues in relation to the children. Although I am comforted by the agreement of both parties to attend and engage with the Child Protection Society the father could otherwise offer no real examples of how he thought he and the mother might be able to improve their relationship and communicate in such a way as would enable them to make decisions in the best interests of their children. Given that he has developed so little insight into his behaviour or its impact upon the mother and the children it is difficult to see at this point of time how he could make the changes that would be necessary for these parties to share parental responsibility.
I am satisfied that the mother has developed some insight into the impact of the conflict upon the children and if required to do so would use her best endeavours to consult with the father, given the father’s behaviour and attitude to her, it would be extremely difficult for her to do so. On that basis irrespective of the allegations of both family violence and abuse I am satisfied that the presumption of equal shared parental responsibility would not, in any event, be in the best interests of these children and should not apply.
At the end of the day it is a question of whether or not the parties can communicate effectively rather than the reason why they cannot. It is not a reward for the good behaviour of one parent and a penalty for the bad behaviour of the other. If they cannot communicate then in my view, whatever the reason may be, there is a very real likelihood that it will not be in the children’s best interests for the parents to have shared parental responsibility. However I am also satisfied having heard the evidence in this case that the mother is best placed to have sole parental responsibility for the children not simply, as suggested by Ms H, because the children are to live primarily with her but also because she does demonstrate some understanding of the children’s needs and in particular the need to avoid ongoing conflict with the father and to protect the children from that conflict should it arise.
In so far as the presumption of equal shared parental responsibility is rebutted I am not required to consider whether it would be in the children’s best interests or reasonably practical for the children to spend either equal or substantial time with each of their parents and must determine what orders are in all of the circumstances in their best interests.
I am satisfied for all of the reasons that I have discussed that the orders proposed by the ICL and adopted by the mother subject to the matters I have referred to in these reasons are in the best interests of these children. The orders I propose to make subject to any submissions with respect to the form of those orders are as above.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 21 December 2012.

Associate:

Date: 21 December 2012

[2012] FamCA 1084

21 December 2012

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