BUNSON & ABBEY

FAMILY COURT OF AUSTRALIA

BUNSON & ABBEY

[2015] FamCA 963

FAMILY LAW – CHILDREN – Best Interests – Where the two middle children are strongly aligned with the mother – Where the oldest and youngest children have ongoing relationships with the father but if the current situation remains unchanged, they will likely lose their relationship with the father – Children’s views – Where the children do not have the maturity or level of understanding necessary to express a view that should be fully taken into account – Where none of the children understand the consequences in the long-term of losing their relationship with the father – Where the mother has not complied with previous court orders – Where the mother’s stated inability to make the two middle children available to spend time with the father, or ensure all children attend school, is a serious limitation on her parenting capacity – Where the evidence supports the father’s willingness to ensure that the children maintain contact with the mother – Where the father has a greater capacity to meet the emotional and educational needs of the children – Where to leave the current orders in place is to accept that some, if not all, of the children will not see the father – Change of residence – Children to live with the father – Where a period of four weeks to enable an adjustment for the children with an order for the mother to stay away from the school is sufficient to give all of the children time to focus on their new arrangement – Where an order for regular weekly time for a whole day can commence in December 2015 and continue until the commencement of the next school term – Where thereafter the children spend time with the mother each alternate weekend and half school holidays

FAMILY LAW – CHILDREN – Parental Responsibility – Since the children will be living with the father, he should have sole parental responsibility – Father to advise the mother of decisions to be taken and to genuinely take into account any thoughts and proposals she has in that regard

Family Law Act 1975 (Cth), ss 60CC, 64B, 68B

APPLICANT:

Ms Bunson

RESPONDENT:

Mr Abbey

INDEPENDENT CHILDREN’S LAWYER:

The Family Law Firm

FILE NUMBER:

NCC

3062

2013

DATE DELIVERED:

6 November 2015

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

14-16 and 23 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Brady

SOLICITOR FOR THE APPLICANT:

Winder Lawyers

COUNSEL FOR THE RESPONDENT:

Mrs Kearney

SOLICITOR FOR THE RESPONDENT:

Foat Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

The Family Law Firm

Orders

That all prior parenting Orders in relation to B born … 2003, C born … 2005, D born … 2006 and E born … 2009 (collectively known as “the children”) are discharged.

Parental Responsibility

That the father have sole parental responsibility for the children.
That on each occasion when an issue arises relating to the long-term welfare of the children, or any of them (including but not limited to education, specialist medical treatment and therapeutic counselling) then the father shall:
(a)Advise the mother in writing of the matter which requires a decision and of the proposal of the mother in that regard;
(b)Invite the written response of the mother within a defined period of time to be reasonable in the circumstances;
(c)Genuinely consider the response of the mother and take her views and proposals, if any, into account before coming to a decision; and
(d)Promptly advise the mother in writing of the decision taken.
That the father invite, and accept if offered, the supervision and support of the Brighter Futures Program for himself, the children and, if she wishes to become involved, the father’s partner and her children.
That the father may re-enrol the children, or any of them, at F Primary School and in the event that he does so, the father shall:
(a)Notify the mother in writing of the changed enrolment and proposed date of recommencement at that school;
(b)Provide a copy of these Orders to F Primary School;
(c)Include the contact details of the mother in the enrolment applications; and
(d)Authorise the principal of the school to provide to the mother copies of all documents provided to parents, related to the progress and welfare of the children at school (including but not limited to school reports, school newsletters, and application for school photographs.

Residence

That the children live with the father, with residence to commence at the conclusion of school on Friday 6 November 2015, with the father to collect the children from school on that day.

Time and Communication

That the mother shall spend time and communicate with the children as follows:
(a)That for a period of four weeks from the date of these Orders, the mother shall spend no time with, and have no communication with, the children.
(b)That pursuant to s 68B of the Family Law Act, the mother is restrained from contacting the children in person, by telephone, electronically, or through a third party during the period referred to in Order 7(a).
(c)After the expiry of four weeks from the date of these Orders, and until the commencement of the first school term in 2016, the mother shall spend time with the children:
i.From 10.00 am until 4.00 pm each Sunday, commencing Sunday 6 December 2015, and thereafter on:
ii.20 and 27 December 2015;
iii.3 and 10 January 2016;
iv.17 and 24 January 2016.
(d)Commencing in the first school term of 2016, the mother shall spend time with the children each alternate weekend from after school Friday to the commencement of school the following Monday, such weekend time to recommence on the first Friday of each school term.
(e)The mother spend time with the children:
i.In each school term holiday period, commencing with the first term holiday (at the conclusion of Term 1 in 2016) from 10.00 am on the first Saturday of the holiday period to 10.00 am on the second Saturday;
ii.For the first half of the Christmas school holidays period commencing in even numbered years, starting December 2016 (the December 2016/January 2017 school holiday period), commencing at 9.00 am on the first non-school day of that school holiday period and concluding on the mid-point at 9.000am on the mid-point day of that holiday period, such time to be suspended from 2.00 pm 25 December until 2.00 pm 26 December when the children will spend time with the father;
iii.From 2.00 pm 25 December until 2.00 pm 26 December in odd-numbered years (when the children are with the father for the first half of the Christmas school holiday period), commencing December 2017;
iv.For the second half of the Christmas school periods which commence in odd-numbered years starting in January 2018 (being the December 2017/January 2018 school holiday period), commencing at 9.00am on the mid-point day of that holiday period and concluding at 9.00 am on the last non-school day of that holiday period;
v.On Mother’s day, if the children are not due to spend time with the mother, from 6.00 pm on the Saturday prior to Mother’s day, until return to school the following Monday morning;
vi.On Father’s day, if the children are due to spend time with the mother on that weekend, the time with the mother is suspended from 6.00 pm on the Saturday before Father’s day for the balance of that period.

Changeovers

That all changeovers, other than those effected at school, shall take place at McDonalds Family Restaurant, G Town.

Telephone Communication

That at the conclusion of Order 7(a) above, the mother may telephone the children, failing agreement otherwise, each Wednesday, with the call to be initiated by the mother between 6.30 pm and 7.30 pm and the father to facilitate each child having the opportunity to speak to the mother in privacy.
That the father may telephone the children during holiday periods with the mother on Wednesday between 6.30 pm and 7.30 pm, with the call to be initiated by the father and the mother to facilitate each child having the opportunity to speak to the father in privacy.

Restraint

That the mother be restrained from attending H School from the date of these Orders and for the balance of the 2015 school year, and further, is restrained from contacting or attempting to contact the children at school, including within school grounds, throughout that period.

Medical Attention for the Children

That the father shall nominate the general medical practitioner or medical practice for the children and shall advise the mother of the name, professional address and contact details for that general practitioner or medical practice.
That other than in the event of a medical emergency, each parent shall ensure that the children attend the nominated general practitioner or medical practice when medical attention is required for the children, or any of them.
That in the event of a child being hospitalised, or receiving medical attention for a medical emergency, the parent whose care that child is in shall notify the other parent immediately.
That the father advise the mother of any appointment for a child with a medical specialist, including details of the name, professional address and contact number of that specialist, and shall provide the mother with a copy of any letter/report provided to the father by that medical specialist.
The mother is restrained from taking the children, or any of them, to counselling, or arranging any therapeutic intervention, without the prior written agreement of the father.

Communication between the Parties

That the parties shall maintain a communication book and shall each include information about the health and general welfare of the children, noting that either the parties or their respective partners may write the relevant information into the book.
That each party is to advise the other of residential address, telephone numbers and an email address for that party, and shall notify forthwith of changes to those details.

Provision of Documents by the Independent Children’s Lawyer

That the Independent Children’s Lawyer provide to the Principal of H School a copy of these Orders before the conclusion of school today, 6 November 2015.
That the Independent Children’s Lawyer provide to the Secretary, Department of Family and Community Services the following documents:
(a)A copy of these Orders and Reasons for Judgment;
(b)A copy of:
i.The Children and Parents Issue Assessment Memorandum dated 3 October 2014;
ii.The Family Report dated 5 June 2015.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3062 of 2013

Ms Bunson

Applicant

And

Mr Abbey

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

introduction

These are competing applications for parenting orders in respect of four children: B aged almost 12, C aged 10, D aged nine and E aged six at the time of trial. The oldest child is a girl; the three younger children are boys.
The applicant is the mother, aged 29. Her household consists of herself, her current partner and the four subject children.
The respondent is the father, aged 30. His household consists of himself, his partner, aged 31, and her three children, aged 10, eight and six. The father and his partner have one child together, aged nine months old.

Short History of Relevant Events

The parties met as teenagers and began an intimate relationship in either 2002 or early 2003. The mother at that time was living with her sister. The father was living with his own father.
During the course of the hearing it became clear that although the parties maintained a relationship until early 2013, that is, over a 10 year period. The longest period in which they lived together in a common residence was for about two years.
In May 2011 a report was made to the FACS helpline that B had been indecently assaulted by the father of a school friend. Soon after the child was interviewed The outcome was “insufficient information to identify that harm occurred. Cannot be substantiated”
The parties finally separated in January 2013. The youngest child was then almost four years old.
Immediately after separation, the children stayed with the father for about one week. The father then dropped the children off at the mother’s house. Over the following period of about 11 months there was a reasonable level of cooperation between the parents. I accept the evidence of the father in that regard and also that the mother would ask him for help in taking care of the children, which he did as often as possible. Further, that the father’s partner was involved in those arrangements.
There were two periods of about two weeks when the children lived with the father. Otherwise, the children were usually with the father at weekends, sometimes on Wednesday nights and otherwise with the mother.
In May 2013 the father commenced a relationship with his current partner.
In mid-2013 the mother changed the children’s school enrolment to H School without the prior consent of the father. This had particular significance for the children, all of whom have behavioural and/or developmental difficulties. They were each assessed and supported in their learning by their original school, F.
The relationship between the parents deteriorated.
In August 2013 the mother commenced a relationship with her current partner.
On 3 December 2013, the mother filed an application in the Federal Circuit Court proposing the following orders:
a)Equal shared parental responsibility;
b)Residence with the mother; and
c)Children to spend time with the father each alternate weekend, Friday to Monday, half school holidays and special occasions.
The mother also sought orders about specific issues.
In January 2014, the oldest of the subject children, B, is said to have displayed sexualised behaviour towards the children of the father’s partner. The Joint Investigation Response Teams (“JIRT”) conducted an investigation, which was concluded with no criminal charges in relation to any adult.
The Department of Family and Community Services (“the Department”) visited the mother regarding the allegations made by the father’s partner and the father about B’s sexualised behaviour. The mother was given a referral for the child to attend a Sexual Assault Unit for counselling. B attended for two visits only. I am not satisfied that the mother was committed to seeking this support for the child at that time. This response was particularly un-child focused given the possibility of abuse of the child by an adult two and a half years prior.
On 4 February 2014, interim consent Orders were made in the Federal Circuit Court that the parties have equal shared parental responsibility, that the children live with the mother and spend time with the father each alternate Wednesday for four hours and each alternate weekend from the end of school Friday until the beginning of school the following Monday. Separate Orders were made for the youngest child, who was not then at school. The Court noted that the children were currently spending time with the father when those interim consent Orders were made.
Despite that, the relationship between the parents did not become more trusting and positive. The mother appears to have contacted the Department on a number of occasions, as well as the police from the time of those Orders and over the following months.
In May 2014, the father began to live with his partner and her children. This relationship is ongoing.
In May 2014, the Department advised the Federal Circuit Court that it would not intervene in the proceedings.
On 29 May 2014, the father received a letter from the mother’s solicitor stating that all the children had commenced working with a behavioural specialist at the Newcastle Sexual Assault Service.
In June 2014, the three youngest children were said by the mother to have begun having nightmares about being removed from her care.
On 8 July 2014, the parties attended a Legal Aid mediation. The parties were unable to resolve the matter on a final basis.
On 18 July 2014, the matter was transferred to this Court.
The Court noted at the time of transfer that:
a)The child B had been sexually assaulted at age seven by an adult male. In January 2014 B had been discovered with two of the male children of the father’s partner in circumstances where, after some investigation by the Department, it became apparent that B was encouraging her younger step-siblings to engage in sexual behaviour with her.
b)It is the mother’s position that B will engage in sexual behaviour with her step siblings if B is to spend time with the father. It is the mother’s application that B’s time with the father be reduced and/or cease.
B’s conduct became an issue in the proceedings before me. The mother taking the view that it was B who was at risk from the children of the father’s partner and not the other way around. In my view the mother was failing to confront the possibility of real psychological difficulties for B reflected in problematic behaviour with other children
In August 2014, the mother began living with her current partner and this relationship has continued.
On 27 August 2014, the father filed a Response proposing that the children live with the parents week about, with the changeover day on Friday, and other orders relating to time and communication. He proposed a return for the children to their original school.
On 3 September 2014, a Children and Parents Issues Assessment (“CAPIA”) was ordered. On 2 October 2014, both parents and the four children attended for interview.
The evaluation of the Family Consultation was that:[1]
… this matter would appear to be ill-suited to a week-about, shared-care parenting arrangement given the ongoing conflict, lack of trust and poor communication between the parents.
[1] CAPIA dated 03/10/2014, par 35
The Family Consultant suggested that the better arrangement would be one where the children lived primarily with one parent and spent time with the other on weekends and school holidays.
Of significance is the further comment by the Family Consultant that at that point in time:[2]
… the mother does not appear to be willing to encourage or facilitate the children’s relationship with the father and this may need to be taken into consideration when future orders are made.
[2] CAPIA dated 03/10/2014, par 36
My observation of the mother is that until the very end of the hearing she continued to be unwilling in the way identified to support relationships between the children and the father. Her capacity to do so and her insight into her own conduct on the children’s relationships with the father will be discussed further in these Reasons.
On 30 October 2014, the father filed an Amended Application in a Case and an affidavit. The original Application in a Case had proposed some additional time for the children with him each week. The Amended Application in a Case was for an order for sole parental responsibility in respect of counselling for B. This was with particular reference to the mother’s rather lackadaisical approach to therapeutic assistance for the child.
On 4 November 2014, by consent, interim Orders were made, which included that an order for sole parental responsibility for counselling for B be allocated to the father.[3] There were also arrangements for the Christmas holiday period.
[3] Orders dated 04/11/2014, Order 5
On 2 December 2014, the mother had her general practitioner cancel the mental health care plan that had been set up for the children.

In December 2014, there was a low level dispute between the father and his partner.
In 2015, the father’s child with his partner was born.
In February 2015, the mother alleged that she had been assaulted by the father’s partner at the children’s school. She subsequently informed the father that the children would not be spending time with him because of her concerns about their safety in his care.
On 16 March 2015, the mother filed an Application in a Case proposing sole parental responsibility for her, that the children live with her and spend supervised time only with the father.
The extent of the conflict between the parents and non-compliance by the mother with orders was growing.
On 20 March 2015, the father filed an Amended Response proposing that the children live with him, that he have sole parental responsibility, that they spend time with the mother each alternate weekend, on alternate Wednesday nights, half school holidays and other special times. The father soon after also filed a Response to the mother’s Application in a Case.
By 20 April 2015, the father had filed a Further Response to the mother’s Application in a Case proposing moving from weekend and holiday time to supervised time only between the children and the mother.
On 20 April 2015, Orders were made for the hearing of the interim application, issuing of extensive subpoena, the preparation of a Family Report and an Order that none of the children be taken to see a psychologist, counsellor or any other therapist without the consent of both parents.
An interim Apprehended Violence Order had also issued in the Local Court at Newcastle against the father for the protection of the mother.
On 1 May 2015, a further set of interim consent Orders were made that the children spend time with the father each alternate weekend, from conclusion of school on Friday until commencement of school the following Monday, and each alternate Wednesday for four hours after school. The parties were ordered to utilise a communication book. This was substantially a repetition of the Orders made by consent in February 2014. A declaration was made that to the extent that there was inconsistency between an Apprehended Violence Order and the consent Orders, the Apprehended Violence Order was invalid.
On 18 May 2015, the mother alleged that the father broke into her home.
On 2 June 2015, the parties and children attended the Family Report interviews with the Family Consultant. In June 2015, the Family Report was released.
The observations of the Family Consultant reveal significant disruption in the children’s relationships with the father. The oldest and youngest children were described as “clearly happy to see the father and his entourage” - a reference to the baby, the father’s partner, her three children, and other relatives.
The two middle children are described in this way:[4]
… [they] seated themselves on the couch and ignored everyone, staring fixedly at the movie playing on the television. They ignored the children playing around them and the attempts made by the adults to engage with them. At times, [C] would sneak a look at [D] and smile to himself. [D] kept a blank expression on his face. [B] and [E] ignored the two boys and played happily with the baby and with the other children.
The father seated himself on the sofa next to [D] and [C] and attempted to talk to them. [D] turned his back to the father and looked at the wall, ignoring him. The stepmother attempted to engage [C] in conversation, commenting that he had appeared to enjoy his afternoon on Wednesday – [C] smirked at her and did not respond.
[4] Family Report dated 05/06/2015, pars 173 and 174
The Family Consultant went on to say that the two middle children, D and C, looked at one another and grinned when told it was time to return to the mother’s care, yet, at no time during the observation did either child appear at all anxious or scared of any of the adults. The evaluation of all of the observations and this particular pattern of conduct was as follows:[5]
The children appear to be dealing with ongoing parental conflict and are experiencing the burden of having considerable loyalty demands placed on them by the parents.
[5] Family Report dated 05/06/2015, par 177
In the view of the Family Consultant, the two middle children had “succumbed to aligning themselves with one parent [the mother] in order to deal with this difficult situation”. Of greatest concern is the opinion of the Family Consultant that the two middle children are “well on their way to becoming estranged from the father”.
Effectively, there was a recommendation that there be immediate addressing of that situation to avoid the children continuing to reject the father to the point that he could become alienated from their affections. The consequential concern was that the older and younger children, who were assessed to be better equipped to ignore the conflict and get what they needed from each parent, might follow suit.
The clear assessment of the Family Consultant at that time was that the mother was unwilling or unable to facilitate the children’s relationship with the father at this point in time.
The Family Consultant was clear to express that she held the view that the mother, rather than supporting the children, was taking full advantage of the difficulties faced by the middle children in adapting to the father’s blended family. Further, that it suited the agenda of the mother for the children to stop spending time with the father and, more particularly, with his partner.
The Family Consultant also expressed concern, as stated previously, about the mother’s willingness or otherwise to abide by court orders, even consent orders.
Identifying that both parents had deficits in their capacity to recognise and meet the needs of the children, particularly children with special needs, the recommendation was as follows:[6]
… that if the father or anyone in his household poses an unacceptable risk of harm to the children, then the Family Consultant would support the children remaining in the care of the mother and spending relatively little time with the father, possibly at a Children’s Contact Centre. If the Court finds that there is no unacceptable risk of harm to the children, then the Family Consultant would support an immediate change of residence to that of the father.
[6] Family Report dated 05/06/2015, par 182
In the event of that happening, the Family Consultant made certain recommendations about implementation.
After the Family Report interviews I accept the evidence of the father that the children settled down and all of them started coming to spend time with him again. That pattern did not last long.
On 24 June 2015, the father was away for work and although he arranged for his partner to collect the children from school, they did not spend time with him for that period.
On 3 July 2015, the father’s partner picked the children up from school. The father was being cautious not to breach the Apprehended Violence Order which was then in place.
That collection gave rise to a terrible incident where C refused to cooperate with the father’s partner. He behaved in a way that put himself at physical risk and put enormous pressure on the father’s partner as to the appropriate course to take. When the children were ultimately brought home to the father, the conduct of the middle children was violent, uncontained and led to genuine distress for all of the children. The police were involved in a helpful way and the father was not dealt with by way of breach of the Apprehended Violence Order and indeed, was not the subject of criticism by the police.
Subsequently, the father learned that despite the previous court Orders, the children had been taken to counselling by the mother and, in the case of D and E, had been taken to doctors for diagnosis.
The relationship between the parents became impossible.
On 29 July 2015, when the father rang to speak to the children, he was discouraged by the mother and her partner and could hear C screaming in the background that he hated the father.[7] There was a period of about four or five weeks when the father saw none of the children.
[7] Affidavit of the father filed 25/08/2015, par 126
On 5 August 2015, the oldest and youngest children came to spend time with the father. The middle two children refused.
The matter came for hearing before me commencing on 14 September 2015. It ran for the allocated three days and an additional day on 23 September 2015.
The relationship between the father and all four children, but particularly the middle two children, was on the cusp of breaking down entirely.
On 16 September 2015, pending reserved Judgment being delivered, Orders were made by consent that the children spend time with the father from

27 September 2015 to 4 October 2015, that is, for part of the school holidays. Changeovers were to occur in the absence of both parents and were to be facilitated by their respective partners.
The matter was not re-listed. I infer that the period of time probably took place uneventfully with all four children and the father. It is a matter of some significance, which will be discussed further in these Reasons

Issues to be Determined

The issues to be determined in this case are:
a)   Whether there is an unacceptable risk of harm to the children, or any of them, in either the household of the mother or the father;
b)     The capacity of each of the parents to meet the needs of the children, including emotional, financial, educational and psychological needs;
c)     The ability and willingness of each of the parents to comply with court orders;
d)     The exercise of parental responsibility; and
e)     Where the children should live.

Evidence

The documents relied on in respect of the application were as follows:
Mother
(a)Initiating Application of the mother filed 03/12/2013, noting that the ultimate Minute of Order sought by the mother was contained in her Case Outline;[8]
[8] Exhibit 1
(b)Affidavit of the mother filed 28/08/2015;
(c)Affidavit of the mother’s partner filed 28/08/2015;
Father
(d)Further Amended Response of the father filed 07/08/2015, noting that the ultimate Minute of Order sought by the father was contained in his Case Outline;[9]
(e)Affidavit of the father filed 25/08/2015;
(f)Affidavit of the father’s partner filed 25/08/2015;
Reports
(g)CAPIA dated 03/10/2014;
(h)Family Report dated 05/06/2015.

Oral Evidence

[9] Exhibit 2

The mother

The mother is a young woman of 29 years. She had her first child at 17. She has been engaged with the care of the four children since then. For that reason, she has not been in paid employment and has no particular qualifications for the workplace. The mother has Centrelink income of $1,760 per fortnight. Her partner pays the rent on the home in which she is living and provides additional financial support on an occasional basis.
My impression is that the mother is quite immature and has seen these proceedings as an opportunity to involve the children in her increasingly negative attitude towards the father. The conduct of the middle children particularly suggests that they are playing a kind of hateful game.
The mother appears to have found stability in her relationship with her partner and has adjusted her life to align with his. She no doubt appreciates his affectionate involvement in the lives of the children and gives the appearance of wishing that the father’s involvement had fallen away.
The mother acknowledged that each of the four children have special difficulties. B has difficulty learning and absorbing information. C has Attention Deficit Disorder and so has trouble concentrating and a quick temper. D is said to be autistic and also has an attention disorder. He has difficulty reading and writing and is hyperactive and emotional. E may also have an attention disorder; he has trouble concentrating, listening and co-operating.
The mother readily agreed that all the children needed regular routines and structure. Unfortunately, the attendance pattern of the children at school reflects something very different. The children have had a great many absences from school through illness, lateness, being withdrawn from school during the day, and for no stated reason at all.
D in 2014 had 62 such absences and has already had 22 absences to mid-year 2015. C had a similar pattern of absences. B in 2014 had

71 absences and 27 absences in 2015. E in his first year at school in Kindergarten has had 18 absences.
The mother was defensive and unhelpful in response to cross-examination in respect of the children’s school attendance. She challenged the record as not accurate. She said it was not a failure on her part to get the children to school; she had had car troubles a few times, but otherwise it was because the children were sick or had appointments. She also identified that “[D] had a lot of meltdowns which made us late”. However the mother also denied that she had any difficulty managing the children, particularly [D], with the extreme behaviour that is suggested by the mother’s term “meltdown”.
The mother conceded that the father had bought her a car to get the children to school, but that she had asked him to come and collect the children and take them to school when the car ran out of registration.
The subpoenaed material suggests that from the time the oldest child started school, there was very poor attendance when the children are in the mother’s care, a pattern which has continued since.[10]
[10] Exhibit 17
There is no doubt that as a sole parent of four children with the difficulties described, the mother has her hands full. However, the father was able to get the children to school when they were with him, paid their school fees and regularly communicated with the school in an effort to ensure their attendance.
After the breakdown of the parties’ relationship in January 2013, the mother agreed that she had moved with the children five times when she had variously lived with the maternal grandmother, in a caravan park, and in other rented accommodation.
Of the greatest significance in terms of disruptive change, was the decision to change the children’s school in May 2013. The mother conceded that each of the children had a specialised program at that school and significant support for their learning difficulties and that those programs had been disrupted with the change of the children schools; all of them had to be re-tested for learning difficulties.
The mother denied that this change had been for her own convenience given that the children’s current school is around the corner from the home where she lives with her current partner. I do not accept her evidence on that point.
However, I consider it likely that she removed the children from their original school, at least to some extent, because she was affronted by criticism from the school over her parenting of the children, attendance, but also exposure of the children to her own sexual conduct in the home with new partners.
Whether or not that was the case to any extent, Ms I, the religious co-ordinator at the children’s original school, expressed the view that it “was a direct result of staff challenging the mother on her behaviour that the mother decided to withdraw the children from the school”.[11]
[11] Family Report dated 05/06/2015, paras 124-129
The information of Ms I and Mr J, the Principal of H School, was contained within the Family Report and was not challenged. I therefore conclude that the mother removed the children from their original school for reasons relating to her feelings of affront, but chose the school she did because she considered it suitable and geographically convenient.
The mother alleged, and I do not accept, that she spoke to the father about moving the children and that he had verbally agreed over the phone. The father at all times maintained his position that he had not agreed to the move and his preference for the children to return to that school despite misgivings about a further change. It is matter of some significance.
The mother conceded that she had sent the oldest child to school with a laptop for the purpose of having educational material downloaded to be brought home and used for educational purposes and that the laptop had contained images relating to her own sexual relationships. The mother denied that she had found that situation amusing, as set out by Ms I, but it is apparent that she did not consider it of any particular significance.
I note that the oldest child was interviewed at age seven after the alleged assault on her by the father of a school friend.[12] The mother seemed oblivious to the implications for a child sensitised in this way. The children also reported to their school teachers that they had seen the mother in bed with various male partners and that the mother was aware of their watchful presence.
[12] Exhibit 9 at Tag 7 (16 May 2011)
This is an area where the explanation for the mother’s lack of insight appears to be related to immaturity. When she was being questioned about the children reporting comments about “mum and [her then partner] having noisy sex”[13], the mother conceded that she had been in a relationship with a man by the quoted name at the relevant time, that she had nominated him as an emergency contact for the children, but she was defiant and arch in her responses, “yes, I did”.
[13] Family Report dated 05/06/2015, para 22
When the mother enrolled the children in their current school, there was a form which included the question, “does the student sometimes reside at this[secondary] address”. The mother answered “no” in relation to the children and their residence with the father and excused herself in cross-examination as having made a mistake. I do not accept that it was. I consider that the mother was attempting to establish that she was the one solely responsible for the children and was content for the father’s role to be minimised in this way.

The mother’s current relationship

The mother has a relationship with her current partner, whom she has known since they were at high school together. The relationship began in August 2013.
The mother’s partner refers to the parties having begun living together in September 2014. In her oral evidence, the mother denied that she lived with him, stating that he stayed for a couple of nights most weeks and gave

90 per cent of his free time to her and the children. She asserted that they were planning to live together later in the year.
I accept the evidence of the mother’s partner that the parties have lived together since about September 2014 in a six-bedroom house in the suburb of Newcastle. The mother’s inconsistent evidence with that of her partner was unexplained, but I am satisfied that she was not being truthful on this point.

Mother’s attitude to court orders

The mother agreed that in 2014 C was refusing to see the father and during Easter 2014 C stayed with her while the three other children went to the father’s house. The mother says she told C “you have to go with your father and siblings” but he did not want to go.
This was one of many occasions where the mother asserted that the children did not want to spend time with the father, went to school and said they did not want to go, and that there was nothing she could do about it. It is of the utmost concern that at this stage, where C and D are aged 10 and nine, that the mother says she is unable to ensure that the children spend time with the father, that she is unable to comply with orders, If I accept what the mother says, she is unable to ensure that the children do as they are told.
The evidence suggests that the mother, when she needs the father’s help, has simply asked him to help her and to take the children. For instance, when she was undertaking a Certificate III course, she dropped the children to the father’s home at 5.30 am in the morning for him to care for them and then take them to school.

At other times, when it suited her to have the children with her, she did not insist that they spend time with the father. There is a self-righteousness to this conduct, which makes future compliance with the orders doubtful. I concluded that the mother did not understand, or understood but was indifferent to the knowledge, that variation of the orders had to be by consent; that simply saying “it won’t be happening” was not open to her.
Likewise, the mother does not appear to understand communication and consultation with a view to variation of orders. She agreed that on one occasion she had said to the father, “tell me what the arrangements are while the children are with you or they’re not going”. The mother consistently referred to the children as “my children” and gave the firm impression that she regarded the father as an optional extra in the children’s lives, rather than as an equal partner to her in the raising of the children.
Certainly the mother was indifferent to the Order which gave the father sole parental responsibility for arranging counselling for the oldest child. That Order had been made by consent. The father had established a mental health care plan with the GP. The mother asked the GP to cancel it because it was arranged through her Medicare card.

Child support

The mother asserted that the father failed to pay child support. She ultimately conceded that he had always paid the school fees at F and was in fact in credit on account of paying fees; further he had given her a car.
The mother conceded that the middle children had most recently not been going to see the father since July 2015. She denied that she was not encouraging them to go. She offered evidence that she had bought tickets to movies and other events, directing the father to those activities.

Incident of 3 July 2015

Tendered into evidence was a disc of the events of 3 July 2015. In her oral evidence, the mother said that she had forced the children to go, including C. This is not the case. The mother is seen talking to C for a lengthy period of time whilst the father’s partner and the other three children sat waiting in their car.
During that time, there was lively and engaging conversation between the father’s partner and the other children. It was the mother’s partner who recommended that he and the mother leave the father’s partner to get C into the car and she thereafter did the best she could in the most trying circumstances. Ultimately, succeeding in keeping him safe and getting him into her car.
When cross-examined by the Independent Children’s Lawyer, the mother was asked whether she could make a much better effort to get on with the father and his partner. She said she had tried and would try harder in the future.
The mother was invited by the Independent Children’s Lawyer to make a solemn promise to be polite and civil in discussions in the future. This was not a helpful course to take. Under cross-examination, the mother could hardly refuse to make such a promise, but nor could she be held to it.
A court is compelled to make decisions based on the evidence and not on hope or promises. Even assuming that the mother was entirely committed to change, she simply may not be able to. One of things offered as encouragement to the children to go with the father was to refer to fun activities, such as going to the beach, fishing, movies, Lego festivals, Brick-Fest, a frog exhibition and advising the children to tell the father about these things, “he’ll fix it”.
I concluded that the mother either did not understand or understood but did not care that she was setting the father up for the disappointment and hostility of the children, who had been led to expect such activities. When all the children are children are together, there are eight of them in the father’s household, ranging from 12 years to less than 12 months old. Such activities are likely to be rare treats rather than the business of everyday occurrence.
I consider it likely that the mother understands that, which makes it less probable that her recommendation of activities is a genuine attempt to encourage the children to spend time with the father.

The mother’s partner

The mother’s partner impressed as a straight forward and honest witness who has a genuine and affectionate relationship with all four children. He is aged 29, lives with the mother, but also has a place in his parent’s home.
The mother’s partner does not have his own children and I conclude from his evidence that unsurprisingly his primary loyalty is to the mother and he is supportive of her efforts to retain the children in her care.

The father

The father experiences some difficulty communicating and can become frustrated as a result. The Family Consultant identified this issue and acceded to the father’s requests for he and his partner to be interviewed together.
The Family Consultant said this:[14]
[The father] tended to become emotional at times during the interview and used the interview as an opportunity to express his frustration with the Court System and the situation that he has found himself in. [The father’s partner] was able to assist the father with regard to managing his emotions and she was also able to reframe questions in order to better assist his understanding of the interview process. Once [the father] had calmed down he was able to give considered answers to questions that were put to him
[14] Family Report dated 05/06/2015, para 100
The Family Consultant gave as her view that the father presented as quite impulsive and reactive and that his difficulties were compounded by his receptive and expressive language.
The Family Consultant’s conclusion about the dynamic of their relationship was that the father and his partner not only cared deeply for each other but “that they do work well as a team”.
I formed the impression that the father can be slow to formulate his thoughts, but once formulated, revealed a good level of understanding and a thoughtful knowledge of the children.
The father is aged 30. He is the father of the four subject children, a step father to his partner’s three children, and the father of his youngest child of his relationship with his partner.
He earns money as a scrap mental processor. He and his partner pay rent for a three bedroom house, which is clearly crowded and stretched to its limit when all eight children are together. I accept the evidence of the father and his partner that in the event that the children were living with him, they would obtain a bigger house. His income is $365.00 nett per week from his occupation. He receives a disability pension of $411.00 per week and his partner receives Centrelink parenting benefits.
Over the period of their relationship, other family members of both the father and his partner have been full-time or occasional members of the household. At present, the oldest child of the father’s partner is living with her father and spending time with her mother, but is expected back as a full-time member of the household at the end of this school term.

Education

The father would like to return the children to their education at F. He showed a good understanding of the potential risk of moving the children again from the school which they have been now been attending for two years. He was also appreciative of B’s wish to start at a high school where friends from her current school would be attending.
The evidence supports a conclusion that the father has a genuine interest and concern in the children’s education and that he and the children have been valued members of the church community which supports the school.

Incident of 3 July 2015

When the father’s partner returned home with the four children after the confronting episode with C, the children came home thoroughly worked up. The father’s partner suggested that she and her children and the baby would withdraw to a friend’s home to enable the children to calm down. It was a sensible course.
The father described the children as “storming off and running down the street” and that D and B both wanted to go home to the mother. However, he walked with the children back to the house, talking to them and those two children became calm and settled. Meanwhile C wanted to ring the police and hit the father on the head with the phone. D then hit the father in the back.
The father impressively remained calm and directed the children to sit on the lounge. E joined them on the lounge and B remained in the kitchen. B then took off out the door, the father went after her, brought her back, and once all children were in the house and comparatively beginning to settle, the father began to cry, which apparently had a settling effect on D. He probably understood that his own behaviour had caused the father’s distress.
Throughout his evidence, the father referred to his method of disciplining the children as being to sit down with them and talk to them, to understand the problem and to talk it though. His stated view was that if the mother would talk to the children and tell them “go to Dad”, the problem of them saying that they did not want to see the father would resolve. There is considerable force in the father’s view that “you don’t leave it to the children”.

Children’s learning difficulties

The father well understands the learning difficulties of the children through experiencing some of them himself and understanding the frustration. The older children were assessed by Catholicare and both parents were present for that assessment. He is very keen to stabilise the children’s education and support them in whatever way he can, both educationally and through appropriate therapeutic interventions.
His history of taking the children to school on time when they are in his care and of working to pay their fees is a good indication that this commitment will be enduring. The father lives within walking distance of F and it is his intention that he would usually walk the children to and from school if they lived with him.
He was extensively cross-examined about whether or not he had a car sufficiently large enough to take the whole of his family. But I do not consider that the inability of the father to provide a ten-seater vehicle is critical to the determination of residence.
The father acknowledged some of the difficulties of his blended family. He agreed that B had complained about his partner’s child slapping her on the bottom. The father and his partner agreed on a response that the partner would speak to her son about it and that the father and his partner together would pull him up if and when he slapped B or his brother.
The father was also able to reveal that he understands that the children will complain about his partner to the mother about real incidents which are blown up out of proportion. For example, B’s statement that, “[the father’s partner] can be mean at times” referred in the father’s opinion to his partner sometimes telling B ‘no’ about accompanying her to the shops or when she wanted to go somewhere.

Activities for the children

The father has consistently encouraged the children’s involvement in sport, which all of them enjoy. B enjoys netball and school sport. All the boys enjoy rugby league. Both parents encourage this and the father is an active participant.
The father would like to get the children more help with their speech, language and homework. He does not consider that B is ready for high school next year.

Attitude to Mother’s partner

The father readily conceded that the mother’s partner was easy to get on with and a positive influence in the children’s lives. This positive relationship between the father and the mother’s partner will be a benefit for the children, particularly in relation to changeovers.

Sexualised conduct of B

The father had given the children I-pads and blocked Wi-Fi so they could not access the internet. His partner came to him, explaining that there was a video apparently made by B on her I-pad of herself and the partner’s child involved in sexualised behaviour. The father’s response was to sit down with his partner, first with the boys, and then consulted with Ms I from F, who continues to be a friend and support to the family.
The father’s partner contacted the Department. As a result, different sleeping accommodation was put in place and rules made about use of the bathroom where children changed – boys sleeping in one room, girls in the other.
It is apparent that the father did not overreact, seek to blame, or underplay or minimise the significance of this incident. The father is well aware that B was allegedly abused by the father of a school friend in 2011.

Attitude to the mother

The father promptly and readily conceded that in his view, the mother had always been a good mother, presenting the children as clean and tidy, taking them to doctors’ appointments, and willing to tell him things about the children, but only until the relationship ended. Since then, he has been constantly frustrated by the mother’s unwillingness both to tell him things and to consult with him in advance before making decisions.
When cross-examined by the Independent Children’s Lawyer the father was asked about hearing the mother promise, in the circumstances referred to above, to in future be polite and keep the father advised. The father was invited to make the promise that if the children lived with him, he would keep the mother advised. Again it is an inappropriate course to lead people to making promises in the witness box where they are likely to fear the consequences of not making a promise.

Discipline

In addition to always talking and listening to the children, the father has a commitment to not using physical punishment. He has a chart on the back door of consequences which the children can choose from in the event that they are to be disciplined for some wrong-doing. The consequences are such as losing the use of a toy, restricted time on the play station or writing out lines.
He is a firm believer in one to one time with each of the children and I accept his evidence about that. The father is distressed by the breakdown of his relationships with the children, but I discerned a confidence in him that those relationships could readily be restored given the strength of those relationships prior to the separation of the parties.
The father was shocked and hurt by the middle children’s conduct at the Family Report interviews where they ignored and to an extent scorned him. I did not detect any vengeful attitudes in the father towards this conduct, simply a heartfelt desire to repair the relationships and move on.

The father’s partner

Incident on 3 July 2015

The most complete evidence about this incident comes from the father’s partner. She described it in the following way.[15] The children were collected by her after school, C apparently not wanting to come and locking himself in the mother’s car. The mother and her partner tried for 20 minutes to get him out of the car while the father’s partner and other three children sat in her car.
[15] Affidavit of the father’s partner filed 25/08/2015, pars 76-92
After the mother and her partner left, the father’s partner said C clung to the fence. She put her hand up and said “stop. I do not want him in the car this upset … he will hurt himself or somebody [else].” C then said, ‘I don’t want to go” and wrapped his arms around the fence. The father’s partner stood beside him and spread her arms to block him if he ran on the road and said to him, “mum and [her partner] have gone, get in the car so we can go”. He then ran up the street and she followed him. She parked the car and C ran off again. The father’s partner drove back to the original point, the school collection point, and he ran again. She asked D to help and thanked him for his willingness. C then grabbed the fence and was screaming, “I’m not coming with you”.
At that point, the father’s partner expected someone would call the police, given the way the way the child was screaming. She caught hold of the back of C’s shirt, he spun around and she grabbed his wrist. C “began to kick at [her] then started to bite [her] on [her] wrists”; she repeatedly switched wrists as he tried to bite her.
B then yelled out to C, “get in the car, she’ll take us home”. C sat in the car with his feet out. He climbed around the inside, trying to unlock the child locks. The father’s partner was then able to drive all the children home, “I copped nothing but abuse all the way home. I needed to calm down”.
It was the depiction of an horrific scene, where the child could have run on the road and been seriously injured, or injured one of the other children. I accept the evidence from the father’s partner that she had never experienced anything like that from C before and that in future, for changeovers, she would ensure that she and the father were always together. She described C as having Attention Deficit Disorder, and being hyperactive, “he can be loud and boisterous. He has a shorter fuse. Triggers set him off. Some foods set him off”.
The father’s partner gave thoughtful evidence about conversations she had had with the father. They had discussed her moving away with her own children and the baby, to give the father space to restore relationships with the subject children if they returned to live with him.
She conceded that she and the father argued occasionally, and that there had been heated, loud arguments, with voices raised on occasions, which the father described as “happening once in a blue moon”.
The father’s partner also conceded that the size of their current house was not ideal and she had been actively looking for 3-6 months for a bigger house. Unsurprisingly, she and the father had decided not to act to obtain a bigger house until the residence issue was determined.

Attitude to the mother

The father’s partner said that she had spoken to the mother in the past, worked with her and would again. She then gave what was a plea for understanding in respect of her involvement with the communication book; in particular, “given [the father’s] difficulties at times, I do help him. If that could be recognised it would be an enormous help”.
Given the evidence of the Family Consultant that the father and his partner work well together as a team, it is appropriate for the father to ask her to help him to write out in a clear and lucid way in the communication book the thoughts and ideas that he has expressed to her. The father’s partner was in that moment asking the mother to cease objecting to the fact that it was her handwriting in the communication book.
I conclude that the exchange of information through a communication book is a good idea, especially when some of the children are medicated with occasional variations and that both parents, and either of their partners, should be free to be the authors of that information.
The father’s partner was confident that if the children came to live with them, it would be all about the children. She considered that C would struggle at first and would take time to accept the situation; however, it was her view that “C would with counselling and assistance return back to where we were”. I take this to be her shared view that the past strength of the relationships could be restored in the absence of the current toxic atmosphere of competition between the parents and mutual hostility.
The father’s partner was also able to say that she had observed the father and the mother being civil with each other in the past and believed they could do so again. She expressed her willingness to be part of changeover arrangements and reported a good relationship with the mother’s partner.
The father’s partner is the mother of four children, including the baby she has with the father. However, I accept that she is committed and positive about taking on the majority care of the children together with the father.
In answer to a question from the Independent Children’s Lawyer about what would the benefit be of moving the children from the mother, she answered “to get their relationship back with their dad”. The proposition was put that that could happen in the future and she answered simply, “it hasn’t so far”. Her evidence attests to the strength of her commitment to the father and also to the children themselves.

The Family Consultant

The Family Consultant was asked about her conversations with Ms I, reported in the Family Report. The Family Consultant said that she had spoken to Ms I as a teacher with knowledge of the children and not as a family friend, although she does have that relationship, sometimes caring for the children outside of school hours.
Ms I had been concerned about the text messages and sexual images of the mother that B had shown her on the mother’s old phone, given by the mother to B. She acted to be protective of the children and the mother was challenged about the exposure of the children, particularly B, to such conduct.
The observation recorded from Ms I about the ability of the father and his partner to care for the children on a residential basis was as follows. Ms I said that:[16]
… they would face many challenges and would definitely require a lot of support and a much bigger home, but that … they would put the children’s interests first.
[16] Family Report dated 05/06/2015, para 132
In my view, the evidence supports the assessment by Ms I as recorded by the Family Consultant.
The Family Consultant had a strong view that the middle children, particularly C, were being supported by and empowered to reject the father. She was asked in cross-examination whether C should be “picked up and dragged to the father” and whether that would be abusive. The Family Consultant considered that when children find they have to spend time with a parent, they can adjust and that this case was no exception.
The Family Consultant gave helpful evidence on the fact that two of the children appeared to be aligned with the mother, the middle children, and that the oldest child B and the youngest child E were not.
She said that the four children were very different, with different levels of resilience; that the middle two children were more influenced by the conflict and wanted to please the mother by not seeing the father. On the other hand, E was able to “duck under the conflict to get what he needs”. In relation to B, the mother gave evidence that she and the father had been close, “she always used to tell him everything”. I infer that B’s relationship has been sustained through that long history of closeness with the father.
The Family Consultant said that D was the most vulnerable child because he was on the autism spectrum and also had Attention Deficit-Hyperactive Disorder, he had changed houses since separation five times in two and a half years, and that this had disrupted his routine, particularly with a change of school as well.
The Family Consultant noted that C was reporting the mother’s version of events, “everything from mum’s perspective”. C had said, “Mum sticks up for me and my sister”. The Family Consultant also noticed that the child had said that the mother did not tell him to go to the father or not to go. She considered that C in his interview with her was declaring his position as being on the mother’s side.
The Family Consultant also noted the immense significance of the children missing out on the building blocks of education, that by being absent or late or withdrawn early, early morning messages were missed and these children who needed strict routine could become disorganised in each school day, “the more school they miss the less chance they have of doing well”.
The Family Consultant raised the significance of the four subject children developing and maintaining relationships with their younger step sibling, the father’s child with his current partner. B is particularly close to the baby and relishes nursing her and being allowed to carry and care for her.
The Family Consultant reflected on the impact on the children of losing their relationship with the father and baby sister:
There would be a significant impact on those children, an impact on their self-esteem, identity, and their ability to have relationships in the future. The mother is modelling rejection of the father which could lead to the development of black and white views and walking away from people when problems arise.
On behalf of the Independent Children’s Lawyer, it was put to the Family Consultant that the children were expressing strong wishes to live with the mother. The Family Consultant was clear to say that they may want to live with the mother or it could be that it was easier to live with the mother. I infer from her previous evidence that this was a reference to the children choosing to align with the mother rather than continuing to endure a loyalty conflict between the parents.
The Family Consultant remained resolute under considerable challenge from the Independent Children’s Lawyer that the mother was aligning the children with herself and against the father and that nothing she had heard changed that view. The proposal was put that the mother should be given credit for the fact that B and E continued to see the father. The Family Consultant rejected that proposition, she said, “no, those two children ducked under the conflict to get what they needed”.
The Family Consultant agreed that if the children were separated from the mother by a three month suspension of time, after they came to live with the father, that they would be distressed. She also raised the fact that they would be distressed if nothing is done and the current state of events continues or worsens.
The Family Consultant rejected the proposition that her recommendations were primarily directed to D and C. The Family Consultant had expressed her concern, more than once, that the older and younger children may slowly resile from their interest in seeing the father and join with their middle siblings for the sake of pleasing the mother, “it’s just as important for B and E to get relief from the loyalty demands put on them”.
The Independent Children’s Lawyer raised the notion that the father is unable to express himself. The Family Consultant disagreed. She said the father can express himself and does it quite well, but he becomes upset, and his partner then helps him to calm down and begin to communicate.
The Family Consultant highlighted the fact that the father has difficulties with expressive and receptive language. This evidence accords with my own observation of the father, that when he was settled in the witness box, he was then able to give his own genuine, authentic thoughts on the children, their future needs, and his own relationship with them.
It was squarely raised with the Family Consultant as to whether the father had sufficient insight to make decisions about the children if he were to have sole parental responsibility. The Family Consultant considered that he would in situations such as whether a particular child should leave school and get a trade, but in more esoteric matters, the Family Consultant said, “they [the father and his partner] do things as a couple to make decisions together to my observation”. She considered that if the mother had sole parental responsibility she too would likely seek, and benefit from, the opinion of her partner.
These observations also accord with my own conclusions about each of the parents and their partners. Each partner brings considerable intellectual and emotional strength to the partnership to the benefit of each parent and to the children in their care.
The Independent Children’s Lawyer proposed to the Family Consultant that the children did not have a good relationship with the father’s partner, did not trust her and that there was no affection between them. The Family Consultant agreed that the relationship was poor and mistrustful at this time. However, my observations of the children’s conduct with the father’s partner on 3 July 2015, which revealed a light-hearted and chatty conversation under quite pressured circumstances, suggests that the children may have been able to hide their affection from the father’s partner knowing of the mother’s negative view of her.
The Family Consultant went on to say that blended families are difficult, rules and expectations have to be established, but if “the children remain living with their mother in the comfortable house with the step-father they like, [D] and [C] will lose their relationship with their father and [B] and [E] are likely to follow suit”. This statement was in response to a suggestion by the Independent Children’s Lawyer that seven children in a small and crowded house was a gamble with inherent risk.

Application to Re-Open

The father was granted leave to re-open his case by tendering into evidence a document presented to him by the mother. That application was for admission for B to a particular high school. The mother gave further evidence and was cross-examined.
The mother agreed that she had not provided her correct address but given an address of her partner’s family in order for B to be accepted to that high school. The mother’s evidence was that B wanted to go to that high school, which she could not unless she was in the ‘drawing zone’.
Counsel for the father put the proposition to the mother that the reason she had put the wrong address on the application was to make the child happy. The mother answered “no” but there is no other apparent explanation for the mother’s conduct other than wanting to please the child.
A further proposition was put that the mother would likely tell the child that if the forms were not signed it was because the father had said no. The mother readily conceded that once the child was enrolled at the particular high school, she would change the address to the correct one, which would amount to a bending of the rules.
The mother also gave evidence, which I do not accept, that B had asked to go and see the father a few days previously and had taken an envelope which had come in the mail, unopened by herself or the child, which by chance were the forms for the father to sign for enrolment at high school. The evidence suggested a strenuous effort by the mother to please the child by backing the father into a corner over whether or not to sign the enrolment forms.

The Law

The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

The children have their most important relationships with their parents.
There is an ongoing relationship between B and E with the father; the relationship between D and C with the father has deteriorated and broken down during the course of 2015.
There has in the past been a strong, loving relationship between all the children and the father. Part of the problem is the children’s competitive feelings about the father’s partner and her children. They have not been assisted by the mother to overcome those feelings and understand that the father still loves them, although he now has a commitment to his partner’s children as well.
Rather, the situation has become destructive; the middle children have strongly aligned with the mother and I accept the evidence of the Family Consultant that that has happened for the relief from loyalty demands and to please the mother.
There would be an enormous benefit to the children of being able to maintain their previous meaningful relationships with both parents.

The need to protect the child from physical or psychological harm from being subjected or exposed to abuse or family violence

I do not consider that the children were exposed to abuse, neglect or family violence during the relationship or since.

Additional Considerations

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 views

The Court has the benefit of the views of the children expressed to the Family Consultant in October 2014 and again in June 2015. I will consider each child separately.

October 2014

B presented as friendly and outgoing. She said she liked living with the mother and spending time with the father. She liked her step-mother and step-siblings and had no problems or worries in the father’s household. She expressed some disquiet about a member of the household who no longer lives there.
B expressed the view that she would like a little more time with the father during school holidays, but did not think a week-about arrangement would work as the house was a bit too cramped. Unsurprisingly for a child of then of nearly 11, she expressed the view that it was nice to have her own bedroom.
B did not have any worries in the mother’s household. She also spoke positively about the mother’s partner. She said her life was really good and she was happy with things just the way they are.

June 2015

B was still positive about spending time with the father and his family but had been disturbed by a recent attack on the household by third parties. She had complaints to make about one of the father’s partner’s children who she blamed for getting her into trouble and who sometimes slapped her in a way she did not like.
B said she wanted to be able to talk to the mother or father whenever she wanted, but still had no worries or concerns in either household. She described the step-mother as mean at times, says she got on well with the father and loved her baby sister. She wanted the father to watch her play sport.

October 2014

C was aged 9 and a half years old at the time. He expressed the view that things were fine the way they are and said he would not like to go to the father’s house anymore because “there’s lots of yelling and the boys fight all the time”. He said he had no worries or concerns in either parent’s household.

June 2015

C said he no longer felt safe in the father’s home and that he would not go to the father’s house even if the judge ordered him to, he would just say ‘no’. He expressed an indirect view that he would like to see his baby sister. He liked living with the mother and step-father and had no concerns in that home.
He volunteered that the step-mother ‘[is] mean to us so leave her out of the picture and don’t let her do Dad’s work. I don’t feel safe around [her]”. He would not say anymore.

October 2014

D was aged 8 and a half years old at the time. He was interviewed with E and was described as “causing havoc … [he had a] very limited attention span”. He gave only silly answers to questions about his family.

June 2015

D, now aged 9, said “he won’t go to Dads because he didn’t like [one of the father’s partner’s children]”. He said he was angry with the father and was apparently feeling hurt that when the father rang to speak to the children, “he doesn’t even ask to speak to [me]”. The extent to which he was hurt is revealed by his statement, “I don’t care, I wouldn’t speak to him”.
Although D had been refusing to go to see the father for months, he expressed the view that it would be better it was “just him and us”.[17] D wanted the father to watch him play football.
[17] Family Report dated 05/06/2015, para 162
He had no worries in the mother’s home.

October 2014

E was interviewed with D and was part of the chaos. His language skills and level of understanding made interviewing him difficult. He was excited about the imminent birth of his new baby sister. E, like D, gave only silly answers to other questions about his family.

June 2015

E, now aged 6, said he enjoyed spending time with the father, liked the step-mother and her children, and loved his baby sister. He also liked the mother’s partner and his mother, who E called ‘Nan’. He had no worries in either household.

Conclusion on children’s views

It is apparent that there has been a considerable deterioration between observations, with the three older children becoming more negative about the father’s household; the youngest child oblivious, perhaps because he is the youngest.
I do not consider that the children have the maturity or level of understanding necessary to express a view that should be fully taken into account.
The two middle children in particular have become aligned with the mother and have become not only negative about the father but were deliberately and calculatedly rude to him in a way that amused them and which was obviously planned by them in advance.
None of the children could understand the consequences in the long-term of losing their relationship with the father, the step-mother who loves them, her three children, and their own baby sister.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

The children love the mother. She has been indulging them by allowing them to dictate what they will do in terms of seeing the father, particularly C and D. The mother has been indulging B by, to use her words, “bending the rules” to get her into the high school which she is said to want to attend.
The children love the father. The middle children are angry with him. They clearly want more of his time, especially D; the step-mother has become a scapegoat.
The children have important relationships with the mother’s partner, who is good to them, encourages them in their sport, and the father’s partner, who is good to them and treats them as she does her own children, which sometimes includes stern words and discipline.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

The mother made the decision to remove the children from their previous school, F, and I have accepted that she did so for reasons relating to herself and her anger with the school’s attitude to her and not for any reason relating to education. It was also convenient to have them at a school closer to where she is now living. The mother is in the habit of telling the father about decisions she has made after the event and not consulting him.
The father is committed to participating in decisions about the children and did not want them to be removed from their school, F.
The mother has made decisions about counselling for the children, in the case of B, not to take her when it would have been appropriate and in the case of the other children, to take them for sexual assault counselling without reference to the father. This was, in respect of B, despite a consent Order which said that the father had sole parental responsibility for that particular issue.

The father has at all times wanted to spend time with the children and communicate with them. The mother has stated that she is unable to cause D and C to be available to spend time with the father. This is a serious limit to her capacity as a parent.
Communication with the children is something that both parents want. There are deficits in both households. The mother will not allow the children, particularly B, to take a phone call and the father’s partner is inclined not to answer the phone when the children are in the household for fear of conflict.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

The father has a limited income. He paid school fees for the children until 2014. He provided a second-hand car to the mother and has paid child support.
The mother has provided for the children from Centrelink benefits and more recently has had the financial support of her partner, which extends to the home in which they now live and other financial support from time to time.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

If the children live with the father, it would be a considerable change, which might initially have a distressing effect on the children, particularly the middle two children; it may not. If the children live with the father, the evidence supports his willingness to ensure that the children maintain contact with the mother.
Despite applications for Apprehended Violence Orders in the past, which have not proceeded to final orders, the father does not appear to be hostile towards the mother, simply frustrated about not seeing the children.
If the children lived with him, it is likely that the father and his partner would quickly arrange to rent a larger home, which will enable some, but not all of the children, to have their own room. It would certainly be less cramped.
If the children live with the mother, I accept the evidence of the Family Consultant that they would spend increasingly less time with the father and that B and E would gradually cease spending time with the father altogether, as D and C already have. This would mean a loss of the relationship with the father, the step-mother, with her three children and, importantly, with their baby sister.

The practical difficulty and expense of a child spending time with and communicating with a parent

The parents’ households are not far from each other. Both are able to drive a car, both partners are able to drive a car and have a proven ability to effect changeovers of the children without conflict.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

Capacity is a serious issue in this case.
The mother has had the majority care of the children all their lives, indeed other than for a two-year period, the children lived mostly with the mother and spent times for periods of varying lengths with the father and mother, during the ten years of their relationship.
The mother seems not to have understood that the children have separate relationships with the father and needs which can be met by him and that that is a question independent of her relationship with him, which has been over now for almost three years.
The mother presents as immature and has allowed the children to reject the father and has been critical of the father and his partner to them.
The mother has failed to give priority to the children’s education, to their attendance every day, unless they are too sick to attend, to making appointments outside of school hours, to ensuring punctuality in the morning so that the children can achieve an organised day, and to maintaining consistency of school despite her personal feelings.
The evidence suggests that the children would have done better to continue at F, where their special needs had been thoroughly assessed and they were well supported for learning.
I am not confident that the mother has the capacity to meet the children’s emotional and educational needs. She loves the children, supports them, and is a part of their extra-curricular activities, but she has not been consistent in supporting them emotionally through the last three years. She has been inconsistent with taking B to counselling which should have taken place, and has been dismissive of the father in deciding what therapeutic interventions should take place.
The parents were together when B and C were assessed, but more recently the mother has taken the children to doctors and told the father after the event.
The father has some limits on his capacity. He needs time to articulate his thoughts and he becomes emotional under pressure. However, the evidence reveals a patient kindness in his approach to the children, which involves staying calm, sitting with them, listening to them, talking to them until problems are well understood and a way forward can be worked out.
He also appears to fully understand the children’s need to maintain their relationship with the mother and to a lesser extent, her partner. He takes it seriously.
The father has also revealed a commitment to treating his partner’s children as if they were his own, whilst understanding that his own children feel rather resentful about that.
He is committed to restoring relationships and being a part of every aspect of the children’s lives. I consider that he has a greater capacity than the mother to meet the needs of the children, especially their emotional and educational needs.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

At the time of hearing, the children were a girl aged almost 11, and three boys aged 10, 9 and 6.
Each of the children have developmental difficulties, problems with their speech, problems with attending in order to learn, and in the case of D, being on the autism spectrum.

If the child is an Aboriginal child or a Torres Strait Islander child

The father identifies as an Aboriginal man.
The children are more likely to come to understand and enjoy their culture with regular time with the father.
If they continue to live with the mother, it is likely that they will be permitted to participate in anything that is organised at school for Aboriginal children.
If they are living with the father, there are likely to be more activities of which the father becomes aware in which he can involve the children as they grow up, in addition to anything organised by the school.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

The parents were teenagers when the first child was born and they have grown up with the children.
The father has worked and paid for the children’s school fees, has enjoyed getting them to school, and participating in the community of the school and the church with which it is associated.
The mother has been responsible for the day-to-day care of the children, with all of the commitments of medical appointments and extra-curricular activities that all of the children are involved in. The children have been her life.
The mother is beginning to turn now to self-education and qualifications for employment. She has undertaken that whilst making proper arrangements for the care of the children while she studies.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

There is a current interim family violence order to be heard and determined on a final basis in the Local Court in November 2015.
The evidence does not support a finding that either parent has been violent to the other or to the subject children.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

To leave the current Orders in place is to accept that some, if not all, of the children will not see the father and that current Orders will not be complied with.
A change of residence will be a big change and potentially a disruptive one for the children, but there is a lot at stake.
The children have been caught in their parent’s conflict for almost three years.
At first, things worked well for the parents and there was co-operation between them. They stayed with the father for periods of time and otherwise regularly saw him most weekends. By September 2015 those good relationships had greatly deteriorated and the mother is allowing C and D to assert their authority, effectively, over her.
She says she cannot make the middle children see the father. This does not bode well for the mother’s ability to discipline the children, especially as they grow into adolescents.

Any other fact or circumstance that the court thinks is relevant

The Family Consultant recommended in that if there were to be a change of residence, there should be a three month period, perhaps a school term, when the children do not see the mother at all, followed by a regime of holiday and weekend time.
Having heard all of the evidence, I conclude that such a disruption would be difficult for the children to tolerate, especially considering the children individually.
B loves both her parents and is happy in both households. She is close to the father’s partner’s oldest child who will be returning to live in the household. She greatly loves her baby sister and enjoys being involved in her life. She has been close to the father and could be again, but she has always expressed the view that she is content living with the mother and likes the mother’s partner.
This is crucial time in B’s life. She is likely to start high school in 2016. She may go to the high school which the mother says she has chosen; she may go to the high school which the father has told her would be his preference. I consider it likely that B will accept the decision made by the parent she lives with in that regard. But to not see the mother for a three month period would seem like a punishment and is unnecessary given what is in place for her in each household.
For C and D, the case for a period of separation is stronger. They have become so aligned with the mother, and so ostentatiously rude and dismissive of the father, that the adjustment will be potentially painful for them and many conversations and some therapeutic help will be likely necessary.
That process would be undercut by exposure to the mother’s distress over a change of residence and the possibility that she would continue to criticise the father and his partner to the children in an attempt to enforce their loyalty to her. However, three months is also a long period of time, particularly at this time of year, which would take them to the end of the whole of the Christmas school holiday period.
E’s position is father similar to B’s position. He is happy and feels well-loved in both households. His most important people are his parents. He loves his step-mother and step-father, he likes his step-mother’s other children and loves the baby. There is no need for E to spend as long as three months away from the mother, who has provided the majority of care during his life.
I have taken into account that the school year has approximately 6-7 weeks to run and that a period of four weeks to enable an adjustment for the children with an Order for the mother to stay away from the school for the balance of the school year is sufficient to give all of the children time to focus on their new arrangement and to work through their feelings.
Accordingly, an Order for regular weekly time for a whole day can commence in December 2015 and continue until the commencement of the next school term. In that way, some contact is maintained but a time for adjustment is maximised.

Conclusion and Orders

For the Reasons stated above, I consider that because the father has a greater capacity to meet the needs of the children, the children should live primarily with him and spend alternate weekends and half school holidays with the mother, commencing when school does in 2016.
Because the quality of the relationship has deteriorated in the way it has and there has not been consultation and discussion before decisions are made, only one parent should have parental responsibility, so as to eliminate the risk of the children continuing to be caught between the parents.
Since the children will be living with the father, he should have sole parental responsibility. I make that Order knowing that the father will consult with his partner and will also be compliant with Orders to advise the mother of decisions to be taken and to genuinely take into account any thoughts and proposals she has in that regard.
It will be a matter for the father as to where he enrols the children, whether or not returns them to F, and if so, whether he does that immediately or in 2016.
It is not appropriate for the Orders to be prescriptive about that. I am satisfied, given his past commitment to their education, that the father will consult with the Principal of both schools and will be guided by their advice in respect of each separate child.
Particular consideration will also be need to be given to B presently expecting to start high school in 2016 and again I am confident that the father will seek direction and guidance from the Principal of K School, the high school he proposes, and the high school which the mother identifies as the one the child herself is said to want to attend.
There will be Orders for the exchange of information between the parents and for the father to apply for, and accept if it is offered, the help of the Brighter Futures program provided through the Department. The father’s partner has previously engaged with Brighter Futures, which the evidence suggests was positive and helpful for her and her three children.
The household will be a big one and there are complex needs for the four subject children, particularly D and C. Assistance and oversight will be a benefit for the children if that program is made available.
However, that Order is made in the knowledge that the father may or may not be accepted into the program. The evidence suggests that he is willing to seek help for himself and the children whenever it is needed. I am confident about that.
There is also provision for the Independent Children’s Lawyer to provide a copy of these Orders and Reasons for Judgment to the Department, with a view to exposing the reasons for why the Orders refer to the Brighter Futures program.
The Orders provide for the changeover from school without notice. This will be an abrupt change for the children and may or may not lead to significant distress. However, I am satisfied that if there was a period of weeks or even days before the changeover of the children, they would likely become anxious and intensely oppositional; C’s conduct in July 2015 is afore taste of what could happen if the children anticipated a change of residence for any length of time.
Accordingly, the Orders provide for the Independent Children’s Lawyer to provide a copy of these Orders to the school which the children presently attend, so that there can be a seamless transition of the children into the father’s care and they can continue at the school without risk of parental conflict until the end of the school year, if that is what the father decides to do.
Orders are made accordingly.

I certify that the preceding two hundred and eighty one (281) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 6 November 2015.

Associate:

Date: 3 November 2015

[2015] FamCA 963

6 November 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness