BURNEY & SPEERS

[2019] FCCA 1160

FEDERAL CIRCUIT COURT OF AUSTRALIA

BURNEY & SPEERS [2019] FCCA 1160

Catchwords:
FAMILY LAW – Parenting – two children – boy aged 11 – girl aged 5 – boy living with father post-separation – girl living with mother post-separation – father failing to ensure boy’s attendance at school – father failing to promote boy’s relationship with his mother – father failing to attend counselling and second family report interview – two children to live with their mother.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 62B, 65DA(2), 65DAA, 121

Applicant: MS BURNEY

Respondent: MR SPEERS

File Number: MLC 9508 of 2016

Judgment of: Judge Riley

Hearing dates: 7 and 8 February 2019

Date of last submission: 8 February 2019

Delivered at: Melbourne

Delivered on: 3 May 2019

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the respondent: In person

Solicitors for the respondent: None

Counsel for the independent children’s lawyer: Mr Devries

Solicitors for the independent children’s lawyer: Culshaw Miller Badenoch

ORDERS BY CONSENT

1. The parents have equal shared parental responsibility for X born on … 2008 (“X”) and Y born on … 2014 (“Y”).

ORDERS BY THE COURT

1. X and Y live with their mother.

2. X and Y spend time with their father, as agreed, or failing agreement as follows:

   (a)on alternate weekends from 3:30pm on Friday until 4pm on  Sunday, commencing on 11 May 2019;

   (b)from 3:30pm to 6pm on Monday in the alternate week; and

   (c)as otherwise agreed.

ORDERS BY CONSENT

1. X and Y spend school holidays with each parent as agreed and failing agreement, X and Y spend time with their father:

   (a)in the April, June/July and September school holidays, from after school on the last day of term to 4pm on the middle Saturday of the holidays; and

   (b)in the summer holidays, in alternate weeks commencing at 3:30pm on the Friday that X and Y would have spent with their father if it had been term time, and concluding on the Saturday after next at 4pm.

2. X and Y spend from 4pm on Christmas Eve to 4 pm on Christmas Day with their father in even numbered years, and with their mother in odd numbered years.

3. X and Y spend from 4pm on Easter Saturday to 4pm on Easter Sunday with their father in odd numbered years, and with their mother in even numbered years.

4. X and Y spend time with their mother and father at times to be agreed on the children's birthdays and their parents’ birthdays.

5. Changeover occur at school when it is to take place at school times and otherwise at Store A on B Street in City J.

6. X and Y communicate with their father by telephone each Wednesday when they are not with him between 6pm and 6:30pm, with the father to place the call and the mother to facilitate the call.

7. X and Y communicate with their mother by telephone each Wednesday when they are not with her between 6pm and 6:30pm, with the mother to place the call and the father to facilitate the call.

8. Within seven days the father provide to the mother a telephone number at which she can contact X and Y when she is permitted by these orders to telephone them, and the father ensure that the telephone is charged and in credit whenever the mother is permitted to call X and Y.

9. Each parent keep the other advised of a telephone contact number and inform the other of any changes to same as soon as practicable.

10. Each parent keep the other informed of any illness or injury occurring to X and Y or either of them while in their care which requires medical attention, with such notice to be provided as soon as practicable following X and/or Y’s attendance upon a medical practitioner or any medical emergency occurring.

11. In the event of either X or Y suffering a medical emergency, the parent who has the care of them advise the other parent of the treating health professional as soon as practicable and authorise the said professional to confer directly with the other parent on all questions relating to X and Y’s welfare.

12. Each parent keep the other advised of any medical practitioners treating the children and authorise that practitioner to communicate with the other parent.

13. Each parent authorise X's and Y's schools to provide the other with all notices, newsletters, reports, photographs and other information usually provided to parents in relation to a child and authorise such schools to communicate with the other parent about X’s and Y’s progress.

14. Both parents be permitted to attend all school activities, including school concerts, plays, excursions, parent teacher interviews and the like, normally attended by parents including all extracurricular activities including sporting and other activities.

15. The parents and their respective servants and agents each be restrained from:

    (a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent in the presence or hearing of X and Y or either of them, and from permitting any other person to do so; and

    (b)discussing these proceedings with or in the presence or hearing of X and Y or either of them and from permitting any other person to do so.

16. The parents engage in counselling to develop a co-parenting relationship with a local Family Relationship Centre.

17. X be referred for counselling such as that organised by the mother with City J Community Health Centre or other similar service.

18. The mother and father engage in counselling to assist them to manage any transitions in parenting arrangements.

19. The father be restrained from criticising these orders to or in the presence or hearing of X and Y or either of them or permitting any other person to do so.

ORDERS BY THE COURT

1. The mother be at liberty to enrol X at Primary School J in City J.

2. The mother be permitted to produce this order to Primary School J for the purposes of enrolling X there.

ORDERS BY CONSENT

1. With a denial on the part of the mother of the necessity therefore, the mother be restrained from:

   (a)permitting MR C (“Mr C”) from punishing, sanctioning, or in any other way, disciplining X;

   (b)permitting X and Y or either of them from travelling in any motor vehicle driven by a person who is not properly licensed to drive that motor vehicle; and

   (c)leaving X and Y or either of them unattended by an adult for any period exceeding 15 minutes until they are 12 years old respectively.

2. With a denial on the part of the father of the necessity therefore, the father be restrained from:

   (a)transporting X and Y or either of them in a motor vehicle except with age appropriate restraints; and

   (b)leaving X and Y or either of them unattended by an adult for any period exceeding 15 minutes until they are 12 years old respectively.

3. Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

NOTATIONS

(A)Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9508 of 2016

MS BURNEY

Applicant

And

MR SPEERS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for parenting orders in respect of X, born on … 2008, (“X”) and Y, born on … 2014, (“Y”).  X is now 11 years old and Y is now 5 years old. The father is a tradesman and the mother is a public servant.

2. The parents commenced a relationship in 2001, when the mother was 15 years old and the father was 17 years old. They commenced cohabitation in 2002, and separated on 30 March 2015.  At that time, X was about to turn seven years old, and Y was fourteen months old.

3. The mother commenced a relationship with Mr C about two weeks after separation.

4. Following separation, the parents lived about half an hour’s drive away from each other. X from shortly after separation began to live with his father.  Y has always lived with her mother. 

5. Y consistently spent time with her father, from after child care on Friday to Sunday afternoon on alternate weekends and each Wednesday overnight. X initially spent some time with his mother, but that soon ceased, except for incidental contact at changeover for Y.

The commencement of proceedings

1. The mother filed an initiating application, an affidavit in support and a notice of risk, with the assistance of a lawyer, on 3 October 2016.  The mother sought orders that:

   a)the parents have equal shared responsibility for X and Y;

   b)X and Y live with their mother;

   c)X and Y spend time with their father every Wednesday overnight and each alternate weekend from Friday afternoon to Sunday afternoon; and

   d)various incidental orders.

2. The mother’s notice of risk largely concerned her fears that X was being alienated from her and was angry and unhappy at school.

3. The father filed a response, an affidavit in support and a notice of risk on 3 November 2016, with the assistance of a lawyer.  The father sought orders that:

   a)commencing on Y’s third birthday, she spend equal time with each of her parents;

   b)X live with his father;

   c)X’s time with his mother be reserved pending a family report; and

   d)X and Y have telephone communication with the parent with whom they are not living every second day.

4. The father’s notice of risk largely alleged that Mr C abused the father in front of X and Y.

The father’s solicitors withdrew

1. On 20 February 2017, the father’s solicitor filed a notice of withdrawal as lawyer. The father did not subsequently obtain any legal representation. He did not file any material apart from his documents filed on 3 October 2016.

The first return

1. The first return of the matter, on 7 November 2016, was adjourned by consent to 1 March 2017. On that day, the father was assisted by a duty lawyer. Orders were made:

   a)for the appointment of an independent children’s lawyer;

   b)by consent, until further order:

   i)for the parents to have equal shared parental responsibility;

   ii)for X to live with his father;

   iii)for Y to live with her mother;

   iv)for X to spend gradually increasing time with his mother culminating in every Tuesday from after school until 7:30pm, and alternate weekends from after school Friday until 4pm Saturday;

   v)for Y to spend time with her father overnight each Wednesday and alternate weekends from after school Friday until 3pm Sunday;

   vi)for the father to obtain a mental health plan for X to attend a psychologist, Ms D; and

   vii)for Ms D to undertake reportable, therapeutic counselling;

   c)by the court, for the mother to ensure that Mr C was not present when X was spending time with his mother;

   d)for a family report to be undertaken and released by 4 July 2017.

The father’s new relationship

1. In 2017, prior to the family report interviews, the father commenced a relationship with Ms E, who had previously been the mother’s best friend.

X’s suspension from school on 26 April 2017

1. On 26 April 2017, X was suspended for school for one day for racially abusing a fellow student. The notice of suspension is exhibit 3. It indicated that X had been suspended for one day on a previous occasion in Term 1 of 2017. The notice indicated that, under Part 5.7 of the Education Regulations 1988, a student may be suspended in certain circumstances. The circumstances indicated in respect of X were that he:

   (i)behaves in such a way as to constitute a danger to the physical and/or emotional health of any staff member or student; or

   …

   (iii)is in such condition as to be offensive to, or dangerous to, the health of any staff member or any student; or

   (iv)consistently and deliberately behaves in a manner that interferes with the educational opportunities of other children.

2. The notice set out the facts relied upon to support the grounds of suspension as follows:

   X was sitting under the shade sails at recess time when he chose to approach a student and racially abuse the student in a (sic) unprovoked incident. The abuse was targeted towards a fellow classmate. This behaviour will not be tolerated.

3. The notice set out the action the school had taken prior to suspending X as follows:

   ·X has been involved in several supportive programs at Primary School

   ·Classroom wellbeing sessions – fortnightly basis

   ·Ongoing conversations with the school Principal and Wellbeing Officer

   ·Small group supports – Boys Group focussing on behaviour change, developing self-esteem

The first family report

1. Dr F prepared a family report dated 4 July 2017.  Dr F noted, in relation to the mother, that:

   9.Ms Burney (Applicant) presented as an engaging and articulate woman. She is in good physical health but suffers from anxiety. She is on medication and had engaged with a psychologist, and is again seeking support. She lives with her partner, Mr C and Y. She did state that Mr C did not have contact with the children until recently, when the parties met to resolve the conflict and agreed to a more conciliatory relationship. The mother is in part time employment and is studying for further qualifications.

   …

   14.The mother stated that at the time of separation, she assumed that the children would remain in her care. They initially lived with her, but X’s behaviour deteriorated soon after the separation. She claimed that the father demeaned her in the presence of X, causing X significant emotional harm. She described X’s behaviour as sad and angry. She said that X sought to live with the father, to which the mother agreed. The mother said that the father treated X like a friend and relied on him for emotional support.

   15.The mother stated that she commenced a relationship with her current partner, Mr C two weeks after the separation. She said that after the father became aware, he exposed X to negative views about Mr C. She was particularly concerned about him blaming Mr C for the separation in the presence of X.

   16.The mother stated that X became increasingly distressed when spending time with her. She described incidents when she collected him from school and he started to scream uncontrollably. She was concerned about the impact of his behaviour on Y. She reverted to dropping him off at the paternal aunt’s place when he became so distressed.

   17.The mother stated that the father was abusive toward Mr C in the presence of X. He would yell at them at changeovers. On one occasion the father was extremely abusive toward the mother. The mother stated that X became increasingly resistant to spending time with her.

   18.The mother stated that she arranged for X to attend a counsellor soon after the separation. X attended about three sessions but was still resistant to attending visits. The mother was concerned that the father had not followed through with the current court order to take X for counselling with Ms D. She was aware that he had only recently made an appointment.

   19.The mother stated that the father recently commenced a relationship with her ex best friend, Ms E. Ms E had two children, one aged 9 and the other aged 6. She said that the father’s behaviours had improved since commencing this relationship. He and his partner had met with the mother and Mr C. The mother stated that after the meeting the father had encouraged X to spend time with the mother, and X’s behaviour had settled.

   20.The mother stated that she and X had a very close relationship prior to the separation. She described him as a very happy boy. She said that he was settled at the time of separation, but then became very sad and angry.

   21.The mother stated that X had been suspended from school on two occasions due to his aggressive behaviour. On one occasion had had punched a younger child at school and on another occasion he had made a racist comment toward an Aboriginal child. She was concerned about the behaviour and believed that the school were supporting him to address the behaviours.

   22.The mother described X as being very abusive toward her. She said that he refused to spend time with her. He was very angry and distressed during visits. He reverted to calling out to get her attention rather than calling her ‘mum’. She observed that he pent up all his anger and at times told her to mind her own business.

   23.The mother observed that X has a very close relationship with his sister. She is concerned that they are not living together. She observed that X looked after her when they spent time together and he was very protective of her.

   24.The mother stated she had attended the school and had made attempts to be as involved in X’s education as possible. She communicated with the teachers and was aware that X had not been completing his homework since the commencement of this year. She stated that the school had attempted to contact the father to address these issues but that the father had not responded to their calls. She said that the father had only recently commenced supporting X with completing his homework.

   25.The mother stated that X was receiving support at school to help him with his aggressive behaviour. She said that he was getting angry and frustrated at school. He was rude to his friends and was aggressive toward other children.

2. In relation to the father, Dr F noted that:

   31.Mr Speers (Respondent) presented as an engaging and co-operative person. He was focussed on self promotion and minimised his role in the conflict. He was focussed on deflecting blame onto the mother for the demise of the relationship with X. The father has been employed as a tradesman for a local company for the last twenty months.

   32.The father came from a large family and has a close relationship with his eldest sister. The mother stated that the father had a very troubled childhood and was in foster care from a young age. She said he lived out of home from the age of 12. The father did not elaborate on his childhood but did indicate that he left school in Year 8.

   33.The father stated that he had no health issues or mental health issues. He stated that he used marijuana from the age of 17 until 2007. He claimed that he ceased using prior to X’s birth. He said that he was dependent on drug usage and minimised its impact on his behaviour. He was quite defensive and said that no one ever told him that his drug usage was problematic.

   …

   36.The father said that after the separation, the mother left the family home. The father stated that he felt betrayed by the mother after she left him for another man.

   37.The father also said that X “was hit hard” by the separation. He claimed that he himself did not cause trouble. He also said that X was not aware of how he felt toward the mother as conversations were not held in his presence. The father did allege that Mr C was abusive toward the father.

   38.The father expressed concerns about the mother’s partner spending time with the children due to his excessive consumption of alcohol. The father alleged that Mr C had been recently charged with drinking five times…[over] the legal limit and his car had been impounded. He also claimed that the mother had not been returning X on time after visits. He said that the mother had also breached the orders, in allowing her partner to spend time with the children. The mother later stated that he had only recently commenced spending time with them after the parties had all met and were on better terms with one another.

   39.The father said that initially X lived with the mother. The father stated that X would not listen to the mother and she was unable to discipline him. The father alleged that X also witnessed the mother’s partner being abusive. The father claimed that the partner was aggressive toward him in the presence of the children.

   40.The father stated that the mother lacked the capacity to care for X and increasingly reneged on spending time with him. He said X also indicated that he did not want to spend time with her. The father said that he encouraged X to spend time with his mother but without success.

   41.The father stated that he and his partner had recently met with the mother and her partner in an attempt to settle the conflict. The father said that he was concerned about the children being exposed to their conflict. He had made a concerted effort to treat the mother’s partner with respect in the presence of the children. He believed that X’s behaviour had settled since that meeting and was spending more time with the mother.

   42.The father stated that Y was a … [very] energetic and happy child. She tends to boss X. However, overall their relationship is very good. He did not believe it was good for the children to be separated.

   43.The father described X as a happy and active child who was quite emotional. The father said that he was doing well in some areas of school work, such as maths. X does not enjoy reading. The father described his regime of supporting X with his school work.

   44.The father stated that X had experienced behavioural issues at school and had been suspended. On one occasion, he had called a child ‘a nigger’. The father said that, “Everyone else at the school did it but X got caught”.

   45.The father expressed concern that the mother had … not been proactive in seeking a counsellor for X. He was concerned that she had stopped X’s attendance with one counsellor after three sessions. He said that the mother had delayed taking X to Ms D. He claimed that he had provided the mother with a mental health plan and placed it in X’s school bag. The mother disputed the father’s claim, stating that the father had not provided her with a mental health plan.

   46.The father proposed that the children spent equal time with both parties. He had not considered how X would cope being separated from him for a week at a time. He was also concerned about not spending more regular time with Y.

1. In relation to X, Dr F said:

   48.X (9 years old) presented as a confident and polite child, who happily engaged with the writer. He is in Grade 4 at Primary School G, Suburb H, and said that he does not like school. The mother later indicated that X had started expressing his dislike of school due to the standard set in the father’s house where Ms E’s son does not attend school.

   49.X drew a family picture as a means of exploring the family dynamics. He questioned whether to include his father’s new partner but only included himself, his sister and his mother and father. He drew his mother and father next to one another and was said that he felt upset by their separation because he did not spend enough time with Y.

   50.X said that spending time with his mother “had not been good”. He said that he felt confused when his mother left. He understood that he was living with his father because his mother “did not pick me up”. He also referred to his mother    “having a new person over”, referring to his mother’s partner.

   51.X said that he had heard his father being abused by his mother’s partner. “Mr C called dad names. It made me really sad and angry”. He was particularly upset that his mother did not intervene and ask Mr C to stop. He said that his father felt sad that Mr C “was mean to him”.

   52.X said that his father felt very sad at the time of separation. He observed his father lie on the couch. “He didn’t look happy. I felt sad. I wanted to stay with dad and make sure he was OK and wasn’t sad”.

   53.X said that his father and mother had been getting on better over the last month. However, he also mentioned that he had seen Mr C get angry with his mother and snatch her phone. “It made me and Y scared”. He said that, “Mr C drinks lots of beer”. He was worried that Mr C might do something and might “get really angry with mum”. He also said that Y had told him and his father that Mr C had been really angry with the mother. “It’s not good that Y had to wake up to it”.

   54.X said that he did not enjoy living apart from Y. He said that he enjoyed the current regime as he got to see her more. He said that he would like to live with her more as he used to.

   55.X said that if he had three wishes about his family he would wish that they did not argue all the time. He said that he was only referring to Mr C getting angry with his mother. He said that he also wished that his mother stopped moving and indicated that she had moved three times. He said that he, “tried to get used to her house and then she moved”.

   56.X described the different regimes in each house. He said that his mother did not discipline the children very much. His father was a lot more strict. He said that he had become a lot stricter since commencing his relationship with Ms E.

   57.X said that he would feel sad living with his mother and Y as he would feel sad for his father. He said that he was happy with the current regime of time spent with his mother. After further consideration, X said that he wanted to spend half the week with his father and half the week with his mother.

2. In relation to the observations of X and Y with their parents, Dr F noted that:

   58.The children and father were observed to enjoy their time together. They were very respectful toward one another and happily played together. The father divided his attention between the children and allowed them to play with their selected activities. He engaged with Y whilst X enjoyed a construction activity. X was also observed to gently guide Y in her activity. Y appeared to look to X for guidance and copied his every move. X disapproved of the father leaving the room when time came for the mother to come into the room.

   59.The mother joined the children and was praiseworthy (sic) of their achievements. X was … [keen] to protect what the father had made. The mother quickly found her place in interacting with the children. X started chatting to his mother about how much he disliked school. The mother reinforced the importance of school and told him not to discuss his negative views in front of Y. X seemed to get bored and the children began to annoy one another.  At times, Y was very strong willed and the mother tried to distract Y as she hit X. The mother seemed to lack confidence in setting limits on their behaviour.

3. In her evaluation, Dr F said:

   60.The purpose of this report was to consider the living arrangements for X and Y. The mother is seeking that the children live [with] her and spend time with the father and the father is seeking that the children spend equal time with both parents.

   61.The mother presented as a parent committed to the welfare of her children. Her relationship with X was characterised by high levels of stress related to his refusal to spend time with her. She appeared to lack confidence in her parenting role, particularly in managing X’s behaviours. She would have benefited from earlier intervention to manage these behaviours. X would have benefited from her dealing with his behaviour rather than cutting visits short. She might need [to] address this in counselling to regain his trust. The mother did appear more confident in her parenting role but would benefit from counselling to assist her with behaviour management strategies.

   62.The father presented as a parent who has played an active role in the care of his children. He was preoccupied in blaming the mother for the challenges related to X’s behaviour, without acknowledging any responsibility for the impact of his own behaviours. It would appear that his emotional response after the separation was characterised by unresolved anger toward the mother and partner. He also sought emotional comfort from his relationship with X. This was particularly identified by X, who described his concern for his father’s sadness and his need to look after him. It would appear that the father projected a lot of his unresolved issues onto X, particularly his anger toward the mother’s partner. The father also appeared to have assumptions about his partner’s role as step parent. He seemed to lack clear boundaries around his parenting role and his responsibility to engage with the mother in communication about parental decisions.

   63.The parties appeared to lack effective communication strategies in dealing with parental decisions. They would benefit from counselling to establish a more effective coparenting relationship. Issues to consider include developing consistent parenting strategies, issues related to the role of step families and establishing agreed boundaries around issues of concern such as the sleeping arrangements with step children.

   64.X presented as a confident and engaging child who appeared to have experienced significant emotional distress in response to the parental separation. He appeared to have aligned himself with his father at the time of separation, possibly due to his exposure to the father's heightened emotional response to the separation. This was indicated by his recollections of needing to care for his father, his concern for his father’s sadness and his exposure to…[his] father’s negative views, particularly toward the mother’s partner. X’s more recent change in his relationship with his mother also appeared responsive to his father’s attempts to establish a more amicable relationship with the mother.

   65.Y appeared to be a happy and confident child. She appeared to be quite strong willed. It would be beneficial for the parents to seek counselling and establish consistent parenting strategies to manage Y’s behaviours.

4. Dr F recommended at paragraph 66 of her report:

   a.That X spends an increased regime with the mother, with a view to spending equal time with both parties after a period of counselling.

   b.That Y lives with the mother and spends significant time with the father.

   c.That the parties have equal shared parental responsibility for the children.

   d.That the parties seek counselling for X and for family counselling with Ms D. Ms D might also support the parties in establishing more cooperative means of communication to facilitate a coparenting relationship.

The interim hearing on 18 July 2017

1. The parents and the independent children’s lawyer attended an interim hearing on 18 July 2017. The father was again represented by the duty lawyer. Orders were made until further order that:

   a)by consent, X spend with his mother from after school until 7.30pm every Tuesday;

   b)by the court, X spend with his mother each alternate weekend from after school on Friday until 3pm on Sunday;

   c)by the court, the mother ensure that Mr C is not present when X is with the mother; and

   d)by consent, the parents:

   i)pay Ms D’s fees in equal shares as and when requested; and

   ii)ensure that X attend all scheduled appointments with Ms D.

2. In addition, orders were made by consent that:

   a)the mother forthwith make an appointment for X to see Ms D at her earliest availability;

   b)the parents not denigrate each other in the presence or hearing of X and Y or either of them;

   c)the father give the independent children’s lawyer a signed and completed authority and questionnaire.

Ms D’s letter dated 14 September 2017

1. The psychologist, Ms D, wrote a letter dated 14 September 2017 to the independent children’s lawyer (exhibit 1, 14 September 2017). It said:

   Thank you for the letter in relation to the Orders made in regard to the attendance at counselling of X the nine year old son of MR SPEERS and Ms Burney. In following up my two recent conversations I am listing below my contact with the parties, and outlining some of the difficulties faced in proceeding with therapeutic counselling.

   16.06.2017 - Appointment with MR SPEERS and X, who was interviewed briefly and a follow up appointment made. At the time of the appointment Mr Speers had forgotten to bring any form of payment, and no payment has been made to this point.

   07.07.2017 - Appointment made at the previous appointment which had to be rescheduled by me.

   09.07.2017 - No response from several attempts to ring
   Mr Speers, and finally spoke to him on 09.07.2017, which was a Sunday. It was agreed that he would come in on the following Friday 14.07.2017 and a text from him to confirm this was received the same day.

   14.07.2017 - Appointment cancelled by Mr Speers

   28.07.2017 - Text sent by me requesting Mr Speers advise me of his next available time for an appointment.

   14.08.2017 - Text sent by me following the appointment with X who had been brought in for an appointment by his mother.

   The text read as follows: Hi Mr Speers, I have tried to contact you several times re making an appointment for X. There seems to be some confusion about who is to bring him and when. I have seen him this afternoon as a result of his mother offering to bring him in. As the counselling has been Court ordered I do need to see you again and X. It appears there has been a bit of confusion about today's appointment. I am happy to see you again as soon as you advise me what times suit you. Regards, Ms D.

   This was followed within the hour by a telephone call from
   Mr Speers who appeared angry that X had come in without his knowledge. It was pointed out to him that several attempts to contact him had not been successful and despite him being asked to make another counselling time, he had not made any attempt to do so. He was again asked at the end of the conversation to let me know when he would be able to come in for a further appointment, which again has not eventuated.

   14.09.2017 - Text sent by me as follows: Hi Mr Speers, after our last conversation I thought you were going to let me know when you were able to make an appointment. It is now a month since we spoke. I am available every second Saturday for appointments if that helps. I hope to hear from you soon, Ms D.

   In the meantime I have had several contacts with Ms Burney. It appears there was some delay in organizing the first appointment due to issues around funding and Ms Burney not having at first organized a Mental Health Care Plan for herself. Ms Burney has been very cooperative and when appointments have needed to be changed she has always advised in good time and followed up with possible alternative times. Ms Burney has been seen on the following occasions:

   26.07.2017 - Appointment with Ms Burney, which was a short appointment due to her not having her Mental Health Care Plan.

   03.08.2017 - Appointment with Ms Burney.

   11.08.2017 - Appointment with Ms Burney.

   14.08.2017 - Appointment with X, and short consultation with Ms Burney.

   28.08.2017 - Appointment with Mr C, which was cancelled due to his work commitments.

   04.09.2017 - Appointment with Mr C, which was cancelled due to his work commitments.

   13.09.2017 - Appointment with Mr C and Ms Burney.

   The main issues to emerge from my conversations with X are that he wants to be able to spend more time with his mother and sister, and that he does not have a problem with Mr C. He discussed being upset when he is due to return to his father's house from his mother's, and talked about this being because he wants to spend more time at his mother's house.  He appeared to have some issues with his father's new partner who he has known for many years, but  despite this…[it’s] clear that he wants to  be able to have a relationship with both parents. He is aware that it is difficult for his mother at present in that when he sees her Mr C is required not to be present, and X feels this is not necessary and says he only ever had an issue with Mr C on one occasion. It is hoped that further counselling with X will allow him to feel more comfortable with both parents and that he can continue to express his view about having a positive relationship with both parents.

   I hope this provides you with an overview as to where the situation in terms of therapeutic counselling currently stands. As previously stated, it has been very difficult to get Mr Speers to attend further appointments, or even to be able to make further appointments. By contrast Ms Burney has been very cooperative, apologetic when she has needed to change times, and anxious to ensure that she and her partner Mr C are able to be seen, as well as wanting X to  talk about the things that are difficult for him. I anticipate seeing Ms Burney on at least 2 more occasions as well as seeing X at least twice more. It would be very helpful for Mr Speers to participate in the process, but I have serious doubts in regard to his previously expressed intention to cooperate.

   Please feel free to contact me if you require further information.

Intervention orders

1. On 29 September 2017,  Victoria Police made an application for a family violence intervention order against the mother, naming the affected family member as the father.

2. On 3 October 2017, the mother made an application for a family violence intervention order against the father.

3. Also on 3 October 2017, intervention orders were made against both the mother and the father on a final basis and by consent. 

4. The mother explained the circumstances leading to the intervention orders in her affidavits affirmed on 26 October 2017 and 29 January 2018.  She was not cross-examined on that evidence, and I accept it.  The mother said that:

   a)on the last weekend of September 2017, X was due to spend time with his mother;

   b)the father sent the mother a message saying X did not want to spend time with her and the father would not be facilitating time;

   c)the mother telephoned X and he said that he did want to spend some time with her;

   d)the father sent the mother another message saying X did not want to go;

   e)the mother went to the father’s house;

   f)X yelled at the mother words to the effect that it was not safe for him at her house because she would get drunk as it was the Grand Final;

   g)Ms E came outside and started yelling at the mother from a very close distance;

   h)the mother pushed Ms E;

   i)the father ran at the mother and dragged her onto the ground;

   j)the father reversed his car into Mr C’s and damaged it;

   k)the police attended and took photographs of the mother’s bruising;

   l)the mother regretted attending the father’s house;

   m)she would seek to resolve issues through her solicitor in the future; and

   n)she did not consider at the time the damage that the “argument” would cause to X.

5. It was implicit in the mother’s affidavit that she did understand, by the time she affirmed her affidavit on 26 October 2017, the damage that the “argument” would have caused X.  However, the mother’s use of the word “argument” to describe what turned into a physical fight, suggests that, even by the time she affirmed her second affidavit on 29 January 2019, she did not fully appreciate the magnitude of her actions.

The interim hearing on 1 November 2017

1. The matter returned to court on 1 November 2017. On that occasion, the father appeared without the benefit of any legal assistance. Orders were made by consent:

   a)discharging the orders requiring that Mr C not be present when X was spending time with his mother;

   b)for X to spend time with his mother, until further order:

   i)from after school on Friday until before school on Monday each alternate weekend;

   ii)from after school on Monday to before school on Tuesday each alternate week;

   iii)for half of the school term holidays;

   iv)for half of the summer holidays, in alternate weeks;

   v)on Mother’s Day and at Christmas;

   c)for Y to spend time with her father:

   i)from after school/day care on Friday until before school/day care on Monday each alternate weekend;

   ii)from after school/day care on Monday to before school/day care on Tuesday each alternate week;

   iii)for half of the school term holidays;

   iv)for half of the summer holidays, in alternate weeks; and

   v)on Father’s Day and at Christmas.

The interim hearing on 15 June 2018

1. On 12 June 2018, the independent children’s lawyer wrote to chambers saying:

   I have been requesting, on numerous occasions, responses from Mr Speers in relation:

   1.The Father’s current residential address;

   2.X’s unexplained absences from school;

   3.The “alleged” altercation between the Mother and the paternal aunt.

   4.These matters are significant and require responses so that this matter can be properly managed and prepared for final hearing.

   Given the Father’s failure to respond in a timely manner, or at all, I seek that the matter be listed for a Mention at the earliest possible opportunity in order to have these issues addressed.

2. The matter was listed for interim hearing on 15 June 2018 at 10am. On 13 June 2017 at 9.18am, notice of listing was sent to the father by email and post to his correct addresses as disclosed on his then current notice of address for service.

3. The father failed to attend court on 15 June 2018. Orders were made adjourning the matter to 22 June 2018 at 10am, and requiring the father to attend in person, with or without a lawyer, and noting that, if he failed to attend, a warrant may be issued for his arrest.

The interim hearing on 22 June 2018

1. The father attended court on 22 June 2018. On that day, orders were made by the court as follows:

   2.Within seven days the father confirm to the independent children’s lawyer his current:

   a.contact details; and

   b.residential address.

   3.Within seven days of any change of contact details or residential address on the part of the father, he notify the independent children’s lawyer and provide full details of his new contact details and/or residential address, as the case may be.

   4.Subject to the mother’s solicitor providing an undertaking to the court not to disclose the father’s address or contact details to the mother:

   a.within seven days the father confirm to the solicitors for the mother his current:

   i.      contact details; and

   ii.     residential address;

   b.within seven days of any change of contact details or residential address on the part of the father, he notify the solicitors for the mother and provide full details of his new contact details and/or residential address, as the case may be.

1. Orders were made by consent as follows:

   1.Within 14 days the father give full and detailed responses to the following letters sent to him by the independent children’s lawyer:

   a.letter dated 11 October 2017;

   b.letter dated 16 October 2017;

   c.letter dated 18 October 2017;

   d.letter dated 19 October 2017;

   e.letter dated 5 April 2018; and

   f.letter dated 8 June 2018.

   2.Within 7 days of receipt of any further correspondence from the independent children’s lawyer the father provide full and detailed responses to such correspondence.

   3.Within 14 days the father provide to the independent children’s lawyer and the solicitor for the mother:

   a.a list of all dates the child X, born … 2008, has been absent from school in the 2018 school year to date;

   b.detailed reasons for each such absence;

   c.copies of any medical reports relating to any such absences; and

   d.details of any steps taken by him to address any further absences from school on the part of X.

   4.[Until further order] The father forthwith and continue to do all acts and things so as to enable Ms D to continue the therapeutic counselling directed to promoting and facilitating X spending time and communicating with the Mother including but not limited to:

   a.attending all counselling sessions scheduled by Ms D;

   b.promptly making all payments required of him; and

   c.promptly providing all information requested of him for any application for VLA to fund his attendance at such sessions.

The ICL’s letter dated 16 July 2018

1. On 16 July 2018, the independent children’s lawyer wrote to chambers saying:

   This matter was last before Her Honour on 22 June 2016, at my request due to the Father not engaging meaningfully in the process. The Father is currently in breach of Orders 1, 2 and 3 of the Orders made [by consent] on 22 June 2018.

   I have notified the Father of his breaches on 9 July 2018 and again today, and asked that he comply immediately, to which I have received no response.

   Given the Father’s failure to respond in a timely manner, or at all, I seek that the matter be listed for a Mention at the earliest possible opportunity in order to have these issues addressed again.

The ICL’s affidavit affirmed on 24 July 2018

1. The independent children’s lawyer affirmed an affidavit on 24 July 2018.  She was not cross-examined, and I accept her evidence. The affidavit set out the orders made on 22 June 2018, and then said:

   3.Despite numerous attempts at contacting the Respondent Father in relation to his compliance with these Orders, the only correspondence or communication of any kind received from him in this matter was received late on 23 July 2018. Now produced and shown to me and marked with the letters RAB-01 is a true copy of the letter and enclosures received from the Respondent Father that day.

2. The affidavit attached copies of the various letters sent by the independent children’s lawyer to the father with his annotations on them.

3. On the letter dated 11 October 2017, which asked both parents to provide a written explanation of what occurred during the incident which resulted in intervention orders, the father wrote:

   A copy of the intervention order will be attach (sic). Everything in the order is the truth.

4. On the letter dated 16 October 2017, which noted that the mother had responded to the letter dated 11 October 2017 but the father had not, the father wrote:

   I have read and understand your concerns.

5. On the letter dated 18 October 2017, which asked the father to urgently advise whether he could pay $1,080, being his half share for a report from the psychologist, Ms D, regarding the therapeutic counselling, the father wrote:

   Sorry I am not able to come up with that kind of money.

6. On the letter dated 19 October 2017, which noted that the father had not replied to the letter dated 18 October 2017, which was emailed to him, the father appears to have placed his signature.

7. On the letter dated 5 April 2018, which asked the parents how the current arrangements were going, the father wrote:

   The arrangements are going fine but I don’t believe it can be resolved out of court.

8. On the attachments to the letter dated 8 June 2018, which asked that the father respond to various letters sent in May and June 2018, and which asked the father to explain various of X’s absences from school which were detailed in attachments, the father wrote:

   I am sorry I can’t remember back that far the reson (sic) why X had the days off school but not all were in my care.

   For the 15^th of May 16^th of May 17^th of May and the 18^th of May I the father had all my teeth removed and was on medication and was unable to drive X to school and back.

   23^rd of May X was late by 3 minutes as there was (sic) road works and heavy traffic.

   31^st of May I believe X was unwell so did not attend school.

9. In relation to the letter dated 26 June 2018, which asked the father to sign an undertaking that he would not discuss the proceedings in X’s presence, the father signed the attached undertaking and dated it 9 July 2018.

The interim hearing on 24 July 2018

1. The matter was listed for interim hearing on 24 July 2018. Chambers’ records show that the notice of listing was correctly sent to the father’s then current email address and postal address, although the father’s residential address is not set out on the notice of listing as he did not want it disclosed to the mother.

2. The father failed to attend the interim hearing on 24 July 2018. The court ordered that:

   1.Within 14 days, the father file and serve an affidavit sworn or affirmed by a doctor explaining in detail why the father was unable to attend court today.

3. The court noted that:

   A.If the father fails to comply with orders 1, 2 and 3 in the engrossed minute attached to the orders made on 22 June 2018, the mother and the independent children’s lawyer intend to ask the court at the next return on 20 September 2018 at 10am to order that X born on … 2008 henceforth live with his mother.

X’s absences from school: January to 10 September 2018

1. The mother obtained a printout of X’s absences from school for the period January 2018 to 10 September 2018.  It is annexure B-5 to the affidavit affirmed by the mother on 29 January 2019 (“B-5”). It is as follows:

   Primary School G, Suburb H

   Student History Report: All Absences – Year: 2018

   Included reasons: Unexplained, Early Class Unexplained, Early departure unexplained, Late arrival unexplained, Late [obscured] Unexplained, Refusal, Truancy, Accident, Bereavement, Camp(*), Community Service(*), Counselling, Dentist, Duty Student(*), Early departure from School, Early leaver from Class, Educational(*), Excursion(*), Exempt(*), Exit(*), Facility Damage(*), Family Holiday, Flags, Group Activity(*), Hospitalised, Illness, Industrial Action(*), Late arrival at School, Late arrival to Class, Medical, Medical Appointment, Medical/Welfare, Natural Disaster – Bushfire(*), Natural Disaster – Earthquake(*), Natural Disaster – Flood(*), Natural Disaster – Other(*), Other Educational Activity(*), Pandemic – H1N1(*), Pandemic – Other(*), Pandemic – SARS(*), Parent Choice School Approved, Parent Choice Unauthorised, Quarantine, Re-engagement Program(*), Religious/Cultural Observance, School Choice(*), School Production(*), Sick Bay(*), Special Event(*), Sports(*), Staff Meeting(*), Study Leave(*), Suspension(*), Suspension – External, TAFE(*), Transferred(*), Weather(*), Work Experience(*)

   X (ID …, Year 5, 13)

Date	Type	Time Period	Reason		Comment
Thu 08/02/2018	Whole	201	Illness	via Portal: X’s father kept him home as he didnt feel well
Mon 12/02/2018	Early	02:02 PM – 03:15 PM	P 209	Dentist	Scanned in as Early Departure – Dentist
Mon 19/02/2018	Late	09:00 AM – 10:14 AM	P 209	Dentist	Scanned in as Late Arrival – No Parent: Dentist Appointment
Mon 26/02/2018	Early	01:33 PM – 03:15 PM	P 209	Dentist	Scanned in as Early Departure – Dentist
Fri 02/03/2018	Late	09:00 AM – 09:53 AM	P 111	Late arrival at school	Scanned in as Late Arrival – No Parent: X’s father has been keeping X home for no reason at all.  X is not unwell.
Mon 05/03/2018	Late	09:00 AM – 09:10 AM	P 111	Late arrival at School	Scanned in as Late Arrival – No Parent:  X’s father has been keeping X home for no reason at all.  X is not unwell.
Wed 21/03/2018	Timed	11:54 AM – 01:16 PM	P 210	Medical/Welfare	Scanned in as Early Departure – Appointment Scanned returned as Return to School
Mon 26/03/2018	Whole	201	Illness	via Portal: X’s father has been keeping X home for no reason at all.  X is not unwell.
Wed 28/03/2018	Late	09:00 AM – 09:20 AM	P 111	Late arrival at School	Scanned in as Late Arrival – No Parent: X’s father has been keeping X home for no reason at all.  X is not unwell.
Thu 19/04/2018	Whole	201	Illness	via Portal: X’s father has been keeping X home for no reason at all.  X is not unwell.
Mon 07/05/2018	Whole	201	Illness	via Portal: X’s father has been keeping X home for no reason at all.  X is not unwell.
Fri 11/05/2018	Late	09:00 AM – 10:39 AM	P 111	Late arrival at School	Scanned in as Late Arrival – No Parent: X’s father has been keeping X home for no reason at all.  X is not unwell.
Mon 14/05/2018	Whole	201	Illness	In Care of Father: X’s father has been keeping X home for no reason at all.  X is not unwell.
Tue 15/05/2018	Whole	807	Parent Choice School Approved	via Portal: X was in his fathers care and has been kept home for no reason.
Wed 16/05/2018	Whole	807	Parent Choice School Approved	via Portal: X was in his fathers care and has been kept home for no reason.
Thu 17/05/2018	Whole	921	Pandemic – SARS	via Portal: X was in his fathers care and has been kept home for no reason.
Fri 18/05/2018	Whole	807	Parent Choice School Approved	via Portal: X was in his fathers care and has been kept home for no reason.
Wed 23/05/2018	Late	09:00 AM – 09:03 AM	P 111	Late arrival at School	Scanned in as Late Arrival – No Parent: Father has dropped X off late
Thu 31/05/18	Whole	807	Parent Choice School Approved	via Portal: X was in his fathers care.
Mon 18/06/2018	Whole	807	Parent Choice School Approved	via Portal: X’s father has let X have these days off when in his care.
Wed 20/06/2018	Late	09:00 AM – 09:58 AM	P 111	Late arrival at School	Scanned in as Late Arrival – No Parent:  X’s father has let X have these days off when in his care
Mon 25/06/2018	Late	09:00 AM – 11:07 AM	P 111	Late arrival at School	Scanned in as Late Arrival – No Parent: X had a dentist appointment.
Wed 27/06/2018	Whole	807	Parent Choice School Approved	via Portal: X’s father has let X have these days off when in his care.
Wed 18/07/2018	Whole	807	Parent Choice School Approved	via Portal: In fathers care
Fri 20/07/2018	Early	01:39 PM – 03:15 PM	P 201	Illness	Scanned in as Early Departure – Student Unwell
Wed 15/08/2018	Whole	807	Parent Choice School Approved	via Portal: In fathers care
Tue 28/08/2018	Late	09:00 AM - 09:53 AM	P 113	Late arrival unexplained	Scanned in as Late Arrival – No Parent
Fri 31/08/2018	Whole	500	Unexplained
Mon 03/09/2018	Whole	500	Unexplained
Mon 10/09/2018	Late	09:00 AM – 09:30 AM	P 210	Medical/Welfare	Scanned in as Late Arrival – Appointment

The ICL’s affidavit affirmed on 20 September 2018

1. The independent children’s lawyer affirmed an affidavit on 20 September 2018. The independent children’s lawyer was not cross-examined and I accept her evidence. The affidavit said that:

   2.On 17 September 2018, I met with the parties' eldest child, namely X for the second time in this matter.

   3.Prior to meeting with X, I had a conversation with the Respondent, MR SPEERS, during which he advised me that he had changed his address, however did not tell me his current address. I note that at the date of swearing this Affidavit, the Respondent is yet to file an  updated Notice of Address for Service.

   4.I also followed up with the Respondent as to when he would be filing an Affidavit pursuant to Orders made on 24 July 2018 as to why he was unable to attend Court. He advised me that he had a medical certificate for that day and I strongly advised him to at least provide a copy of same pending filing his Affidavit. He assured me he would, but has yet to do so.

   5.The Respondent informed me that he was in the process of applying for legal aid, as he was finding the Court process difficult to manage on his own.

   6.I urged the Father to seek legal assistance and representation and, in the meantime, impressed upon him the imperative of complying with Court Orders and meaningfully engaging in the process. I further advised the Respondent that he needed to check his emails daily to ensure he accessed communications with respect to his matter in a timely manner.

   7.During my meeting with X on 17 September 2018, he expressed a wish to spend the night ahead of Mother's and/or Father's Day with the relevant parent. He also expressed some dissatisfaction with the arrangements when in his mother's care, specifically that he is frequently left at home alone and/or to care for Y.

   8.It appeared to me that the comments X made to me at our meeting demonstrated a knowledge of aspects of the issues in these proceedings and were possibly a pre-prepared list of grievances, as he appeared to struggle at times to remember what he wanted to tell me. I am concerned about the provenance of his observations.

The interim hearing on 20 September 2018

1. The father was asked at the interim hearing on 20 September 2018 about X’s absences from school, by reference to B-5. The following exchange occurred:

   MR SPEERS:      Well, he’s – he actually is a good kid.  He doesn’t sit there and say, “I don’t want to go to school today, dad”.  It never comes out of his mouth, “I don’t want to go to school”.  He actually loves going to school because he gets to play with his friends.  He’s always sport-active.  So he looks forward to going to school to play sports with all his friends and all – and PE and that.  He actually does not dislike school.  He is a good kid.  He likes going to school.  It’s never a struggle to get him to school.  It’s just the days that he has had off, it’s for his mental health, basically.  And there has been other days where he has been sick and he has been at a doctor’s and got a certificate and that for it, but I haven’t ‑ ‑ ‑

   HER HONOUR:  Well, where are they? … this list doesn’t say:

   Absent - medical certificate provided.

   MR SPEERS:      That’s right.

   HER HONOUR:  So … how can you stand there and say, “He has been to the doctor” but not have a medical certificate?

   MR SPEERS:      Yes.  Well, I – it hasn’t been provided to the school but there is the certificates there.

   HER HONOUR:  Well, where?  Are they in the envelope?

   MR SPEERS:      I’m not quite sure if we’ve got them in that envelope or at home, like ‑ ‑ ‑

2. It was clear in the father’s responses to the court’s questions that he was claiming that he had medical certificates for some of X’s absences from school, which were in an envelope or at home.  The court told the father that he would have to produce them at the trial, or his claim to have medical certificates for the relevant dates was unlikely to be believed.  However, the father did not produce them at the trial.

3. At the interim hearing on 20 September 2018, orders were made:

   a)for the father to give notice of any change to his mobile telephone number;

   b)for the mother to be restrained from:

   i)criticising the father;

   ii)permitting Mr C to discipline X;

   iii)permitting X or Y to travel in a vehicle driven by a person who is not properly licensed;

   iv)leaving either X or Y unattended by an adult for more than 15 minutes;

   c)for the parents to resume sessions with Ms D; and

   d)for Y to commence at Primary School K in 2019.

X’s suspensions from school in 2018

1. On an unknown date in November 2018, and for an unknown reasons, X was suspended from school for one day.  The mother learned of this event because the school telephoned her. 

2. The parents agreed that X was also suspended on one other occasion in 2018 for one day, but were unable to identify the date. The father said that the school would send home with X a suspension letter, but the father was unable to provide it to the court.

The updated family report dated 9 December 2018

1. Dr F provided an updated family report dated 9 December 2018. For the purposes of that report, Dr F interviewed the mother, X and Y.  The father did not attend the family report interviews. He told the court at the trial that the notification for the family report interviews was sent to one of his old email addresses, for which he had forgotten the password.  However, the notification was sent to the father at the email address he gave the court in his then current notice of address for service, which was filed on 22 June 2018.

2. In relation to the history of the dispute, Dr F said:

   5.The mother stated that since the last Family Report she had engaged in therapeutic counselling with Ms D for…[a] number of sessions with the intention of developing a co-parenting relationship with the father. The mother stated that the father had not attended these counselling sessions. The mother also stated that X had not made a lot of progress in the few sessions he attended counselling with Ms D.

   6.The mother reported that the parties had continued to experience conflict over parenting decisions. The mother stated the parties were in dispute [over] decisions such as choice of school for Y. The father had advised the mother that he wanted Y to attend the same school as X, Primary School G. The mother had advised the father that she was enrolling Y in Primary School K as it was the local school and her friends were enrolled in the school.

   7.In June 2018, the father had proposed that the mother assume the care of X. The father had advised her that X appeared sad living with him and that he was unable to manage X's behaviour.

3. In relation to her interview with the mother, Dr F said:

   14.Ms Burney (Applicant) presented as an engaging and articulate woman who was child focused in her attitude toward her parental responsibilities. She appeared more confident in her parenting and in responding to X's emotional needs. She is living with her partner, Mr C and the couple are expecting a child. The mother works four days a week as a public servant.

   15.The mother raised concerns about X's emotional well-being in the care of the father. X's behaviours had deteriorated and he had recently been suspended from school for a day. She reported that he was not fazed by the suspension. She was concerned that she was only advised by the school after the father failed to return their calls. The mother was concerned about the lack of intervention provided by the school.

   16.The mother was advised that X's attitude toward the teachers had been really poor. The school reported that he had been rude and defiant. The mother was concerned that these behaviours were an indicator that X was emotionally quite distressed and unable to express himself.

   17.The mother reported that the father had contacted in June 2018 to advise her that he was seeking that X return to her care as he was unable to cope with X's behaviour. He had also reported that X was very sad.

   18.The mother reported that X is not receiving counselling at present, despite the school's and the father's concerns. X had ceased counselling with Ms D soon after the last Family Report. The father had not advised her that he had sought further support for X. The mother had contacted City J Community Health Centre for counselling and was waiting for an available appointment.

   19.The mother stated that X's attitude toward her had improved since the last Family Report. She observed that X's behaviour [changed] …  for the better once the father approved of her partner. She believed that X was impressionable and susceptible to being influenced by the father.

   20.The mother was concerned that X [is] still preoccupied in needing to look after his father. He had presented during visits as being worried about his father. He was also quite defensive and would makes excuses for his father's shortcomings.

   21.The mother was also concerned about the father's control over X. She had observed X to be torn in his allegiances. This was indicated by the father making X report on what had occurred during visits.

   22.The mother also expressed concerns about the father's care of Y. She reported that Y returned after visits in the same clothes and had not been bathed.

   23.The mother reported that the children have a positive relationship with her partner. X's was now more accepting of the relationship and he and Y spent quality time with Mr C. The mother also reported that X had a positive relationship with the father's partner and spoke favourably about her.

   Adult relationships

   24.The mother stated that the father had not engaged with her in a co-parenting relationship. The father had also not informed her of the changes to his details including his new address or phone number. The mother reported that all communication with him occurred by text messaging his sister, and she was often slow in her response to their communication.

1. In relation to her interview with X, Dr F said:

   25.X (10 years old) presented as an engaging and talkative child. He is in Year 5 at Primary School G and did not seem to enjoy school. He spoke about getting into trouble for "back chatting" to a teacher. He went into detail as to why he was suspended, claiming that he was "unjustly" treated. He repeated a number of times that his behaviours at school had nothing to do what was going on at home.

   26.X drew a family drawing as a means of exploring his family dynamics. He drew two separate families - one for his mother's household and one for his father's household. He described the challenges of living in the two homes and managing the different rules and expectations. He stated that he was expected to do a lot more at his father's house such as emptying the dishwasher and cleaning the backyard. He said that there were no expectations of him at his mother's house. He said that it felt strange spending time with his mother and then adjusting to all the rules in his father's house.

   27.X stated that his parents "managed things" to ensure that his school needs were met. X said that he had to remind his father to do things such as pay for his school top for next year. He made excuses for his father's delay in making the payment and said that his father was waiting for his next pay week. He said that his father had just paid for new bunk beds. He also said that it did not matter that his father had not re-enrolled him for gym classes as he did not want to go anymore. He said that his mother filled in the forms for school excursions.

   28.X discussed his current living arrangements and said that he was comfortable living with his father. X described his daily routine and said that his aunt picked him up from school and he went back to her workplace and waited in a room behind the shop until his father got home from work. He said that his father collected him at about 5.30 pm each day.

   29.X said that he would feel scared and sad if he lived with his mother. He described an incident when Mr C had unplugged his Xbox and became quite angry and held a fist to it. X explained that this had occurred when he and his mother had got into an argument. He said that this incident had occurred some time ago and since then he had not felt scared. X also volunteered that his mother and Mr C argued "a bit".

   30.X said that he would feel sad if he did not live with his father. He said that he would miss his father. Despite this, X referred to his family drawing again and said that he did not spend a lot of one on one time with his father and tended to spend more time with Ms E's children. X reflected on living with his father before he commenced his relationship with Ms E. He recalled enjoying spending more time together such as sitting on the couch and watching television together. "We also looked after one another".

   31.X said that he felt annoyed and sad that he did not spend a lot of time with Y during the week. He said that he felt sad as he missed her. He said that given their young ages they should spend more time together. "We should get to see each other more because we are still young".

   32.X described the changes in his mother's household. He said that his mother and Mr C had bought land and were building a house. He also felt happy that his mother was having a baby. He said that he wanted his time to be equal with the baby. X appeared torn between wanting to spend more time with his sister and the new baby but also feeling "use to" living with his father.

   33.X said that if he had three wishes he would stay the way it is but also wanted to see more of Y. He then spent a lot of time talking about how important it was that he spend more individual time with each of his parents. He said that he did not get to spend a lot of time with his father, and that it was better when it was just the two of them. "Now we have more people". He said that it was annoying because "Ms E is not my real mum and Mr C is not my real dad". He also said that Y "tries to hog mum and dad".

   34.X also said that he wanted to spend more time with his mother. He qualified this by saying that he did not want to spend more time with her but more quality time when they were together.

2. In relation to her interview with Y, Dr F said:

   35.Y (4 years old) was interviewed with her mother as she would not separate for the interview. The interview with Y was limited due to her shy demeanour and her limited cognitive capacity.

   36.Y described the special things she enjoyed doing with her mother such as being pushed on the swing, drawing and doing puzzles together. She said that she enjoyed doing similar activities with Mr C.

   37.Y was asked about the special things she enjoyed doing with her father. She said that when she was at her dad's house she played by herself. She said that X played with the boys and her father and his partner spent time together outside. She said that she played alone with her barbie dolls.

   38.Y was asked how she felt about X spending a lot time at his father's house. Y said, "mum really wants him to be at her home".

   39.Y discussed starting school next year. She said that she would like her mother and Mr C to be there on her first day. Y also talked about wanting to spend the upcoming Christmas at her mother's house.

3. In relation to her observations of the mother with X and Y, Dr F said:

   40.The children were observed with their mother. She was attentive to their needs and they were very comfortable and engaged with her. The mother spoke to the children in a calm and loving manner. The writer asked the mother if she was aware whether the father was on his way. X jumped to his defense, making excuses for his nonattendance. The mother was gentle in her response and did not correct him. X seemed confident in his relationship with the mother and Y. X was also very attentive in his care of Y. X separated from his mother with confidence, whereas Y was clingier.

4. In her evaluation, Dr F said:

   42.The mother presented with insight and a commitment to her parental responsibilities. She was attentive to the children's needs within the confines of limited communication from the father about X's problematic behaviours. This was particularly evident by her immediate response to attend the school after the father's failure to advise her of the deterioration in X's behaviour. She also demonstrated an increased confidence in her relationship with X particularly in her capacity to set limits on his behaviour. From observation, she was attentive to the children's needs and able to address their competing needs. Her attempts to co-parent have been compromised by the escalation in conflict between the parties. It would appear from the mother's account that the father had not engaged in counselling to address the parenting concerns.

   43.The father's absence from this updated assessment raises concerns about his capacity to be a stable presence in the care of the children. The mother's reference to the father seeking that X be placed in her care was suggestive of the deterioration in his parenting capacity.

   44.X's development has been profoundly affected by his exposure to the ongoing parental conflict. X has experienced significant disruptions to his primary attachment and patterns of care brought about by the separation and the expectations on him to adjust to the blended family. X was quite overt in expressing a sense of loss in the changes to his attachments to his primary caregivers and the challenges in their expectations of him adjusting to the blended family dynamics. The current care arrangements and separation from Y have been further challenges for X. These disruptions have destabilised X as indicated by his emotional reactivity and the deterioration in his behaviours at school. X also grapples in prioritising his own needs for stability with maintaining allegiances, particularly to his father.

   45.If X continues to live with the father, the father's lack of prioritising of X's developmental needs is likely to have poor outcomes. If X lives with his mother, she is more likely to provide X with a nurturing, stable presence with developmentally appropriate care arrangements. The mother would benefit from counselling to manage the potential challenges in managing X's adjustment to his living arrangements.

   46.Y appears more adjusted in her emotional development due to age appropriate care arrangements. She appears quite resilient in her adjustment to her relationships, including with the mother's partner, due to the stabilising nature of his positive interaction. If Y's account is reliable of the limited interaction with her father during time spent together, Y would benefit from the father dedicating more quality time with her.

   47.The conflict between the parties is likely to have significant impact on the children's development. If the children continue to be exposed to this conflict they will need to use considerable energy to manage their emotional safety. The potential developmental difficulties for children who do this on an ongoing basis is significant.

5. In her recommendations, Dr F said:

   48.Given these dynamics, the following recommendations are made:

   a.That X and Y live with the mother.

   b.That the parties have equal shared parental responsibility for the children.

   c.That the children spend time with the father on alternate weekends from after school on Friday until Sunday afternoon and on an afternoon in the alternate week.

   d.That the children spend half of the school holidays and special days on alternate years with the father, such as Christmas Day and Easter.

   e.That the parties engage in counselling to develop a co-parenting relationship with a local Family Relationship Centre.

   f.That X is referred for counselling such as that organized by the mother with City J Community Health Centre or other such service.

   g.That the mother and father also engage in counselling to assist them manage any transitions in parenting arrangements.

The mother’s lawyers ceased acting for her

1. The mother’s lawyers ceased acting for her on 1 February 2019. The mother appeared at the trial without the benefit of legal assistance.

The trial listed on 7 February 2019

1. The trial was listed for hearing on 7 February 2019. The father telephoned chambers at 8.30am on that day and advised that he had been in a car accident and was waiting for a tow truck.  When the matter was called at about 10.15am, the father did not respond to the call.

2. The court then clarified the orders the independent children’s lawyer and the mother sought.  They eventually agreed on a joint position.

3. At about 11.30am, the court telephoned the father in open court.  He was happy to take the call.  He said that he was waiting for treatment at hospital and had suspected whiplash and bruising of his chest.  He said that he was willing to go through the orders proposed by the mother and the independent children’s lawyer, and say what he agreed with.  The father indicated that he was willing to agree with many of the orders proposed by the mother and the independent children’s lawyer, but not the orders regarding who X and Y were to live with.

4. The court made orders by consent on 7 February 2019:

   a)standing the hearing over to 8 February 2019;

   b)requiring the father to produce a medical report for 7 February 2019; and

   c)saying that, if the father failed to appear on 8 February 2019, final orders may be made in his absence.

5. The father did attend court on 8 February 2019 and did produce a certificate of capacity that appeared to be signed by a GP.  It said that the father was seen on 7 February 2019 and had chest bruising and shock.  He was said to be unfit for work on 7 February 2019 only.

Consent orders

1. At the trial on 8 February 2019, the parents and the independent children’s lawyer agreed to orders by consent as follows:

   1.The parents have equal shared parental responsibility for X born on … 2008 (“X”) and Y born on … 2014 (“Y”).

   2.X and Y spend school holidays with each parent as agreed and failing agreement, X and Y spend time with their father:

   a.in the April, June/July and September school holidays, from after school on the last day of term to 4pm on the middle Saturday of the holidays; and

   b.in the summer holidays, in alternate weeks commencing at 3:30pm on the Friday that X and Y would have spent with their father if it had been term time, and concluding on the Saturday after next at 4pm.

   3.X and Y spend from 4pm on Christmas Eve to 4 pm on Christmas Day with their father in even numbered years, and with their mother in odd numbered years.

   4.X and Y spend from 4pm on Easter Saturday to 4pm on Easter Sunday with their father in odd numbered years, and with their mother in even numbered years.

   5.X and Y spend time with their mother and father at times to be agreed on the children's birthdays and their parents’ birthdays.

   6.Changeover occur at school when it is to take place at school times and otherwise at Store A on B Street in City J.

   7.X and Y communicate with their father by telephone each Wednesday when they are not with him between 6pm and 6:30pm, with the father to place the call and the mother to facilitate the call.

   8.X and Y communicate with their mother by telephone each Wednesday when they are not with her between 6pm and 6:30pm, with the mother to place the call and the father to facilitate the call.

   9.Within seven days the father provide to the mother a telephone number at which she can contact X and Y when she is permitted by these orders to telephone them, and the father ensure that the telephone is charged and in credit whenever the mother is permitted to call X and Y.

   10.Each parent keep the other advised of a telephone contact number and inform the other of any changes to same as soon as practicable.

   11.Each parent keep the other informed of any illness or injury occurring to X and Y or either of them while in their care which requires medical attention, with such notice to be provided as soon as practicable following X and/or Y’s attendance upon a medical practitioner or any medical emergency occurring.

   12.In the event of either X or Y suffering a medical emergency, the parent who has the care of them advise the other parent of the treating health professional as soon as practicable and authorise the said professional to confer directly with the other parent on all questions relating to X and Y's welfare.

   13.Each parent keep the other advised of any medical practitioners treating the children and authorise that practitioner to communicate with the other parent.

   14.Each parent authorise X's and Y's schools to provide the other with all notices, newsletters, reports, photographs and other information usually provided to parents in relation to a child and authorise such schools to communicate with the other parent about X’s and Y’s progress.

   15.Both parents be permitted to attend all school activities, including school concerts, plays, excursions, parent teacher interviews and the like, normally attended by parents including all extracurricular activities including sporting and other activities.

   16.The parents and their respective servants and agents each be restrained from:

   a.abusing, insulting, belittling, rebuking or otherwise denigrating the other parent in the presence or hearing of X and Y or either of them, and from permitting any other person to do so; and

   b.discussing these proceedings with or in the presence or hearing of X and Y or either of them and from permitting any other person to do so.

   17.The parents engage in counselling to develop a co-parenting relationship with a local Family Relationship Centre.

   18.X be referred for counselling such as that organised by the mother with City J Community Health Centre or other similar service.

   19.The mother and father engage in counselling to assist them to manage any transitions in parenting arrangements.

   20.The father be restrained from criticising these orders to or in the presence or hearing of X and Y or either of them or permitting any other person to do so.

   21.With a denial on the part of the mother of the necessity therefore, the mother be restrained from:

   (a)permitting MR C (“Mr C”) from punishing, sanctioning, or in any other way, disciplining X;

   (b)permitting X and Y or either of them from travelling in any motor vehicle driven by a person who is not properly licensed to drive that motor vehicle; and

   (c)leaving X and Y or either of them unattended by an adult for any period exceeding 15 minutes until they are 12 years old respectively.

   22.With a denial on the part of the father of the necessity therefore, the father be restrained from:

   a.transporting X and Y or either of them in a motor vehicle except with age appropriate restraints; and

   b.leaving X and Y or either of them unattended by an adult for any period exceeding 15 minutes until they are 12 years old respectively.

Orders proposed by the mother and the ICL

1. In addition, the following orders were proposed by the mother and the independent children’s lawyer and opposed by the father:

   1.X and Y live with their mother.

   2.X and Y spend time with their father, as agreed, or failing agreement as follows:

   a.on alternate weekends from 3:30pm on Friday until 4pm on  Sunday, commencing on 15 February 2019;

   b.from 3:30pm to 6pm on Monday in the alternate week; and

   c.as otherwise agreed.

   3.The mother be at liberty to enrol X at Primary School K in City J.

   4.The mother be permitted to produce this order to Primary School K for the purposes of enrolling X there.

The father’s proposals

1. The father said that his preferred position was that he had full care of both X and Y, but that he would agree to equal shared care.

The mother’s evidence

1. The mother relied on her affidavits affirmed on 21 September 2016, 26 October 2017, 14 September 2018 and 29 January 2019.

2. The court explained to the father the need to challenge the mother on any of her evidence that he did not agree with.

3. The father put to the mother in cross-examination that she had disobeyed court orders by allowing X to be in Mr C’s care. The mother said that she only did that when they were at a football game. The mother said that, at the time, she thought the court orders only required her not to allow Mr C into the home when X was there. However, clearly, the orders required the mother not to allow X to be in Mr C’s presence anywhere at all.

4. The mother conceded in paragraph 4 of her affidavit affirmed on 26 October 2017 that she had allowed Mr C to come into contact with X on 22 July 2017 at the football. The mother said in her affidavit that she thought the orders only applied to the family home.

5. The mother also conceded in paragraph 13 of her affidavit affirmed on 26 October 2017 that she had not complied with court orders on a number of occasions. She did not give details, but said that she did so because she did not understand the orders, and thought she and the father could change the arrangements by agreement between themselves.

6. The father put to the mother that she breached the court orders by allowing Mr C to be in the house when X was there. The mother said that, at first, X was only in the home for a few hours, when Mr C was at work.  She said later, when X was staying overnight, Mr C would stay at his mother’s. 

7. This evidence is very difficult to believe.  The first orders, which were made on 1 March 2017, provided for X to spend time with his mother from after school until 7.30pm each Tuesday and overnight each alternate Friday. According to the family report dated 4 July 2017, X did not spend time with his mother pursuant to the orders of 1 March 2017 because he was too distressed during visits. 

1. However, it is apparent that X went to the mother’s home on at least some occasions. Indeed, at paragraph 29 of the family report dated 4 July 2017, the mother is recorded as saying that Mr C spent some time with X and Y in recent weeks after the mother, the father, Mr C and Ms E all met in recent weeks.  At that time, the order requiring the mother not to allow X to be in the presence of Mr C was in force.

2. I am satisfied on the balance of probabilities that the mother did fail on a number of occasions to comply with the court order requiring her not to allow X to be in the presence of Mr C.  I am unpersuaded by the mother’s excuses for this behaviour.

3. The father also put to the mother that she had allowed Mr C to pick up X from school in a car when he was not licensed to drive and when a court order prohibited the mother from allowing X to travel in a car driven by a person who was not licensed to drive.  An order to that effect was made by consent on 20 September 2018.

4. The mother conceded that Mr C had lost his license at the end of 2016 for two years for drink driving. She said that Mr C collected X in a car from school on one occasion in 2017. On the mother’s dates, Mr C was unlicensed at that time. 

5. I take judicial notice of the fact that, in Victoria, a person will lose their license for 24 months if found driving a car and having a blood alcohol reading of 0.24, which is almost five times the legal limit.  Additionally, a person will lose their license for two years if found driving a car and having a blood alcohol content of 0.12 or more but less than 0.13 in circumstances where they had previously had a drink driving offence.  Either way, Mr C’s drink driving history is shameful. 

6. The father initially said that the mother had allowed Mr C to drive X in 2017.  However, when it was ascertained that the relevant order was made on 20 September 2018, the father said that he had the years mixed up, and it was throughout 2018.

7. Except for the one occasion in 2017, which was before the relevant order was made, the mother denied that she had allowed X to be driven in a car by Mr C.  The father only filed one affidavit in this proceeding, on 3 November 2016.  Obviously, it did not address the question of whether Mr C drove X in a car in 2018.  I am not permitted to rely on the statements the father made from the bar table.  In the absence of any evidence to contradict the mother’s evidence, I am not persuaded that the mother breached the order made on 20 September 2018 by permitting Mr C to drive X in a car when Mr C did not have a license.

8. The father also put to the mother that she breached the court orders made on 20 September 2018 by allowing X and Y to be left without adult supervision for 15 minutes or more.  The mother said that she once left X at home for 10 minutes while she ducked down to the supermarket to buy tea.  However, she then conceded that she had probably left him alone for about 15 minutes.  I find that the mother did breach the court order on this occasion.  Her excuse was that X was playing Xbox and is a bit funny about being dragged away.  This is inadequate.  The mother should have been able to manage X at the age of 10 years.

9. The father put to the mother that she had also left X at home alone while she was at work for seven hours a day over the Christmas school holidays.  The mother said that she worked three days a week.  She said that she collected her mother at about 8am, and she stayed with X during the day.  The father said that was not true, because the maternal grandmother was a full time carer for her autistic son, Mr L.  The mother said that Mr L is 34 years old and he goes to Hobby Class from Monday to Friday.   The father did not provide any evidence disputing these claims and I accept them.  That is, I do not accept that the mother left X at home alone over the Christmas holidays while she was at work.

10. The father put to the mother that she had breached the consent order made on 20 September 2018 restraining her from allowing Mr C to discipline X.  The mother conceded that Mr C:

    a)said to X hop off the Xbox and come and spend time with Mum and Y or I will take the Xbox and turn off the Wi-Fi;

    b)on two occasions did take the Xbox;

    c)did not actually take the Xbox;

    d)did not shout at X really bad;

    e)told X he would take him to his father’s;

    f)when X was screaming and yelling and the mother could not calm him down, said that he would put X in the car and take him to his father’s.

11. When asked what she understood by the order that she was not allowed to let Mr C discipline X, the mother said:

    Well, he’s not allowed to discipline him, but I think that’s ridiculous because he lives in the house and he’s an adult.  He’s not allowed to smack him.  He’s not allowed to shout at him.

12. The mother clearly did not accept the value of the order, even though she had consented to it.  Obviously, X had a lot of difficulty with Mr C.  The consent order was no doubt intended to alleviate some of the difficulties between Mr C and X.

13. The mother said in cross-examination by the independent children’s lawyer that she was expecting another child, who was due in the second week of April.

14. When asked about how she would get X and Y to school when she would be unavailable due to the birth of the baby, the mother said that she had not thought that far ahead.  She then said it would be school holidays, so X and Y would be with the maternal or paternal grandmother.  The mother also said that Y’s school was about five minutes’ drive from her house and X’s school was about a further 20 minutes’ drive from her house.

15. The mother’s affidavit evidence was otherwise unchallenged and I accept it.

The father’s evidence

1. The father relied on his affidavit sworn on 3 November 2016.  Notwithstanding many opportunities, the father did not file any updated affidavits prior to the trial on 8 February 2019.

2. The mother put to the father in cross-examination that he had not taken X to school for a whole week in May 2018.  The father said it was not a full week, and it was three days, maybe four.  He said it was because he, the father, had had dental surgery that week.  B-5 shows that X did not attend school for the whole of the five days of the school week beginning on 14 May 2018. The father later conceded that the school records were accurate (Tr. p.74, l.2).  His evidence that X was only absent for three or four days in the week beginning 14 May 2018 was demonstrably false, notwithstanding that he had the mother’s affidavit with B-5 annexed to it for several months prior to the trial.

3. The mother asked the father whether it would not have been appropriate for him to have allowed X and Y to call her to wish her a happy New Year.  The father said that his time was his time and the mother’s time was the mother’s time.

4. In answer to a question from the mother, the father said that he thought it was appropriate to ask Y whether she wanted to go to the same school as X rather than the one she was attending.

5. The father conceded that he said to the mother in 2018 that X was sad and he should stay with her for a while.  However, the father then said that he had misunderstood X’s feelings and X had been playing up because he had to spend more time in his mother’s care.

6. The mother also asked the father why he did not attend parent-teacher interviews and why he did not communicate with the school when X was suspended.  The father said that there was no excuse for it.  He said he had his own personal struggles but was getting better.  He said he always put X first.  However, he did not explain the manner in which he always put X first.

7. In cross examination, the independent children’s lawyer asked the father if he had any medical certificates for X’s absences from school, or the father’s absences from court.  The father said that he did not have any such certificates.  He said at first that he had not had time to get medical certificates for his dental work.  He said that he had explained to his work that he would be having the time off, so he did not ask for a medical certificate. 

8. When it was put to the father that he told the court on 20 September 2018 that he had the medical certificates, the father maintained that he told the court on 20 September 2018 that he would be able to get the certificates, not that he already had them.  However, he said that when he tried to get the certificates, he was told that the dentist could not give certificates that far back.  This was inconsistent with the father’s earlier claim that he had not had time to get the certificates.

9. When it was put to the father that he had told the court on 20 September 2018 that he had the certificates, and a court transcript would show that, the father insisted that he had told the court that he could get the medical certificates.  He said that he knew at the time that he did not have medical certificates and that was why he told the court that, I have to get them. I can get them.

10. As the extract above from the transcript of the hearing on 20 September 2018 shows, the father maintained that he had medical certificates for at least some of X’s absences from school.  However, it is now apparent that he did not have any such certificates and that he sought to mislead the court on 20 September 2018.   He also sought to mislead the court at the trial, by maintaining that he had said certain things to the court on 20 September 2018 when he had not. For these reasons, and for the reasons discussed elsewhere in these reasons for judgment, I consider the father was an unreliable witness, who was prepared to tell the court whatever he thought would further his case and damage the mother’s case.

11. In a similar vein, the father admitted that he had received an email from the independent children’s lawyer a few days prior to the trial reminding him to bring to court medical certificates for his previous absences from court and X’s absences from school.  He said he did not bring them to court because he did not understand how all this court stuff works.  He also said he had depression and anxiety and did not have a lawyer to explain things to him. 

12. When shown the email, for the purposes of it being tendered, the father then said that he could not say whether he had received it or not.  He then expressly denied that he had received the email.  Then he said that he may have received the email along with 30 others the previous Wednesday evening.

13. In relation to the week of 14 May 2018, and the school’s record that the father had kept X at home for no reason, the father said that he was unable to get out of bed because he had had all of his teeth removed.  He conceded that he had not made any back up plan to enable X to attend school, and conceded that he had not informed the school that X would be absent or why.  He maintained that he was not able to speak.  However, he did not explain why he could not have sent an email to the school.  In any event, the father should have made arrangements with someone else to take X to and from school if the father was unable to do it himself.  The father’s sister is helpful in often getting X from school and minding him until the father finishes work.

14. The father conceded that X was often late for school.

15. The father conceded that X was absent from school on 31 August 2018 and 3 September 2018 and the father conceded that he did not give the school a reason for those absences.  The father said that X was absent from school on those days because he would come home upset about having been with his mother, cry all night and it was unfair to send him to school because he would bully other people and get suspended.

16. When it was pointed out to the father that 31 August 2018 was a Friday, the father said that he had no explanation for X’s absence from school on that day.  When it was pointed out to the father that 3 September 2018 was a Monday, and X had spent the whole of that weekend with his father, the father firstly said that X had a really strong bond with his new partner’s grandfather who had passed away, but later said that he could not explain X’s absence from school on 3 September 2018.

17. In relation to X being 53 minutes late for school on Tuesday 28 August 2018, the father said that it might have been a day when he dropped X at school and then the mother collected him to take him to Ms D or the dentist, and then returned him to school.  When challenged on that, the father said that X might have been at school earlier but just failed to sign his name on the iPad at 9am.  The father’s explanations are not consistent with the school record.  It says that X was late and there was no parent with him.  I consider that the father’s explanations in relation to X’s late arrival on 28 August 2018 were no more than wild speculation.

18. The father conceded that X was in his care on Wednesday 15 August 2018 and was absent from school and that the father gave the school no explanation and no medical certificate.

19. The father conceded that the same applied on 18 July 2018 when X was absent from school for the whole day.

20. When the father was asked about X’s absence from school on 27 June 2018, the father said that the school did not have a copy of the court orders, and did not know whether X was in the mother’s care.  When it was pointed out to the father that 27 June 2018 was a Wednesday, and X was never in the mother’s care on a Wednesday, the father said that he was not trying to blame the mother and denied that he was making things up.

21. When asked about X’s absence from school on Thursday 19 April 2018, which the school said was for no reason at all, the father said that he could not explain X’s absence because he could not remember back that far.

22. When asked whether he had ever given the school any medical certificates for X’s absences from school, the father said that he had not personally, but he had given X certificates to take to school and half the time X lost documents to and from the school.  The father said that he had no strategy in place to ensure that important documents were effectively transported to and from the school.  I do not accept the father’s claim that he sometimes gave X a medical certificate for his absence from school but X lost it.  I consider that the father made up this claim, and was happy to blame X for his own poor management.

23. The father conceded that the school often had trouble contacting him by telephone.  He said that his telephone was a work telephone and he could not give the number to personal contacts but he had given it to the school. He said he worked from Monday to Friday, 9am until 5pm, and only took lunchbreaks 10% of the time, so he was not in a position to take calls on week days.  He maintained that, in the event of an emergency, he could be contacted through his sister.

24. The father was asked about why he did not attend the family report interviews on 21 November 2018.  He said he was not aware of the appointment.  He said that the email from the family consultant said that the father had to make X available to go with the mother to the family report interviews but otherwise there was no mention of the father. However, exhibit 4 is the email from the family consultant.  It was sent to the father at his email address as disclosed on his notice of address for service, and he conceded receiving it.  The email says:

    I would like to see you and the children ….  (emphasis added)

25. The father’s evidence on this issue is a blatant example of the father just making things up.

26. The father conceded that he had not attended upon Ms D as required by court orders.  He conceded that he cancelled appointments with her and did not respond to her correspondence.  The father said that he and the mother and X had sorted out between themselves X’s relationship with his mother, and if that had not worked he would have brought in Ms D.

27. The father was also asked about an order made on 24 July 2018 which required him to file an affidavit sworn or affirmed by a doctor explaining the father’s absence from the court on that day. The father conceded that he had received a copy of that order.  He said he tried to file an affidavit.  He said that he sent to the court a mental health plan, but the court wrote back saying that it had not been correctly filed. That may be so, but it makes no difference. He did not produce a mental health plan at the trial.

28. As mentioned previously, I found the father to be an unreliable witness.  I do not accept his evidence, except where expressly stated to the contrary.

The family consultant’s oral evidence

1. Although Dr F was required to attend court in person because the father said that he did not accept her recommendations, when the time came, the father did not have any questions for her. 

2. The court asked Dr F what she thought about X and Y being in a week about arrangement.  Dr F said for such an arrangement to work, the parents needed to have a co-parenting relationship, they needed to live close to each other, they needed to be child-focussed and they needed to be willing to engage in counselling to progress that along.  In the present case, Dr F said that the parents did not have a co-parenting relationship and she was not sure about the father’s willingness to engage in counselling.

3. The court also asked Dr F whether there was any scope for X and Y to spend time with their father beyond the 4pm on alternate Sundays proposed by the mother and the independent children’s lawyer.  Dr F said that might be possible if the parents attended a parenting orders program and overcame their entrenched conflict.

4. The court asked Dr F whether she supported the father’s idea of X and Y extending their time with him from one evening a fortnight to overnight.  Dr F said that, again, the parents would need to do a parenting orders program to improve their ability to co-parent.

Best interests of the child

1. Part VII of the Family Law Act 1975 (“the Act”) deals with the court’s power to make orders in respect of children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:

   (1)The objects of this Part are to ensure that the best interests of children are met by:

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

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

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

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

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

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

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

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

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

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

   (3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)to have the support, opportunity and encouragement necessary:

   (i)          to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

   (4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

1. Section 60CA of the Act provides that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

2. Section 60CC(1) of the Act relevantly provides that:

   Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

   The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.

3. Subsection 60CC(2A) provides that:

   In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   I will address the relevant considerations in order.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

1. It was not disputed that X and Y would benefit from having a meaningful relationship with both of their parents.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. The father has seriously neglected X’s need to attend school.  The opportunity to attend school and obtain a good education is potentially of enormous benefit to children, both financially and in terms of personal growth.  It is something that millions of people in developing countries would probably give their right arms for.  For the father to squander X’s educational opportunities for no apparent reason is incomprehensible.

2. The incident of family violence in September 2017 was described above.  It is apparent that X was in the vicinity when the violence occurred.  It was obviously an incident that could be very damaging for X in the long-term, and seems to have exacerbated the difficulties in X’s relationship with his mother at the time.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. Y was too young at the time of the more recent family report to express any views, but she seems firmly attached to her mother. It was significant that she wanted her mother and Mr C to be there on her first day at school, and significant that she said that, when she was at her father’s place, she played with her Barbies alone.

2. X said that he wanted to spend more time with Y.  He also said that he wanted to spend more time with his mother, but retracted that somewhat.  X said that he would feel sad if he did not live with his father, even though he did not spend much one on one time with him, but mostly spent time playing with Ms E’s children.  X said that he wanted to spend equal time with the new baby his mother was expecting.  X particularly said that he wanted to have more time interacting with each of his parents, rather than Ms E, her children, or Mr C.

3. It seems to me that the court should not give a great deal of weight to the views expressed by X.  He is still quite young, and has been caught in a terrible conflict between his parents from a young age.  His father presents as a somewhat helpless person, who relies on X for emotional support.  That is obviously very unfair for X, who should be allowed to be a child, and have adults meet his needs, rather than the other way around.

4. X is particularly concerned about his father being sad.  However, it is important for X that his father overcomes his own emotional difficulties and behaves as a responsible adult.  The father’s excuses for not sending X to school and not complying with court orders are quite frankly pathetic.

Section 60CC(3)(b) the nature of the relationship of the child with:

(i)         each of the child’s parents; and

(ii)    other persons (including any grandparent or other relative of the child)

1. Y has a strong bond with her mother and a fairly weak bond with her father.  The father would do well to spend more time with Y when she is with him, and not leave her alone playing with her Barbies.

2. X has had a fractured relationship with his mother.  The mother has found it very difficult to manage X’s behaviour, though that seems to be improving now.  X’s relationship with his father seems to be based on X emotionally supporting his father rather than the other way around.  This is not fair for X.

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i)         to participate in making decisions about major long-term issues in relation to the child; and

(ii)    to spend time with the child; and

(iii)  to communicate with the child

1. The mother virtually relinquished X at about the time of separation but has since attempted to be very involved in X’s life.  However, the father has created obstacles. 

2. The father did not participate in the second family report interview or the family counselling sessions, which were important events for X and Y’s long-term well-being.  The father spends little time with Y and X, even when they are at his place. 

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. No issues were raised about this aspect of the matter.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)         either of his or her parents; or

(ii)        any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. It seems to me that X would benefit from spending more time with his mother.  She at least can be expected to get him to school.  X would also benefit from spending more time with Y.  She is his only full sibling after all. 

2. X could be expected to feel sad about spending less time with his father, at least initially, but probably also relief.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. The parents live about half an hour’s drive from each other, so this is not a significant factor in this case.

Section 60CC(3)(f) the capacity of:

(i)         each of the child’s parents; and

(ii)    any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

1. The mother has had some difficulty in managing X’s behaviour in the past.  However, this seems to be improving.  Otherwise, the mother seems to be well able to provide for X and Y’s needs.

2. The father has demonstrated an incapacity to provide for X’s intellectual needs, in that he has failed repeatedly to ensure X’s attendance at school.  That also has social consequences, as it is hard to maintain relationships with classmates if absent from school.

3. The father’s helpless and needy personality also mean that the father has not provided for X’s emotional needs.  Rather, the father has used X to meet his emotional needs.

Section 60CC(3)(g)           the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The mother seems to be reasonably mature.  The father is not.  Y and X are obviously both immature, and need the appropriate support of their parents.  Otherwise, this factor is not relevant.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i)     the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)    the likely impact any proposed parenting order under this Part will have on that right;

1. This factor does not apply in this case.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. As mentioned, the father has abnegated his responsibility as a parent to ensure X’s attendance at school.  Otherwise, the parents have been less child-focussed than they should have been.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

1. This has been discussed above.

Section 60CC(3)(k) 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, taking into account the following:

(i)         the nature of the order;

(ii)    the circumstances in which the order was made;

(iii)      any evidence admitted in proceedings for the order;

(iv)   any findings made by the court in, or in proceedings for, the order;

(v)     any other relevant matter

1. This has been discussed above.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. It would be preferable to make such an order, though it is not apparent what it would be.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

1. The relevant factors are mentioned elsewhere in these reasons.

Equal shared parental responsibility

1. Section 61DA of the Act provides as follows:

   (1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

   (2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)family violence.

   (3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

2. In the present case, the parents and the independent children’s lawyer have agreed that the parents should have equal shared parental responsibility for X and Y.  I agree that is in their best interests.

Equal or substantial and significant time with each parent

1. Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:

   Equal time

   (1)… if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

   Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

   Substantial and significant time

   (2)… if:

   (a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; 

   the court must:

   (c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

   Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

   (3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i)     days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)the time the child spends with the parent allows the parent to be involved in:

   (i)          the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)how far apart the parents live from each other; and

   (b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)the impact that an arrangement of that kind would have on the child; and

   (e)such other matters as the court considers relevant.

   Note:Paragraph (c) reference to future capacity – the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

2. I do not consider that it would be in X and Y’s best interests to spend equal time with each of their parents.  The father has demonstrated that he cannot be relied upon to get X to school regularly and punctually.  I infer that he would have the same difficulties with Y.

3. Moreover, as noted by Dr F, the parents do not have a co-parenting relationship that would sustain an equal time arrangement.

4. Because the father has demonstrated an incapacity to get X to school regularly and punctually, I do not consider that it would be in X and Y’s best interests to spend substantial and significant time with each parent. The father simply cannot be trusted to get X and Y to school as required. It follows that X and Y cannot be in the father’s care on any morning when they are due to attend school. 

5. I acknowledge that the mother has had various deficits as a parent to this point. They include more or less relinquishing X shortly after separation. She had considerable difficulty managing his behaviour.  She also failed to comply with certain court orders, on the pretext of not understanding them. 

6. However, the father’s deficits as a parent are greater.  His helpless attitude, failure to ensure X’s attendance at school, and failure to attend counselling sessions and the second family report interview demonstrate a serious lack of child-focus.

7. In my view, the orders proposed by the mother and the independent children’s lawyer are in the best interests of X and Y.  They will allow the mother to be responsible for ensuring X and Y attend school regularly and punctually.  The mother can be expected to fulfil that responsibility. The proposed orders will allow X and Y to spend more time together. That is obviously in their best interests.  The proposed orders will give X and Y a solid and secure home base. 

8. I appreciate that this arrangement is not in accordance with X’s stated wishes. However, I consider that they are in accordance with X’s best interests.

9. As X is to live with his mother, it is in his best interests that he be permitted to attend Primary School K, which is the school Y attends, and which is closer to his mother’s home than the school he currently attends.  It will obviously be easier for the mother, and thus for the whole family, if the two children attend the same school. 

10. It could also be expected that X would benefit from having a fresh start at a new school, given his previous suspensions and difficulties at his current school.

11. There will be orders accordingly.

I certify that the preceding one hundred and sixty-eight (168) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 3 May 2019