Cable and Sampson

[2016] FCCA 17

FEDERAL CIRCUIT COURT OF AUSTRALIA

CABLE & SAMPSON [2016] FCCA 17

Catchwords:
FAMILY LAW – Parenting – allegations of family violence, drug and alcohol abuse – poor parental communication – sole parental responsibility to the mother.

Legislation:

Family Law Act 1975, s.60CA, 60CC, 61DA, 61DAC

Briginshaw v Briginshaw (1938) 60 CLR 336

Applicant: MS CABLE

Respondent: MR SAMPSON

File Number: CAC417 of 2014

Judgment of: Judge Hughes

Hearing date: 30 and 31 March 2015, 1 April 2015 and 1 July 2015

Date of Last Submission: 1 July 2015

Delivered at: Canberra

Delivered on: 12 January 2016

REPRESENTATION

Counsel for the Applicant: Mr Hassall

Solicitors for the Applicant: Watts McCray Lawyers

Counsel for the Respondent: In Person

Solicitors for the Respondent: N/A

ORDERS

1. All previous parenting orders in relation to the children X born (omitted) 2008 and Y born (omitted) 2011 are hereby discharged.

2. The applicant mother shall have sole parental responsibility for major long-term issues concerning the children but before making a decision on any major long-term issue, she shall advise the father of the issue to be decided, seek his input and consider his views before making the decision.

3. The children shall live with their mother.

4. The children shall spend time with their father during school term as follows:

   (a)every second weekend from after preschool/school on Friday until 5pm on Sunday commencing on the first weekend of each new school term;

   (b)in the alternate week from after preschool/school on Thursday until the commencement of preschool/school on Friday; and

   (c)such additional or alternative times as agreed.

5. From the beginning of the second school term in 2017, the weekend time in paragraph 4(a) above shall be extended to conclude at the commencement of school on Monday.

School holidays

1. During the school holidays at the end of terms one, two and three each year the children shall spend time with their father as follows:

   (a)for one five-day block during the school holidays at the end of terms one and two in 2016 at times to be agreed or, failing agreement, from 10am on the first Saturday of the holiday period;

   (b)for one week during the school holidays at the end of term three in 2016 at times to be agreed or, failing agreement, from 10am on the first Saturday of the holiday period;

   (c)thereafter, for one half of the holidays at times to be agreed or, failing agreement, for the first half in odd numbered years and the second half in even numbered years.

2. During the long summer school holidays the children shall spend time with their father as follows unless otherwise agreed:

   (a)for one three day block in January 2016 to be from 2pm on 12 January 2016 until 5pm on 15 January 2016; and

   (b)thereafter, for a two week block in January each year on dates to be agreed or, failing agreement, for the first two weeks of January in odd numbered years and for two weeks ending on the last day of the holidays in even numbered years.

3. The school term arrangements for the children to spend time with their father provided in order 4 above are suspended during each of the shorter school holiday periods at the end of terms one, two and three each year and during January each year but shall continue in December each year unless otherwise agreed, subject to the provisions for special occasions set out below.

Special occasions

1. On each of the children’s birthdays the children shall spend time with the parent they would not otherwise see on that day from 3pm until 6pm if the birthday falls on a school day and from 11am until 3pm if the birthday falls on a non-school day.

2. On each parent’s birthday the children shall spend time with the parent having the birthday from 3pm until 7pm if the birthday falls on a school day and from 11am until 7pm if the birthday falls on a non-school day.

3. The children shall spend time with their mother from 11am on Mother’s Day until the commencement of school the following day if they are not otherwise with her on Mother’s Day.

4. The children shall spend time with their father from 11am on Father’s Day until the commencement of school the following day if they are not otherwise with him on Father’s Day.

5. Over the Easter period the children will spend from 10am on Good Friday until 10am on Easter Sunday with their father and from 10am on Easter Sunday with their father until 5pm on Easter Monday with their mother in odd numbered years and the opposite in even numbered years:

6. Over the Christmas period the children shall spend time with their parents as follows unless otherwise agreed:

   (a)in odd numbered years with their father from 9am on Christmas Eve until 11am on Christmas Day and with their mother from 11am on Christmas Day until 5pm on Boxing Day; and

   (b)in even numbered years with their mother from 9am on Christmas Eve until 11am on Christmas Day and with their father from 11am on Christmas Day until 5pm on Boxing Day.

7. In odd numbered years the children shall spend from 4pm on New Year’s Eve until 10am the following day with their father and the same period with their mother on New Year’s Eve in even numbered years.

8. All handovers which do not occur at the children’s school shall be facilitated by the parent with the children delivering them to the home of the other parent at the relevant time.

9. Each parent may telephone the children while they are in the other parent’s care between 6pm and 6.30pm or such other times as agreed in writing.

10. Each party is free to be fully involved in the school life and extracurricular activities of the children, to receive copies of school newsletters, school reports and the like and to attend all events and functions to which parents are invited. To any extent necessary the mother shall provide all authorisations to give effect to this order.

11. Each party shall advise the other of any medical or dental treatment obtained for the children as soon as practicable following the treatment.

12. Each party shall advise the other of any serious illness or injury suffered by the children or either of them as soon as practicable following the onset of the illness or occurrence of the injury and shall provide the names and contact details of any treating medical practitioners and, to the extent necessary, authorise the treating medical practitioners to provide full information to the other parent.

13. Each party shall keep the other advised of their residential address, email address and contact telephone numbers and any changes to those details within 48 hours of the change.

14. Each party is hereby restrained from denigrating the other party to or in the presence of the children or allowing any other person to do so.

15. Each party shall forthwith enrol in and complete the Assisting Responsible Care for Kids (ARCK) program at the Marymead Children’s Contact Centre if they have not already done so and shall provide to the other a certificate of completion within seven days of receipt.

16. Unless otherwise agreed, the parties shall meet at a counselling or mediation service in the second half of each year for the next three years for the purpose of discussing matters pertaining to the children and with a view to improving the parties’ communication and co-parenting relationship.

17. Any application for costs by either party shall be listed at 10:00am on 3 March 2016.

18. Otherwise, all extant applications are hereby dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC417 of 2014

MS CABLE

Applicant

And

MR SAMPSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings in relation to two children; X, aged seven and Y, aged four.

2. When the proceedings began in March 2014 the mother raised a number of issues which she alleged posed potential risks to the children in the care of their father.  By the time of the final hearing 12 months later, she was satisfied the father had addressed those issues and the Court was only required to determine the length and structure of the time the children spend with him.

3. The father sought orders that would result in an equal time arrangement for the children by mid-2017.  The mother sought a maximum of four nights per fortnight and some block periods during school holidays.

4. The mother also sought an order that she be granted sole parental responsibility for the children.  The father sought equal shared parental responsibility.

5. Ultimately, the nature of the communication between the parties and its effect on their capacity to effectively co-parent had a significant bearing on the outcome.

Background

1. The applicant mother is a 47-year-old (occupation omitted).  The respondent father is a 44-year-old (occupation omitted) also employed as a (occupation omitted).  The parties lived in a de facto relationship for less than four years from (omitted) 2008 until 18 September 2011.  Their first child, X, was born on (omitted) 2008 and their second, Y, on (omitted) 2011.  At the time of separation, X was a little under three years old and Y was only 4 months of age. 

2. The mother has two older children from a previous relationship with Mr G.  Those children are now young adults.  The mother said that she and Mr G enjoyed a cooperative co-parenting relationship after their separation and were both actively involved in the care of their children.  She said she would like to have a similar relationship with the father of her younger children but has been unable to achieve that because of the father’s personality and behaviour.

3. The father had his left leg amputated in 2007 following a motorbike accident.  He needs both hands to operate his crutches.  The mother said this presented practical problems in him looking after the children alone after separation because it was physically impossible to hold a baby and adequately care for a toddler while using crutches.  She said that, even during the relationship, the father never cared for both children alone.

4. The mother’s sister, Ms S, swore a brief affidavit on 2 May 2014 in which she said that she stayed in the parties’ home with the father on 6 and 7 May 2011 to assist him with the care of X when the mother was in hospital for the birth of Y.  That evidence was not contested.

5. The mother said the father suffered from depression and anxiety during the relationship and abused alcohol while taking prescribed medication including morphine and other over-the-counter medication.  She said that in the evenings he would take his medication, drink heavily and fall so deeply asleep that it was almost impossible to wake him.  She said she believed it would not be safe for him to care for the children alone overnight as he would be unlikely to wake up if they needed him. She said she did not trust what the father said about his use of alcohol and drugs because he refused to acknowledge the extent of his use during the relationship.

6. The mother also alleged that during the relationship the father was verbally and, at times, physically abusive of her, including in front of the children.  She said that although the physical violence stopped at separation, his verbal abuse, harassment and intimidation of her continued.

7. The father alleged the mother simply invented obstacles to prevent the children having a meaningful relationship with him.  He said he had been very involved in caring for X during the relationship including feeding her, changing her, playing with her and taking her to and from childcare.  He conceded his involvement with Y was more limited because of her very young age at separation and the fact that, at that time, she was still fully breastfed.  To his credit, the father completed a parenting course on 9 November 2011, less than two months after separation.

8. In late 2011 and early 2012 the parties attended mediation and agreed to X spending gradually increasing periods of time with her father.  By early 2014 this was occurring every second Sunday from 10 am until 5 pm.  The father also occasionally accompanied X on school excursions.  The mother said that in early 2012 she told the father she was prepared to discuss overnight stays for X provided she could speak to his doctor but the father would not allow that.

9. Following separation the father spent time with Y at her childcare centre every few weeks and, in February 2014, began spending two hours at a time with her at the Marymead Children’s Contact Centre.

10. The father complained that while he applied to Marymead in February 2012 the mother did not apply until February 2013 which meant a year was lost and then the parties had to join the waiting list for another 12 months.  During cross examination the mother said she made the offer for the father to spend time with Y at Marymead but wanted to attend the initial few visits as Y was not familiar with her father. She said the father refused for a year to allow her to be present.  He eventually agreed and she promptly applied for acceptance into the program.  She said by the time a place became available in February 2014, Y was used to spending time with her father at the childcare centre.  She stayed for one visit at Marymead and did not consider it necessary to attend thereafter.

The family law proceedings

1. On Wednesday, 12 March 2014 the mother received a phone call from a staff member that Y’s childcare centre who told her that the father had telephoned the centre to advise he was coming to collect Y to take her on an outing.  The mother left work immediately and went to the centre.  When the father arrived the mother told him she did not consent to him taking Y out.  The father went to look for Y and the mother called the police.

2. The following day, 13 March 2014, the mother’s solicitors wrote to the father seeking his agreement not to take Y from the childcare centre without her consent.  They also advised that Y would not be attending childcare the following week. Because of the parental dispute, the mother was not permitted to return Y to the childcare centre until the issue had been resolved.  Despite this, the father attended the childcare centre on Monday 17 March and Tuesday 18 March, intending to take Y out.

3. The mother commenced proceedings on 26 March 2014 in order to obtain parenting orders.  She set out the various allegations which she asserted posed a risk to the children in the care of their father, primarily drug and alcohol abuse and physical incapacity to adequately care for both children at once.

4. The proceedings came before the Court for the first time on 31 March 2014.  On that day the parties agreed that the father could spend time with Y at the childcare centre and the father gave an undertaking that he would not remove her from the centre.  An order was made for the parties to attend a child dispute conference at the Court on 16 June 2014.  The father was ordered to file responding material by 24 April 2014 and the proceedings were adjourned to 6 May 2014.

5. The father filed his response and affidavit material on 24 April 2014.  He said his intention on 12 March 2014 had been to take Y to an indoor children’s adventure playground.  He argued it presented no risk to Y and was likely to be of benefit to her, especially as Y was aware that X got to spend time with him more often than she did.  He also said that X often begged to be able to stay overnight with him when it was time to return to her mother.

6. The father denied the mother’s allegations.  In particular, he said he had only ever taken morphine at the time of the operations following his motorbike accident in 1997 and following a subsequent shoulder reconstruction.  He said he had not been prescribed morphine for more than 10 years.  He conceded he had been charged with drink-driving in 2008 and 2013.  On both occasions the offence was proved but no conviction recorded.  He said that although the alcohol concentration was mid-range on both occasions, the court declined to record a conviction because he was contrite and contributed to the community.

7. In relation to his physical disability, the father said that he had developed a range of techniques to assist him to safely care for the children.  For Y he had a pink monkey backpack which he said he straps onto her and which has a tail which is secured around his wrist to ensure that he can physically restrain her while using his crutches.

8. The father annexed to his affidavit filed on 24 April 2014 a USB stick containing a short video of him interacting with Y at the childcare centre.  The video shows Y walking with her father to the outdoor area of the centre, keeping her hand on one of his crutches.  It then shows the two of them dancing together.  In the video, Y appears to be comfortable and happy with her father and to follow his instructions.

9. On 6 May 2014 the mother reiterated that she had no objection in principle to the children spending time with their father but wanted to ensure the children were safe and that the father could physically manage their care in an unstructured environment.  She said the father had only spent occasional short periods of time with Y at the childcare centre.  She suggested that he spend more time with her at the centre to strengthen their relationship in conjunction with the fortnightly Marymead visits.  She suggested the parties share the cost of a qualified independent carer to accompany the father and Y for visits away from the childcare centre and to provide reports about the success or otherwise of those visits.  She also sought a psychological assessment of the father before any overnight time began.

10. On 6 May 2014 the parties entered into interim consent orders which effectively formalised the arrangements in place at that time.  They provided for X to spend time with her father every second Sunday from 10 am until 5 pm and from after school until 6 pm every Wednesday.  They provided for Y to spend time with her father at her childcare centre at times to be agreed between the father and the centre and for both children to spend time with their father every second Saturday afternoon for two hours at the Marymead Children’s Contact Centre.  The proceedings were adjourned to 23 June 2014.

11. A memorandum prepared by a family consultant, Ms W, was released following a child dispute conference on 16 June 2014. Ms W summarised the issues in dispute between the parties and noted that the parental relationship was uncommunicative and mistrustful.  She reported that during the observation session the children were enthusiastic about spending time with their father, sought physical contact with him, happily engaged in play with him, were affectionate with him and took direction from him in relation to packing up toys.  She recommended a psychological assessment and drug and alcohol testing to help assess the alleged risks before further mediation or another child dispute conference.

12. On 23 June 2014 an order was made for Y to spend extra time with her father for three hours on two Sundays in July at the same time as X, supervised by a private agency.  By consent the mother was to pay for the supervision and the cost of a report by the supervisor to provide independent evidence of whether or not the father was able to practically care for both children together.  The orders also permitted the father to collect both children from the mother’s home for the purpose of spending time with them at Marymead every second Saturday.

13. On 23 June 2014 I had expected to make orders for a drug and alcohol assessment of the father and for psychological assessments of the parties in line with the recommendations of the family consultant but the father advised the Court that he could not afford those assessments, even though the mother was prepared to waive the equivalent amount owed to her by the father arising from a previous costs order.

1. After the proceedings of 23 June 2014 the mother advised the father that she was prepared to pay for his psychological assessment.  She undertook her psychological assessment on 21 July 2014.

2. On 30 July 2014 a family report was ordered.  An order was made permitting the father to file an amended response seeking property orders provided he did so by 29 August 2014, supported by a brief affidavit outlining the basis of his application.  The mother argued that the parties had previously agreed to an informal property distribution which had been implemented by them.

3. The father filed an amended response on 29 August 2014 in which he sought property orders.  On 25 September 2014 that application was dismissed and the father was ordered to pay the mother’s costs in the sum of $900.

4. The children had a three hour visit with their father supervised by Dial an Angel on each of 10 August 2014 and 24 August 2014.  The reports by the supervisor about the visits were very positive and indicated the children had a happy, safe and enjoyable visit with their father on each occasion.  The mother wrote to the father on 5 September 2014 attaching a copy of the reports.  She said that she was glad the visits went well.  She asked the father to address a couple of safety issues such as moving the lock on his back door to a higher position to ensure it was out of reach of Y.  She indicated that, once those matters were addressed, she would agree to Y accompanying X to spend time with him each Sunday.  The father reluctantly acceded to the mother’s requests and the children spent the following Sunday, which happened to be Father’s Day, with their father without supervision.

5. By the time of the trial the father had moved into new premises which the mother was satisfied were perfectly secure.  She said she did not need anyone to inspect those premises and was content to take the father’s word about that.  She said she was also reassured by the father that Y at age three was fully compliant with his verbal directions.

6. On 25 September 2014 further interim parenting orders were made which provided for both X and Y to spend time with their father from 10am until 5pm every second Sunday commencing on 28 September 2014 and from 10am until 5pm on the ultimate Saturdays and every Wednesday afternoon.  During school holidays the Wednesday time was to increase to a full day.

7. By October 2014 the father had still not undertaken a psychological assessment as recommended by the family consultant.  On 10 October 2014 the mother filed an application in a case seeking orders to compel the father to attend upon Ms C, clinical psychologist, on 20 October 2014 for the purpose of an assessment and report, noting that she would pay the full cost.  The application was returnable on 6 November 2014.  The orders she sought were made by consent that day.  They provided that, once a satisfactory psychological assessment was obtained, the children would begin spending overnight time with their father from Thursday afternoon until Friday morning each week and every second weekend from Saturday morning until Sunday afternoon.  In the meantime, the children were to spend time with their father during school holidays each Saturday, Wednesday and Thursday from 9am until 6pm but the time was suspended between 19 January 2015 and 2 February 2015 to allow the mother to holiday with the children.  The orders made provision for time on Christmas Day and on each of the children’s birthdays.

8. The proceedings were otherwise adjourned to the final hearing which was listed on 30 March 2015.

9. Ms C completed her report in relation to the father on 2 December 2014 but was not prepared to release it until she had been paid.  The mother told Ms C that she was unable to pay for it until her next pay day which was in a fortnight.  The father paid the $1,200 for the report on the basis that he would seek reimbursement from the mother.  He said that when he dropped the children to the mother on 13 December 2014 she laughed at him and said “I’ll read the report in 2015”.  The mother denied saying anything of the sort.  She said she genuinely had insufficient funds to pay for the report at that time.

10. On 18 December 2014 the father filed a contravention application alleging the mother was refusing to comply with the orders of 6 November 2014 which provided for the children to begin spending overnight time with him once a satisfactory psychological report was obtained.  He also alleged that the mother was in breach of orders for failing to reimburse him for the cost of the report which he had paid for.  He alleged the mother attempted to delay the production of the report by saying she could not afford to pay for it for a fortnight.

11. The contravention application was listed for mention on the following day, 19 December 2014.  On that day the mother’s solicitors pointed out that the mother had received the report after business hours on Friday 12 December 2014.  She had read the report over the weekend and instructed her solicitors on Monday 15 December 2014 to make an offer for overnight time to commence on 31 December 2014, taking into account the Christmas arrangements which were already in place.  The letter to the father was sent by email on Wednesday 17 December 2014, the day before he filed his contravention application asserting the mother was refusing overnight time.

12. On 19 December 2014 orders were made for overnight time in the same terms proposed by the mother in her solicitors’ letter of 17 December 2014.  The parties’ costs of that day were reserved.

The trial

1. In accordance with the trial directions made on 23 March 2014, the mother was due to file any amended application and all affidavit material on which she sought to rely by 2 March 2015.  She filed those documents two days late, on 4 March 2015.  The father was due to file any amended response and all affidavit material on which he relied by 16 March 2015.  He filed an amended response on 27 March 2015, 11 days late.

2. On the first day of the trial, 30 March 2015, the father applied for an adjournment on the basis that the mother had filed her trial material two days late and had served him on the third day following the filing date.  He said he had taken leave from work immediately following the mother’s filing date in order to prepare his responding material, assuming mother’s documents would be filed on time.  Counsel for the mother opposed the adjournment.  He relied on the fact that both parties had filed extensive affidavit material throughout the proceedings and submitted that there was little new in the mother’s last affidavit which was, in any event, filed three weeks prior to the trial.  The father was given the option of responding orally to any of the mother’s late filed material.  He was warned that if the trial was adjourned there could be cost consequences for him given the mother was ready to begin and had briefed counsel.  Under the pressure of a potential costs order, the father withdrew his application for an adjournment.

3. The mother gave oral evidence and was cross-examined on 30 and 31 March 2015.  She relied on the affidavit of her sister, Ms S, who was not required for cross-examination.

4. The father gave oral evidence and was cross-examined on 31 March and 1 April 2015.  Ms C and Ms M both gave evidence on 1 April 2015 and were cross-examined by the father and by the mother’s counsel.

5. At the close of the evidence on 1 April 2015 and before submissions began, the father raised an objection to the manner in which the proceedings were conducted.  He referred to actions taken by the mother and her legal representatives which, he said, were unfair to him.  When asked for particulars he said counsel for the mother assured him he would not rely on material produced under subpoena by X’s counsellor, Ms T, but then tendered an email the father had sent to Ms T which was produced under subpoena.  Counsel for the mother agreed he told the father he would not be relying on any of that material but, during cross-examination of the mother, the father called on the subpoena and put to the mother that there was nothing in the material produced which indicated he was aggressive to Ms T as had been alleged by her.  The mother said she had seen an email from the father threatening to report Ms T to her professional body.  The father asked her to produce the document.  Quite properly, in re-examination the document was produced and counsel tendered it.  During submissions the father agreed that this was an accurate account of what occurred in relation to that document.  No procedural unfairness was the occasioned to the father as a result of the tender.

6. On 1 April 2015 counsel for the mother made oral submissions.  The father said he was anxious about not having enough time to prepare submissions and would prefer to be able to make written submissions.  He was permitted to do so.  He was ordered to file and serve his submissions by close of business on 29 April 2015 with counsel for the mother to file and serve any submissions in reply by 13 May 2015.  The proceedings were otherwise adjourned for judgement on a date to be advised.

7. The father filed his written submissions on 1 May 2015.  The mother’s submissions in reply were filed on 15 May 2015.

8. On 15 June 2015 while the matter was still awaiting judgement, the father applied to re-open the proceedings to give further evidence in relation to the use by the mother of her surname for the children rather than the children’s legal surname of Sampson.  His application was returnable on 1 July 2015.  On that day the mother through her counsel consented to the application to reopen the evidence.  A brief affidavit affirmed by her on 19 June 2015 was filed in Court.  Both parties gave oral evidence and were cross-examined.  Brief further submissions were made about the impact of the evidence on the substantive issues.  The matter was again reserved for judgement.

The allegations of risk

1. The mother’s concerns about the father’s physical capacity to care for the children were largely addressed by the reports from Dial an Angel and by the father reassuring the mother that his new home had appropriate facilities for him to safely care for them.  The mother was also reassured by the fact that the children were older and better able to comprehend and comply with verbal direction from the father.

2. The issues concerning drug and alcohol abuse were more contentious and occupied significant time during the trial.

3. I am satisfied from the volume of evidence before me that the mother was willing to facilitate a relationship between the children and their father following separation but had genuine concerns about his use of medication and alcohol, especially when combined.

4. Documents produced in answer to a subpoena indicated that the father had a conversation with his general practitioner, Dr M, on 23 March 2007, the year prior to the commencement of cohabitation, in which he told Dr M that he was concerned about his own drinking.

5. The father was prescribed morphine by his GP in August 2008 for phantom pain in his amputated leg and for back pain.  The father said in oral evidence that he could not say for certain whether or not he filled the prescription but was adamant he never took the morphine.  The mother was equally adamant that she had observed him taking it during the relationship.

6. A consultant orthopaedic surgeon, Dr C, had prepared a report in relation to the father for insurance purposes on 5 May 2009.  In the report Dr C made the following statement:

   Because of occasional increased difficulty with “phantom” pain from his amputation, he uses morphine tablets also employed for relief of his lower back pain.[1]

   [1] Page 72 of the annexures to the father's affidavit filed on 24 April 2014

7. The father denied telling Dr C that he took morphine.  In fairness to the father, it is possible Dr C obtained that information from reviewing the father’s medical file and noting the prescription issued to the father by his GP the previous year, rather than necessarily being told by the father that he was taking it.

8. Dr S, a consultant psychiatrist, also prepared a report for insurance purposes after reviewing the father on 19 June 2009.  According to that report, the father reported consuming at least two standard measures of alcohol on most nights of the week.[2]  Dr S expressed the opinion that the father suffered from a major depressive disorder with prominent anxiety arising from his physical disabilities and the limitations imposed by them.

   [2] Page 44 of the annexures to the father's affidavit filed on 24 April 2014

9. The father relied on the following statement made by Dr S at page 7 of the report:

   In the 5 ½ years since the consultation of December 2003, besides some Diazepam for his phantom limb pain, he has not taken any psychotropic medication or consulted a mental health professional.

10. The father spent some time during the trial arguing that the psychiatrist was better placed than the orthopaedic surgeon to assess his use of morphine and alcohol, despite both reports being significantly based on the father’s reports to the specialists.  His argument was not persuasive.

11. It is clear on the evidence that the father had a range of difficulties during the period he was in a relationship with the mother, that he consumed alcohol and that he was, at least, prescribed morphine.

12. The parties began discussing the arrangements for the children immediately upon separation in September 2011.  The mother sent an email to the father on 1 October 2011 in response to his request to spend time with X.  The opening paragraphs of her email are as follows:

    Mr Sampson,

    I’m happy for you to see X tomorrow. We are busy on Monday. I can drop her off to you in town and pick up an hour or two later. Please agree not to make any attempt to discuss our relationship or anything else that makes you angry, to avoid a recurrence of our last meeting at which X was present.  This was totally unfair on her and damaging to her.

    Where do you want me to meet you and how long would you like to spend with her?

    Re X staying with you Tuesday evenings, I’m concerned that, due to the heavy medication you take and the amount of alcohol you drink, you won’t be able to wake up if X needs you in the night.  She isn’t sleeping well and I’m particular concerned given she will be in unfamiliar surroundings and away from her mum.  I’m not trying to be difficult, I am very worried about her in the circumstances.

    All I can suggest is that you ask your doctor for a note explaining that the medication you’re on will not inhibit your ability to look after X if this is the case, although I understand differently.  You could also give an undertaking to limit your drinking when X is with you.[3]

    [3] Annexure D to the mother's affidavit filed on 18 September 2014

13. The father wrote back arguing that he works five days a week and studies part-time which he could not accomplish if what the mother said was true.  The mother responded as follows on 2 October 2011:

    I think I’ll start calling you Allan Jones.  Your spin is out of control. You drink on average two bottles of wine a night.  There are many, many witnesses to your drinking behaviour.  Your daughter refers to wine as “daddy’s juice”.

    You take two lots of medication on top of the alcohol, despite your doctor’s advice that you not drink while taking them, and then you add the strongest over-the-counter painkillers you can buy.  At one point you were taking morphine and panadine forte on a regular basis.  Not surprisingly, you fall into a deep sleep and do not wake up no matter what is happening in the night.  On many occasions I’ve been woken by X and looked after her without you even twitching.  When I have tried to wake you, it’s taken over 10 minutes of insistent prompting from me.

    You are not fit to look after a two-year-old at night for these reasons.

    This issue is very easy to fix if you are telling the truth.  Just get your doctor to write to me explaining that the medication you take will not affect your ability to look after X.  Then promise me you will limit your drinking to a reasonable level when you have X.  Your doctor should stipulate what a reasonable level is with your medication.  Until then I do not agree to X staying overnight with you and will take police action if you attempt to take her without my agreement.[4]

    [4] Ibid

14. The father said he provided various medical certificates to the mother after separation but she then changed her requirements and insisted on being able to speak directly to his doctors.  The mother’s evidence was that she had always wanted to speak directly to the father’s medical practitioners because she didn’t trust what the father told them about his use of alcohol while taking medication.  She said the father agreed during a counselling or mediation session soon after separation that she could speak with his doctors but then reneged on the agreement.

15. The father relied on an email sent by the mother to him on 21 October 2011, the last sentence of which reads “I do not agree to X staying with you overnight without a letter from your doctor to assure me you’re medically fit to look after her at night”.  I agree that suggests that the mother was content with documentary information from the father’s doctor(s).  However it is also clear from a document prepared by the counsellor/mediator, Mr D, on 14 December 2011 that the parties agreed that day that overnight time would not occur until the mother had spoken with the father’s doctor and received reassurance about his capacity to care for X overnight.  The agreement is annexed to the mother’s affidavit filed on 18 September 2014 at annexure D11 to D12. The relevant portion of the agreement reads as follows:

    Overnight stays and contact for X with Mr Sampson

    Mr Sampson will give permission for Dr L to talk to Ms Cable in order for Ms Cable to seek reassurance that Mr Sampson’s health status will not detract from his ability to look after X, particularly with regard to waking at night and to care for X.

16. I am satisfied on that evidence that the parties did agree for the mother to speak directly with the father’s doctor for that purpose and it is not, as suggested by the father in cross-examining the mother, a recent invention to justify her failure to make X available for overnight visits after he had provided medical certificates.

17. In addition to the reports of Dr C and Dr S, the father provided to the mother three medical certificates as follows:

    (a)A one sentence medical certificate signed by Dr M on 21 December 2011 which reads:

    In my opinion, he has no medical condition and is not taking any medication prescribed by this medical practice, to indicate that he is not capable of caring for his children.

    (b)A medical certificate signed by Dr N, a general practitioner on 30 January 2014 stating, essentially, that the father suffers no medical condition and takes no medication which would prevent him from capably caring for his children overnight. [6]

    (c)A brief medical report dated 28 March 2014 from Dr N who said he/she had read the affidavit of the mother dated 25 March 2014 and was of the view that the father suffered from no medical condition that would prevent him from caring for his daughters overnight.[7]

    [6] Annexure J

    [7] Annexure K

18. The medical certificate of Dr M (Dr L’s practice partner) suggests that, so far as Dr M is aware, the father was taking no medication at that time.  The mother’s evidence was that the father was taking medication which could be purchased over-the-counter and was consuming alcohol while taking it, which was contraindicated.  The medical certificate is inadequate to address the concerns raised by the mother and it was reasonable for her to want to speak to the doctor.  The certificate postdates the parties’ agreement for her to speak directly to the father’s doctor in any event.

19. Late in his cross-examination the father said that he had authorised and ultimately begged his doctors to speak to the mother but they simply refused.  I did not find that evidence compelling but, if it is true, the father’s expressions of displeasure should have been directed at his medical practitioners rather than at the mother.

1. In her affidavit filed on 2 May 2014 the mother said she believed the father had lied to Dr N and to the Court about his drug use.  Although the father said at paragraph 55 of his affidavit filed on 24 April 2014 that he had not used morphine in more than 12 years and apparently told Dr N that he had not used morphine since 2004, the mother said she observed him taking morphine during the relationship in 2008 or 2009.  She said she was not critical of the father for taking prescribed medication but was concerned about his lack of candour about his use and about him abusing alcohol at the same time.

2. The father filed four supporting affidavits on 28 April 2014. Each witness deposed to the father’s good character and said they had never known him to abuse drugs or alcohol.

3. On 4 August 2014 the father provided the mother’s solicitors with a report prepared by a social worker at the alcohol and drug service operated by ACT Health.  The mother did not accept it was sufficiently comprehensive because it was based on information provided only by the father.

4. On 3 November 2014 the father filed an affidavit in which he raised a number of concerns about the mother.  He alleged that in the afternoon of 1 November 2014, when he was dropping the children home to her, the mother smelt of alcohol, was stumbling, was slurring her words and appeared to be drunk.  He said the children had trouble understanding her.  He said he had ongoing concerns about the mother’s mental health and drug and alcohol abuse and said she had a history of drug use, alcohol consumption, making false claims, incapacity to maintain friendships and inability to provide evidence to support her allegations against him in the proceedings.  The father’s evidence about these allegations was not credible.  There was no other evidence to suggest the mother had ever had problems with alcohol abuse.  The allegations were denied by the mother who gave detailed evidence of her activities that day, none of which involved any consumption of alcohol.  I reject the father’s allegations.  It appeared to me he was trying to retaliate in kind to what he thought were unjustified allegations by the mother about him.  It was a counter-productive strategy as it undermined his credibility.

Issues concerning Mr G

1. The father alleged that the mother’s former husband, Mr G, posed a risk to the safety of the children because he had taken at least five nude photographs of his daughters who were adolescents at the time.  The father said he showed the mother the photos which he had come across and was present when she had a conversation with Mr G on speaker phone about them.  He said Mr G admitted having taken numerous nude photographs of his daughters.  The father expressed bewilderment and frustration that the mother refused to report the matter to the New South Wales Department of Community Services or the police because it could result in Mr G losing his security clearance and his job which would affect her child support.

2. The mother’s version of events is completely different.  She said that as far as she can recall there was only ever one photograph which was subsequently destroyed.  She said Mr G took the photograph of their daughters as they were trying to get changed on a beach.  She said the photograph was taken from behind the girls and showed their bare bottoms.  She said the children were aged approximately 11 and 13 years of age at the time.  She said the incident became a family joke and was completely innocent.  She said when the father of her younger children saw the photograph he became obsessed with the issue, refused to accept its innocuous nature and thereafter called Mr G a pervert and a child sex predator and called her a paedophile-lover.

3. The father sought an order in these proceedings which restrained the mother from allowing any unsupervised contact between Mr G and the children.  He alleged the mother had taken the children to the home of Mr G on Christmas Day in 2011 and allowed Mr G to come into contact with them while on holiday in (omitted) in January 2012.  He told the mother in a letter on 21 December 2012 that he did not want the children to come into contact with Mr G at any time, even when other adults were present.[8]

   [8] Annexure F to the father's affidavit filed on 24 April 2014

4. The father sent a further letter to the mother on 22 January 2013 saying he had been told by X’s day care centre that she had wet her pants two days in a row.  He went on to say the following:

   The news about X wetting herself also makes me and others suspicious about what you and the others in your family who have remained silent about Mr G may have done to her on your ‘holiday’ in January.  For instance, last January you took Mr G, who takes nude pictures of children with you on holiday.  You even went to a house near where Mr G took nude photographs of your own two oldest daughters. Unbelievably you consider that normal.  Jaws drop when your warped priorities are explained to others.  People simply stand there in a daze before exclaiming that they don’t want you anywhere near them or their families.

   People are ready to call me (sic) the police if Mr G is seen near my daughters.  When you’re caught giving Mr G access to my daughters you can get up in court and explain why you refused to tell the authorities or even the child psychologist about  Mr G’s nude child photographic habits, and why you continue to give Mr G regular access to my daughters.

   Now that you’re back in the ACT I will be making sure ACT Child Protective Services know about my concerns.[9]

   [9] Annexure The to the father's affidavit filed on 24 April 2014

5. An incident occurred on 19 September 2013 when the father said he happened to be driving past the home of Mr G and observed his young daughters through the front fly screen of Mr G’s home.  He parked his vehicle at the home and confronted the mother when she came out of the house.  The mother subsequently obtained an interim domestic violence order against the father on the basis of harassment.  The matter went to a fully contested hearing in the ACT Magistrates Court in November 2013 and a final domestic violence order was made against the father.  The magistrate rejected the father’s evidence about Mr G representing a risk to the mother’s older daughters and to the children the subject of the current proceedings.

6. During cross-examination of the father in these proceedings on 1 April 2015 he said he was driving through the area on 19 September 2013 when he saw the mother’s car and saw the children inside Mr G’s home.  He later became aware that only Y was present on the day. He said he pulled up outside Mr G’s home and called the police. The mother also called the police who attended.

7. The father was asked why he was in the vicinity.  He said that he was interested in building a flat on his property and a builder friend of his told him there were some he should have a look at in the street in which Mr G lives.  It was put to him that he deliberately went to that street to see if the mother and children were there.  He initially denied that but then conceded that the street was not a thoroughfare and that he did occasionally drive down it for sole purpose of seeing whether or not the mother and children were at the home of Mr G.  He said he had done so about three times.  It was put to him that he was stalking the mother but he denied that.

8. It was put to the father that he parked out the front of the home of Mr G in such a way that it blocked the mother’s car in the driveway.  He denied that.  Photographs taken on the day were tendered in evidence and became exhibit M6.  They show the father’s car parked in such a way that the mother would not be able to move her vehicle.  The father asserted that the photographs were taken after the police had arrived and had asked him to move his vehicle.  I did not find that evidence persuasive.  There is no sign of a police vehicle in any of the photographs tendered.  When they arrived the police prepared an incident report which referred to the father’s car being “parked in the centre of the street blocking the driveway of unit 56”.  The photographs show the father’s car parked some distance out from the curb but still blocking the driveway.  That seems consistent with the police description and the likely position of the vehicle when the police arrived.  I conclude the photographs were taken before the police arrived which is what the mother said.  I am satisfied that the father parked in such a way as to block the mother’s exit from the property.  The mother said when she came outside the father was verbally abusive of her.  I accept her evidence.

9. There is no evidence before me that would justify this Court making an order restraining the mother from bringing the children into contact with her former husband and I decline to make such an order.

10. I am satisfied on the evidence that the father has raised this issue repeatedly in a range of contexts and has used it to harass and berate the mother.  He has threatened to tell people at the mother’s workplace about the issue and that she is not fit to be an (occupation omitted) of the (employer omitted).  The domestic violence order was made against the father on the basis of harassment and on the evidence I have seen, was justified.  Unfortunately, the father appears unable to let go of the issue and raised it repeatedly throughout the current long-running proceedings.

Psychological assessment of the parties

1. Psychological assessment of both parties were carried out by Ms C, clinical psychologist.  Her report in relation to the mother is dated 3 August 2014 and is annexed to an affidavit of Ms C filed on 19 August 2014.

2. Ms C administered to the mother four separate psychological tests and concluded as follows:

   There was no evidence of any psychopathology or reasons for concern about Ms Cable’s mental history in her history, presentation and formal test results.[10]

   [10] Report of Ms C dated 3 August 2014 at paragraph 4.1

3. During the personality assessment inventory undertaken by the mother some of her validity test results fell outside the normal range.  Ms C reported on them as follows:

   With respect to positive impression management, Ms Cable’s pattern of responses suggests that she tends to portray herself as being relatively free of common shortcomings to which most individuals will admit, and she appears somewhat reluctant to recognise minor faults in herself.  Given this apparent tendency to repress undesirable characteristics, the interpretative hypotheses in this report should be reviewed with caution.  Although there is no evidence to suggest an effort to intentionally distort the profile, the results may underrepresent the extent and degree of any significant findings in certain areas due to Ms Cable’s tendency to avoid negative or unpleasant aspects of herself. [11]

   [11] Ibid at page 12 

4. Ms C’s report in relation to the father is dated 2 December 2014.  It was annexed to the affidavit of the father filed on 18 December 2014.

5. The father brought with him to the assessment various documents including at least six reports in relation to his mental health.  Ms C asked him why concerns had been raised about his mental health.  She said the father told her the mother had raised it as a mechanism to deny him access with the children.  He said he had no history of mental ill health until his motorbike accident in 1997 following which he developed depression and was prescribed anti-depressants and various analgesics.  He told Ms C he drank two or three light beers on three to four days each week.  He said he had twice been charged with drink driving but never convicted.

6. Ms C read the various reports provided by the father, none of which indicated any concerns about his mental health or functioning.  She said her own assessment of the father concurred with those previous assessments.

7. Ms C administered to the father the same four psychological tests undertaken by the mother. She concluded as follows:

   4.4… While he meets the diagnostic criteria for Adjustment Disorder (DSM-V309.9)… in my opinion this is an understandable response to the stress of this dispute in the context of his on-going, protracted efforts to see his daughters overnight.  A resilient, highly intelligent man, Mr Sampson has made a remarkable adjustment to his leg being amputated.  He holds down a challenging (occupation omitted) job, is in a new relationship, has no significant or personal history of mental illness and does not drink alcohol to excess or use any non-prescription substances.

   4.5There was no evidence of any psychopathology or reasons for concern about Mr Sampson’s mental health or alcohol and other drug use in his history, presentation and formal test results.  I concur with his G.P. that his stress and associated intermittently low mood and anxiety would be alleviated by favourable resolution of his dispute with his ex-partner about time with their daughters.

8. Ms C gave oral evidence by telephone on 1 April 2015 and was cross-examined only by the father.

9. The father asked Ms C whether the mother’s validity test results on the personality assessment inventory suggested the mother was setting out to deliberately provide a false impression.  Ms C said she was not concerned about the result which is common in family law matters and occurs because people are attempting to “put their best foot forward”.  She said the mother’s score was not particularly elevated and to be of any serious concern would have to be much higher than it was.  She said she did not think the mother was deliberately setting out to mislead.

10. The father then took Ms C to the part of her report where she said “Ms Cable was not aware of any family history of mental illness and has never been diagnosed with any mental illness herself or been prescribed any psychotropic medication.”  He told Ms C that the mother had conceded during the proceedings that she obtained a prescription for Valium on 23 June 2007 and, at that time, told the doctor that she had previously been prescribed Valium.  Ms C said that although she referred to “psychotropic medication” in her report she would not have used those words in speaking with the mother.  She said her usual question is to the effect of “Are you on any medication for mental illness?”  Ms C said the mother had not told her she had been prescribed Valium in the past but said she did not feel at all mislead by the mother by that omission.  She said she did not think that the fact that the mother had taken the drug eight years ago was relevant especially when she has no details of the reasons for the prescription.  She said if the mother was feeling anxious or depressed it may have been a perfectly responsible action and was nothing to be criticised for.

The family report

1. A family report dated 18 March 2015 was prepared by Ms M, psychologist.  At the time of the interviews on 5 March 2015 the children were spending time with their father from Saturday morning to Sunday afternoon in one week each fortnight and from Thursday afternoon to Friday morning in the alternate week.  Ms M reported that the mother proposed the children’s time increase by an additional day in each school holiday period from 2016 so that they spent three nights each fortnight during school holidays and four nights each fortnight during school holidays from 2017.  The father proposed an immediate increase to 3 nights per fortnight during school term and that the time gradually increase until the children were spending equal time with each parent, including during school holidays.  The father told Ms M that the only time he is able to take time off work for an extended holiday is during January each year and he would like to have the children for two weeks each January for that purpose.

2. Ms M outlined the history given by each party.  She had read the affidavit material filed by the parties and noted the various concerns raised by the mother about the father.

3. The mother told Ms M that after the release of Ms C’s psychological assessment of the father, the children began spending overnight time with him one night each week.  She said that she believed X coped well with that as she is used to spending time with her father and has a closer bond with him.  She told Ms M that while Y was initially excited about spending more time with her father, she had become more hesitant in recent times which the mother believed was a reaction to being separated from her.  The mother reported that her main concern was the apparent incapacity of the parties to discuss day to day issues concerning the children without them developing into a major battleground.

4. During his interview with Ms M the father agreed there was often tension at handovers associated with the current litigation.  He said he believed his relationship with the children had been interfered with as a result of the mother’s resistance to him spending significant time with them.  He said he had provided the mother with medical certificates indicating that he does not suffer from any medical condition which prevents him from caring for the child overnight.  He denied having used any prescription medication other than as prescribed for serious medical procedures.  He denied consuming alcohol to excess.  He said that, following his second drink driving charge in 2013, he had reduced his alcohol consumption.

5. The father told Ms M that he had completed a parenting course which he found useful and had done extra reading, particularly about the relationship between girls and their fathers.

6. Ms M carried out an observation of each of the children with each parent. She formed the view that both children had a positive relationship with each parent and said X made positive comments about spending time with both parents. Ms M said both parents supported the children in their play and responded positively to them. She said the children “appeared to be comfortable, confident, highly engaged and responsive in the company of both parents”.[12]

   [12] Family court dated 18 March 2015 at paragraph 42

7. Ms M made the following observation of the transition of the children between the parents:

   43.The transition between the children spending time with her (sic) mother to spending time with her (sic) father was smooth and positive. Y was initially hesitant and remained close to her mother. This is usual in a child of Y’s age. After reassurance from both parents, her mother left the room and she gave her father a ‘five-high’.

8. Ms M concluded that both parents are focused on the children’s welfare and are able to meet the children’s day to day needs. She said they both appear to be highly competent and loving parents.

9. Ms M also concluded that the information available to her did not support the mother’s allegations that the father has or had a dependency on drugs or alcohol, that he abused non-prescription substances or that he had a history of mental illness. She said any current anxiety he may be experiencing is likely to be associated with the stress of the litigation and his perspective of having insufficient time with his daughters. She concluded that the father’s physical disability does not impede him meeting the practicable needs of the children or cause them to be at risk in his care.

10. The only challenging issue identified by Ms M was the co-parenting dynamic. She commented that “the ongoing parental conflict means that the parents have struggled to create a safe emotional environment for the children to move between their two homes. Both parents have contributed to this and need to reflect on their part”.[13]  She said that neither parent suggested there were arguments or open hostility at handovers but the lack of communication was a problem for coordinating the care arrangements. She said the mother had noted an improvement in the father’s behaviour since overnight time with Y began.

    [13] Family report 18 March 2015 at paragraph 48

1. Ms M recommended the children have the same care arrangements to avoid exacerbating sibling rivalry. She said Y was of sufficient developmental maturity that she would likely adjust to gradually increasing time, including overnight time, with her father.  She said the children would benefit from spending equal time with both parents when they are developmentally prepared, provided the parental tensions have diminished and the father is able to maintain reasonable consistency in the children’s daily routine with what happens in the mother’s household.

2. Ms M recommended that the children’s time with their father increase immediately to three nights each fortnight, then to four nights each fortnight after six months which she anticipated would be in late 2015. She recommended that 2016 be a year of stability and consolidation for the arrangements before a further gradual increase to equal time. For school holiday periods she recommended the children spend five days during each school holiday period with their father, increasing to one week during each school holiday period from about September 2015 and an equal time arrangement by mid-2017.

3. She also recommended that the parents complete the Assisting Responsible Care for Kids (ARCK) program at Marymead.

4. Ms M gave oral evidence and was cross-examined on 1 April 2015. The mother took issue with two aspects of the family report. The first was in relation to the description of the handover of the children between the parties after Ms M had observed the children with their mother. The mother said the children were due to go home with their father that day and spend the night with him. She said that, after the observation session with her concluded, she told the children that Ms M was going to get their father. She told the girls that she would wait until the father came in but would then go and would see them the next day. She said the family consultant walked out of the room and Y started to cry and said “I want to stay with you mummy”. She said that when the family consultant came back in with the father, Y would not look at him. The mother said she encouraged Y to interact with her father but she was reluctant. She said the family consultant suggested after about 10 minutes that perhaps she should remain outside the room rather than leave. The mother said she told Y pop that she would wait just outside the door and would see her in about half an hour. She said Y accepted that and went off happily to play with her father. In cross-examination Ms M said that the description of those events by the mother accords with her recollection.

5. The second matter in the report with which the mother took issue was Ms M’s statement that the mother had noticed an improvement in the father’s behaviour since Y began spending overnight time with him. She said she believed the family consultant had misunderstood her. What she was trying to communicate was that the father’s behaviour towards the children had improved since he began having both of them together but did not mean to say that his behaviour towards her had improved, which she did not believe. Ms M did not take issue with the mother’s evidence on that point.

6. Counsel for the mother drew Ms M’s attention to her statement that the information available to her did not appear to support the mother’s allegations of drug or alcohol dependency or substance abuse on the part of the father. She was asked whether her opinion would change if she knew the father had told a medical practitioner in 2007 that he was worried about his level of alcohol consumption. Ms M said that would not change her opinion because of the length of time that had elapsed since then. She was asked whether it would make a difference if a medical practitioner recorded in 2009 that the father reported “partaking” of one bottle of alcohol per evening. She said it would not necessarily affect her opinion, especially given the father said his drinking habits had changed in the last few years.

7. Next, counsel for the mother put to Ms M the mother’s evidence about the circumstances in which she obtained a Domestic Violence Order in November 2013 after the father attended at the home of the mother’s former husband, Mr G, blocking the driveway with his car, and yelling abuse at the mother about the risks to the children presented by Mr G. Ms M said that would not change her opinion of the father because it sounded as if he was acting in a protective manner towards his children.

8. Ms M was asked whether her recommendations would change if the Court found that the parties had limited capacity to communicate effectively and civilly. She said it would. She said it was difficult for her to assess the level of ongoing conflict between the parties but, if it was so significant that the parties were unable to effectively communicate, an equal time arrangement would be contraindicated. She said a combative parental relationship can present major problems for the children’s emotional, social and intellectual development and their arrangements can become confusing and destabilising for them in those circumstances.

9. Ms M was taken to her notes which had been produced prior to the trial. On page 10 of the notes there was a reference to her asking X about the amount of time she spends with her father. The note reads as follows:

   Good amount of time to spend with dad? Yes. More? Don’t know.

10. Ms M explained that she asked X how she felt about the amount of time she was having with her father. She said she understood X to say that she was happy with the current arrangements and did not know how she felt about spending more time with her father.     

11. Ms M said in her oral evidence that the only additional recommendation that she would make to those in the report is for the parties to consider attending mediation in order to update each other about the children because the needs of very young children change rapidly and, if discussions can’t occur over a cup of coffee, using a professional mediator would help.

Family violence

1. The Family Law Act 1975 defines family violence as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful”.[14]

   [14] Section 4AB

2. The mother alleged the father was physically and verbally abusive towards her throughout their four-year relationship. However, there were few particulars in her evidence about the abuse.

3. In her affidavit material the mother said that father was verbally abusive of her in front of all four of her children. She said that on two occasions he wrestled X from her arms when X was a baby and refused to let her leave the bedroom with X, physically barring the door. She said the father punched and kicked her when she was lying on the bed with X. She said that the parties separated in September 2011 after an incident in which the father was verbally abusive towards her in front of all four of her children then grabbed X and refused to let her go, continually whispering to X “Mummy’s a slut”. The police attended the home following that incident.

4. The father denied all allegations of violence. He said the mother was aggressive towards him in the relationship. The mother said her parents witnessed the last incident which led to separation but neither of her parents was called. That leaves open an inference that their evidence would not have assisted her case.

5. Counsel for the mother told the Court that he assumed the Court would make a finding of family violence on the basis that a domestic violence order was made in the ACT Magistrates Court following a fully contested hearing. However, it is common ground that the domestic violence order was made on the basis of harassment of the mother by the father in relation to issues concerning Mr G. That does not help me assess whether or not the father engaged in family violence during the relationship. Counsel attempted to rectify the situation by asking the mother in re-examination what she meant by physical violence during the relationship. However, for obvious reasons, the question was not permitted.

6. The civil standard of proof is the balance of probabilities but the more serious the allegation the greater the degree of confidence the court must have in the evidence before making a finding.[15] Although I found the mother to be a generally credible witness and believe it is more likely than not that some violence occurred during the relationship, given the serious nature of the allegation and the poor state of the evidence in relation to it, I am unable to make a positive finding about the issue.

   [15] Briginshaw v Briginshaw (1938) 60 CLR 336

Communication issues

1. A volume of material was produced by both parties demonstrating that the communication between them since separation has been poor.  That evidence shows the mother is generally polite and businesslike in her communication with the father and that he is frequently hostile and combative.  Consequently, even the simplest parenting issues become problematic. Some examples follow.

2. For years after separation the father repeatedly threatened directly and by implication to report the mother to her employer for what he said was behaviour which failed to meet the moral standards required to work in the (employer omitted). The behaviour of which he complained related to her failure to keep the children away from Mr G and her failure to provide items of property to him by way of property settlement. The particulars of the threats are set out at paragraph 60 of the mother’s affidavit filed on 18 September 2014. They include the following statements made by him:

   …It is also notable that as an (occupation omitted) in the (employer omitted), Ms Cable has a duty to behave at all times in a way that upholds the (employer omitted) Values and the integrity and good reputation of the (employer omitted)…. Given Ms Cable’s ongoing dishonesty, I consider Ms Cable to be in breach of the (employer omitted) Code of Conduct.[16]

   The sale of my personal belongings will be raised in the Family Court and with Ms Cable’s employer.[17]

   …I will be writing to Ms Cable’s employer questioning her compliance with the (employer omitted) Code of Conduct.[18]

   It is inappropriate for someone with Ms Cable’s proclivities to be working at the (employer omitted). I consider Ms Cable to be corrupt.[19]

   [16] Letter to the mother's employer on 18 August 2012

   [17] Letter to the mother's solicitors of 8 December 2012

   [18] Letter to the mother's solicitors of 26 April 2013

   [19] Letter to the mother's solicitors of 12 May 2013

3. During cross-examination the father was asked whether he conceded that he had suggested the mother was not fit to be an employee of the (employer omitted). He replied:

   I think I’ve questioned her behaviour as an appropriate measure. I don’t think I’ve said it in those words. I think I’ve indicated that others …, including myself, have a basis to be concerned about.[20]

   [20] Transcript 31 March 2015 at page 209

4. The father has been unnecessarily critical of the mother to third parties involved in the proceedings. For example when the father’s psychological assessment by Ms C was available and the mother indicated that she would not be able to pay for it for a fortnight, the father wrote to Ms C. He wanted to know how much the report would cost because he intended to pay for it and seek reimbursement from the mother.  Instead of simply asking that question, he sent her a detailed two-page letter setting out the implications of any delay in the release of the report and made what were effectively submissions about the mother’s motives. He pointed out that the mother had had plenty of time to set aside money to pay for the report and had plenty of resources with which to do so.  Besides inappropriately involving Ms C in the dispute, this was extraordinary arrogance on his part given the mother had agreed to pay for the report because he would not. Without the report the father may not have discretion obtained overnight time when he did. The mother had also paid for her own assessment and report and had paid for the private supervisors to initially supervise the father’s time with Y. He is employed as a full-time (occupation omitted) earning more than $100,000 per year. He pays child support in accordance with the administrative formula but the mother bears most of the expenses for the children and works only part-time in order to be available to care for the children.

5. Orders were made on 6 May 2014 for the father to spend time with X each Wednesday afternoon, collecting her from school. The father did not collect her on Wednesday 14 May 2014, mistakenly believing that, because he had not yet received a copy of the sealed orders, they were not in effect.

6. On 20 May 2014 the mother’s solicitors received a letter from the father’s solicitors at the time advising the father would not be able to collect X from school on Wednesday, 28 May 2014 because of work commitments and proposing he spend time with the child instead on Monday. The mother did not agree to that change as she also worked on Wednesdays and, following the consent orders, had cancelled X’s after-school care booking for Wednesdays. The response from the father, through his lawyers was extraordinary. It read in part as follows:

   The implication of your letter makes it clear your client is using the father to avoid childcare fees rather than showing concern for the best interests of X spending meaningful time with her father. Again, while regrettable this is completely in line with your client’s attitude from the beginning. Thank you for making this clear yet again. Our client had hoped matters had moved on.

7. In November 2014 the child X was invited to a birthday party which was to occur when she and her sister would be with the father.  The mother sent the father a brief and polite email on 9 November 2014 asking him whether he would be prepared to take X to the birthday party and asking him to respond by the following day so that she could RSVP. She volunteered to buy a gift for the child having the birthday. The father did not reply. The mother sent a positive RSVP on the assumption that the father was likely to take X. On 11 November 2014 the mother of the child having the birthday sent a text message to the mother advising the venue had changed and seeking confirmation that X could still attend as she had to give numbers to the venue. The mother confirmed X would attend and, on the same day, sent an email to the father explaining the change of venue and advising that, in the absence of a reply to her email, she had responded to say X could attend. She mildly chastised the father by saying the following:

   It’s not fair on X if she doesn’t know whether you’re taking her to these things or not, that’s why I asked you to let me know. I also need to let (omitted)’s parents know, and rather than guessing, it would be much easier if you’d answer me when I ask you a reasonable question. That’s what reasonable people who are putting their children first do.[21]

   [21] Annexure C to the mother's affidavit of March 2015 at page C3

8. Instead of responding to the mother, the father wrote to her solicitors on 12 November 2014. Besides unnecessarily causing cost to the mother, the father’s response escalated the issue. The main body of his email is as follows:

   Your client’s correspondence does not explain who (omitted) is and does not comment on whether Y is also invited to the birthday party. In fact, Y is not mentioned at all. Your client’s correspondence does not provide telephone contact details of (omitted’s) parents to allow me to correspond with them directly and through which to make my own decision as to the event. If your client wants (demands) an urgent response she should provide sufficient information to allow me to deliberate on such matters.

   Given that Ms Cable has failed to provide such information, and it is not her decision to make, it is inappropriate for her to RSVP on my behalf. Ms Cable should do a better job of managing X and Y’s expectations by better organising herself and improving upon her communication skills.

   Given your client’s aggressive tone I do not intend to respond to her directly. When you or she have provided the information identified above I will make my own decision as to what events X and Y will be attending this Saturday. Failing a sufficient response, and if I decide that we will not attend based on the information provided, both X and Y will attend the events that I planned for them a week ago.[22]

   [22] Annexure C to the mother's affidavit of 4 March 2015 at pages C3-4

9. The mother responded as follows:

   This is ridiculous. If you wanted more detail on the party then why didn’t you ask me when I first asked if you would take her, rather than completely ignoring my email and leaving X up in the air about whether she could go to the party or not? Then writing to my solicitor because I dared point out that your behaviour wasn’t fair on X? Who does that over an invitation to a six-year-old’s birthday party?

   Both X and Y are going to be invited to parties on days when they’re with you, and the invitations are likely to come to me in the first instance. I don’t care how we manage it as long as the girls aren’t left not knowing if they can attend (which is currently the case with X). This is stressful and unnecessary for them.

   (omitted) is a little boy in X’s kindie class. His Mum’s name is (omitted). Her number is (omitted). The party is at (omitted) and Y isn’t invited. But the standard practice at these things is that little brothers and sisters are welcome to stay as long as the parent stays too, and that the parent pays for the additional child. I asked you to get back to me by Monday because that’s when the RSVP was due.  I RSVP’d yesterday because you hadn’t replied to me and (omitted) specifically asked people to get back to her yesterday due to the change in venue and the need for her to book. I would have told you all of this, nicely, if you’d asked.

   Rather than turning every communication we have into some kind of quasi-legal battle, why don’t you try being civil and reasonable? You’ll get the same back and X and Y will be all the better for it.

   Again, please let me know if you’re taking X or not. She is asking me daily to speak to you about it and really wants to know that she can go. You’re welcome to contact (omitted), but I have rsvp’d it so there’s no need to unless you want to, or you decide you’re not going to take X to the party. Just keep in mind that (omitted) will have paid for X’s spot and that X really wants to go.[23]

   [23] Ibid at page C4

10. The father responded on 13 November 2014 and told the mother not to commit the children to attending any events during his time unless he had agreed. The mother said during her oral evidence that she agreed it was up to the father to decide whether or not the children would go to things such as friends’ birthday parties when they are with him and that she would have accepted it had the father said X could not attend the party. She said she just needed to know in order to be courteous to the other parent and because it was difficult for X not knowing whether or not she could attend.

11. In his email of 13 November 2014 the father referred to the fact the mother had bought a gift for X to give to the child having the birthday. Instead of thanking her for saving him the trouble of doing so, he responded as follows:

    I’m glad that you’ve purchased a gift for X to bring to (omitted)’s birthday. That is what the child support monies I pay to you are intended to cover. That is, living expenses and incidentals. Please do not make a big deal about it as you’ve already been compensated for that gift.

12. In relation to his delay in responding to the mother’s original email, the father said during his oral evidence that he had moved into a new suburb in late 2014 and had no access to the internet at home as there was a delay in installing NBN hardware to the house.  He also said he had difficulties accessing personal emails at work because of a new firewall installed by his employer. He said he did not receive the mother’s first email.  Even if that is so, when he received the second one he would have seen the history and ought to have understood the difficulty the mother had when she received no reply from him.  He did not explain the difficulties to the mother at the time nor did he apologise for failing to respond promptly.  In my view the email exchange on this issue which occurred only four months prior to trial illustrates the difficulty the mother has had in communicating about simple day-to-day issues with the father.

1. I agree with that assessment.

2. The mother said that at times X has asked her to raise things with the father because she is worried about him being angry. There is no evidence that the father has ever directly spoken to the children in anger but he is a forceful personality and the children have witnessed him expressing displeasure during interactions with their mother and with others. I accept they may feel anxious if they wished to raise potentially difficult issues with him.

3. As mentioned earlier, on 15 June 2015 the father applied to re-open the proceedings to call further evidence.  The evidence was in relation to the use by the mother of her surname for the children rather than the children’s surname of Sampson. The father said that he discovered on 14 May 2015 that the children had been enrolled in a swim school under their mother’s surname of Cable.  The mother conceded that was so.  She said she enrolled the children a year earlier, in May 2014. She said the enrolment occurred at the reception desk at the pool which was a noisy and distracting environment.  She said the staff member asked for her personal details including name, address and telephone number and her banking details, which she gave.  She said the staff member then confirmed the children’s first names and went to print out the cards. The pool entry cards for the children which she was then given had the surname Cable. The mother said she did not notice that until she was leaving the pool after the children’s lesson that day but thought no more about the matter.

4. In April 2015 the day on which the children’s lessons occurred was changed from Friday to Thursday and the children were with their father every second Thursday.  The mother sent an email to the father on 27 April asking if he was prepared to take the children to their swimming lessons every second Thursday.  She received no reply so sent a follow up email on 29 April which was the day before the first occasion the father would take the children to their lessons.  The father sent a text message to the mother to say that he had already replied and attached a copy of the email in which he stated he was happy to take the children to their swimming lessons starting that Thursday.  The parties debated whether or not the mother had actually received his first email and then the mother said in her text message:

   Anyway, I am pleased you can take them.  When you get there tomorrow you will need to let the counter staff know you don’t have their membership cards and let them know they’re booked in as X and Y.  I will order some more cards for you next fortnight.

5. The father said he missed the part in the mother’s text message which advised him the children were known by the surname Cable.  He said when he went to the counter to ask where the children’s lessons were they had no knowledge of the children and there was some confusion until he realised they had been registered under the mother’s surname.  The father was understandably upset about that.  He arranged for new cards to be printed for the children under their correct name and returned those cards to the mother rather than the ones in the name of Cable. 

6. The basic facts are agreed.  It is the interpretation of the facts on which the parties disagreed.  The father submitted that the mother had always planned to change the children’s surnames from his to hers. During cross-examination the mother conceded she obtained some advice very soon after separation about changing the children’s names but decided against it and had not sought any further advice about it in the intervening three years or so.  The father put to her that she knew that if she obtained sole parental responsibility, changing the children’s names would be much easier, which is one reason she sought such an order.  The mother said that was not her understanding of the law and is not why she sought sole parental responsibility.

7. The father submitted that a secondary aim of the mother in advising him that the children were registered under the name of Cable was to bait him, hoping for an adverse reaction that she could point to as evidence of his unreasonableness.  That submission made no sense in light of the fact that the evidence had already closed by the time the incident occurred.  If the mother had wanted to provoke an adverse reaction she could have let him know at any time prior to the trial that the children were registered under her surname. She did not do so.

8. The mother conceded readily that she should have ensured the children were registered under the name of Sampson.  She said that in hindsight she regrets not changing the name as soon as she discovered the error and, had she realised the impact it was going to have on the father, she would have done so.

9. I accept that the fact the mother so openly told the father the children were registered under the name of Cable adds weight to her evidence that she did not think it was a major issue.  I also accept the submission that, had the mother been attempting to secretly get the children used to a different name she had ample opportunity to disguise that fact by changing the cards well before the father was due to take the children to their lesson.

10. The father submitted that the mother’s behaviour was an example of her attempting to sideline him from the children’s lives, not understanding the importance of him in the children’s lives and being unable to adequately support the children’s relationship with him.  He said it added weight to his case for equal shared parental responsibility and an equal time arrangement which would equalize the power balance between the parties.

11. The mother submitted that the incident indicates just how difficult communication about relatively simple matters is between the parties.  She said that, had the father raised the issue with her, she would have readily agreed to change the enrolment of the children to reflect their legal names and that should have been the end of the matter.  The fact that it blew up into a major issue requiring the reopening of the proceedings in the trial was, she said, typical of the father’s overreaction to issues.

12. The father’s evidence about the issue also raises concerns about him involving the children in the parental dispute. He said at paragraph 6 of his affidavit filed on 15 June:

    My six (6) year old daughter X was upset by the idea that her mother was going to change her name.  X said words to the effect “I like my name, it’s Y’s and daddy’s name too”.

13. The father said that this conversation occurred in the context of the children being present when the names on the cards were changed.  He said both sets of cards were in his hand and X saw them.  He said that he told X there had simply been a mistake which he was correcting.  He asked the Court to draw an inference that the child formed her own view that her mother had a plan to change her name. I do not accept that a six year old child would form a view that her mother had a plan to change her name after being told of a simple error.  The father agreed that the statement by the child reflected his own view.  It seems far more likely to me that the child picked up on the father’s view about the incident rather than forming her own. This suggests, in turn, that the father has not been able to shield the child from his own ideas about the mother’s actions.

Credibility issues

1. The mother was a credible witness. She gave her evidence in a direct and straightforward manner. She conceded reasonably and appeared to be making a genuine effort to give an honest account of events. The father accused her of being dishonest in relation to various aspects of her evidence but none of the examples he cited were compelling. He accused the mother of fabricating concerns about the level of his drug and alcohol consumption in order to delay the commencement of overnight time between him and the children.  For reasons already stated, I reject that.

2. I am satisfied on the evidence that the mother’s concerns were genuinely held and reasonably based and that she was not using them as an excuse to prevent the children spending time with their father. On the contrary, she was trying to find constructive ways forward from immediately after separation.

3. The father was not an impressive witness. His evidence on some issues changed during cross-examination and he had a tendency to launch into speeches and arguments rather than answering questions simply. This made his evidence hard to follow and the overall effect was a lack of clarity in his evidence. An example of his changing evidence was in relation to the domestic violence order that was made against him in the ACT Magistrates Court in November 2013. He said at first that he did not present evidence in those proceedings. When he was challenged about that he said he did not present any written evidence but conceded that he gave oral evidence and was cross-examined and that he cross-examined the mother.

4. The father was generally combative throughout the proceedings. He maintained his outrage at the mother’s suggestions he was potentially unable to adequately care for the children.  He resisted the production of material under subpoena which would help to clarify issues.  He constantly focused on the minutiae of issues rather than looking at the big picture. For example, the mother’s trial affidavit filed on 4 March 2015 refers to the mother making an oath.  She in fact affirmed the affidavit.  The mother said under questioning from the father that she prepared the draft affidavit herself, sent it to her solicitor and affirmed it in the presence of the solicitor.  She said she did not pay attention to the jurat or to the opening lines of the affidavit which refer to her giving an oath.  When the mother’s counsel was addressing the Court and referred to the mother’s trial affidavit, the father interjected by asking by way of clarification about whether the affidavit to which counsel referred was the same affidavit which stated it was sworn when in fact it was affirmed.  This inability to let go of minor perceived wrongdoings by the mother was a feature of the father’s conduct of the proceedings.    

5. Another example is in relation to a mirror which the parties had agreed in their informal property settlement would go to the father. It was agreed that the father would collect certain items from the home of the mother’s parents in (omitted). The father collected various items but not the mirror. The father mentioned the mirror at various times throughout the proceedings, including on the first day of the trial before any evidence was given. He put to the mother in cross-examination that she had consistently failed to make the mirror available to him.  The mother said it was available at her parent’s home and he could collect it at any time in accordance with their agreement.  The father said he was not comfortable going to her parent’s home and believed he would put himself in a legally vulnerable position if he did.  She pointed out that he had been there before to collect other belongings and could have collected it then.  He said the vehicle into which he put the other belongings was too full to take the mirror. He put to her that she could simply bring the mirror to him at any handover of the children. Eventually, during cross-examination of the father by the mother’s counsel, he said the mother could keep the mirror. Until that point he had been focused on it as an ongoing injustice perpetrated against him by the mother.

6. A third example relates to the events following the release of Ms C’s report of her psychological assessment of the father. Although the father had previously and vigorously asserted that he could not afford to pay for the report, to avoid any delay he promptly paid for it and made it available to the mother’s solicitors. After obtaining instructions the solicitors wrote to the father by email on 17 December 2014 proposing the commencement of overnight time. In the letter the mother’s solicitors also raised with the father some issues concerning the report because it was clearly based on matters put to Ms C by the father with which the mother took issue.  Nevertheless, the offer for overnight time was clear and on 19 December 2014 orders were made in accordance with it.  The contravention application filed by the father on 18 December 2014 was completely unnecessary.  It seemed to be motivated by his perception that in raising concerns about the report the mother was rejecting it when she was, in fact, making an offer for overnight time to commence.  This is an example of the father not being able to see the wood for the trees.

The law in relation to parenting

1. In making any parenting orders the Court must regard the best interest of the children as the paramount consideration.[32] In determining what is in the best interests of the children the Court must have regard to the two primary considerations set out in section 60CC(2) of the Family Law Act which are, first, the benefit to the children of having a meaningful relationship with both parents and, secondly, the need to protect the children from physical or psychological harm arising from abuse, neglect or family violence. In this case there is clearly a benefit to the children of having a meaningful relationship with both parents. However, there is also potential risk to them as a result of being exposed to parental conflict which, at times, is high.

   [32] Section 60CA Family Law Act 1975

2. The Court must also have regard to the additional considerations set out in section 60CC(3) of the Act. The first of these relates to the views of the children and the weight that should be accorded to those views. The children are both young and accordingly any views expressed by them would have little weight. There is very little evidence about the children’s views in any event. I am satisfied on the evidence as a whole that both children would want to continue to spend time with both parents. Ms M asked X about the amount of time she spends with her father. X said she liked the amount of time she was currently spending with him and did not know whether or not she would like to spend more time with him. That could reflect some ambivalence on her part or may simply be the product of the young age of the child and her inability to assess the implications of greater time.

3. The next consideration is the nature of the relationship each child has with each parent. The evidence on that issue supports a finding that the children have a close, affectionate and loving relationship with both parents. They have a closer and more familiar relationship with their mother as a result of living primarily with her and having spent less time with their father. I also accept the mother’s evidence that X has, on occasion, asked the mother to raise issues with her father, such as whether she can attend a friend’s birthday party, rather than asking him directly which may indicate some reticence about approaching her father on potentially contentious issues.

4. Next I am required to take into account the extent to which each of the parents has taken or failed to take the opportunity to participate in decision-making about major long-term issues, to spend time with the children and to communicate with them. Both parents are highly motivated and keen to be fully involved in the children’s lives. The father has expressed deep frustration and distress about not being able to spend as much time with the children as he would like. He has also felt shut out of decision-making about major issues concerning them. He complained for instance that the mother failed to consult him about which school X would be enrolled in when the mother and children moved to Canberra from (omitted) in February 2013. The mother conceded openly that she enrolled X in the local preschool because it was close to her home. She pointed out the children were spending no overnight time with their father at that point and said she believed that, had she consulted him, there would have been a major dispute about which preschool X should attend.  She said she informed the father as soon as X was enrolled. She said she did not specifically recall recording all of the father’s contact details but, if the enrolment form had a space to record them, she would have done so. She said she advised the father of the enrolment and left it up to him to make contact with the preschool. She said she has always ensured the preschool and school the children attend know that the father is welcome to be fully involved and to receive full information from them.

5. During cross-examination of the mother the father tendered an email he received from X’s preschool teacher on 19 September 2013 asking him for his address in order to post him a copy of X’s report. The email reads as follows:

   Hi Mr Sampson,

   Thank you for attending the excursion yesterday, X enjoyed having you there very much.

   I have spoken with the school and Ms Cable and we are in the process of getting a copy of X’s report for you to obtain. There is no address for you on X’s enrolment information, I would like to request an address for mailing her report to you.

6. The father said this email supported his submission that the mother failed to advise the preschool of his contact details. The mother said it corroborated her evidence that she advised the preschool of the father’s identity and that she was happy for the father to be fully involved with the preschool and to obtain information from them. She said to the best of her knowledge the father had made no contact with the preschool between February and September 2013. The email is consistent with the evidence of both parties. I accept that the mother made no attempt to keep the father’s identity secret or keep him away from the preschool or school. She also actively supported the father attending at Y’s childcare centre to spend time with her.

7. Next I am required to consider the extent to which each parent has fulfilled their obligation to maintain the children. The father pays child support in accordance with the administrative formula. The mother said he paid no child support for the first eight months following separation and only commenced paying once she made an application to the Child Support Agency to garnishee his wages.  The father said that when he received an initial call from the Child Support Agency he asked the Agency to take the money directly from his wages. He said he assumed that was happening but did not check and several months later he was contacted again about arrears. He said he paid the arrears and has remained up to date since. I accept that.

8. The next consideration is the likely effect of any changes in the children’s circumstances. I am satisfied on the evidence of the children are likely to benefit from spending more time with their father than the current arrangements provide. However, there is overwhelming evidence of long-standing and deeply ingrained communication problems between the parties. The simplest issues can quickly become a battleground. The implications for this case are serious because the greater the degree of shared day-to-day care of the children, the greater the degree of interaction between the parties that will be required, especially given the young age of the children. This factor strongly militates against an equal time or more substantially shared arrangement for the children.

9. The communication issues are also relevant to an assessment of two further considerations under section 60CC(3). The first is the capacity of each parent to provide for the needs of the children, including their emotional and intellectual needs. The second is the attitude to the children and to the responsibilities of parenthood demonstrated by each parent. In my view the mother has displayed a responsible attitude to parenting and a high level capacity to provide for the practical, intellectual and emotional needs of the children. I am less confident about the father’s attitude and capacity because of his tendency to approach issues from the perspective of his rights as a parent, his tendency to assume he is being attacked if someone disagrees with him and his combative and aggressive style of interaction with anyone who crosses him. Although the father can provide for the practical and intellectual needs of the children, I have concerns about his capacity to understand and meet the children’s emotional needs. For example, the father repeatedly accused the mother of being motivated by financial gain in her parenting decisions. In one email to the mother on 11 August 2013 the father said the following:

   X and Y may well read these emails when they’re old enough and mature enough to see how you manipulated them (for money).  They’ll know what you are.  Your games won’t work forever – they’ll know…[33]

   [33] Annexure D31 to the mother’s affidavit filed on 18 September 2014

1. That threat implies a profound lack of understanding about the emotional needs of the children.

2. The mother’s concerns about the father’s alcohol and drug consumption, the difficulties posed by his physical disability and his aggressive personality were legitimate concerns following separation, especially given the very young age of the children and his limited experience of caring for Y. The mother made a number of sensible suggestions in order to obtain reassurance about the issues but many were resisted by the father. These included her speaking directly with the father’s doctors, her being able to attend the first few visits at Marymead and the father obtaining a psychological assessment. It was the father’s refusal to cooperate at least initially with the mother’s suggestions which delayed increases in the children’s time with him. He eventually agreed to the mother attending the first few visits at Marymead and she only needed to attend once before being satisfied that Y would be comfortable without her. Once the father cooperated in obtaining a psychological assessment which indicated no ongoing psychological problems, the mother consented to the children spending overnight time with him. It was the father’s defensiveness which delayed these things, not the mother’s unreasonableness in asking for them.

3. The mother has, in general, been polite in her dealings with the father about the children and limited her communications to parenting issues. By contrast the father has repeatedly used communication about parenting issues to berate and hector the mother and point out what he sees as her inadequacies.

4. Both parties have at times involved the children, perhaps inadvertently, in parental disputes. X has certainly has been aware of the conflict. Ms T, the psychologist who assisted X in 2013, made a file note to the effect that X said her mother does not like her father. There is no evidence to suggest she was told that directly by the mother but clearly the child accurately assessed her mother’s attitude to the father.

5. The mother said that on the morning of the day when Y was to spend overnight time with her father for the first time she spoke positively about that and said to Y “Are you looking forward to having a sleepover with your daddy?” and the child responded “Yes, because you don’t want me; you don’t need me”. The mother said she asked Y who told her that and she replied “Daddy”.

6. Ms T and Ms M, the family consultant, both commented on the risks to the children of being exposed to ongoing parental conflict. The father submitted that the quality of communication had improved significantly before the trial and was likely to improve significantly once the litigation ended. Given the volume of difficult communications over the years following separation, I do not have a lot of confidence in that submission. The fact that the father verbally abused the mother on 29 March 2015, the week before the trial began, because she picked up Y’s jumper from the floor of his car at handover reinforces my concerns. The mother should not be required to put up with such abuse.

7. The legislation requires me to consider whether it would be preferable to make the order which would least likely lead to further parenting proceedings. It is hard to assess this matter as there is the potential for further litigation regardless of the outcome. On balance, I am inclined to think that the more time the children spent with the father the more likely it is that further proceedings will be required because of ongoing unresolvable parental disputes.

Parental responsibility

1. When making parenting orders the Court must apply a presumption that it is in the best interest of the children for their parents to have equal shared parental responsibility for them.[34]  The presumption does not apply if there are reasonable grounds to believe there has been child abuse or family violence and may be rebutted if the Court is satisfied on the evidence that it is not in the best interests of the children.

   [34] Section 61DA

2. For reasons previously stated, I am not satisfied to the requisite degree that there has been family violence. There is no evidence of child abuse.  Accordingly, the presumption applies in this case. However, I am satisfied on the evidence that it is not in the best interests of the children for the parents to have equal shared parental responsibility. Such an order would require the parties to consult each other in relation to major long-term issues concerning the children and to make a genuine effort to come to a joint decision about those issues.[35]  In my view there is no reasonable prospect of the parties reaching a joint decision in relation to such issues without significant conflict. Given the history it is likely the parties will reach a stalemate in relation to important decisions which need to be made and which cannot be progressed without further litigation.

   [35] Section 65DAC(3)

3. Counsel for the mother submitted that an order should be made granting the mother sole parental responsibility but requiring her to advise the father of any major long-term issue that needs to be made and requiring her to take his views into account before making the decision. I agree that the mother can be trusted to genuinely and properly carry out this task. Such an order would allow the father to be heard about significant issues but would avoid a situation in which the mother is required to remain locked in endless negotiations with him and exposed to his hostility.

4. The father has a lot to offer his daughters. He is clearly devoted to them and keen to spend as much time with them as possible. There is potential for him to be a strong role model for them, having overcome and dealt with significant adversity in his life. At the age of 27 his motorbike accident resulted in him having his left leg amputated. By the end of 2005 he had completed (studies omitted). He then applied for and was accepted into the (employer omitted). He subsequently completed a (qualifications omitted) degree while working full-time. Each of those accomplishments required great determination and strength of character, attributes from which the children can benefit.

5. The children may also benefit from the different perspective the father will bring to parenting issues but that perspective will still be available if the orders require the mother to consult the father about major long-term issues.

The children’s future arrangements

1. The father sought orders for the children to spend increasing amounts of time with him, achieving an equal time arrangement by mid-2017. However, an order for equal or substantially shared time is not workable in this case because of the lack of capacity for the parties to effectively communicate to the degree necessary to make such an arrangement successful.

2. Y spent time with her father overnight for the first time on 31 December 2013. When the mother gave evidence in March 2015 she proposed that the time increase to two consecutive nights in October 2015. Due to the delay in the judgement being issued, that date has already passed. When she gave evidence in March 2015, the mother said it was not settled whether Y would start school in 2016 or repeat a year of preschool as she was the youngest in her class. She said that an assessment would be made about that issue later in the year. Whether Y attends preschool or school in 2016, she has had almost another 12 months to get used to spending time with her father and, in my view, it would be appropriate for both children to begin immediately spending three nights per fortnight with their father. This would be achieved by the children commencing their fortnightly weekend time with their father after school on Fridays rather than on Saturday mornings.  The single overnight in the alternate week should remain as it is so that the children did not go for too long without seeing their father.

3. The written submissions in reply filed on behalf of the mother on 15 May 2015 proposed the children spend four nights per fortnight with their father from January 2016 but in my view it would be better for the children to have the transitional step of three nights per fortnight for six months.

4. The weekend time should, in my view, be further extended from the beginning of the school year in 2017 so that the children spend time with their father from after school on Friday until the commencement of school on the following Monday every second week. Such an arrangement would avoid direct handover of the children between the parties and hopefully reduce the opportunity for parental conflict.

5. Each party proposed that the children’s holiday time with their father increase over time. The mother proposed that the children spend a block of four nights with their father during each school holiday period from the middle of 2015, increasing to a five night block in each school holiday period from 1 January 2016.

6. From January 2017 the mother proposed the children spend a two week block with their father each January. The proposal in the outline of case document filed by the mother on 22 March 2015 was silent about the shorter school holiday periods from 2017 but in my view it is safe to assume she would be content with half of each of those holiday periods given she proposed the two week block in January.

7. The father proposed that the children spend five consecutive nights with him during school holidays from October 2015, increasing to six consecutive nights in school holidays in 2016 and one half of all school holiday periods thereafter.

8. Given the children have never spent more than two days and one night with their father it is, in my view, preferable to have a transition period in which the children spend some consecutive nights with him before a long block period. This judgement will be released on 12 January 2016. The mother usually has a holiday away with the children during the last two weeks in January. However, it is desirable that the children spend at least one block of three consecutive days with their father in January 2016.  The holiday time should increase to a block of five consecutive nights in the school holidays at the end of terms one and two in 2016 and a full week during the school holidays at the end of term three in 2016.

9. The children should then spend a two week block of time with their father each January from 2017 to give them the benefit of an extended holiday with him each year. They should also spend half of each of the shorter school holiday periods with their father from 2017.

10. At the time she gave evidence in March 2015 the mother was working part-time, 30 hours per week. She said that once Y started school she would probably work two full days and three shorter days in order to pick the children of from school on three days per week. She said that although X had occasionally attended school holiday programs her preference was to take leave during school holidays in order to be available for the children. She said that, in general, she would prefer the children were with her rather than attending a school holiday program and believed the children would prefer that. However, I do not intend to make an order which requires the parties to give the other the first option to care for the children rather than engaging commercial or other carers. In my view the parties should make their own arrangements for school holiday care if needed. There is nothing to stop each party consulting the other and offering the other parent the option to care for the children if they are unable to but an order requiring that seems to me to increase the likelihood of conflict.

11. I will order the parents undertake the Assisting Responsible Care for Kids (ARCK) program at Marymead as recommended by Ms M as that program is designed to assist parties to improve their co-parenting skills.  I will also order that for the next three years the parties meet once a year at mediation to discuss parenting issues and to hopefully improve their communication skills.

I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of Judge Hughes

Date: 12 January 2016

[5] Annexure I to the father's affidavit filed on 24 April 2014

[29] Annexure U(1) at page 90 of the father’s affidavit filed on 24 April 2014