Charnley & Marlow

[2021] FCCA 1728

FEDERAL CIRCUIT COURT OF AUSTRALIA

Charnley & Marlow [2021] FCCA 1728

File number(s):	DGC 276 of 2021
Judgment of:	JUDGE BURCHARDT
Date of judgment:	5 August 2021
Catchwords:	FAMILY LAW – parenting dispute – major issue being who was primary carer of the young children prior to separation – mother moving from Region B to Suburb C as result of placement as a health care worker at Employer D - father seeking children remain with him and attend school nearby where they have friends – children already in school in Suburb C for several terms – both parents living with their own parents who provide financial assistance – Court accepting that mother was the primary carer prior to separation – children to live with mother in Suburb C for spend 2 out of every 3 weekends with the father
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	119
Date of last submission/s:	30 June 2021
Date of hearing:	30 June 2021
Place:	Dandenong
Advocate for the Applicant:	Ms Turner
Solicitor for the Applicant:	O’Halloran Davis
Counsel for the Respondent:	Mr Howe
Solicitor for the Respondent:	Griese Lawyers

ORDERS

DGC 276 of 2021

BETWEEN:

MR CHARNLEY

Applicant

AND:

MS MARLOW

Respondent

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	5 AUGUST 2021

THE COURT ORDERS THAT:

1.The parents have equal shared parental responsibility for the children X born in 2012 and Y born in 2015.

2.The children live with the mother.

3.The children spend time and communicate with the father:

(a)Two out of every three weekends from 5:15 pm Friday (or 1:00 pm if a non-school day) until 4:30 pm Sunday (or 4:30 pm Monday if a non-school day);

(b)For half of all school term holidays as agreed but in default of agreement the first half in odd numbered years and the second half in even numbered years;

(c)For alternate weeks in the long summer school holidays from Friday to Friday commencing the first week the father would have had the children had the holidays not occurred with the children to be returned to the mother at least 2 days prior to the commencement of school;

(d)From 3:00 pm 24 December 2021 until 3:00 pm 25 December 2021 and similarly every alternate year thereafter;

(e)From 3:00 pm 25 December 2022 until 3:00 pm 26 December 22 and similarly every alternate year thereafter;

(f)By telephone, Skype or FaceTime on the children’s and father’s birthdays;

(g)By telephone, FaceTime or Skype every Tuesday and Thursday between 4.30 pm and 5:00 pm and otherwise at all other reasonable times at the request of the children;

(h)Otherwise as agreed between the parents in writing including text message and Talking Parents app.

4.Changeover shall occur outside the McDonalds restaurant in Town E unless otherwise agreed by the parties in writing.

5.Each parent keep the other informed of their current telephone numbers and address and notify the other within 24 hours of a change of same.

6.Each parent shall immediately notify the other in the event of any serious illness or serious injury in respect of the children or either of them and notify the other parent of the names and contact details of any treating practitioners and authorise such practitioners to liaise with the other parent and this order is deemed to constitute such authority

7.The mother shall keep the father appraised of the identity and contact details for any medical or other practitioners involved with the children and notify him within 48 hours of any change. These Orders shall act as an authority for the Father to communicate with such persons in relation to the children’s care and welfare.

8.Both parents be at liberty to attend all school, sporting and extra-curricular events to which parents are normally invited.

9.The mother authorise any school/s attended by the children or either of them to provide to the father at his expense any information normally provided to parents.

10.The parents be and are hereby restrained by injunction from:

(a)Denigrating the other or the other’s family to or in the presence or hearing of the children or either of them nor causing nor suffering any other person to do so;

(b)Discussing these proceedings with or in the presence or hearing of the children no causing nor suffering any person to so save as is necessary to explain the practical effects of these orders;

(c)Leaving the children unsupervised with the maternal uncle Mr F.

11.The father forthwith return to the mother the mother’s and children’s passports.

12.The mother forthwith notify the father in the event that her work will prevent her from having the children in her care on a weekend when they would otherwise be in her care and provide the father an opportunity to have the children with him for that weekend.

13.The mother not permit the children to be in the presence of her brother Mr F unless there are at least two adults (one of whom must be the mother or maternal grandmother) present.

14.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE BURCHARDT

INTRODUCTORY

1. This is a parenting dispute about the best interests of two young children, X, born in 2012, and Y, born in 2015.  Although there are a number of subsidiary issues, the real battleground has been fought over the issue of the mother’s relocation from Region B to Suburb C.  The mother, in whose care the children presently (albeit this has not been for that long) live, has moved to Suburb C and is living with her mother.  She proposes to move out when she can into independent accommodation.  The father, who remains living in Town G, seeks that the children live with him there and spend time with their mother in accordance with the mother’s roster as a health care worker. 

2. One of the major issues in dispute is who was the primary carer of the children when the parties lived together.  As I find, the children’s primary attachment is to their mother, and it is for that reason that they should live primarily with her in Suburb C. 

   AGREED OR UNCONTROVERSIAL MATTERS 

3. The father was born in 1985.  He has the misfortune to suffer from Crohn’s disease, although he says that is now in remission.  There is an issue as to whether he has other medical conditions as well.  He lives in Town G with his parents who run a take away business there in which he occasionally helps out as a worker.  He is living on a disability pension. 

4. The mother was born in 1985.  The parties entered into a de facto relationship in 2011, albeit that they were in a relationship from 2007 onwards.  Separation took place in September 2020. 

5. As earlier indicated, X was born in 2012 and Y in 2015.  Notwithstanding their youth, the mother commenced a process of study to become a health care worker and this involved a number of placements, although the amount of time this took the mother away from the matrimonial home is disputed. 

6. X has ADHD, although the father has, from time to time, asserted that he may have autism.  To the extent that there is a dispute about this, I have no doubt that the medical evidence establishes that X’s condition is that of ADHD and not autism. 

7. The children were both in school in Town H at the time of separation but have now, since the start of the year, been enrolled by the mother in school in Suburb C. 

8. The mother’s move to Suburb C was precipitated by the fact that the only placement she could obtain that would advance her career was that at Employer D.  She relocated accordingly on a unilateral basis, in effect, because she knew that the father would object, as he indeed has. 

   THE PARTIES’ AFFIDAVIT MATERIAL 

9. As is often the way, much of what is disclosed by the parties’ affidavits is, in fact, contained in the agreed matters above.  In the father’s first affidavit, he deposed to being served with an intervention order on 24 January 2021 following an incident the previous evening when the mother, her stepsister and her father attended the father’s parent’s house.  It is the father’s position that this was obtained without any cause simply to get the children back in the mother’s care.  The father deposed to the mother’s alleged excessive partying and times of absence because of her study.  He also deposed to his concerns about the mother’s brother, Mr F, who has been subject to child pornography charges.  Further, he deposed the mother undertaking cosmetic surgery in 2020 and being absent for a week and a-half, during which time he cared for the children.  He further deposed to separation on 16 October 2020 when the mother accused him of cheating on her, at which point he left and went to stay with his parents. 

10. It is fair to say that the general tender of the affidavit was to the effect that he was the primary carer of the children during the period of cohabitation. 

11. The mother’s first affidavit took issue with this assertion and accused the father of doing very little for the children.  She deposed that Y was in childcare nine days a fortnight and X was in school in 2020.  She deposed to an incident of family violence on 21 January 2021, during which the father allegedly became violent and threw furniture around the former matrimonial home.  She confirmed that she and the children had relocated to Suburb C because of her employment at Employer D.  She deposed to the children’s living arrangements with her mother, and her enrolling the children at school in Suburb C. 

12. The mother went on to depose at paragraph 24 that the father was not in good health, has schizophrenia, severe depression and debilitating anxiety, which prevented him from engaging in work and social activities.  She deposed to the father not seeking specialist medical treatment for at least five years, and to the ongoing risks arising from his Crohn’s disease. 

13. The father’s next affidavit, filed 3 March 2021, relevantly complained that the children would be brought up, in effect, by the maternal grandmother.  He admitted not travelling on a family holiday to Country J as he hated flying, but otherwise denied the mother’s assertions as to his lack of involvement. 

14. On 19 March 2021, the father filed a further affidavit.  He traversed the possibility of X’s ADHD and he traversed X’s diagnosis with ADHD and complained of not being informed of the provision of melatonin and Ritalin for it.  I note that at paragraph 2(c) of the affidavit, the father suggested that the issue of X’s treatment had not been sufficiently explored.  And at paragraph 2(d):

    I think it is far more likely that X is on the autism spectrum that suffering from ADHD. He is a quiet, calm boy. He does not "bounce off the walls". I have seen X concentrate well at school. He does not fidget when we complete his readers. He is serious about writing down the names of the books in the record folder very neatly.

    I recall that when we first saw Dr K, he actually said X was autistic. It wasn't until MS MARLOW started coming to the appointments in 2019 when X was in Grade 1 that MS MARLOW suggested X could have ADHD.

    I was concerned that Ritalin would change X'S personality. I observed him become more aggressive -

15. The father went on to depose to the fact that the children were enrolled for L School in Town H and that X was excited to be going there. 

16. In her responding affidavit filed 23 March 2021, the mother deposed to X taking Ritalin in term 4 2020 as prescribed and that the teachers advised her as a result, X had improved focus and attention.  She deposed to having found appropriate medical practitioners for the children in Suburb C. 

17. In his further affidavit filed 15 June 2021, the father deposed that he was living with his parents and that the mother was 172 kilometres away.  He deposed as to the mother’s placements from time to time, and relevantly for these purposes, indicated that he was on Escitalopram for antidepression.  He further deposed to the history of spending time since the matter commenced and reviewed his mental and physical health and the associated treatments. 

18. The mother’s trial affidavit, filed 28 June 2021, likewise reviewed the proceedings and the current circumstances.  I note that X has been engaged in counselling with a psychologist (see annexure 3).  I note also that the M School suggests that the children are doing at least reasonably well (annexure 2).  I further note that there has been a comprehensive, and in my view, conclusive diagnosis by Dr N, paediatrician, which noted relevantly “all of which points to the diagnosis of inattentive ADHD.  I am supportive of this diagnosis.  On the basis of the history provided, and my own interactions with X, I am very satisfied that we do not need to consider autism, or any other developmental problem.” 

19. The maternal grandmother, Ms O, filed an affidavit on 28 June 2021.  Unsurprisingly, it is supportive of the mother in every way and fully supports those aspects of the narrative provided by the mother which fall within the grandmother’s knowledge. 

    THE SECTION 11F REPORT

20. Given the urgency of the matter (all parties agreed that the relocation issue required urgent determination) the court obtained a section 11F report as it was not practicable to obtain a full family report. 

21. I note that the mother was quite pejorative of the father at times during the interview, especially with regards to his assertions as having been an active and primary parent to the children.  At paragraph 18, the report observed:

    The mother presented as quite pejorative of the father at times during interview, especially with regards to his assertions of having been an active and primary parent to the children. The father presented as more balanced in recounting his concerns, though did appear fixed in his views of how best to parent the children. It appears that the parties have varied personalities and parenting styles which have likely contributed to their thoughts regarding the other and their parenting. 

22. At paragraph 19, the report continued:

    Neither impressed as having a mutual or co-operative approach to these proceedings or the co-parenting dynamic, with neither showing any level of awareness as to how they have each contributed to the current issues before the Court.

23. X was reported of being “sort of” settled at his new school and having made some friends, but that his primary social connection is with his cousin and one of her friends (paragraph 20).  X said it was cool living in the home of his grandmother but was starting to get bored now they had been there for a while (paragraph 21).  X provided information which suggested his mother and grandmother share the household and care duties quite evenly and he was comfortable with both of them.  The main thing he did not like was that he did not get to see Dad (paragraph 21).

24. X spoke positively about his experiences in the father’s home, and did not identify any worries or concerns about the father or his home environment (paragraph 22).

25. Y spoke positively about her experience with each of her parents, and appeared to enjoy both households (paragraph 24).

26. At paragraph 25 the report continued:

    It appears that neither party has considered how their reactive responses to the current dispute, in terms of the father seeking to withhold the children and the mother obtaining an FVIVO to have the children removed from their father by police, would have been highly disruptive for the children and only further escalated their parenting dispute. The children will benefit from the parties being more measured and considered in how they approach parenting disputes in the future. 

27. The report noted the concerns that each parent had about the other, and opined at paragraph 27, “a competent parent having full availability to care for children could be seen to have benefits over the alternate care arrangements necessitated by working parents. This may be especially relevant when it comes to a parent’s capacity to support a child with additional needs such as X” (paragraph 27).

28. Paragraph 28 the reported continued:

    The mother’s, allegedly unilateral, relocation due to her study/work commitments has significant implications for the children in terms of the adjustments to their living arrangements and their education and social connections, which may ultimately have to be changed again given the proposals before the Court. Of primary significance is that, despite the mother’s reported concerns regarding such, the children had been residing in an equal time arrangement prior to her relocation and had experienced both parents to be significant care figures in their day to day lives. The nature of the relocation now means that they will experience one parent to have a more limited role in their lives, which will be a significant change for them given their past care history and a loss for them given their apparent positive and connected relationships with each parent.

29. The report did not make any recommendation as to whether relocation should or should not be permitted.  But at paragraph 32 suggested that there may be a benefit to the children spending two out of every three weekends with their non-resident parent alongside electronic communication two times per week to ensure an ongoing connection can be maintained.  An arrangement that sees the children collected from school on a Friday afternoon by their non-resident parent and collected from the home, or a public location local to the home of the non-resident parent by the resident parent on the Sunday afternoon would be appropriate.

30. It is readily apparent that the report writer left the ball very much in the Judge’s Court. 

    THE SUBMISSIONS MADE AND EVIDENCE GIVEN AT COURT

31. What follows is taken from my notes.

32. Counsel for the father opened the case.  She indicated the father says he is the primary carer during the relationship and the mother was the earner.  The mother relocated unilaterally and took out an intervention order application to get the children.  She has enrolled them in a new school that is 180 kilometres distance.  The father wants the children back.  The father proposes alternate weekends and more time depending on the mother’s roster.  Counsel referred to the mother’s brother’s child pornography charges and he seeks an exclusion of that person entirely from the children’s lives.

33. The father was called and adopted his trial affidavit as true and correct.

34. Under cross-examination by Counsel for the mother, the father confirmed that he is on a disability pension and has Chrohn’s disease.  He has been on the pension for eight years and was diagnosed with Chrohn’s disease five years ago.  Before that he had depression and anxiety.  He had only seen Dr P once and had not read this report in the mother’s affidavit.

35. He was taken to annexure 5 to the mother’s trial affidavit being a report from Dr P dated 18 November 2014.  He said that the assertion of past schizophrenia was untrue.  He opined it could come from a professor whose name I was unable to note.  The files would say he had anxiety and depression.  He then said schizophrenia was used by the doctor to justify the prescriptions for Escitalopram which he takes every night.  He denied suffering Agoraphobia as described in the medical records.  He has thought that was a virus.  He does work for the community.  He had never heard of Bipolar Disorder and had no idea why Dr P listed it. 

1. His Chrohn’s disease is going into remission and he can walk.  He is now on a new program with a new trial.  His pension will stop at the end of this month.  The trial he is on is to use humira twice per week for Chrohn’s disease.  His other drugs are still working.  Escitalopram does not make him drowsy.  He was originally on 200 milligrams but it is now on 50 since the start of the year.  When asked how depression affected him, he said it was looked after quite satisfactorily by doctors and specialists.  The father conceded that when X was about six years old the mother had gone to Melbourne and he had moved back to his parents for two weeks to get help with X.  It was not that he needed help with X.  He needed company and someone to talk to.  He agreed that X had been placed in childcare for two days a week in 2014.  He said both parents put him in, he did not know why.  It was put that X was too much for him while the mother was working, but he said this was false. 

2. It was put that the mother says he throws furniture when he is angry but he denied this.  He might have thrown a garden chair once.  He had not lost his temper.  He said the garden chair was broken and it was getting in the way all the time.  When asked by Counsel as to why he was not calling his parents, he said he had not been informed that he could have witnesses.

3. Counsel cross-examined about paragraph 41 of the father’s trial affidavit.  He said there was a babysitter in her house.  X and Y said they had been sent to the next door house with a 16 year old.  X said he only had his school clothes and he wanted to be at home.  It was put that the 16 year old had been in the mother’s house and he agreed.  He was referring to a home around the corner.  X told him the girl was going to give him a biscuit with nuts in it and he cannot eat it.  This was not in the parent’s home. 

4. The father was cross-examined about his over hold of the children in January 2021.  He had done this because the mother would take the children to Melbourne without his consent.  It was a long weekend.  She took out an intervention order and the police removed the children the next day. 

5. The father agreed that Y was in care for nine out of 10 days Monday to Friday in 2020.  The mother was not working on Fridays.  He looked after Y on the second Fridays.  He had not sent X to school for two days a week because he could not cope.  He was happy the children were doing well in Suburb C but they want to go to L School.  When it was put that the school in Suburb C was better than that in Town H he did not agree, although he said he had not been told much.  He had emailed Suburb C to see how the kids are going, talking to the principal and teachers.  The school do not want to talk to him at all.  They have not supplied him with a password.  He has not asked the mother.  They cannot use the same password.  He says he gets emails and has a school app but has not received any for a while.  He had contacted the school multiple times.  He rings up but they cancel it.

6. Counsel asked about X’s ADHD.  The father said that is the diagnosis.  When asked if he believed it, there was a long pause before he said yes.  He then said he thinks X is more autistic than ADHD.  The paediatrician in Town R wanted to investigate autism, but the paediatrician in Suburb C said it was not.  The Town H school had given him the ADHD medicine, but he did not know what X was having.  He was given a packet of Ritalin.  He asked the mother about it and she said that that was what the doctor told her to give him.  She said this was the doctor in Town R.  He had no knowledge of any of these matters.

7. When asked about the advantages that the mother might provide the children, the father said he did not know.  There are not many advantages.  She is always at work.  There were no advantages to living with the mother.  When asked what failings he might identify in his own parenting, he said he is probably too easy on the kids.  He said it was a hard question.  His Chrohn’s disease will probably never come back.  He has a clean bill of health on that one.

8. Re-examination (which tended to stray quite significantly from answers arising out of questions put) started with the husband’s prescription drugs.  He said that Escitalopram is for panic attacks, not schizophrenia.  He does not suffer from delusions.  He does not understand what Bipolar is.  He does not have highs and lows and no mania.  His depression is well treated.  He is not tired and unable to get up.  His parents only helped once.  He primarily looked after the children every time the mother went to work.  She was away on a course for six to eight weeks.  She went away on holiday and for operations.  For weeks to months he had the children.  X was in school in 2020.  

9. Asked about an incident on 16 October 2020 the father said he threw a cigarette lighter at the fence.  When asked why X was in school, the father said the teacher told him X needed socialisation and needed routine.  He managed great with the children at home (and he explained the home arrangements in detail).  He followed school tasks for X, and Ms S had sent materials for Y.  He had been to the Suburb C school twice but they do not wish to talk to him.  He does not know when the ADHD diagnosis was made.  There was a disagreement about Ritalin and he asked for a second opinion. 

   The Opening and Evidence of the Mother

10. Counsel indicated the mother says she is better able to care for the children.  The father suffers various mental illnesses including schizophrenia and agoraphobia.  His parents are assisting him, although the mother’s mother assists also.  The mother has a placement at Employer D.

11. The mother was called and adopted her trial affidavit as true and correct.

12. Under cross-examination the mother said she was the primary carer.  She was employed throughout the relationship and was not saying that the father did none of the care.  He did some school pickups and drop offs and dinners.  This was the same as she did.  She had worked three days per week for the last five years.  She left X with the father for one week when he was 18 months old because her mother was sick.  She has had a gastric sleeve and was hospitalised for three to four nights.  X was with the father for a week.  On return, she could do all parenting tasks.  She took on health care training during her maternity leave and was training for two hours per month and also three shifts per month.  The father looked after the children most of that time. 

13. After maternity leave, she went back to work four days per week, 8:45 am to 4:45 am, and had Wednesdays off.  She thought that day care started at two days per week.  She had concerns, but the father had backup of his family. She denied that she had placements for 12 weeks in 2014.  The first year, she had two two-week blocks.  That was at the local hospital on a normal eight-hour shift.  Once she had to go to Town T for two weeks. 

14. In 2015, all her placements were in Town R, save one in Town T.  Often, the father would take the children to his family while she was away.  She denied being away for 10 weeks in 2016, but the children were with the father when she had placements.  In 2017, the mother worked three days a week at Town U.  Y was in day care for two to three days a week and X was the same until kinder.  They got a referral to Dr K.  The father was there.  The father took X once when she was not available. 

15. In 2018, X was in prep and Y was in day care twice a week.  The father liked to take X to school.  She felt that this was more for show than something useful.  (The mother’s lack of desire to give the father credit for any aspect of child rearing was entirely apparent).

16. The mother said that X needs routine.  The father reads books with X.  In 2020, the father’s involvement was not minimal, but not as much as he said.  She was working three days per week. 

17. The mother was cross-examined about her social activities and said they were very rare.  The father had taken X to one party because she was not there.  Y was in kinder, but needed extra social interactions she would not get at home.  The father would not give her those opportunities.  The father would be in bed 90 per cent of the day.  He would take the children to school and would get back into bed and stay there until the alarm went off.  The children would tell her this and she thought she had observed him sleeping.

18. The mother said the father had surgery March 2020, but did not know if he had improved.  It did not seem so when they were together.  The father seemed to struggle with X’s school.  She discussed this with the father.  She has agreed that her mother could help.  Her mother was pleased to help, but did not volunteer.  She and the father discussed this and they agreed.  X was struggling academically.  She does not know why X went back to school in 2020.  She thought it was because the father was struggling. 

19. It was put to her that the children had been home schooled between March to June and then until September by the father.  She said her mother helped him during the first lockdown.  The father tried, but he struggled.  X has learning issues, but the father struggled with it.  She did the work.  It was not an easy situation.

20. The mother said she only went out occasionally every three to six months.  In the last two years, her sister had a karaoke evening and she went for two or three hours.  The pub closed at 11:00 pm.  The father was restrictive.  In early days, she would not go.  He made it too hard for her to go.  Towards the end, she thought she would do what she wanted to do.  There was tension about her doing anything except staying at home.  They rarely spent time as a family. 

21. The mother was cross-examined about plastic surgery in September 2020.  She said she stayed with her mother for a week.  There were minor complications.  And she had to go back.  It was a small surgery and she was away for four to five days. 

22. The mother was cross-examined about the events of 16 October 2020.  It was a Friday at karaoke.  She had been home for a week after her surgery.  The father did not want her to go, but she went.  She got a phone call from his mother, who said, “Mr Charnley has lost his shit.”  A chair had been thrown across the yard and the table cleared of all objects on it.  The father was pretending to sleep when she returned.  His mother had told the mother that he was “going spastic”.  She told him to leave.  She had assumed the father was having one of his outbursts of anger.  She expected verbal confrontation.  Her brand new garden chair had been thrown into the veggie garden and it was not broken. 

23. The table was messed up and a lot of things had fallen on the ground.  She spoke to him and said, “What is going on?”  He responded, “What do you mean?”  She said, “Your mother told me you lost your shit.”  He arced up.  There were condoms in his wallet and both cars.  She had seen a text message to a girlfriend.  She was angry, but had not been drinking.  She said, “Enough is enough.  Get out.” 

24. Y was asleep, but X and V were awake.  She checked on them.  They asked what happened.  She told them, “There was a bit of a fight and Daddy has gone to Nan’s for the night.”  She felt threatened when the father got angry.  He had said, “I would never do this to you.  I cannot believe you can do this.”  He was upset.  She had accused him of cheating and told him to leave. 

25. She had seen the father really flip and go quite berserk.  He raised a fist to her quite some time ago.  She believed this was in her IVO application.  There is a fresh one.  She reported the father to Town R police on 16 October 2020.  This was not in her affidavit.  They had said to call back if he returned.  She did not really want to apply for an intervention order.  She had her brother and sister-in-law with her.  The children went to see the father a day or two later and he seemed quite calm that day.  His parents were present.  She did not think he would hurt the children.  The father moved to Town G, which was 10 to 15 minutes away, and they agreed a week about. 

26. She did not want to cause conflict.  Her shifts were all over the place.  She did not offer the children to the father. He was being difficult.  Her mother would come if she was working and her father also, who lives locally.  Recently, when she had a student free day on the Friday, she offered time to the father.  She offered a week of school holidays, but he is difficult.  There is always a confrontation.  It is difficult to communicate with the father.  When it was put that she was not willing to tell the father where she was working, the mother did not directly answer.  She said if she offers a weekend, he throws it back in her face.  The children do not pine for him when they are with her.  They do not openly say they miss Region B. 

27. The mother was cross-examined about time with a babysitter.  She said there were two occasions.  The first was the children went to a neighbour’s house for a couple of hours and were there until 8:00 pm.  The second time was at her house and the neighbour’s sister and also their cousin were there, who were aware of X’s allergies.  She did not think it was necessary to tell the father.  She was home by about 11:00 pm.  X was not upset.  He likes the neighbours.

28. The mother was cross-examined about the ADHD diagnosis.  She said it was earlier than September 2020.  There was a disagreement about X being on Melatonin.  She does not remember a disagreement about Ritalin.  She had said that they should try it and see how it went. 

29. The mother thought the father was giving Ritalin to X.  They went to Dr K with her mother in January.  She thought the father knew about the appointment.  Things were volatile at that time.  The alternate weeks regime was a big disruptive.  She felt the children needed more of a home base.  The father could not cope with more than half the time.  She trusts his parents to help.  Week about was not suitable in the long term as it would be too disruptive.  The children need one main house.  She would be happy for the children to spend more time with the father if it was practicable. 

30. The mother said she found out about her placement at Employer D after separation and told the father straight away.  She had told him on 27 December she was going.  She offered for him to move as well.  Suburb C is more expensive.  Y is just starting school and X is changing schools.  X and Y have one friend each.  X sees him when he goes to the father.  The children have made new friends in school and have cousins here.  X had V in Town G and Y had W.  The mother goes to Region B to see family.  When she had told the father she was taking the kids, he was quite angry.  There was no middle ground.  She felt the children were better off with her.  He had said if she took them to Suburb C, he would see her in court.  She offered him weekends, but it was his way or the highway.  He withheld the children because she was moving to Melbourne.

31. When asked about the events of 20 January 2021, the mother said she called her family first.  She was distraught.  She contacted the police.  The father could have strange ideas.  She had been to his parents’ shop with her father.  Her father spoke in a loud voice to see the children.  She tried to ask her father to calm down and said, “Let’s go.”  Then the police turned up.  She was worried the kids were hearing this.  Her father had taken a photograph.  They were there for a little while.  The father told her that she could only see the kids if the police were present.  He said he had an intervention order.  When she saw the kids, they were okay.  The next day she went to Court for an intervention order.  She was scared of the father’s reactions and might harm the children or her.  She had never seen him so angry.  She picked the kids up but denied her father gave the finger as alleged by the father.  She was relieved to have the children in her care.  She had won the dispute temporarily.  She did not get a notice of hearing for an intervention order in March.  After she got the kids, she went to her mother’s.  She was on holidays.  Then she got the kids organised for school. 

32. The mother is planning to move but there is no date.  She had been back to get things, just personal items.  She told Dr K that she was relocating.  The Melatonin was agreed, but she was not sure she would use it.  She had not discussed this with the father.  She only discussed it when he accused her of doing things without her consent.  She had not decided whether or not to use it.  She found a new paediatrician in January or early February but had not spoken to the father about this.  She enrolled the children in M School in December.  The father had enrolled them into L School.  The children were told they were going to L School and Y had done a couple of tours.  When she found out she had a job in Melbourne, she told the father.  She told the father what school they would go to.  Every time she spoke to him, it was volatile. 

33. She had done a tour before the children started at M School.  This was in December.  The father was not aware of it and the children told him.  The children had accepted the decision about the school.  She had told the school there were custody issues and she had told the school that the father wanted a different school and told them that there would be a court case about custody.  Her mother had come with them for the tour.  She had helped source a school uniform.  She had only recently been made aware that the father contacted the school to say he did not agree.  The psychologist says the children are well adapted.  The teachers say the children are doing well.  She has got a psychologist just to make sure.  The father has been told about counselling but she has not involved him.  She has got doctors in Melbourne because Town R is impracticable. 

34. The mother said X has seen Dr K three to four times.  The father had asked why Dr K had been cancelled.  She told the father she had a new paediatrician.  She did not want him at the appointment.  This was the same for all practitioners.  She does not feel she needs to tell him.  The way he is around her is not comfortable for X.  X has been to the dentist five times.  The father is aware of the issue.  She had told the father that the dentist had recommended specialist treatment to take two teeth out under anaesthetic.  X needs braces.  The father’s anger gets in the way of his hearing what she is saying.  She does not need to tell the father about eye checks.  When nearly everything is thrown back in her face, it is not worth it for her.  The father can attend school events.  Her mother had attended sports day and the father could have gone. 

35. Y is attending speech pathology, which is organised through the school.  She had not told the father.  The children did not see the father from 24 January until March 2020 because the intervention order was in place.  She had not offered time, but he had not asked for it or phone calls.  The children had not asked to speak to him, nor seemed distressed.  Y asked once or twice when she would see her father.  The first time they spoke, X was put on the speaker.  She was present at the start but left them to it.  It is only on the loudspeaker if the children do that.  There had been one phone call when the children were in a shopping centre.  There was one weekend she was working, and her mother took the children to Town Z.  She had not offered them to the father because that gets thrown back in her face.  X had had three years school and kinder in Town H.  He was already going to go to a new environment.

36. L School is next door to the primary school.  X does not have friends who are going to L School.  Changing schools is scary.  She conceded that X might have thought they were coming to Melbourne for a temporary holiday.  She tries not to say anything in front of the children.  They know the parents do not get on.  They have seen his outburst in the carpark about the teeth.  She wants them to have a relationship with the father.  The time in the shopping centre, she was not ready.  The children do not always want to talk on the phone.  Perhaps FaceTime would keep them more engaged.  But the father does not have an iPhone.  She would be happy to trial it by FaceTime.  Her mother is retired and helps her a lot.  She does cooking and shopping.  She is there so that she can continue to work.  She could not work at all as a health care worker without support.  She works four shifts per week.  Morning shifts are from 7:00 am to 3:30 pm, and she is home by 4:00 pm.  Afternoon are 1:00 pm to 9:30 am, which is her main shift. 

1. The grandmother puts the children to sleep.  On Mondays the mother’s cousin picks them up and on Wednesday, they pick up a cousin.  She works on weekends and tries to do so on the father’s weekend.  On the weekend the grandmother took the children to Town Z, she worked both days.  Communication was poor prior to relocation.  She does not want to give the father her roster.  It is not necessary for him to know where she is all the time.  Next year, she has a contract for point 4 EFT, or two days per week.  Hopefully it will go up to point 6.  This is at Employer AA in Suburb BB.  Ideally, she will get a job at Suburb C and will move to independent accommodation as soon as possible.  It depends on the Town R of the old house.  The children point out “for Town R” signs.  She has told them, “We will get our own house eventually.”  The children do not talk about going back to Town H.  X never mentioned it.  Y has not mentioned it since March.  She said the children like to please whoever they’re with.

2. There was no re-examination. 

   Final Submissions by Counsel for the Mother

3. Counsel submitted that credibility is important.  The mother says she is the primary carer and she worked a maximum of three days per week.  The father looked after the children with the assistance of his family and spent most of the day in bed.  In 2020, Y was in childcare nine out of 10 working days.  The mother cared for her on the alternate Fridays.  The father’s credibility is open to question.  He said he had Crohn’s disease and this obtained historically but then it emerged that he had only had Crohn’s for five years and before that anxiety and depression.  He was on 50 milligrams of Clotiapine, which is an antipsychotic.  Counsel referred to annexure 5.  The father’s narrative about schizophrenia is unclear.  He first said it was a ploy by the doctor but then said he did not know why this was recorded.  It was put that he makes up his evidence on the run. 

4. The maternal grandmother assisted with the school and this was not challenged.  The father says the mother was out a lot but she says two to three times in the last few months.  Before that, it was twice a year.  The father exaggerates.  The father says if the children are with him, he can take them to see the mother when she is not working.  He loses his temper, and Counsel referred to the incident where the mother told him about X’s teeth.  The father did not see any benefits to the children living with the mother at all.  He had no insight into his failings.  It was submitted that the father should be provided with details of the medical practitioners and the school and that the mother would promote the relationship with the father.  Counsel submitted that the father had a history of schizophrenia, bipolar, and agoraphobia, in addition to other conditions.

   Final Submissions by Counsel for the Father

5. Counsel submitted that the central dispute was about the unilateral relocation and about primary carer.  The mother did not address the father’s points.  She was vague as to her placements.  She had been away multiple times and did not respond in detail.  The Court should infer that the father was truthful.  The mother belittles the father.  She qualifies his case by reference to his parents.  The mother acted unilaterally, notwithstanding the shared care arrangement in place.  The mother brings up the question of risk and makes allegations of family violence.  The intervention order was to get the children back.  The father withheld the children, but not in an aggressive or violent manner. 

6. The mother said one chair was thrown and there was a messy table.  Y was asleep and X and his friend were not upset.  The children then went to the father for a week.  The father says the mother has not considered stability in Region B.  X has been at school for four years.  The children have treating practitioners in that region.   The mother says it is no different moving to school to Suburb C, but there is a confusion involved with the two schools.  The mother said that the children were not upset or wanting to see the father, even though they spent no time with the father in Melbourne.  But X had told the section 11F reporter he was missing the father.

7. The father says the children want to return and go to the CC School.  X only thought there was a holiday going to Melbourne.  The father says he can provide stability.  The children have friends there.  The father says the mother was making unilateral decisions and not providing him with any information.  The father says the mother was working four shifts a week and it is not known what she will work next year.  The children have a hectic schedule.  The father can facilitate homework and will facilitate time on the weekends for the mother.  The mother does not accept the alternatives of living with the father. 

8. Schizophrenia was dated and there has been no DFFH involvement.  The father says he is mentally and physically healthy and will be undertaking part time work. 

   SOME BRIEF FINDINGS ABOUT THE CREDIT OF THE PARTIES

9. The father struck me as being generally direct in his responses, although his description of the events of 20 February 2021 was, as I have earlier indicated, unbelievable.  He plainly lost his temper on that occasion.  He struck me as being somewhat markedly lacking in insight.  He struck me, and this is not in any sense a criticism, as being not particularly articulate. 

10. The mother’s evidence was generally given directly and responsively to the questions put.  Unsurprisingly given her greater academic qualifications she was more articulate.  Nonetheless as earlier indicated she was most reluctant to give the father credit for anything (as indeed he was of her). 

11. I would say that both these parties’ evidence was given in a fashion entirely consistent with the observations of the section 11F report writer and in particular those at paragraph 25 of the report that I have set out above at paragraph 26. 

12. Nonetheless, and I should perhaps make this entirely clear, despite some reservations about certain aspects of each parent’s evidence, they struck me as being in a general sense truthful witnesses who were subconsciously trying to exaggerate certain aspects of their evidence to fit their case. 

    PARENTAL RESPONSIBILITY

13. Both parents seek an order for equal shared parental responsibility.  This is so despite on any view the matter there having been some elements of family violence during the relationship and its aftermath.  I will deal with other aspects of this criterion later on, but it is sufficient to note that the father undoubtedly lost his temper when he threw the chair into the garden and swept the table partly clear.  There was also family violence when the mother and her father attended the father’s residence and tried to get the children back.  Also I have no doubt that the mother’s father was furious and said the things ascribed to him in the father’s affidavit and indeed made a lewd gesture with his finger later on.  Nonetheless, and while some of this appears to have been audible at least to X and Y at one point, there is nothing to suggest on an ongoing basis that the shared parental responsibility that the parents both seek is inappropriate. 

14. This is all the more so because, for reasons to which I shall come, the mother has been dilatory at best in her exercise of shared parental responsibility since she returned to Melbourne.  She has enrolled the children in school with no discussion with the father, changed their treating doctors and done nothing whatever to facilitate the father having proper knowledge of and awareness of the children’s schooling and medical treatment including dental treatment.  Absent an order for shared parental responsibility one might very well wonder whether this pattern would reverse itself.  It is plainly in the children’s best interest that there be an order for equal shared responsibility. 

    The Spend Time and Communication Regime – The Primary Considerations

15. Although obviously this is a very important subsection, it can be dealt with, in the context of this proceeding, briefly.  First both parents agree that this is to the benefit of both children to have a meaningful relationship with both parents.  Not only were the children in an equal shared care arrangement following separation until the mother relocated, but all the evidence including the section 11F report shows that the children have a good relationship with their parents and need both of them in their lives.  Although there are some qualifications as to the parents’ past conduct and perhaps most greatly that of the father, nobody suggests that there is any need to protect the children from the risk of exposure to physical or psychological harm.  Indeed the mother expressly stated that she did not think the father would ever harm the children.  The difficulties of communication on an interpersonal basis between the parents is a matter of concern but is one I can deal with under the additional considerations. 

    The Additional Considerations Section 60CC(3)(a)

16. The children’s views have been expressed to an extent and the children are probably now old enough for those views to be given some weight.  The difficulty of course is that those views are not unequivocal.  X described being sort of settled at his new school but that he misses his friends from his old school a lot.  He had enjoyed living with the grandmother but was starting to get bored.  He thought it was a bit hard not seeing dad and he spoke positively of the time with his father.  Y spoke positively about her experiences with both parents and indeed plainly enjoys her time in both households.  There is simply nothing decisive in either child’s views.

    Subsection 60CC(3)(b)

17. Each of these parents would have it that they were the primary carer during the period of cohabitation.  As I find each of the parents have exaggerated their role and sought to diminish the role played by the other during the period of cohabitation and indeed afterwards.  While the father does have Crohn’s disease, the mother’s assertion that he only took the children to school for show is in my view pejorative and unnecessary.  He may have struggled with the effects of Crohn’s disease and I accept that he would on occasion at least get back into bed as the mother described.  This was evidence given with conviction which I accept.  Equally however of course the mother has been absent for relatively attenuated periods of time.  Her placements lasted up to a couple of weeks and she had absences in excess of a week for surgery and the like.  I accept that the father has used the assistance of his parents on these occasions at least some of the time.  To do so would be natural enough for any parent left on their own in this way.  Indeed both parents are dependent upon the assistance of their own family to enable them to cope at all. 

18. The reality I suspect is that the arrangements were far more close to even in respect of the children while the children were living in the conjoined household.  The mother worked for three days a week and even with school and kinder the father must have had some measure of care of the children.  By the same token however, the mother impressed me as being a better organised and more effective person, if I may so describe it, and she is more likely to have been an effectual parent when the children were in her care.  Given that the children spoke equally positively to the section 11F report writer about each parent it seems to me impossible on this evidence to accept that either parent was so much the perceived primary carer as to clearly make the other the secondary parent. 

19. There is no reason to doubt that both of the children have an excellent relationship with the maternal grandmother, which is something they indicated clearly to the section 11F report writer, and the paternal grandparents.  Their relationship with other family members such as the mother’s aunts who live close by is not revealed in my view by the materials.  The children appear to have residual memories of their friends in Town G or Town H and I note that X still misses them.  The mother’s assertion that he had only one friend is plainly an exaggeration because he still misses his old friends from his old school a lot. 

20. Having said this however it would appear, as is perhaps unsurprising given children of this age, that they have at least commenced to make new friendships in their new school. 

    Section 60CC(3)(c)

21. Each of these parents has taken every opportunity to participate in making decisions about the children and to spend time and communicate with them.  The father was prevented by the mother’s obtaining of the intervention order, (which I find was at least as much to do with getting the children back to her as to protect anybody from violence) from seeing the children over a month in the earlier part of this year but he came straight to court as indeed the mother knew he would.  He has endeavoured to be involved in decisions involving the school in Suburb C which I find have been thwarted by the way the mother has introduced the matter to the school.  This poisoning of the well is most inappropriate and unattractive. 

    Section 60CC(3)(ca)

22. Although the father has contributed but little in financial terms over the years, and indeed it is his case that the mother was the earner and he the parent, it needs to be borne in mind that he suffers from various disabilities which make employment difficult for him.  No criticism is in truth advanced by either parent under this subheading. 

    Section 60CC(3)(d)

23. The difficult issue in this case of course is the fact that the mother has relocated.  To an extent the father’s case is replete with criticism of this relocation.  That criticism, in my view, is both partly justified and partly not.  The notion that the mother by getting herself professionally qualified and pursuing that profession is acting selfishly to the detriment of her family is one I entirely and radically reject.  To the extent that any submission to this effect forms part of the father’s case (and I am not sure that it did at least in terms of formal submissions) it runs contrary to the way the world now is.  In my view, the mother’s attempts to advance her qualifications and profession are nothing but laudable.  They will enable her, if nothing else, to better provide not only for herself but for the children. 

24. The pity of it all is, of course, that it meant that she had to relocate.  The evidence clearly shows that she was unable to get placements anywhere near where she was living and the only placement she could get was at Employer D in metropolitan Melbourne.  Her decision not relocate in that sense is beyond criticism. 

25. Where the mother is open to criticism, of course, is the way she went about it.  True it is she foresaw, with some accuracy, that the father would respond, at the very least, difficultly to this relocation. Nonetheless, her self-help in moving on a unilateral basis not only deserves criticism on that footing but also because it immediately generated the legal proceedings that we now have.

26. That brings us back to the real question.  Should relocation of the children be permitted or not.  I will return to this when I come to the conclusion of these reasons for judgment.  It is a matter to be considered in light of all the relevant considerations, not just one criteria.  Nonetheless, it is immediately apparent that the children must live primarily with one parent and cannot live in a shared care arrangement when the parents are 170 or so kilometres apart. 

27. Previously they were in a shared care arrangement which might or might not have continued.  The mother says she was uneasy with it and it could not have continued.  Whether this is so or not, or whether this is a piece of reconstruction, it is not possible to say.  What is inevitable is that the children must in the primary household of one or other parent.

28. This will be disruptive and no doubt difficult for the children but they are loved in both households and the march of events so far suggests that the children at least at the time of the section 11F interview in March were not distressed. 

    Section 60CC(3)(e)

29. There are enormous practical difficulties and expense involved in these children’s arrangements as a result of the mother’s move.  It will unquestionably affect the way in which the children maintain their relationships with the non-resident parent.  This cannot, at least for the foreseeable future, be avoided.

    Section 60CC(3)(f)

30. I have no doubt whatever that the mother, together with the assistance of her mother, is able, fully, to care for the children’s needs including their emotional and intellectual needs.  She appears to be more open to the diagnosis of ADHD which, in truth, as I find, the father still does not really accept.  This suggests a keener attention or insight on her part to X’s needs.  The point to be noted, however, is that the mother cannot do this without the assistance of her own mother, which, I accept, will be provided on an ongoing basis even if the mother goes into accommodation on her own.

31. The father is, in my view, able to provide for the children’s needs, but I find would need the assistance of his parents to do so. Once again, however, this is not problematic in the sense that it seems clear that he will continue to live with his parents and will have that assistance readily available. Where the father, in my view, shows some deficit is in his lack of acceptance of X’s condition (he had no qualifications to justify the opinions he has expressed whatever). Furthermore, and accepting, of course, that the mother is pejorative and denigrating of the father to an extent, the father’s complete incapacity to see that there could be any advantages in living with the mother suggests a lack of insight which permeates his approach more generally.

32. The criticisms the mother makes of the father’s care need to be bounded about by the fact that there was an equal time regime for at least some time after separation and even if the father had the assistance of his family, this is not surprising given he was living with them and indeed it is noted that he still would be if the children are returned to his primary care. 

    Section 60CC(3)(g)

33. The mother has obviously got a very determined personality. She has got herself professionally qualified and is pursuing that profession doggedly. She struck me as being unduly dismissive of the father but as I find, this reflects her desire to win this case. The father was somewhat dismissive of the mother and once again this reflects his desire to win the case. As I have said, both exaggerated to an extent the true position that had obtained when they were together. The father, contrary to his denials, obviously has suffered from Schizophrenia and Agoraphobia in the past. There is simply no explaining away Dr P’s record. I accept that his conditions are generally well managed but it is a concern that he either does not remember or has suppressed his awareness of his prior conditions. He has denied bipolar but the fact is the record of it is there.

34. Beyond these matters, the circumstances and personalities of the parents strike me as unremarkable.  They are both perfectly decent people who have the misfortune to be in the midst of a curial dispute. 

    Section 60CC(3)(h)

35. This is irrelevant.

    Section 60CC(3)(i)

36. Both of these parents love their children very dearly.  They each want, as I find, to be the primary carer.  They have an understandable fear that they will be excluded or marginalised if they are not successful and that is in to an extent undeniable.  The nonprimary resident parent will see the children a lot less than they have done in the past.  This anxiety permeates the way in which this case has been conducted.

    Section 60CC(3)(j)

37. With the exception of the regrettable incident when the mother and her father attended the father’s parents’ premises, there does not appear to be any suggestion of family violence on the part of the mother.  So far as the father is concerned, he undoubtedly lost his temper in October 2020.  He threw the chair and swept the table.  He has screamed at the mother on occasions at changeover where (for example) he has been made aware of dental treatment but simply not listened to what the mother has said, as she described.

1. This brings us to another aspect of the matter I should probably have dealt with earlier.  I accept the mother’s evidence that during the relationship she was not in the habit of regularly partying late at night.  I accept that she only rarely went out until the last two or three months.  I accept that the father, in effect, wanted to keep her at home.  It appears, and this may well have much to do with the mother’s increased professional qualifications and confidence, that in the last few months of the relationship, the mother had reached a point where she decided to be more self-indulgent.  She started going out reasonably regularly for hours at a time and this annoyed the father.  This relationship was plainly moving towards its conclusion even if the particular matters that brought it to a head had not occurred.

   Section 60CC(3)(k)

2. The intervention orders that have been obtained in this proceeding do not, in my view, operate on the matter. 

   Section 60CC(3)(l)

3. It is immediately apparent that these parties need a conclusion and I will be making final orders.

   Section 60CC(3)(m)

4. This brings us, of course, to the critical and unavoidable question as to where the children should primarily live.  There is obvious force some of the father’s points.  The children have until the start of this year lived all their lives in the same area and have friends and family there and it appears that at least until March X was missing his friends a lot.  The section 11F report writer is also correct to say that there is something to be said for a single parent having primary care rather than living in a household where necessarily two people will always be sharing their care.  Against this, however, the mother, as I find, is the better equipped of herself to be the primary carer.  She is better organised, more insightful to the children’s difficulties and better able to help with those difficulties.

5. This is a distressingly finely balanced case. I think the children would be cared for well in either household. The trouble is that the judgment of Solomon is not one open to the court in this case. The children cannot be divided, either as between each other, or bifurcated. On balance, and noting all the relevant considerations, I think the children should be with the primary care of the mother, even though she will need the help of her mother to enable this to occur.

6. In saying this, I note that the maternal grandmother is wholly supportive of the mother, and the children are perfectly content to be with her.  The children have now been in their present school and home environment for over half a year, and there is nothing to suggest that they are not doing at least sufficiently well.  Specialist medical care, if required, is more likely, on balance, to be available when the children live in Suburb C than in Region B, although this is not to be taken as some overarching criticism of the facilities in that region.  I repeat again, this is a finely balanced matter.  Both of these parents can look after their children.  Neither household will be entirely optimal.  In the mother’s household, the care will be split between two people.  In the father’s household, it will be split, but to a lesser extent.

7. Doing the best I can in what is plainly a heart-wrenching situation for the unsuccessful parent, I think the mother’s greater insight and generally better-equipped capacity to organise tips the scale in favour of the children spending their primary residence with her.

   CONCLUSION

8. Once the decision is made that the mother and the children can relocate to Suburb C, in my view, most other matters fall somewhat away.  I accept the recommendation of the section 11F report writer, which has not in any way put in issue, that the children should spend two out of every three weekends with the non-resident parent, with changeover as recommended.

9. Orders should be made to require the mother to take appropriate steps to inform the father of all relevant health and schooling matters, and to enable the father to access any treating medical practitioner, and the children’s school.  There should be orders to provide for as much additional time as is practicable for the father, bearing in mind the mother’s rosters, and the children should go to the father when the mother is working on one of her own weekends, rather than spending the time with the maternal grandmother, with whom they will spend plenty of time in any event.  I see no reason why the father should not be made aware of the mother’s rosters, to enable this to occur.

10. I should finally deal briefly with the question of the wife’s brother Mr F. The father seeks that he be restrained from all contact with the children whatsoever and the mother seeks that he not be left alone with her children. The brother as I understand it is facing child pornography charges. I have been told nothing in any detail so far as I can recall exactly where those proceedings are and nor what their likely outcome is. Whether the brother is guilty or not will no doubt will be determined by the curial process. Nonetheless it is easy to see why the father is deeply concerned about this matter. It requires little reflection to conclude that the mother will not wittingly expose her children to the risk of abuse by her brother or indeed anyone else. Nonetheless, the father’s continuing anxiety about the matter is going to remain as a real difficulty and a likely future irritant if it is not assuaged. Given the nature of the allegations in my opinion it is appropriate that there be an order that the mother not permit the children to be in the company of Mr F unless there are at least two adult other persons present. This will mostly likely have the effect that the brother will only meet the children either in the presence of his parents or of larger family gatherings. In my view that is sufficient protection for any difficulties that this might otherwise create.

11. I have drawn draft orders which draw upon the parties’ proposals of detailed reflect those conclusions, but since some of the matters I have raised were not the subject of detailed (if any) submissions, I will hear from the parties further before making final orders. 

I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt.

Associate:  

Dated:       5 August 2021