CLARKSON & FELWOOD

[2010] FamCA 469

FAMILY COURT OF AUSTRALIA

CLARKSON & FELWOOD [2010] FamCA 469

FAMILY LAW – CHILDREN – Best interests – With whom a child shall live – With whom a child spends time – Parental responsibility.

FAMILY LAW – CHILD ABUSE – Emotional abuse

APPLICANT: Mr Clarkson

RESPONDENT: Ms Felwood

INDEPENDENT CHILDREN’S LAWYER: Mr Pennell

FILE NUMBER: TVC 1547 of 2007

DATE DELIVERED: 11 June 2010

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Mushin J

HEARING DATE: 4 May 2010 - 7 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Collins/Ms Mayes

SOLICITOR FOR THE APPLICANT: Rod Madsen Solicitors

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Pennell

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Emerson Family Law

Orders

IT IS ORDERED THAT

1. All parenting orders with respect to the children A born on … March 1997 and B born … December 1998 be and are hereby discharged.

2. The father have the sole parental responsibility for making long-term and day to day decisions of and for the children.

3. Without diminishing any of the father's responsibilities pursuant to paragraph 2 hereof, the decisions which the father has the responsibility to make pursuant to that paragraph include the following:

   a.all medical and other health matters;

   b.all education matters including, but not limited to, the choice of the children's schools and curricular, the provision of all school reports, photographs and communications from the children's schools and all like matters;

   c.for social development and sporting activities of the children; and

   d.all issues concerning the children's religion, faith and culture.

4. The children live with the father.

5. Subject to paragraph 6 hereof, the mother spend time with the children as follows:

   a.each Easter and September/October school holiday commencing at 10:00 a.m. on the day after the last school day thereof and finishing at 6:00 p.m. on the Friday immediately before the start of the next school term;

   b.from 10:00 a.m. on 8 December until 6:00 p.m. on 29 December of each year; and

   c.as may be otherwise agreed between the father and the mother in writing.

6. Paragraph 5 hereof be subject to the following:

   a.changeover for all times in accordance with paragraph 5 hereof take place at the … Park in C;

   b.the maternal grandmother, Mrs Felwood Snr, be substantially present when the mother spends time with the children in accordance with paragraph 5 hereof in September/October 2010 and December 2010, such presence to include times of changeover in accordance with sub-paragraph a.  hereof;

   c.commencing with the time which the mother spends with the children during Easter 2011, no other person is required to be present;

   d.no later than the commencement of each occasion of the mother spending time with the children in accordance with these orders she shall provide all contact details to the father including any address or addresses at which she proposes to house the children and at least one telephone number at which she may be contacted at all times;

   e.the mother forthwith advise the father of any health issue including any illness or injury requiring treatment by a third person; and

   f.or as otherwise agreed in writing between the parties.

7. The mother be and is hereby permitted to communicate with the children as follows:

   a.by sending each of the children a card and/or gift on each child's birthday; and

   b.by e-mail on not more than one occasion every second week. 

8. Any communication by the mother with the children pursuant to paragraph 7 hereof, including any card accompanying any gift pursuant thereto, be subject to the mother not breaching any provision of these orders.

9. The mother be and is hereby restrained from spending time or communicating with the children or either of them except in accordance with these orders.

10. The father and the mother each be and is hereby restrained by each of them selves, their servants and agents as follows:

    a.discussing any issue directly or indirectly relating to these proceedings with the children or either of them; and

    b.criticising the other parent in the presence or hearing of the children or either of them.

11. The mother be and is hereby restrained by herself her servants and agents as follows:

    a.criticising the father and/or the father's wife, Mrs Clarkson, in the presence or hearing of the children or either of them; and

    b.except for treatment for an urgent physical illness or injury, taking the children or either of them to any appointment or interview with any medical practitioner, social worker, a psychologist or similarly qualified professional without the written consent of the father or order of the Court first had and obtained.

12. The father and the mother keep each other informed of their current residential address, landline telephone number and mobile telephone number (if any) and email address (if any) and advise the other of any change thereto within seven days of such change.

13. The father forthwith advise the mother of any serious illness or injury suffered by either of the children requiring hospitalisation and give the mother the opportunity to visit the child in hospital PROVIDED HOWEVER that any such visit by the mother not be disruptive to the child, the hospital, the father or any other member of his family.

14. The father forthwith authorise any school which the children attend to provide the mother, at her expense, with copies of all school reports and school photographs of and relating to the children.

15. The mother forthwith to do all things and sign all documents necessary to enable the father to -

    a.register the names of the children in accordance with the spelling thereof in paragraph 1 hereof; and

    b.register his name as the father on the birth certificate of the child G.

IT IS HEREBY REQUESTED THAT

1. The Registrar of Births, Deaths and Marriages for the State of Queensland be and is hereby requested to consider making any alteration to the Register of Births maintained by the Registrar to give effect to paragraph 15 hereof.

IT IS DIRECTED THAT

1. The Registry Manager of the Townsville Registry of the Court cause a sealed copy of these orders together with a certified copy of the reasons for judgement delivered here in this day to be forwarded to the Director-General of the Department of Communities (Child Safety Services) of the State of Queensland.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 1547 of 2007

MR CLARKSON

Applicant

And

MS FELWOOD

Respondent

REASONS FOR JUDGMENT

introduction 

1. If there is one outstanding feature in these competing applications for parenting orders with regard to the parties' children presently aged 13 and 11 years, it is the extraordinarily high level of dysfunction between the parties.  That dysfunction has already had a significantly negative effect on the children which is most concerning.  It has split families and involved frequent interventions by Government agencies.

2. The initial proposals of the parties sought that the children live in the primary care of each of them.  The father did not want the children to spend any time with the mother.  The mother wanted the children to spend time with the father only when they wanted to.  During the trial, both parties modified their positions.  The mother accepted the reality that the children should live in the primary care of the father.  Although in one sense the ultimate dispute was reduced to the question of whether the children should spend time with the mother during school holidays on either two or four occasions each year, the circumstances of this case are such that I have regarded myself as being at large on all questions relating to the children.

3. As with every issue in this matter, the best interests of the children have required a consideration of the manner in which the appalling relationship between the parties might impact on the decision.  As I will detail in due course, the greater part of the responsibility for the situation lies with the mother.  Her lack of insight and perception have led her to make many decisions which are contrary to the best interests of the children.

4. Ultimately, the children are crying out to their parents to stop their fighting and to parent jointly in their interests.  As will be demonstrated, I can have no confidence that their cries will be heard.

The parties

The father

1. Mr Clarkson was born in 1978 and is presently aged 31 years.  He is employed as a tradesman.  He lives in C in western Queensland.

The mother

1. Ms Felwood was born in 1974 and is presently aged 35 years.  She has a number of employment qualifications, mainly in the machinery industry, including as a driver.  The mother swore that she is now trained as a machinery operator having completed an induction course with a mining company.  She also lives in C.

Their relationship

1. The parties commenced living together in approximately June 1996 and separated in early September 2003.

2. Following the separation, the father commenced a relationship with Mrs Clarkson ("Mrs Clarkson").  They started living together in December 2003 and married in December 2004.  They have two children by that marriage, presently aged five and three and are expecting their third child in October.

The children

1. There are two children of the parties' relationship who are both the subject of these proceedings.  The older child is A ("A") who was born in March 1997 and is presently aged 13 years.  A is in year 8 at the local State school in C.

2. The younger child is G ("G") who was born in December 1998 and is presently aged 11 years.  G is in year 5 at the same local State School.

Credibility

1. There are very few facts relevant to these proceedings on which the parties agree.  While it will not be necessary to make findings on every one of those facts, there are substantial areas of dispute which are directly relevant to the issues which I must decide.  Accordingly, it is appropriate that I now make some general findings with regard to the credibility of the main witnesses in these proceedings while noting the necessity to make individual findings from time to time.

2. There have been three main lay witnesses in this trial.  They are the parties and Mrs Clarkson.  The degree of resentment and bitterness between the father and Mrs Clarkson on the one hand and the mother on the other hand initially made me wary of the credibility of all three of them.  However, upon further consideration there are clear differences between them.

3. In my view, all three witnesses have exaggerated their versions of the facts at times. That is entirely understandable, given the trauma which has accompanied many of the relevant events.  However, a significant portion of the mother's evidence has been quite unreliable and, at times, improbable. Her lack of insight and perception have led her to understandings of events which are very unlikely.  While it is unnecessary to consider whether her evidence was deliberately untruthful, I have formed the view that its unreliability leads to the finding that to the extent that her evidence conflicts with that of either the father or Mrs Clarkson, unless I find to the contrary, I prefer the evidence of the latter two witnesses. I will detail that finding as necessary below.

4. There were two other important lay witnesses who gave evidence before me.  The first of those was the mother's brother, Mr D Felwood, who gave evidence on behalf of the father.  There is an enormous antipathy between the mother and Mr Felwood.  The most memorable feature of Mr Felwood’s evidence was the abuse and invective which punctuated his every sentence.  While there is evidence to suggest that he has some beneficial effect on the children, I have found it very difficult to rely on anything he said.

5. The second witness was the maternal grandmother, Mrs Felwood.  At times over the history of this matter, Mrs Felwood has supported the father's case but during this trial she supported the mother, her daughter.  She brought balance, insight and perception to the matter which had been sorely lacking in much of the other evidence.  I accept her evidence in its entirety.

6. I will refer to the evidence of the Family Consultant in due course.

The trial

1. The trial of this matter occupied five sitting days.  At the beginning of what should have been the second day of the trial, I was advised that counsel for the father could not continue for entirely understandable personal reasons.  Accordingly, the matter had to be adjourned until the beginning of the following week which involved a gap of three sitting days.  It then proceeded for a further four sitting days after which I reserved this judgement.

2. At the trial, the father was represented by counsel, having briefed a second counsel as a result of the matters described in the previous paragraph.  The mother represented herself throughout the trial which presented her with difficulties with which she coped remarkably well in all the circumstances.  However, because of that self representation she was effectively more at the forefront of the conduct of the trial than she would have been had she been legally represented.  Accordingly, I have had the opportunity to observe her over a significant period of time.

3. The Independent Children's Lawyer ("ICL)" was represented by counsel.

Relevant facts

The previous trial

1. The parties, together with a different ICL, conducted defended proceedings before me in October 2008.  On that occasion the father was represented by senior counsel, the ICL by counsel and the mother represented herself.  On 30 October 2008 being the fourth day of that trial, the parties resolved all but one issue and presented me with minutes of proposed orders in respect of which I made consent orders ("the consent orders").

2. The single issue reserved for my decision at the time of the making of the consent orders was the question of the children's names.  I heard evidence and submissions on the issue and held that their surnames would be "Clarkson" and that the name "Felwood" immediately precede the surname for each child.

3. The consent orders otherwise provided that the children live with the father, in whose care they had been since approximately May 2008.  He was granted sole parental responsibility, in particular in relation to any medical and wider health matters, their education, their social development, sporting activities and issues of religion and faith.  The father was required to inform the mother of any significant parenting issue.  The mother was granted time and communication with the children, if she lived within a 150 km radius of C, on each alternate weekend together with significant school holiday time.  In the event that the mother lived outside of a 150 km radius of C, her opportunities of spending time and communicating with the children were varied to accommodate the issue of distance.  The parties were required to inform each other of various matters including their residential and e-mail addresses and telephone numbers together with any changes thereto.  The parties were restrained from discussing the proceedings with the children and from criticising each other or other relevant people.  It is not necessary to describe the consent orders in any further detail.

4. The affidavits of evidence in chief sworn by the various witnesses in this trial sought to canvass the complete history of the parties and to effectively re-litigate the vast volume of facts from the commencement of the parties' relationship.  In particular, the affidavits contained literally hundreds of paragraphs of material relating to events prior to the making of the consent orders in October 2008.

5. At the commencement of the trial, following opening submissions from and on behalf of all parties, I ruled that the parties were not permitted to canvass any factual matter prior to the making of the consent orders without my leave.  Apart from anything else, the consent orders drew an evidentiary line under those factual issues and it was quite inappropriate to seek to canvass them again.  In the conduct of the trial, no application for leave was made and save for evidence by the Family Consultant referred to below, there was very little reference to those earlier events.

6. It is also appropriate to note here that all parties to these proceedings agreed that there were significant changed circumstances since the making of the consent orders such as to overcome any impediment imposed by the decision of the Full Court in Rice and Asplund (1979) FLC 90-725 and later authorities. I agree with that approach.

Facts since the making of the consent orders

1. I now turn to an examination of a number of incidents which were canvassed in detail during this trial, all of which occurred after the consent orders were made.

Consent orders to 30 May 2009

1. Virtually immediately after the making of the consent orders, problems arose with the mother's compliance with them.  The first issue appears to have been that of the children's names referred to above.  Several requests were made to the mother on behalf of the father seeking documentation to enable my decision to be complied with by way of application to the Registrar of Births Deaths and Marriages for the State of Queensland.  The mother did not cooperate in any way with compliance with my order.  On 7 May 2009 she wrote to the Principal of the children’s school complaining that the children had been denied freedom of choice by not allowing them to refer to themselves as ‘Felwood’. The mother was also critical of the school for not allowing A to attend football representative tryouts and for a lack of tutoring, and for not providing G with any counselling or support. As referred to above, the consent orders clearly provided for the father to have the sole responsibility for making decisions as to the children’s education, social development and sporting activities.  I find that these actions by the mother constitute a breach of the consent orders. 

2. The issue of the mother’s breach referred to in the previous paragraph was raised on behalf of the father at the end of this trial.  The mother assured me that she would sign all necessary documentation to give effect to the order.  On that basis, no further order is to be made at this stage regarding the children’s names.

3. It appears that at the time the consent orders were made the mother was living in Cairns.  In January 2009 there were difficulties between the parties with regard to the holiday time which the two children were to spend with the mother.  The mother alleged that the children, or at least one of them, had been permitted to travel by aeroplane when suffering from an ear infection.  The mother took the child to a doctor.  There is no evidence before me to establish that the father had acted inappropriately or contrary to the child’s best interests. On the contrary, had he withheld the children he would have been in breach of the orders unless he could establish a reasonable excuse. That would have undoubtedly exacerbated an already extremely difficult situation.

4. The mother moved to live in C in approximately the third week of January 2009 but did not tell the father of that move.  I accept the father's evidence that the mother spoke to the children in terms of maintaining a secret between them against the father.  I am critical of the mother for that.  Those conversations were regarded by the mother as a private joke for the children to share with her.  The children went along with that “joke” for awhile.  I criticise the mother for embroiling the children in that matter.

1. Following the mother's move to live in C, she commenced spending time with the children on every alternate weekend in accordance with the consent orders.  In addition, the mother attended the children's school and some sporting events at times other than in accordance with the orders.  In some instances that created considerable conflict which was entirely understandable given the relationship problems which I have referred to above.  Again, the mother breached the consent orders.

30 May 2009

1. The events of 30 May 2009 were a watershed in the parties' parenting of the children.  On that day the children were playing together outside the father’s home.  Mrs Clarkson was inside the house and the father was working on the property some distance away.  The children's play became overly boisterous and Mrs Clarkson, quite rightly, sought to discipline them.  A became upset and violent.  Mrs Clarkson sent him to his room.  A started destroying things in his room, hitting the walls and behaving quite unacceptably.  Mrs Clarkson contacted the father and asked him to return to the house to assist in disciplining A.  The father did that.  He spoke to A who calmed down to a certain extent.  With Mrs Clarkson’s approval, the father returned to his work on the property.

2. A short time later police officers attended the property.  They said that they had had a complaint that A had been "bashed".  In response to a request by the police officers, they were permitted to speak to A in his room.  Subsequently, the police officers informed Mrs Clarkson that they had been satisfied that nothing untoward had occurred and they would take no further action on the matter.

3. Senior Constable M, one of the police officers who attended the father's household that day, gave evidence in the father's case.  She swore that she had spoken to A in his bedroom and he had said he had been slapped.  Senior Constable M had a conversation with Mrs Clarkson who said there had been a fight between A and G, as a result of which A had been sent to his bedroom.  Senior Constable M formed the view that there was no evidence to warrant the police intervening.

4. Understandably, the father and Mrs Clarkson were most puzzled as to how the police were advised of this incident.  They subsequently discovered that the mother had given A a mobile telephone without their knowledge and that he had sent a text message to the mother asking her to call the police, telling her that he was being assaulted. In my view, the mother's act of giving A a mobile phone without first consulting the father is yet another example of her lack of insight into the consequences of her behaviour.

5. That matter, and particularly the question of any injury to A, was canvassed at considerable length and in detail during the trial.  I have carefully considered the evidence and find that the mother's allegations of injury to A have not been established, even to a prima facie level.  I find that the actions of the father and Mrs Clarkson during that incident were all appropriate parenting and were not excessive in any way.  In my view, A was behaving in an unacceptable and uncontrollable way such as warranted significant discipline.  Further, if he had not been disciplined in that or a similar manner, there would have been a significant risk of further compromise to the ability of the father and Mrs Clarkson to parent him appropriately.  I will return to that matter in due course.

June 2009

1. On Monday 1 June 2009 the mother collected the children from school contrary to the consent orders.  Those orders provided that the mother was to next spend time with the children on 5 June 2009.  The mother took the children to the local police station where she made a report to the police about the events of 30 May 2009 referred to above.  She alleged to the police on that day and in evidence during the trial that A had sustained injuries during this incident.  In particular, she alleged that Mrs Clarkson had hit or slapped A on the side of the face and there was a noticeable mark.  She also alleged that A had sustained an injury to his back as a result of having been dragged across a carpet.

2. Subsequently, the police contacted the father to advise him that the mother had complained that the children had sustained "disabling injuries" in the incident described above.  That evening, two officers of the Department of Communities (Child Safety Services) of the State of Queensland ("the Department") came to the father's home to discuss the incident on 30 May to enable the Department to undertake an assessment of the children’s care arrangements.  The father did not agree to that assessment.  From his point of view, nothing untoward had occurred to warrant such an intervention which, in my view correctly, he saw as being an unreasonable intrusion by the mother.

3. The Department officers left the father’s home to interview the children.  Later, they returned to the father's home and advised him that the mother was refusing to return the children.

4. On 2 June 2009 the father went to the children's school and informed the Principal that the mother had removed the children and was refusing to return them to him.  The Principal informed the father that she had spoken to the mother who had told her that the children would not be attending school until lunchtime that day.  Later that morning a detective from the local police station attended the father's household with regard to the allegations made by the mother, particularly that A had been punched, kicked and dragged by Mrs Clarkson.  Both the father and Mrs Clarkson strenuously denied those allegations.

5. The mother swore that the children returned to school on Wednesday 3 June 2009.  She alleged that the father had been aware of that and did not collect them from school.  Presumably on the mother’s version, as a result of the father failing to collect them from school the children remained living with the mother for the rest of the week.  There is no evidence to suggest that the mother made any attempt to inform the father that the children had been returned to school and were available for him to collect from there.

6. The father did not specifically respond to the allegations in the last paragraph.  In my view, it is very unlikely that the father would not have collected the children from school had he known they were attending.  On that basis, I do not accept the mother's evidence in that regard.

7. On 5 June 2009 the father filed an application in the Court seeking the suspension of all orders pursuant to which the mother could spend time and communicate with the children.  He also sought a recovery order.  The matter came before the Court on that day on an ex parte basis.  A recovery order was granted and the orders by which the mother was entitled to spend time and communicate with the children were suspended until further order. 

8. In order to execute the recovery order referred to in the previous paragraph, the State police attended the mother's home.  The children were extremely resistant to being removed from their mother's care and fought physically with the police officers.  The mother supported the children in that resistance and in doing so, in my view exacerbated an already extremely difficult situation.  The children were ultimately forcibly removed from the mother's home by the police and they also saw their mother handcuffed in order to restrain her.  I accept that this was an extremely traumatic event for the children which arose in part from the mother's actions in spending time with the children contrary to orders of the Court but in particular, from the mother in undermining the father's parenting pursuant to the consent orders.

9. The children were returned to the father's care pursuant to the recovery order referred to above.  The father, together with Mrs Clarkson, decided that it was appropriate to further discipline A for his behaviour.  A obviously has considerable ability in playing rugby, sometimes referred to as football.  He was scheduled to travel to Cairns with a representative team from C shortly after the above incidents.  By way of discipline, the father prevented A from going on that trip.  The father discussed the matter with A’s coach who agreed with that form of discipline.  In my view, that decision was not in A’s best interests.

June 2009 to present

1. From the time of execution of the recovery order until the present, there has been no order entitling the mother to spend time or communicate with the children.  Nevertheless, she has continued to see them surreptitiously from time to time which the father and Mrs Clarkson have found very disruptive for the children and reasonably so.  Her contacts with the children were at places such as sports occasions or in the street.  I find that in bringing about those contacts, not just at this time but at all other relevant times, the mother has had absolutely no regard for orders of the Court and particularly the consent orders.

2. One example of the mother's behaviour occurred on 13 September 2009.  The children were at a local football event.  The mother took G aside for approximately one and a half hours which was contrary to the Court's suspension of the consent orders.  I accept the father's evidence that when G returned to him she asked him about the court proceedings.  Following that conversation with the mother G was very unsettled.

3. The mother has breached the orders suspending her right to spend time and communicate with the children on many other occasions.  She spent such time with G during a Girl Guides excursion on 15 September 2009 and attended A’s rugby game on 18 September 2009.  On 6 October 2009 the father found another mobile telephone in A’s bedroom which contained a message from the mother giving him details of how to recharge the phone and ending with the message: "from the prettiest mum in the world".  From all the evidence, I infer that the phone was given to A by the mother.

4. On 16 October 2009 at S, the mother again had contact with G at a performance in which G was taking part.  The mother surreptitiously provided clothing for G and A and spent considerable time with G both before and after the show.

5. There are a number of other instances of the mother's breaches of the order which, had they been in different circumstances, would probably have been entirely appropriate parenting.  However, the evidence of both the father and Mrs Clarkson persuades me that the mother has no concept of the consequences to the children and their household of her actions in those regards, the results of which are to undermine the stability of the household and the ability of the father and Mrs Clarkson to parent the children appropriately.

Mother's involvement with the Department and the Queensland police

1. In addition to the mother's actions described above, she has involved the Department and the Queensland police on many occasions.  I now turn to an analysis of that issue.

2. During her cross-examination, Counsel for the father put to the mother that between January and April 2009 the mother had made six notifications to the Department alleging protection issues with respect to the parenting of the children by the father and Mrs Clarkson.  In response to the question seeking the concession of the number of notifications the mother swore: "roughly yes".  I accept that the mother made that number of notifications.

3. The mother also accepted that in the same period she had made two requests to the Queensland police for welfare checks on the father's household and the parenting of the children.  She stated that she was "unsure" about whether she had also made two complaints to the police.  I am satisfied that the mother made two requests for welfare checks in addition to two complaints to the police.

4. In April 2009 the Department made application to the Queensland Children's Court against the father for a protection order in respect of the children as a result of the mother’s allegations.  After negotiations, the Department withdrew the application on the basis of the father entering into an Intervention with Parental Agreement with the Department which, I accept, is quite invasive and of which the father and Mrs Clarkson are constantly aware.  In particular, as a result of the agreement staff from the Department visit the home of the father and Mrs Clarkson every three weeks.  It is unclear for how long this will continue.

5. During the trial, Counsel for the ICL referred to the potential interest of the Department in these proceedings.  That led me to require the ICL to obtain an assurance from the Department that they would abide by my decision in these applications.  While I do not suggest that the Department should not take proceedings in a State Court if appropriate, there is an obvious difficulty were this Court to make a decision which might then be the subject of further and independent consideration in another jurisdiction.  Ultimately, I was assured that the Department had been contacted and had confirmed that it would only move in another jurisdiction if any subsequent material warranted such action.  That is an entirely appropriate approach by the Department for which I thank its officers.

6. In addition to the six notifications by the mother to the Department, two requests for assessments and two complaints to the Queensland police, the mother has involved authorities, and particularly the Department, in this matter for many years.  There is no evidence to suggest that she has ever had a positive result from any such notification or complaint.  During cross examination, she conceded that she had been told by both the Department and the police that none of her complaints was substantiated.  There is no evidence to suggest the contrary.

7. Despite the fact that the mother has received no encouragement from either the Department or the Queensland police, she has continued to make complaints and has not accepted that all the evidence is against her.  The consequences have been very significant.  Apart from the complaints against the father and Mrs Clarkson, the mother has involved their family and friends to the extent that some of those people have disengaged themselves because of the mother's actions.  It is not necessary to go into detail on those matters.  The evidence was adduced through the father and Mrs Clarkson and I accept it.

8. The mother's actions have also caused considerable rifts within her own extended family.  I referred to the mother's brother, D Felwood, above.  I am very critical of the way in which he gave his evidence during this trial.  His extreme antipathy towards the mother arises from an allegation by her against him that he sexually abused her many years ago.  I am unable to make any determination of the truth or otherwise of that allegation.  It was not appropriate to explore it during this trial.

9. I have also referred to the maternal grandmother, Mrs Felwood, having previously supported the father's case but having basically supported the mother during this trial.  Her previous support of the father was another manifestation of the divisions which the mother has caused amongst many people relevant to this matter.

The Family Consultant

1. Ms P has been involved with this family since April 2005.  She completed family reports, the first of which was at that time and the later ones in April 2007, January 2008 and October 2008.  All of those reports were before me at the proceedings in October 2008 which resulted in the making of the consent orders.  However, in light of my ruling that the evidence could not go behind the consent orders, I have not had regard to those earlier reports for the purpose of this trial.

2. Ms P prepared a further family report for this trial which is dated 27 July 2009 ("the first report").  It is evidence before me.  In addition, a month prior to the commencement of the trial, application was made to me by the mother and supported by the ICL for an updated report to be completed by a family consultant other than Ms P.  It was asserted on behalf of the mother that Ms P was biased against her and accordingly should be excluded from further involvement in the proceedings.  It was submitted by the ICL that because of the mother's antipathy towards Ms P and to increase the prospect of the mother accepting whatever recommendation a family consultant might make, another family consultant should be appointed.  I rejected those submissions on the basis that at the time there was no evidence to substantiate the allegation of bias against Ms P.  Further, the fact that Ms P may have formed a view about the best interests of the children which did not suit the mother was not a reason in itself to exclude her from further involvement.  Accordingly, I ordered that Ms P should update her report for the purpose of this trial.  That updated report is also evidence in these proceedings.  It is dated 26 April 2010 ("the second report").

3. During cross examination of Ms P, the mother failed to put any question alleging that she was biased.  I pointed out to the mother that she should give Ms P an opportunity to respond to the allegation of bias.  The mother put a general question which Ms P denied.  Taking into account the entirety of Ms P’s evidence and all the other circumstances of this matter, I am satisfied that there is no basis whatsoever to the mother's assertion that Ms P is biased.

4. I find that Ms P’s evidence is professional, thorough and consistent.  It has an accurate factual basis and is entirely credible.  I accept that evidence in its entirety.  Otherwise, I will consider Ms P’s evidence below.

The parties' proposals

1. In their respective Initiating Application and Response, the father and the mother sought orders that significantly differed from those which they sought in their addresses at the end of the trial.  I set out the essence of those proposals below.  However, in addition to that which I have set out below, the father and the ICL both proposed various other orders which I do not need to detail at this time.  I will discuss those details in due course.

2. At the commencement of the trial Counsel for the ICL quite properly submitted that his client was not in a position to make a recommendation to the Court for determination of the matter at that stage.  That submission changed as the trial progressed.  There is no need to detail those changes.

The father

1. At the commencement of this trial, Counsel for the father submitted that I should order that his client have sole parental responsibility for both children.  He submitted that the children should live with the father and that no order should be made for the mother to spend time or communicate with the children.  It was submitted that the disruptive effect which the mother has on the children, and therefore on the parenting by the father and Mrs Clarkson, would never come to an end unless the mother were excluded from the children's lives.

2. During her final address, Counsel for the father submitted that in light of the evidence of Ms P discussed below the father's proposal should be varied to provide for the mother to spend time with the children for substantial periods of two out of the four holiday periods each year.

The mother

1. At the commencement of the trial the mother submitted that I should make orders providing that she have the sole parental responsibility for the children and that they should live with her.  She submitted that the father should spend time and communicate with the children at such times as the children chose.

2. During her final address, the mother recognized that I was probably against her in her primary proposal set out in the previous paragraph.  She was correct in that recognition.  At that point, the mother essentially recognized that the children would be in the primary care of the father who would also have sole parental responsibility for them.  Again on the basis of Ms P’s evidence discussed below, the mother submitted that in that event the children should spend substantial time with her during each of the school holidays. 

1. Despite the contents of the previous paragraph, I am not sufficiently confident of the mother's apparent change of her proposal to regard the ambit of the dispute between the parties as being narrowed to the question of whether the children should spend two, four or some other apportionment of school holiday periods with the mother and otherwise give effect to the father's proposal.  Accordingly, as previously noted, I regard myself as being at large on all issues including the question of the mother's original proposal detailed above.

The ICL

1. Counsel for the ICL essentially supported the father's proposal for determination of these proceedings.  He submitted that the children should live in the primary care of the father and that the father should have sole parental responsibility for them.  However, Counsel submitted that the order for the mother to spend time and communicate with the children should be more in accordance with her proposal than that of the father.  Again, the differences largely stem from the evidence of Ms P discussed below.

Discussion

1. I now turn to a discussion of the legislative framework within which I must decide these applications and apply the necessary facts to that framework to determine the relevant issues.

Children's best interests paramount

1. The fundamental starting point is that G’s and A’s best interests are the paramount consideration in my determination of the issues.  Best interests means "most important" as distinct from "sole".  There are various factors which I must take into account in determining those best interests which I will discuss shortly.

Legislative objects and principles

1. The next step in my consideration is of the rights of the children and the duties and responsibilities of the father and the mother as parents of the children.  The legislation sets out a number of objects relevant to the determination of parenting disputes.  Those objects place a primacy on ensuring that the children have the benefit of both their parents as parents.  However, it must be emphasised that the objects are subject to their being in the best interests of the children.  To that extent, the legislation provides that -

   ·the father and the mother should have "a meaningful involvement in [the children's] lives";

   ·the children should be protected "from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence";

   ·the children should "receive adequate and proper parenting to help them achieve their full potential"; and

   ·the mother and father must "fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children."

2. The legislation also contains a number of principles which underlie the objects detailed in the previous paragraph.  Again, those principles apply "except where it is or would be contrary to a child's best interests."  Those principles are -

   ·the rights of the children to -

   a)"know and be cared for by both their parents";

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

   c)enjoy their culture; and

   ·the obligation of both the father and the mother to "jointly share duties and responsibilities concerning the care welfare and development of the children."

3. The legislation also encourages parents to "agree about the future parenting of their children."

Legislative structure

1. The legislation sets out a structure by which I must decide these applications.  First, there is a rebuttable presumption that parents will equally share the parental responsibility of and for their children.  That presumption –

   does not apply if there are reasonable grounds to believe that a parent of the child … has engaged in … abuse of the child … or family violence. 

   Further, -

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

2. In this matter, neither party has, at any time during the proceedings, proposed that the parties should equally share the parental responsibility of and for the children.  In my view, that is an appropriate position for each of them to take for reasons to which I will refer in due course.

3. Secondly, in the event that the presumption referred to above were to apply, I would be required to consider whether it would be in the best interests of the children for them to spend equal time with each parent.  As part of that consideration I must determine whether it would be reasonably practicable for the children to spend equal time with each parent.

4. The legislation does not require a consideration of equal shared time in the present circumstances because there will not be an order for equal shared parental responsibility.  However, during the trial the possibility of equal shared time was referred to briefly by Counsel for the ICL.  That proposal was not developed in any way and did not become a serious issue.  Further, neither party has proposed that I should consider such an order.  Again, in my view that is an appropriate position for them to take for reasons to which I will also refer below.

5. The legislation also requires a subsequent consideration of what is referred to as the children "spending substantial and significant time with each parent".  Arising out of my above discussion with regard to shared parental responsibility and equal shared time, there is no requirement to consider substantial and significant time.  However, I will nevertheless consider such time as part of my overall consideration of the issues between the parties.

Children's best interests

1. I now turn to a consideration of the best interests of G and A which are fundamental to my determination of these applications.  The matters which must be considered are divided into two categories.  The first of those, the "primary considerations", refer to "the benefit to the child of having a meaningful relationship with both of the child's parents" and "the need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence." I will refer to both of those primary considerations as part of my discussion of the other factors relevant to the children's best interests which are referred to as the "additional considerations".

Best interests - children's wishes

1. Both parties and Mrs Clarkson gave evidence as to the children's wishes with regard to with whom they want to live and with whom they wanted to spend time and communicate.  As I have already outlined and will develop shortly, the antagonism between the two families is at such a high level that any expression of wish by either of the children to any relevant adult other than Ms P is to be regarded very warily.  It is clear that the children have expressed different views to different people and it is extremely likely that they have conditioned what they have said to what they believe the person to whom they are speaking would like to hear.

2. The second report was prepared on the express basis that the first report had been written approximately nine months before this trial and the children's wishes may well have changed.  Accordingly, the second report primarily considered the issue of the children's wishes.  In the second report Ms P wrote as follows:

   43.  The writer has no doubt that [A] and [G] wish to interact with their mother.  Whilst [G] expressed a wish to live with [the mother], if not at least see her, [A] was ambivalent as to living arrangements.  Indeed, after completing [G’s] interview the writer again enquired as to [A’s] wishes, (sic) he remained ambivalent.  When [A] indicated he would leave the decision to [G], the writer gently challenged his position.

   44.  It was evident to the writer that [A] and [G] do not wish to express an opinion that may upset a parent.  Given that the children have previously acted out against [the father], the writer concludes the children do not wish to hurt [the mother’s] feelings.

   45.  Consistent with past assessments, the writer has no doubt that [A] is protective of his mother. During this assessment, [G] also spoke protectively of [the mother].

   …

   51.  Whilst there is merit in considering [A] and [G’s] wish to at least spend time with [the mother], the writer is of the opinion that [A] and [G] do not have the cognitive capacity to objectively assess and evaluate the positives and negatives of such a relationship.

3. The grandmother swore that approximately two weeks prior to her giving evidence the children had asked her when they were going to see their mother.  G "desperately wants to see her mother."

4. While in many circumstances children of these ages, and particularly A’s age, may be considered to be sufficiently mature for the Court to place significant weight on their expressed wishes, in my view this matter is an exception.  For reasons which I will develop below, I find that the children have expressed wishes to spend at least some time with each parent.  However, issues of the children's psychological and emotional state arising out of their involvement in the parental conflict which has been forced on them, particularly by the mother, cause me to consider a number of other factors in determining the role of the children's wishes in my overall consideration.

Best interests - nature of child/adult relationships

1. The nature of the relationships which A and G have with the various adults in their lives is fundamentally conditioned by the parental conflict which is discussed below.  The children's relationships with the father have been remarkably good, given the extreme pressure under which they have been placed.  There have been numerous occasions on which one or other child has acted very badly towards the father and at times he has responded inappropriately.  There is no element of those relationships which act as a disqualifying factor against the father.

2. Likewise, Mrs Clarkson has been placed under enormous pressure with regard to her parenting of the children.  Ms P swore that Mrs Clarkson was "a positive influence" on the children.  She has an "affectionate relationship" with G.  However, A told Ms P that he and Mrs Clarkson "don't talk much".

3. My observation of both the father and Mrs Clarkson was that they regard themselves as having relationships with both children which might be described as being very good in all the circumstances.  In my view, they were sincere in those beliefs.  Nevertheless, the children expressed some negative views to Ms P which I do not regard as being of great consequence.

4. The relationships between the children and the mother are fraught.  The mother has involved both children in these proceedings and against the father and Mrs Clarkson in entirely negative ways.  While I accept that the mother genuinely believes that the children have good relationships with her and that they want to live with her, those relationships have been greatly damaged by the mother's actions which are discussed below.

5. Despite the fact that the children have not spent time with the grandmother for many months, in my view there is a strong positive bond between them. 

6. I also accept Ms P’s evidence that despite my negative views of the father, he has a positive relationship with both children who regard him as being something of a safe haven.

Best interests - each parent's attitude to fostering relationship with other parent

1. Because of the very high level of parental conflict to which I have already referred, the antipathy of the parents to each other is extreme.  It follows that neither of them is prepared to foster a relationship with the other parent.  However, in that regard I see the actions of the mother as having initiated this situation and those of the father as having been reactive and generally reasonable in all the circumstances.

2. As I have already found, the mother has involved external agencies in the issues regarding the best interests of the children in an entirely inappropriate manner.  That has continued despite the fact that she has been told that her concerns could not be corroborated and that no protective concern was held for either child.

3. In addition to the involvement of external agencies, the mother has undermined the father and Mrs Clarkson by her breach of orders and particularly her actions during the suspension of orders entitling her to spend time with the children.  Her unannounced attendances at the children's sporting and like events, during which she has taken the children aside and separated them from the father, have been not only disruptive of the children but have probably embarrassed them in the eyes of their peers.

4. The mother's provision of two mobile telephones to A without the knowledge or permission of the father has also been extremely disruptive.

5. The mother's actions described above stem directly from her extreme antipathy towards the father and Mrs Clarkson.  Particularly with regard to Mrs Clarkson, the mother's behaviour has been a disgrace.  The mother conceded that some years ago she made an abusive statement to Mrs Clarkson which was vulgar and racist.  The statement referred to Mrs Clarkson’s indigenous culture and is, in my view, totally unacceptable.  In the circumstances, Mrs Clarkson cannot be blamed for her extreme upset and antipathy towards the mother.

6. Neither parent speaks positively of the other with the children.  There is no photograph of the other parent on display in either home.

7. Accordingly, I find that neither parent is either willing or able to promote the children's relationship with the other parent.  However, that criticism must be made more stringently against the mother than the father.  The father has been the primary parent of the children for two years with absolutely no support from the mother and to the contrary, constant undermining of his parenting.

8. While the factor now under consideration only refers to the parents, the role of Mrs Clarkson in the children's lives has been of great importance.  It is therefore appropriate to consider the preparedness of the mother and Mrs Clarkson to promote the children's relationship with the other.  In my view, there is an even greater antipathy between the mother and Mrs Clarkson than there is between the mother and father.  Given my findings with regard to the mother/father relationship, that is, indeed, an extreme but appropriate statement.

Best interests - the status quo

1. The legislation requires me to consider –

   the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person … with whom he or she has been living. 

   While the quote in the last sentence is the precise wording of the provision, it is often referred to as the “status quo”.

2. The children came into the care of the father in May 2008 as a result of previous proceedings in the Court in February 2008.  They have been in his full-time care since then and have spent some time with the mother.  In all respects, the father has been the primary carer for the children since that time.  At all times, Mrs Clarkson has been an integral part of that primary care.  Removing the children from the father and Mrs Clarkson would therefore be a significant step to take and needs to be considered carefully.

3. The evidence persuades me that despite the undermining perpetrated by the mother and some significant behavioural problems on the part of the children, the care afforded to the children by both the father and Mrs Clarkson has been remarkably successful. The children are doing well at school and have appropriate extracurricular interests.

4. The children have important and positive bonds with the two children of the father and Mrs Clarkson.  In particular, I accept Mrs Clarkson’s evidence to that effect.

5. The children have also established important relationships with the father and his wife together with wider family and friends including those of Mrs Clarkson.  Accordingly, they have established a social network which is important to them and undoubtedly to their benefit.

6. On the basis of the above discussion, I conclude that the removal of the children from the primary care of the father together with Mrs Clarkson would be potentially very damaging to them.

7. The mother has had no formal time with the children since the suspension of the consent orders in June 2009.  However, she has had some time with them in covert circumstances described above. That time has been largely counterproductive to the children's upbringing in the care of the father and Mrs Clarkson.  However, Ms P’s evidence persuades me that the children's relationship with their mother is important to them and her.  If I were to deny the children any ongoing relationship with their mother, that could also be potentially very damaging to them.

Best interests - capacity to provide for the children

1. I am required to consider the capacities of the father, the mother and Mrs Clarkson "to provide for the needs of the [children], including emotional and intellectual needs."  There are other adults relevant to the upbringing of the children but these three are the most directly involved in that upbringing.

2. First, I consider the question of the physical and material needs of the children.  The father and Mrs Clarkson have lived in the same property in C since the children have been in their primary care for the last two years.  There has been no criticism of the physical and material circumstances of their home which appears, on all the evidence, to cater sufficiently to the children's needs.  The father is in paid employment outside the home, some of it self employment, and Mrs Clarkson performs a large proportion of the homemaking and parenting roles in the family.  However, I accept that in addition to the father's role as breadwinner, he performs a substantial homemaking and parenting role and is integrally involved in those regards in the family.

3. As I have previously found, the mother presently lives in C only a very short distance from the father's home.  She is employed on a full-time basis outside the home and at least has the capacity to earn a significant income.  There is no evidence with respect to the nature of her accommodation but in the circumstances, I am prepared to infer that it is at least adequate to enable her to care for the children.  I also infer that the mother has sufficient financial means to provide such care.

4. I now turn to the question of the capacity of the three relevant adults to provide for the children's emotional and intellectual needs.  At this point, there are significant differences between the father and Mrs Clarkson on the one hand and the mother on the other.

5. During his cross-examination, I became concerned that the father was too regimented in his parenting and did not provide sufficient warmth, spontaneity and emotional support for the children.  However, three aspects of the evidence have persuaded me that I was wrong in that concern.  The first was the evidence of the maternal grandmother who, given that she was supporting the mother's case, had no apparently ready motive to support the father.  In response to a question from me, the maternal grandmother spontaneously expressed herself as being very impressed with the caring nature of the father's parenting.  In particular, she referred to a memory of the father sitting on the top step of the entry to their home with A, cuddling him and being most supportive.

6. The second aspect of the evidence was by Ms P who expressed the view that the father was caring and warm in his relationship with the children.

7. The third aspect of that evidence was that of Mrs Clarkson.  While it would be very surprising if she were to criticise the father in that regard, I find that her evidence of his warmth towards the children was from her heart and entirely sincere.  I accept it.

1. At the end of the trial, shortly before I reserved judgement, the mother agreed to sign all necessary documents to give effect to the provisions of the consent orders with regard to the change of the children's names, referred to above, as well as the registration of the father as the father on G’s birth certificate.  Because the orders provide for a discharge of all previous parenting orders I have made a provision for the change of names and the inclusion of the father on G’s birth certificate in the orders. However, I have made them on the understanding that they are unnecessary given that all the requirements will have been performed by the time of delivery of this judgement.

I certify that the preceding one hundred forty-three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  11 June 2010