CLEARY & CLEARY

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLEARY & CLEARY

[2019] FCCA 3013

Catchwords:
FAMILY LAW – Children – Parenting Orders – where there are four subject children – where there is an 18 year old child – variation of parenting orders – where children have meaningful relationship with both parents – where best interest of the children considered – where mother seeks sole responsibility – where father seeks equal share parental responsibility – where factors under s 60CC of the Family Law Act 1975 (Cth) are considered – where there is evidence of family violence – presumption in favour of shared parental responsibility rebutted – where a change in residence is considered to be in the best interest of the children – where contact between the father and the children is to be suspended for 13 weeks – held that it is in the children’s best interests that they live with the mother and that the mother has sole parental responsibility.

Legislation:

Family Law Act 1975 (Cth), ss.10G, 13C, 60CA, 60B, 60CC, 61CA, 61DA, 65DAA, 68B

Applicant:

MS CLEARY

Respondent:

MR CLEARY

File Number:

PAC 3637 of 2018

Judgment of:

Judge Humphreys

Hearing date:

2 October 2019

Date of Last Submission:

4 October 2019

Delivered at:

Parramatta

Delivered on:

30 October 2019

REPRESENTATION

Counsel for the Applicant:

Mr Roberts

Solicitors for the Applicant:

Ms Searle, Caldwell Martin Cox

Solicitors for the Respondent:

Mr Bakoss, Town C Lawyers & Conveyancers

Counsel for the Independent Children's Lawyer:

Dr McConaghy

Solicitors for the Independent Children's Lawyer:

Legal Aid NSW

ORDERS

That the mother have sole parental responsibility for major long term decisions relating to the children [X] (‘[X]’) born … 2007, [Y] (‘[Y]’) born … 2013 and [Z] (‘[Z]’) born … 2016 on the condition that:
1.1The mother contacts the father in writing and provides her views about any such issue;
1.2The mother consults with the father in regard to any such issue;
1.3The mother and father will make a genuine effort to come to a joint decision about any such issue;
1.4If no agreement is reached between the parties, then within 14 days the mother shall make the final decision and advise the father in writing of the decision about any such issue.
That the children shall live with the mother if not spending time with the father.
2.1That the father shall, within 24 hours of these orders, deliver up to the mother or nominated representative, all of the children’s clothing, personal effects, toys and school items.
That the children shall spend time with the father as follows:
3.1For a period of thirteen (13) weeks from the date of these Orders no time and no communication;
3.2Commencing thirteen (13) weeks from date of these Orders and continuing thereafter, the children shall spend time with the father during the school term on each alternate weekend from the conclusion of school Friday until the commencement of school Monday following (Tuesday if a long weekend or pupil free day);
3.3Subject to Order 3.1, during the school holidays:
(a)For a period of one week during each short school holiday period and being from 10:00am on the middle Monday of each short school holiday period until 6:00pm the day before school commences;
(b)Until [Z] commences Year 2 at school for alternate one week blocks during the Christmas school holidays commencing with the first week in even numbered years and the second week on off numbered years;
(c)From when [Z] commences Year 2 at school and thereafter, for the first half of the Christmas school holiday period in each year ending in an even number and for the second half of the Christmas school holiday period in each year ending in an odd numbered years;
(d)In odd numbered years, from 12:00pm 25 December to 12:00pm 26 December and each year thereafter;
(e)In even numbered years, from 12:00pm on 24 December to 12:00pm 25 December and each year thereafter.
3.4For special occasions:
(a)On the Father’s Day weekend from 5:00pm Friday until 2:00pm Sunday and provided that if Father’s Day falls on a weekend that the father does not have the children, then in substitution he shall spend time with the children on the Father’s Day weekend in accordance with Order 3.2;
(b)On Mother’s Day the father’s time shall be suspended and in substitution he shall spend time with the children on the following weekend in accordance with Order 3.2.
Pursuant to s 68B of the Family Law Act 1975 (Cth), that for a period of thirteen weeks from the date of these Orders, the Father is restrained from contacting the children:
4.1In the event that the father contacts any of the children during this period, the children’s’ time with the father pursuant to Orders 3.1 and 3.2 is suspended and shall not commence until thirteen (13) weeks after the date of contact.
4.2The father is further restrained from encouraging, allowing, causing, permitting or otherwise acquiescing to the children or any of them entering his care and/or control otherwise than in accordance with these orders or as agreed between the parents. This includes but is not limited to, allowing, causing, permitting or otherwise acquiescing to the children or any of them entering into any residence where he may live or otherwise be present other than when the children are spending time with him pursuant to these orders or as engaged between the parties.
Pursuant to s 13C of the Family Law Act 1975 (Cth), the Mother shall forthwith and within seven (7) days contact the intake officer of Family Counselling Service A to arrange and attend the first available and offered intake appointment for the assessment of suitability for Family Counselling services for [X] by that organisation and subject to the assessment of suitability, and shall then:
5.1Attend at such times, dates and places as may be advised;
5.2Pay such fees as may be charged;
5.3Participate in and complete such sessions of Family Counselling as assessed as suitable and offered.
For the purpose of changeover, changeover shall occur at the children’s school or if on a non-school day at Suburb B McDonald’s.
Each party shall advise the other within 7 days of updated contact details that the other party or the children may be contacted on.
Each of the parties shall advise the other party promptly in the event that any of the children suffers from any significant illness or injury that requires the treatment from a medical specialist or hospital.
That the parties shall exchange information relevant to the care, welfare or development of the children via SMS or email, and in case of emergency shall communicate with one another by way of telephone.

10. That each party are restrained from:

10.1Denigrating the other parent in the presence or within hearing of the children and shall immediately remove the children from the presence of any other person who does so;
10.2Denigrating any other person with whom either parent has a relationship with including members of the other parent’s family, and shall immediately remove the children from the presence of any other person who does so;

11. That both parties are hereby both authorised to obtain information from any treating medical practitioner, hospital and/or health care professional concerning any medical treatment provided to and/ or the health of the children.

12. The process to be used for resolving disputes about the interpretation, implementation or enforcement of these orders is as follows;

12.1The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act or by the Commonwealth Attorney General or
12.2The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Family Law Act 1975 (Cth).

13. For the purpose of Orders 5 and 12, leave be granted to provide to the counsellor or mediator with a copy of these Orders.

14. Pursuant to section 121 of the Family Law Act 1975, leave is granted to the parties and their legal representatives to provide a copy of these Orders to:

14.1any school, education institution, or care provider;
14.2any treating medical practitioner, hospital, or health care professional;
14.3any government department or instrumentality;
14.4any sporting team

that may seek or require to hold a copy of these Orders for the purpose of discharging any duties, legislative, or policy requirements on the condition that these Orders are not further published and are held by the relevant person or entity seeking them in accordance with the Australian Privacy Principles as set out in Schedule 1 of the Privacy Act 1988.

15. A copy of this Judgment may be provided to NSW Police and the Local Court of NSW in respect of the current Apprehended Domestic Violence and Assault proceedings between the applicant and respondent.

16. The Independent Children’s Lawyer is to remain briefed in the matter for a further 12 months from date of these orders.

17. Following the Court adjourning after the delivery of Judgemnt in this matter, the respondent is to immediately leave the Court building and remain at least 500m from the Commonwealth Law Courts Building, 1-3 George Street Parramatta, until close of business 30 October 2019.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3637 of 2018

MS CLEARY

Applicant

And

MR CLEARY

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern parenting matters between Ms Cleary (“the applicant”) and Mr Cleary (“the respondent”) (“the parties”). The parenting proceedings are in relation to the children; [X] born … 2007 (12 years of age), [Y] born … 2013 (6 years of age) and [Z] born … 2016 (3 years of age) (“the children”).
The matter was heard at Parramatta over three days, commencing on 2 October 2019 and finishing on 4 October 2019. Subsequently, written submissions were received from the respondent. To the extent that they make submissions on matters of law and evidence, they have been considered. To the extent that they contain either new objections or additional evidence, they have been ignored, as evidence in the matter was finalised at the conclusion of the hearing.

Background

The relevant background facts to the matter are as follows:
·    In 1972 the respondent was born. The respondent is currently 47 years of age.
·    In 1979 the applicant was born. The applicant is currently 40 years of age.
·    The parties commenced cohabitation in 1999 and married on … 2000.
·    On … 2001, a now adult child of the marriage, Ms J Cleary, was born.
·    On … 2007, [X] was born, followed by [Y], born … 2013 and [Z], born … 2016.
·    Property matters between the parties have been settled with the result that both parties live in their own homes in the Town C area, situated about 7km from each other.
·    Allegations have been made, which will be dealt with later, that the respondent has engaged in a course of conduct of domestic violence. This includes the applicant alleging that the respondent stated “I will choose your friends”, that the respondent was unhappy with the choice of hairdresser by the applicant, that the respondent forced the applicant to have sex with him on a daily basis and that the applicant was forced to send a text message to her friends indicating that she would no longer be seeing them.
·    On 16 May 2018, the applicant underwent surgery. She stayed in hospital for some time, before returning home for what was anticipated to be 6 weeks of sick leave in total.
·    On 24 May 2018, the parties separated on a final basis. It is common ground that the applicant left the family home in her night attire together with a small bag of clothing. It is common ground between the parties that the respondent refused to provide the applicant with the keys to the family vehicle that she used, noting that he used another vehicle provided by his work on a daily basis.
·    The next morning the respondent withdrew funds totalling approximately $21,000.00 from a joint account held with the applicant, leaving the account with a nil or debit balance. This account was where the applicant’s pay was deposited. By so doing, the respondent left the applicant without access to any funds.
·    On 6 August 2018, the applicant filed an initiating application for parenting and other orders. Interim orders were made on 27 August 2018 by consent, which included orders for the children to spend time with the applicant from after school Friday until 7pm Saturday with such time to be supervised by one of the applicant’s friends.
·    On 28 September 2018, the children spent time with the applicant. [X] did not bring his X-Box headset with him and became upset. [X] request to go back to the respondent’s home which was facilitated by the applicant.
·    Since then, [X] has not spent time with the applicant other than during two family therapy sessions.
·    On 12 October 2018, the oldest daughter, Ms J Cleary, attended the applicant’s home and questioned the applicant in relation to the property settlement between her and the respondent. This specifically related to a request that the applicant not touch the respondent’s superannuation and shares. Before leaving, Ms J Cleary also asked the applicant if she had a boyfriend.
·    On 19 December 2018, further consent orders were made, which provided for the children to spend time with the applicant:
(a)Each Wednesday after school/ pre-school until before preschool/school Thursday and;
(b)Each alternate weekend from after preschool/school on Friday to before preschool/school on Monday.
·    An additional order was made for [X] to attend family therapy with the applicant.
·   On 13 February 2019, the orders made on 19 December 2018, were amended pursuant to the slip rule, correcting the typescript, reflecting that the children spend overnight time with the applicant on Wednesday. The respondent had previously refused to allow the children to spend time with the applicant overnight on Wednesday.
·On 25 March 2019, the parties settled the property aspect of the proceedings between them.
·On 24 April 2019, the applicant attended the formal matrimonial home to collect the two younger children in accordance with Court orders. The respondent, holding [Y]’s hand, asked [Y] to tell her mother why she did not want to spend time with her mother. This incident escalated into violence. The respondent alleges that the applicant punched him in the chest. It is uncontested that the respondent then pushed the applicant backwards with both his hands. The applicant called police who attended but ultimately charged the applicant with assault and issued an Apprehended Domestic Violence Order. This is listed for hearing at Town D Local Court in November 2019.

Proposals of the Parties

The applicant proposes that she has sole parental responsibility, that [X], [Y] and [Z] live with her and spend time with the respondent on alternate weekends.
The respondent initially proposed that he have sole parental responsibility and that the children live with him. The respondent proposed that [X] spend time with the applicant in accordance with [X]’s wishes. The respondent proposed that, if the Court found issues with the applicant’s mental health that the children spend no time with her. The respondent proposed that if the Court did not make that finding then the children can continue to spend time with the applicant as per the current arrangements.
At the conclusion of evidence in the hearing and during submissions, the respondent varied his proposal to include the following:
a)That the parties have equal shared parental responsibility for the three children.
b)The children live with the respondent and the applicant on a week on/ week off basis.
c)That [X], [Y] and [Z] continue family counselling with the inclusion of the applicant and respondent, however the counsellor is not to be a named person who had previously undertaken family therapy between [X] and the applicant.
d)Both the applicant and respondent complete a 1, 2, 3 Magic course at Family Counselling Service A.

Parenting Matters

The Law

The relevant statutory provisions applicable to proceedings in relation to children are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”)
Section 60B of the Act sets out the objects and principles of Part VII of the Act as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

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

Section 60B(2) of the Act, relevantly provides as follows:
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)     children have the right to know and be cared for both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)     parents should agree about the future parenting of their children; and
(e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture
Section 61DA of the Act, relevantly provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

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

Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
This is also confirmed by s 65DAA(2)(d) of the Act:
Consider whether the child spending substantial and significant time with each of the parents is reasonably practicable.
Section 60CC of the Act sets out a list of matters that the Court must consider in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all the matters in s 60CC of the Act, the central issue in those proceedings is balancing the primary considerations set out in s 60CC(2) of the Act against one another. Those considerations are as follows:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

In balancing these considerations, s 60CC(2)(a) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence (s 60CC(2)(b) of the Act).
Section 60CC(3) of the Act sets out additional considerations in determining what is in the child’s best interest. Broadly, these considerations deal with the following matters:
a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and

(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

The task of applying s 60CC(3) of the Act – Additional Considerations, is an evaluative exercise that necessarily involves the trial Judge determining what weight should be given to each relevant consideration. Each of the considerations found in s 60CC of the Act must be taken into account and needs to be considered as regards to each of the three children, who are the subject of these proceedings.

Involvement of the Independent Children’s Lawyer

Pursuant to orders made by the Court, an Independent Children’s lawyer was appointed (ICL). Dr McConaghy of Counsel, who appeared for the ICL, provided the Court with two alternate Court orders.
The first was that each of the children should live with the applicant and that she should have sole parental responsibility for major long term decisions, subject to consultation with the respondent in an attempt to reach a joint decision. That the children spend time with the respondent as follows:
a)For a period of 13 weeks after the date of these orders, no time and no communication occur between the children and the respondent.
b)Commencing 13 weeks from this order and continuing thereafter, the children spend time with the respondent during school term on each alternate weekend and periods of time during the school holidays.
c)That during the period of the 13 weeks since the orders, the respondent be restrained from contacting the children and in the event of the respondent contacting the children during that period, that time spent with the respondent is suspended and should not commence until 13 weeks after the date of contact.
d)The applicant arrange for suitable family counselling services for [X].
e)The each party be restrained from denigrating each other in the presence of the children.
In the alternative, it was put that the applicant have sole parental responsibility in relation to [Y] and [Z] with shared parental responsibility for [X]. That the children [Y] and [Z] live with the applicant, if not spending time with the respondent and that [X] live with the respondent, if not spending time with the applicant. That for a period of 8 weeks at the date of these orders, the respondent be restrained, as set out above, from having contact with either [Y] or [Z].
It was indicated that the ICL would reserve her view as to the appropriateness of each of these alternatives put above until the hearing of evidence in the matter.

The Evidence

Evidence of the Applicant

The applicant gave evidence in an updated affidavit dated 26 September 2019. The evidence was of a troubled relationship which was punctuated by controlling behaviour by the respondent. The applicant mother freely admitted that she had two extra-marital affairs, one approximately 14 years ago and one in April 2017.
The applicant alleges that in July 2017, the respondent made her send a text message to her friends that included that she would no longer socialise on social media or see her friends.
In around July 2017, the applicant alleges she was asked by the respondent not to resume the role at her work, which was a position she had been in before she had the youngest child [Z]. The applicant alleges that the respondent said words to the effect of “No. You can’t do it. It’s not good for you. The only person you need to talk to is the manager.”
The applicant alleges that the respondent would come into the workplace where she was working unannounced and this was evidence of controlling behaviour on his part.
In about August 2017, the applicant started seeing Ms E, who is a psychologist.
In around January 2018 when the applicant arrived home from work at around 12:30am, the respondent would request that they have sexual intercourse every night. The applicant alleges she was sexually assaulted approximately 16 years ago when the respondent attempted to anally penetrate her very roughly.
In or around March 2018, the respondent indicated to the applicant that he did not want her spending time with others including work colleagues, but only with him and said that “I will choose your friends”. Around the same time, the respondent took offense at a friend of the applicant, Ms F, cutting the applicant’s hair. The respondent said words to the effect of “why do you need her to cut your hair? She’s touching your hair stop. Go somewhere else”.
On 16 May 2018, the applicant underwent elective surgery.
On evening of the 24 May 2018, an argument ensued as the respondent suggested that the applicant had overridden him as a parent in relation to [X] doing his homework instead of cleaning the floors.
During the course of the argument, the respondent is alleged to have stood over the applicant while she was in bed and taken her mobile phone from her. The respondent demanded that the applicant inform him of who she had spoken to in an 18 minute phone call that had occurred the previous day.
During the course of the argument, the applicant told the respondent that she did not love him anymore and that she did not want to be with him. The applicant was told by the respondent that she was a bad mother and that she didn’t deserve to live in the house.
The applicant then packed her hospital bag and proceeded to leave the house. The applicant went to take the car keys for the vehicle that she generally used, however the respondent took them out of her hand and said “that’s not yours”. The respondent also told her “you don’t deserve to live in this house”. The respondent is alleged to have said “the children are mine. I will fight to keep them from you with every cent that I have. They are not your children”.
The applicant left the family home in her pyjamas with very few clothes and no personal belongings, except for her phone and a small purse with her drivers’ license, bank card and $10. The applicant made contact with a friend and stayed with her at her home in Town C while she recovered from surgery.
Following the separation, the applicant attempted to make contact with the respondent. The applicant alleges she attempted to make contact on number of occasions to arrange a time to see the children and collect her personal belongings. On 28 May 2018, following contact with the respondent via text, the respondent replied: “your clothes will be placed on the front lawn at 10am tomorrow morning. Any other items will be decided at settlement”.
On 31 May 2018, the applicant instructed her solicitor to write to the respondent, requesting to allow her to spend time with the children. No response was received. A further letter was sent on 22 June 2018, no response was received.
On Friday 27 July 2018, the applicant went to [X] and [Y]’s school at Suburb G. The applicant went to [Y]’s class. The applicant alleges that the first thing [Y] said to the applicant was “Dad said you have been naughty and you’re stealing things”. When the applicant attempted to see [X], he said “No. You have done bad things” and ran back to the school. The applicant left [X] at school, later collecting [Z] from preschool and spent time with [Z] and [Y] in the afternoon.
Despite requesting to spend time with the children, this was not agreed to until the applicant filed an initiating application in this Court and consent orders were made on the first return date.
The applicant continues to work full time at Employer H from either 7am to 3pm or from 3pm until 12am, depending on when she has the children. The applicant has each Wednesday off and works on the weekends that she does not have [Y] and [Z].
Immediately following the separation, the respondent withdrew $21, 209.57 from the applicant and respondent’s joint ANZ bank account and put it into his sole account with ANZ. As a result, the applicant had no access to money until she was declared medically fit to return to work on 1 July 2018. On or about 24 October 2018, the respondent withdrew $4,921.00 from their joint account, which was the proceeds of a dividend.
As a result of the property settlement between the parties, the applicant now resides in premises owned by her at Suburb I, which is approximately 10 minutes from the former matrimonial home at Suburb G. The respondent continues to reside in the former matrimonial home.
The applicant confirmed she had not seen [X] since an incident on 21 September 2018, when he did not bring his head set with him from the respondent’s house and returned him home at his request.
The applicant confirmed that the eldest daughter, Ms J Cleary, who is now 18, attended her premises at Suburb I around 12 October 2018 and said to her, words to the effect of “you need to leave the super and share’s alone. You can have Suburb I and Suburb J and you’ll be set and all you’ll have to do is work and pay the bills and you’ll have your own home. You are taking away our future by eating into the shares and super, you have a choice to make with that”.
In terms of the incident on 24 April 2019, the applicant states she arrived at the Suburb G home to collect [Y] in accordance with orders of the Court. [Z] was at day care. The respondent came to the door, holding [Y] tightly by the hand and said to [Y] “Tell mummy why you don’t want to go with her”. The applicant states that she crouched down to speak with [Y] and the respondent pulled [Y] back. The applicant stood up and the respondent pulled [Y] inside. The applicant walked towards the door entrance where the respondent pushed the applicant backwards with two hands and attempted to close the screen door. The applicant denies punching the respondent in the chest as alleged. The applicant confirmed that upon arrival of police, she in fact was charged with assault and an AVO has been issued against her by police.
In response to allegations of mental health problems, the applicant confirmed that she is seeing a psychologist, Ms E. The applicant is following all of Ms E’s recommendations for treatment. The applicant indicated that she was prepared to continue to undertake counselling and family therapy with all of the children and in particular [X].
Attached to the applicant’s affidavit was a letter from her supervisor from work confirming that the applicant has adjusted her permanent hours and that her work is willing to adjust her total working hours if needed, to support the children.
During cross examination, it was put to the applicant that the respondent had not stood over her while she was in bed on the evening of the separation. The applicant conceded that the respondent had been the primary giver during the afternoon when she had been working. It was put to the applicant that she voluntarily had sex with the respondent even though she did not want to. It was also put to the applicant that she did not report to police, the alleged sexual assault, which she referred to in her affidavit. It was put to the applicant that she was not physically forced out of the home and that since then, the respondent had been looking after the children.
During cross examination by the ICL, the applicant was asked how she would rearrange her working life if she had sole parental responsibility for any of the children. The applicant replied that she would work school hours and not work on weekends. The applicant was asked how many bedrooms were in the house that she currently occupied and replied, three. If the applicant had responsibility for the children, [X] would have his own bedroom and [Y] and [Z] would have to share. The applicant conceded that [X] may remove himself from the premises if he is forced to go there. The applicant was asked what her plan was for [X]’s mental health. The applicant replied that she would really like [X] in therapy. Equine therapy had worked in the past. The applicant conceded that she would continue to need to have therapy in relation to both herself and the children, in an attempt to allow them to understand what has happened and how they can deal with it. The applicant described her relationship with [Y] and [Z] as wonderful. In relation to the incident of family violence, which has been described above, that occurred on 24 April 2019, the applicant was asked what she might do differently to avoid it. The applicant indicated that it would be best to have any change over occur at a public place, rather than at either of the applicant or the respondent’s homes.

Evidence of Ms K

Ms K is a friend of the applicant and worked with her at Suburb L Employer H for a number of years. When the applicant was still living at the Suburb G property, she would visit the applicant about twice a week. Ms K noticed that the applicant would be frequently cooking a meal for the family to eat for when she was at work. The house was certainly not spotless but it was homely and in the condition that Ms K would expect the house to be with 4 children living in it. Ms K confirmed that she received a text message from the applicant to say that there was to be no more contact between the applicant and herself. Ms K later found out that other persons had received the same message.
Ms K confirmed that she supervised the applicant and her children on approximately 7 occasions during her visits. Ms K observed that the younger two of the children had a good relationship with the applicant and that initially, [X] was happy to see his mother. Ms K was present when [X] asked to return to the respondent’s home because he did not have his X-box headset with him. When [X] was taken home to the respondent premises, he did not return.
Ms K was present at the April 2019 incident. At around 3:10pm, the door opened and the respondent came out with his hand around [Y]’s wrist. The respondent said “[Y] does not want to go with you”. The applicant said that she needed to hear it from [Y]. The respondent said, again, that “[Y] does not want to go with you”. Ms K saw the applicant’s eldest daughter, Ms J Cleary, inside the doorway of the house and formed an impression that she was recording the events outside. Ms J Cleary said to the applicant, “You’re a fucking cunt”. The applicant got down to talk to [Y] and said “Tell me why you don’t want to come with me, it is doughnut day”. [Y] put her head down and appeared to be very sad. The respondent was still holding [Y] by the arm. The applicant stood up from speaking with [Y] and took two steps forward. Ms K noticed that the applicant put her right hand on the doorframe and was unable to see exactly where the applicant’s left hand was, but knew it was somewhere near the door frame. The next thing Ms K knew, was that the respondent had put both hands on the applicant’s shoulders and shoved her back. Ms K put her hand out to stop the applicant from falling over. The respondent went inside and closed the door. Ms K called the police and they arrived about 10 minutes later. They spoke to the applicant, then went inside and spoke to the respondent. The Police told the applicant that she was under arrest for assault.
Ms K confirmed that although she was an independent witness to the incident, police did not take a statement from her at the time and have not taken a statement from her since.

Evidence of Ms E

Ms E is a registered psychologist and has seen the applicant on approximately 40 occasions since August 2017. Ms E stated that the applicant was compliant in treatment and has been engaged with it. Since Ms E commenced seeing the applicant, her depressive symptoms have significantly reduced. Ms E was of the view that the applicant is capable, emotionally and mentally, to provide for the care of the children. Ms E confirmed that the following are not present in the applicant:
a)    Drug or problematic alcohol use
b)    Thoughts of self-harm
c)    Thoughts of harm towards others
d)    Psychosis, perceptional disturbances and delusions
e)    Thought disorder
Ms E stated that the applicant is observed to be a loving and caring mother, who Ms E believes, has the capacity and is highly motivated to provide her children with an emotionally supportive, safe and loving home. In her opinion, the mental health issues that were discussed, did not impact on her ability to provide for the needs of the children.
During cross examination by Dr McConaghy, Ms E categorically stated that there was no evidence of schizophrenia or schizophrenia symptoms being present in the applicant.

Evidence of Ms F

Ms F is a business owner and team member of Employer H. Ms F stated that she was a nominated supervisor in accordance with the Court orders made on 27 August 2018, in relation to time spent with the children by the applicant. Ms F stated that she was surprised and upset to hear that [X] had stopped coming over as he seemed quite happy and relaxed on the previous times that she had been supervising. Ms F observed that [X] appeared to have a loving interaction with the applicant, including sitting and cuddling with her on the lounge. Ms F stated that she has observed the applicant prepare and cook meals that are both nutritious and varied. Ms F has observed that the applicant’s home is clean and tidy and that the applicant is always calm with the children.

Evidence of Ms M

Ms M is also a friend of the applicant who was a nominated supervisor of the applicant’s time with the children on some seven different occasions in between September and December 2018. Ms M was present when Ms J Cleary attended the applicant’s house in October 2018 and heard her say words to the effect, “don’t touch the shares or dad’s superannuation”. Ms M stated that as soon as the applicant told the children that they were going back to the respondent’s house, she observed [Y] to become withdrawn and that [Y] had said on one occasion that she wanted to “Stay with mummy”. Ms M noted that on occasions when the applicant has tried to speak to the respondent at changeover, he does not respond and glares at her. Ms M confirmed that she received a text message from the applicant in 2017, saying she could no longer see her friends. About two weeks later, Ms M saw the respondent in Kmart and asked what was going on. The respondent replied “we are having marriage problems, leave Ms Cleary alone. You won’t be seeing her again”. Ms M said “do you mean ever?” The respondent replied “Exactly”.

Ms M also indicated that she had also seen the respondent in late 2017 at a dance concert. Ms M went up to the applicant and said hello. Ms M stated that the respondent glared at her, so she walked away. About 10 minutes later, the respondent found Ms M and said words to the effect “leave us alone, don’t contact Ms Cleary again”.

Evidence of the Respondent

The respondent gave evidence by way of affidavit dated 26 September 2019. The respondent confirmed in his affidavit that on 24 May 2018, following the applicant’s surgery, he went into the bedroom to ask her about an 18 minute phone call on her phone, while she was in hospital. The respondent states that he did not yell at her or touch her, but merely watched her walk out the door of their family home.
The respondent confirmed the assertion that the applicant was unfaithful to him on two occasions.
The respondent asserts that he has told [X] on many occasions that he needs to spend time with the applicant but that [X] has expressed desire to not spend time with her. The respondent states that [X] has expressed a clear view he does not want to see the applicant. The respondent asserts that one of the reasons for this, was that in around 2018 when [X] was spending time with the applicant, he wasn’t treated well. The respondent asserts that [X] was ignored by the applicant and also Ms M, who was the nominated supervisor. The respondent states that [X] has attended counselling on various occasions, but dislikes the counselling and dislikes attending such counselling, despite the respondent encouraging him to attend.
The respondent denies talking negatively about the applicant to the children but has concerns that she talks negatively about him to the children.
In relation to the April 2019 incident, the respondent asserts that the applicant pulled the security door out of his hand and punched him in the chest, as she attempted to enter the house to get [Y].
The respondent asserts that he has done all the parenting for the children, except when at work since the parties separated. The respondent asserts that during the marriage, the applicant would not clean the house as she said “I don’t do cleaning”. As a result there was cockroach, ant and rodent infestations in the matrimonial home. Since the applicant left the home, the respondent states that he has implemented a cleaning schedule and as a result, there have been no cockroach or ant infestations. No food has been left on the floors or tables to attract rodents. The respondent claims that the applicant had previously left food on the floor.
The respondent asserts that the applicant is very unorganised and did not prepare lunch for the children before going to school until last minute. The respondent asserts that the applicant yelled at the children to get out of bed and allowed them to stay up late at night or not go to bed until 10pm or 11pm on school nights. The children were not encouraged to brush their teeth and rarely had breakfast prepared for them. The respondent asserts that on 14 June 2018, the former matrimonial home was broken into and that personal items were removed by the applicant including an electric mixer, jewellery boxes, vacuum cleaner and items from that garage including tea party items.
The respondent denies discussing details of the separation and property settlement with the eldest daughter Ms J Cleary, except when she has asked pointed questions that required a response. The respondent asserts that when the applicant drops the children back to his home, the applicant makes derogatory comments about him, including that he is a bad father. The respondent asserted that when [Y] was 2 years old, she suffered a laceration to her foot that was caused by the applicant closing the door on her. There was a jagged laceration, approximately 1cm in length, on the base of the fifth toe dorsal that was sutured. This is verified in a medical report attached to the respondent’s affidavit. Some reliance was placed on a Kessler Psychological Test scale that had been undertaken by the applicant, in which she scored a high score. It was asserted that this was evidence of the applicant’s incapacity to be emotionally stable and properly parent the children.
During cross examination by Counsel for the applicant, the respondent denied leaning over or grabbing the applicant by the wrist prior to her leaving the family home. The respondent admits telling the applicant that she was a bad mother and admitted that he told her that she could not have the car keys to the vehicle as it was not hers. The respondent denies saying to the applicant that she did not deserve to live in their house. The respondent confirmed that he had taken money from their joint bank account the next day, but stated that he had done so to pay bills that were due, including a credit card bill and mortgage repayments. The respondent confirmed that he had ignored a number of letters from the applicant’s solicitors and that he had only agreed to the children spending time with the applicant after proceedings were commenced in the Court. The respondent was opposed to time being spend between the applicant and their children, and would only agree to consent orders that allowed time to be spent with the applicant, on the basis that she was supervised.
Material was put to the respondent in relation to attempted family therapy with Ms N. The respondent denied that he had in any way, sort to undermine the family therapy, but agreed he had received an email from Ms N that suggested he had refused to provide an undertaking to assist with appointments. Ms N suggested that it was intimidating and unfair that the respondent had sat out the front of therapy sessions and that it was intimidating and irresponsible to demand that [X] finish a session without debriefing. The respondent agreed that he had received the email but denied that he had been bullying or intimidating to either Ms N or a member of her staff. The respondent suggested that Ms N had been aggressive during a phone call and he felt like she was trying to tip him over the edge. The respondent stated that Ms N was always asking him for money and delayed providing receipts for the money he had paid. The respondent agreed that he had contacted Ms N on a Sunday morning because he said that she would not provide receipts. The respondent stated that Ms N was not being truthful in her evidence, although he denied disliking her. It was put to the respondent as to whether or not he would agree to further therapy with Ms N and he indicated he would not but was prepared for [X] to have therapy with other people.
In relation to the April incident, the respondent agreed that he had asked his eldest daughter, Ms J Cleary, to film what was going on, but only after the applicant had punched him in the chest. After the video had been watched in Court, the respondent denied that the pushing of the applicant was in any way violent. The respondent was asked whether or not he genuinely believed the statement in his case outline that the children were malnourished and his response was no.
Under cross examination, the respondent agreed that subsequent to separation, he had engaged a private investigator to follow the applicant on one occasion, notwithstanding the fact that he had indicated that he was short on money. It was put to the respondent that he had disclosed significant amounts of information to both Ms J Cleary and [X] about the Court proceedings. The respondent agreed that he had told Ms J Cleary about the property settlement details because the applicant had said previously she would not touch the super. The respondent denied that he had sexually assaulted the applicant and that it was simply an accident and that afterwards he consoled her. The respondent agreed that he had made allegations regarding the applicant’s mental health and that his concerns had not been alleviated by the December 2018 report of her psychologist. The respondent agreed that he had told Ms M at a dance concert that she was to leave the applicant alone. The respondent denied withdrawing $4921.00 from their joint bank account, to stop the applicant having access to those funds, which was the process of dividends from their shares.
Under cross examination from Ms McConaghy, the respondent agreed that his views were that the children should not be forced to do some things. The respondent agreed that notwithstanding the Court orders, he did not force [Y] to spend time with the applicant. The respondent agreed in his case outline that he raised the issue of what he thought were serious mental health issues with the applicant but stated that they were not as severe as previously thought. The respondent denied that he did not want the children to have a relationship with the applicant. The respondent denied stating to the children that “mummy steals things”.
In response to some detailed questing by Dr McConaghy, the respondent initially denied that he had deliberately searched through the applicant’s phone, in order to find details of the 18 minute conversation that had occurred prior to the parties separating. The respondent said he had found it by accident. It was put to the respondent that this could not be the case as it would have required deliberate actions on his part to go from the call list, to the information section regarding the call, in order to ascertain that the applicant had placed a call that was 18 minutes in duration.

Evidence of Ms J Cleary

Ms Ms J Cleary, the 18 year old daughter of the parties, was called by the respondent as part of his case. Prior to Ms Cleary giving evidence, Counsel for the applicant raised considerable concerns at the prospect of Ms J Cleary being called to give evidence and the impact that it might have on her relationship with the applicant. It was indicated that during the course of Ms J Cleary giving evidence and cross examination, the applicant would wish to wait outside. After some discussion, it was agreed that both the applicant and the respondent would not be in Court when Ms J Cleary gave evidence. Ms J Cleary stated that she did not miss the applicant and agreed that she had attended the applicant’s premises to talk about the issue of shares and superannuation, as part of the property settlement. Ms J Cleary agreed that [Y] and [Z] would like to spend time with the applicant but that she did not. The calling of Ms J Cleary to give evidence is concerning to the Court as it is evidence that the respondent is unable to place her needs above his own.

Evidence of Ms O – Family Consultant

Ms O completed a Child Inclusive Conference with the applicant, the respondent and their children on 1 November 2018. It was noted that during the conference, the respondent raised issues in relation to the applicant on the basis that he was concerned that she had schizophrenia, and that her mental health affected her parenting, making her emotionally unavailable to her children. The respondent denied any violence between himself and the applicant but admitted telling her that he did not like some of her friends because of the way they were speaking negatively about him to her. The respondent thought that applicant should not associate with them. The respondent admitted to attending the applicant’s work place to say hello but denied stalking her. The applicant denied neglecting the children’s hygiene and denied that the house was not clean. The respondent said that he cleaned the house and did the house work during the relationship and also claimed they had pest infestations.
[X] presented as a polite and shy boy, who said his parents separated because the applicant was “going out with other guys”. [X] stated that the respondent told him this. [X] said that he felt sad about the parental separation and felt angry at the applicant. [X] stated that the respondent is also angry about it and talks about it. [X] said that he did not like spending time with the applicant because “of what she did”. When [X] was asked why that was, he said that the applicant yelled at him when he was 5 years old.
[Y] and [Z], when brought into the room where the applicant was, hugged her warmly. When they walked into the room where the respondent was, they greeted him warmly.
Ms O noted that the respondent presented as having a poor attitude to co-parenting and appeared to place little value on the applicant’s role in the children’s lives. It appeared that Ms J Cleary and [X] were aware of information about the parental separation that they should not been aware of and this has contributed to the current poor relationship with the applicant. It was noted that Ms J Cleary and [X] may benefit from being involved in family counselling to assist them to repair their relationship with the applicant, however, the success of this would be dependent on whether the respondent supported them in doing so.
A Family Report dated 19 July 2019, prepared by Ms O, was tendered to the Court. The report noted that at paragraph 32, the respondent said he was trying to ‘push’ [X] into spending time with the applicant but the respondent did not think that forcing children to do what they do not want to do is good for them. The respondent stated that “the children have their own minds and their own thoughts” and this should be prioritised. The respondent denied seeking to undermine family counselling with [X] and Ms N. The respondent stated that Ms N was a “challenging lady” and also described her as “nasty”.
In her evaluation, Ms O, noted that Ms J Cleary presented as a young adult with very strong moralistic, rigid, polarised views and presented as being completely aligned with the respondent. Ms J Cleary seemed unusually emotional when positively describing him. It was not considered appropriate, by Ms O, that a parent share information about adult relationships with any child directly, but from his own report, it appears that the respondent has done so, at least with Ms J Cleary and [X].
In paragraph 96 of the Family Report, it was noted that “[X]’s relationship with Ms Cleary appears to be almost irreparable but there still appears to be a small possibility it could be repaired”. On observation, [X] did not overtly reject the applicant and he appeared to tolerate her interacting with him, although he was not conversational.
At a paragraph 100 of the Family Report, it was noted that [X] said he would follow the respondent’s instructions. It appears that it is highly likely that the respondent is able to influence [X] if he chooses to do so. Given that [X] does not have any behavioural issues in any other context, it does not appear that his apparent refusal to spend time with the applicant is based on a general non-compliant or defiant temperament. It is therefore possible that [X] not seeing the applicant, reflects a lack of support from the respondent for [X] to have a relationship with the applicant.
At paragraph 104 of the Family Report, Ms O concludes that based on the observations of [Y] and [Z] with each of their parents, no concerns were raised about the nature of each parent’s relationship with either of the children. Both children appeared comfortable with each of their parents and their older siblings and each parent was able to interact with both children in an appropriate manner.
In paragraph 107 of the Family Report, Ms O noted that allegations of family violence had been made against the respondent. These allegations were consistent with coercive and controlling family violence. Family violence of this type is characterised by a pattern of controlling dominance by a primary perpetrator that results in fear, intimidation and submission through the use of threats, emotional abuse, and restriction of contacts or actual physical harm. Ms O noted in paragraph 108 of the Family Report, that exposure to coercive family violence is known to have a detrimental impact on children including their physical safety and psychological wellbeing.
At paragraph 112 of the Family Report, Ms O notes that the respondent’s report of his own actions during the April 2019 incident is considered to be highly problematic. [Y] should not have been put into a position where she had to say she did not want to spend time with the applicant in front of the applicant or explain why she did not want to spend time with the applicant. The respondent’s actions in this regard may be seen as putting an inappropriate burden on a young child to meet his needs, rather than [Y]’s needs. Ms O concluded that the respondent had an ongoing difficulty in placing the children’s needs above his own.
At paragraph 120 of the Family Report, Ms O recommended that [Y] and [Z] live with the applicant. Given the concerns raised about the respondent’s attitude towards the applicant, concerns about his ability to prioritise the children’s needs above his own and his ability to maintain an appropriate parent child relationship, Ms O recommended that he not spend more than alternative weekends with [Y] and [Z], as such an arrangement may provide an ongoing opportunity for [Y] and [Z] to continue their relationship with the respondent in a safe manner. At paragraph 123 of the Family Report, Ms O notes that given the poor co-parenting relationship the parents had described, if the Court found that the respondent had perpetrated coercive and controlling family violence, it appears that shared parental responsibility is untenable and may lead to ongoing conflict. As such, it was recommended that the applicant have sole parental responsibility for [Y] and [Z] but that the respondent should still receive information about them such as their school progress and medical issues.
The issue that was of particular concern was that of [X]. Ms O recommended that [X]’s arrangements be a matter for judicial determination. If [X]’s arrangements are in accordance with his wishes, that being to reside with the respondent, it was recommended by Ms O that the parents hold joint parental responsibility for him.

Factual Findings

A. Matters of Credibility

The parties’ written and oral evidence were at odds in terms of a number of issues. The respondent’s evidence consistently, in my view, lacked credibility. The respondent’s explanation that he accidentally found information on the applicant’s phone relating to an 18 minute conversation with a person the previous day, was simply not credible. During cross examination, it was pointed out to the respondent that he would have had to undertake a number of separate operations on the iPhone, in order to obtain that information and that it would not simply just appear “accidentally”.
The respondent’s explanation as to why [X] only attended two counselling sessions with Ms N was also not credible. This suggestion that Ms N was ‘nasty’ and had failed to comply with reasonable administrative arrangements regarding the provision of receipts, was also not credible.
The day following their separation, the respondent’s explanation for the withdrawal of all the money from the joint bank account, on the basis that it was needed to pay bills, was also in my view, not credible. This account was the account into which the applicant’s sick pay was being paid into. The withdrawal of the full amount of those funds, such as to leave it with a nil balance, in my view, could only have occurred if it was the respondent’s intention to deny the applicant access to any finance. The respondent’s further withdrawal of the dividend of some $4500.00 subsequently, is further evidence of his intention to deny the applicant access to finance. During cross examination, the respondent’s answers on many occasions were evasive. The respondent sought to provide additional information that was unresponsive to questions and sought to justify his own perceived position.
The applicant’s evidence was generally consistent and withstood a lengthy cross examination. The applicant freely acknowledged her own difficulties and her need for ongoing psychological support and the support of persons around her. Where there were inconsistencies between the applicant’s evidence and the respondent’s evidence, I prefer the applicant. In many cases, the applicant’s evidence was supported by those of the supervising persons, who were also called to give evidence. The allegations made by the respondent that the applicant suffered from schizophrenia or other mental illness, that she did not clean the house or malnourished the children, simply do not stand up to scrutiny.

I accept the evidence of Ms K, Ms F and Ms M without any hesitation. I consider they were witnesses of truth who did their best to recount events without any bias in favour of the applicant. I accept Ms E’s evidence, again, without hesitation, as to her interaction and opinion of the applicant as a person capable of giving adequate care to the children. I accept her professional opinion that the applicant does not suffer from symptoms of schizophrenia or have other mental health issues that affect her capacity as a parent and care giver.

B. The Issue of Family Violence

The evidence as a whole portrays a pattern of controlling and coercive behaviour by the respondent, consistent with the conclusion that the respondent has engaged in long standing family violence. The respondent has stalked the applicant at work, unreasonably denied her financial autonomy that she would have otherwise had, unreasonably withheld financial support and prevented the applicant from making or keeping connections with his or her friends and contacts.
I am further satisfied that the children of the marriage have been exposed to family violence in that they have witnessed an incident in April and have been the subject of repeated information from the respondent, which is derogatory of the applicant. I am satisfied that the respondent has sought to actively deny the children spending time with their mother and has sought to alienate [X] from his mother by undermining therapy sessions and making derogatory comments about his mother. If left unchecked I am reasonably satisfied the respondent is likely to alienate [Y] and [Z] from their mother in the future.
I have also considered the various versions of events of the April 2019 incident. Having viewed the video and considered the evidence of the independent witness, I am reasonably satisfied that the applicant did not, as alleged, punch the respondent in the chest. Rather the applicant placed her hands on the door frame and was attempting to talk with the respondent about his actions in removing [Y] inside, after he directed [Y] to tell the applicant why she did not want to go with her. The video shows no evidence of a striking by the applicant of the respondent, but shows clear evidence of a violent push back using both hands, by the respondent.

Consideration

Based on a consideration of all of the evidence and in particular the two reports by Ms O, I am reasonably satisfied that the respondent has sought to undermine any meaningful relationship by the children, in particular with [X] and [Y], with the applicant. In these circumstances, I am satisfied that the primary considerations as to the children’s best interests are that any order of this Court must be for the benefit of the children to have a meaningful relationship with the applicant. Further there is a need to protect them from physical or psychological harm by being exposed to family violence from the respondent. In these circumstances, pursuant to s 61DA(2) of the Act, I am satisfied that the presumption of equal shared parental responsibility when making parental orders under s 61DA(1) of the Act, has been rebutted, as I am satisfied that the respondent has engaged in family violence, as set out above. Pursuant to s 61DA(4) of the Act, I am also satisfied that the presumption in favour of shared parental responsibility has been rebutted, as it would not be in the best interests of the children for the parents to have equal shared responsibility due to the high level of conflict between the applicant and the respondent.
In terms of the additional considerations under s 60CC(3) of the Act, I note the following:
s 60CC(3)(a) of the Act:
·    [Z] and [Y] are too young to be able to express any views.
·    In terms of [X]’s view, in that he does not wish to have a relationship with the applicant, I note his view but give it little weight.
·    I am reasonably satisfied that [X]’s views have been formed on the basis of coercion by the respondent.
s 60CC(3)(b) of the Act:
·    I am satisfied that each of [Y], [X] and [Z] have a good relationship with the applicant and respondent. [X]’s relationship with the applicant is strained but is capable of being repaired. There are no other persons, such as grandparents, to consider.
s 60CC(3)(c) of the Act:
·    I am satisfied that the applicant has taken all reasonable steps that she can post separation, to participate in making decisions about major long term issues and has sought to spend time and communicate with the children. I note that the respondent has failed to take steps to involve the applicant in major decisions as regards to Ms J Cleary’s removal or leaving school during year 11. I am not satisfied that if the respondent were to have sole or shared parental responsibility, that he would take proper actions to allow the applicant to participate in making decisions about major long term issues in respect of the children.
s 60CC(3)(ca) of the Act:
·    I am satisfied that the parties to date, have fulfilled various obligations to maintain the children.
s 60CC(3)(d) of the Act:
·    I am satisfied that the likely effect of any change in the orders that I propose to make in the children’s circumstances are the minimal changes that are necessary to ensure the children’s long term best interests. The orders will ensure there is the maintenance of a relationship between the siblings, including Ms J Cleary, and with their parents. I am satisfied that [Y] and [Z], due to their continuing contact with the applicant mother will adapt readily to living with her on the basis set out in the orders. The change for [X] will be much more difficult given he has not seen the applicant since September 2018. I am satisfied based on Ms O’s evidence that [X] is a generally compliant child and not of a defiant temperament. If there is to be any chance of him having any type of relationship with the applicant into the future then the orders proposed are necessary. Without them, [X] will remain estranged from the applicant due to the influence of the respondent. I have also taken account of the relationship between each of the children and their oldest sibling Ms J Cleary. The applicant indicated in evidence that she has a place with her should Ms J Cleary wish to live with her. There are no restrictions on Ms J Cleary seeing her siblings. It will be a matter for Ms J Cleary to decide how often and on what basis she wishes to spend time with her siblings.
s 60CC(3)(e) of the Act:
·    I am satisfied that there will be no practical difficulty in the long term with the children spending time with and communicating with each of their parents, given they are co-located within a reasonably short distance of each other and that the proposed orders will not impact on the current childcare and schooling arrangements for any of the children.
s 60CC(3)(f) of the Act:
·    I am satisfied that the proposed orders are in the best interests for the needs of the children, including their emotional and intellectual needs and will also protect them from exposure to family violence.
s 60CC(3)(g) of the Act:
·    I had regard to the maturity, sex, lifestyle and background of the children. I have had paid particular regard to [X]’s age and the need for a young adolescent boy to maintain a strong relationship with both his mother and father in the difficult years of adolescence and becoming a young man.
s 60CC(3)(h) of the Act:
·   Not applicable.
s 60CC(3)(i) of the Act:
·    I have had regard to the responsibilities of parenthood which have been demonstrated by each of the parties. I am satisfied that the respondent is not able to place his own needs behind those of the children. I am satisfied that the applicant will be able to do so. I am satisfied that in the long term each will be able to contribute to the upbringing of the children but that the orders I propose, are in the best interest of the children in that it will ensure a stable environment.
s 60CC(3)(k) and s 60CC(3)(j) of the Act:
·    I have had regard to family violence which, in my view, has been perpetrated by the respondent against the applicant, which has manifested itself in both actual physical violence and a coercive and controlling manner, in relation to the applicant.
I have considered the provisions of s 65DAA of the Act, in relation to the proposed orders. As I have not ordered equal shared parental responsibility for the children, it is not applicable. I am however, satisfied that the orders proposed will enable the children to spend significant time with the respondent after the initial three month period and will enable them to continue to have a meaningful relationship with the respondent. At the same time, the orders should protect the children from being exposed to family violence as required by s 60CC(2)(b) of the Act.

Conclusion

In making the orders that are set out above, I have had particular regard to the submissions that have been made by the Independent Children’s Lawyer and the family consultant, Ms O. I am satisfied that there will be no difficultly in a parental swap, with the applicant having sole parental responsibility for [Y] and [Z]. They are of an age where they should be able to make the adjustment relatively easily and will be able to spend time with the respondent after an initial period.
The concern in this case is, and always has been, what to do with [X]. I have come to the conclusion that it is in [X]’s best interests that an attempt be made to try and repair the relationship between himself and the applicant. This can be best affected by the applicant having sole parental responsibility for major long term decisions relating to [X]. In order for this to occur, there needs to be a reset period to enable [X] to be free of any adverse influence from the respondent.
Accordingly, I propose that for a period of 13 weeks from the date of the orders set out above, no time and no communication occur between the respondent and the children. During this period, [X] will be able to undertake counselling and during this period, with the promise of contact with the respondent at the end of it, be able to reset his relationship with the applicant and continue to have a relationship with the respondent.
I have considered the alternative option of ordering that sole parental responsibility of [Z] and [Y] lie with the applicant and that a joint parental responsibility be put in place in relation to [X]. I am not satisfied that it is in [X]’s long term best interests because of the level of conflict between the applicant and the respondent. I am satisfied that were [X] to remain with the respondent, [X] would remain alienated from the applicant and refuse to see her. I do not consider that this is consistent with [X]’s best interests and with the overriding principle that he has a relationship with both of parents.

I certify that the preceding one-hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:

Date: 30 October 2019

[2019] FCCA 3013

30 October 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Injunction