Collier and Ellington

[2014] FCCA 2828

FEDERAL CIRCUIT COURT OF AUSTRALIA

COLLIER & ELLINGTON [2014] FCCA 2828

Catchwords:
FAMILY LAW – Parenting dispute – two children living with father and one with mother – both parents hitting children – child living with mother expressing very clear view that she does not want to live with father – each parent wanting all three children to live with them – family report and Independent Children’s Lawyer recommending splitting children – orders made as sought by Independent Children’s Lawyer.

Legislation:  

Family Law Act 1975, ss.60B, 60CC

Goode v Goode [2006] FamCA 1346

Applicant: MR COLLIER

Respondent: MS ELLINGTON

File Number: MLC 10973 of 2011

Judgment of: Judge Burchardt

Hearing date: 8 October 2014

Date of Last Submission: 8 October 2014

Delivered at: Melbourne

Delivered on: 12 December 2014

REPRESENTATION

The Applicant: In person

The Respondent: In person

Counsel for the Independent Children’s Lawyer: Mr Eidelson

Solicitors for the Independent Children’s Lawyer: Lampe Family Lawyers

ORDERS

1. The father have sole parental responsibility for the children X born (omitted) 2002 and Y born (omitted) 2004. 

2. The mother have sole parental responsibility for the child Z born (omitted) 2003. 

3. Each parent is to notify the other parent in a timely matter of any significant long term decisions about the children, including decisions relating to their health and education. 

4. X and Y live with the father and spend time and communicate with the mother:

   (a)Commencing 19 December 2014, Each alternate weekend from Friday at 7:30 pm until Sunday 7:30 pm;

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

   (c)At Easter:

   (i)In 2015 from 7:30 pm on the Thursday before Good Friday until 7:30 pm on Easter Saturday and in each alternate year thereafter;

   (ii)In 2016 from 7:30 pm on Easter Saturday until 7:30 pm on Easter Monday and in each alternate years thereafter; and

   (d)As otherwise agreed in writing, including SMS text message.

5. Z live with the mother and spend time and communicate with the father:

   (a)Commencing 12 December 2014, Each alternate weekend from Friday at 7:30 pm until Sunday 7:30 pm;

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

   (c)At Easter:

   (i)In 2016 from 7:30 pm on the Thursday before Good Friday until 7:30 pm on Easter Saturday and in each alternate year thereafter;

   (ii)In 2017 from 7:30 pm on Easter Saturday until 7:30 pm on Easter Monday and in each alternate years thereafter; and

   (d)As otherwise agreed in writing, including SMS text message.

6. That in the event the children are not n the Mother’s care for the Mother’s Day weekend, the children be returned to the Mother at 7.30pm on the Saturday preceding Mother’s Day until 7.30pm Mother’s Day and in the event that  the children are not the Father’s care on the Father’s Day weekend, the children be returned to the Father at 7.30pm on the Saturday preceding Father’s Day until 7.30pm Father’s Day.

7. That during all school holiday and special occasion time paragraphs 4(a) and 5(a) be suspended and resume as if the cycle was not broken.

8. That for the purposes of changeover, changeover occur at the McDonalds on the (omitted) at the city bound exit.

9. The mother and the father are restrained by injunction from using corporal punishment on the children or permitting anyone else to do so.

10. Each of the parents is to attend relationship counselling with Relationships Australia or a similar organisation and is to provide a certificate of the completion of the relevant course to the other. 

11. The appointment of the Independent Children’s Lawyer be discharged. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 10973 of 2011

MR COLLIER

Applicant

And

MS ELLINGTON

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a parenting dispute about the best interests of three children, X, born (omitted) 2002, Z, born (omitted) 2003 and Y, born (omitted) 2004.  The children presently are separated in as much as X and Y live with their father and Z lives with her mother.  Each parent seeks that all children live predominantly with them and spend time with the other. 

2. The Independent Children’s Lawyer’s position is that orders should be made consistent with the recommendations of the family report prepared by Ms M, and for the reasons that follow, I agree. 

Agreed Facts

1. The applicant father was born on (omitted) 1975, and the mother was born on (omitted) 1982.  They married on (omitted) 2001 (all the above dates have been taken from the application for consent orders filed 6 December 2011) and separated in April 2011.  On any view, the separation was conflictual and acrimonious. 

2. As Ms M’s family report dated 14 July 2014 observes, following separation, the children lived with their mother and spent time with their father, but owing to concerns on the part of the father as to the mother’s care of the children (father’s version) or controlling and coercive behaviour by the father (mother’s version) the children lived since August 2002 primarily with their father and spent time with their mother each alternate weekend and high school term holidays. 

3. Notwithstanding any measure of dissatisfaction with that regime, as Ms M reports (and consistently in my view with the parties’ affidavit material) it remained fairly stable until May 2013.  The father issued an application for a recovery order and his supporting affidavit filed 13 June 2013 deposes to the fact that on 5 May 2013, Z refused to return to him following spending time with the mother. 

4. On 6 May 2013, it appears that the mother attended school with her partner Mr V (whose name is variously spelt in the materials).  Exhibit C-5 to the father’s affidavit filed 13 June 2013 is correspondence from the principal at (omitted) Primary School relating to the incident.  According to the principal, on 6 May 2013, the mother and Mr V entered the school and were loud, and in Mr V’s case, extremely abusive and aggressive.  Police were called, and the mother and Mr V left. 

5. The matter was the subject of a section 11F report by Ms M at Court on 28 June 2013, and Ms M’s oral evidence was transcribed and is on the Court file.  Ms M recorded that an incident had occurred on 2 June 2013 at handover, and that the parents provided discrepant accounts of it.  Ms M recorded (P-3 – line 14):

   “The parents provide discrepant accounts of what occurred on that day and, irrespective of which parent’s account of this incident is the more accurate, there can be no doubt that this has had an adverse effect of the children and, in particular, on Yasmin, whose presentation today indicates that she is still significantly traumatised.”

6. On the same page, Ms M recorded that the children had alleged that both parents hit them, the mother with a wooden spoon and the father with his hand.  She recorded that Z was scared of her father.  She recorded that according to the children, all four adults (the father and his partner and the mother and her partner) yell in the household.  Y recorded that both his parents hit him, and they and their partners yell at him.  When asked to give a message that would be the same for both parents, he replied, “Please don’t hit me.  I don’t like it.”  

7. Ms M recommended that X and Y remain in their father’s care and Z remain in her mother’s care on an interim basis.  She recommended trauma counselling for Z and various other therapeutic interventions. 

8. On that day, I made orders which effectively kept the children separated as Ms M recommended.  I decided, for reasons which are on the Court file, the mother should have leave to enrol Z at a school near where she lived. 

9. Essentially, the pattern of residence and spend time has remained unchanged since. 

The Parties’ Affidavit Material

1. The parties’ affidavit material constitutes a litany of mutual calumny and self-exculpation.  The mother was 18 years old when she first married, and she describes the relationship with the father as controlling and abusive.  He denies this.  He has much to say by way of criticism of the mother as a carer.  Each party wholly self-exculpates and blames the other for all and any other problems. 

2. I note that the father has married his partner Ms B on (omitted) 2014.  

3. I further note that in the mother’s affidavit filed 26 July 2013, the children met the Independent Children’s Lawyer on or about 10 July 2013 and expressed a view that the position should continue as per the orders made on 28 June 2013.  The mother described this outcome as disappointing and unacceptable, and I note that she was also critical of the section 11F report.  This latter criticism related to a failure alleged on the part of Ms M to form a definite view about the alleged violence on 2 June 2013.  The mother asserted that she understood that subpoenaed material would be released on 29 July 2013. 

4. It is not necessary in the circumstances of the case as it has evolved to deal in any greater detail with the parties’ mutual allegations and assertions.  Given the positions the parties have finally adopted, many of their mutual criticisms become of far less moment. 

The Family Report of Ms M

1. Ms M has provided a family report to the Court dated 14 July 2014 as earlier indicated.  She set out the background to the factual disputes.  I note that when dealing with the difference of occurrences to what occurred on 2 June 2013, Ms M records in paragraph 7:

   “Both parents made statements to Victoria Police.  Despite the mother reporting that there were a number of witnesses to the alleged assault and that she required treatment at a hospital for the injuries she sustained, there has been no criminal investigation.”

2. Ms M traversed the history of the matter in Court and noted that the parties’ had attending counselling with Ms L in accordance with the order made on 28 June 2013.  Ms M noted that Z commenced spending time with her father each alternate weekend from 7.30 pm on Friday to 7.30 pm on Saturday, and that X and Y continued to spend time with their mother each alternate weekend from 7.30 pm on Friday to 7.30 pm on Sunday. 

3. Ms M noted at paragraph 18 this had evolved to where Z’s time with her father was now from each alternate weekend from Friday at 7.30 pm to Sunday at 7.30 pm, thus ensuring that the siblings spend part of every weekend together as well as all the school holidays whether in the care of their father or their mother. 

4. Ms M noted the competing positions of the parties.  The father was seeking sole parental responsibility and that all three children live with him, but spend each alternate weekend and high school term holidays with the mother.  The mother’s formal response to the initiating application seeks equal parental responsibility, but during her interview with Ms M, the mother proposed that the children live with her and spend each alternate weekend and high school term holidays with the father. 

5. The interviews with the parents do not, in my view, take the matter that much further, although, I note at paragraph 28:

   “According to Mr Collier it was Ms Ellington’s decision that they separate.  He stated that he “had no idea there were problems.”  He had been working interstate for period (sic) returning home each fortnight.  Mr Collier has denied Ms Ellington’s allegations of family violence perpetrated by him, during their relationship.”

6. At paragraph 34, Ms M recorded:

   “Mr Collier has consistently denied Ms Ellington’s allegations that he physically assaulted her during the incident which occurred at changeover on 2 June 2014 (sic).  Following each parent making a formal statement to the police, there has been no ongoing investigation.  However, Mr Collier has been able to recognise that being exposed to the heated verbal altercation between their parents would have been distressing for the children and he acknowledges that for Z who was in the car throughout, it was likely to have been a traumatic experience.”

7. I note that each parent vehemently accused the other of coaching the children to say things antithetical to the other parent. 

8. The father was unequivocal in his position that all three children should live with him.  He perceived himself as having demonstrated the capacity to provide a stable environment with clear and predictable routines in place.  He accused the mother of acting in a fashion that compromised the children’s stabilities. 

9. The interview with the mother was once again, in my view, unremarkable.  The mother, naturally enough, persisted in her position that the relationship was abusive and controlling.  I note that at paragraph 43, Ms M recorded:

   “Ms Ellington had considerable difficulty remaining focused on the children; She and Mr V, expressed their considerable outrage at and frustration with the system which they have experienced as “unfair.”  They are outrage with Victoria Police, “for not having charged the father…even though he physically assaulted me… I had witnesses… I had to go to hospital.(incident occurred on 2 June 2013).”  They also expressed their frustration with the children’s primary school given “the principal said we were abusive and Y got banned from the school….It’s not fair…we did nothing wrong.”

10. The mother’s position was that the children would be better cared for with her and were frightened of the father, with Y saying his father regularly hit him. 

11. Ms M contacted Ms L who reported on the, it would appear, relative success of the counselling process.  She had thought that the parents and their partners appeared to support the plan to work towards Z returning to live with her father and siblings prior to the beginning of the school year in 2014, but that did not eventuate because the counselling did not continue.  

12. I note it is the mother’s position that she never supported such an outcome.  

13. Ms M reviewed the Department of Human Services material which, in my view, is unremarkable.  

14. Ms M recorded her interviews with the children.  Although X identified concerns associated with the onset of menarche and a resultant desire to perhaps live with her mother, it is fair to say that this matter was not overly stressed and Ms M took the view that Ms B would be able to assist her to the extent necessary.  

15. Z’s position was unequivocal.  She accused her father of assaulting her in the past and she was clearly keen to stay with her mother’s household, which she regarded as more desirable.  At paragraph 64, Z observed:

    “I feel really nervous because I am still not sure who I am going to live with… If the Judge said I have to live with Daddy, I wouldn’t want to.  I know he would make up the rules again and he will make the chores and go even harder on me.  I would be scared if he starts yelling like he used to.  I just wouldn’t go.  I just wouldn’t get out of the car and go with him.”

16. While Y did, at one stage, assert: “I want to decide to live with my Mum because I heard if I live with my Dad then she might move far away and I would be sad.”, it emerged that this was something he had heard from his mother (paragraph 71).  

17. The children were observed to be spontaneous and light-hearted with their father and Ms B.  Their interaction with their mother was warm and affectionate, although Mr V was an observer rather than a participant.  

18. Ms M, having reviewed her observations of the children, recommended that X and Y live with their father and spend time with their mother from Friday at 7.30 pm to Sunday at 7.30 pm in each alternate weekend, together with half of all school holidays and a reverse pattern for Z to live with her mother and spend time with her father.  She strongly recommended further counselling with Ms L with the expense to be shared equally.  

The evidence given at Court

1. Both parties were self-represented by the time the trial arrived and this necessarily gave rise to some forensic difficulties.  

2. Ms M was called first.  She was cross-examined by the father.  She confirmed that Z had not appeared scared of him.  She was unable to recall Z wanting to be with the father at the end of her interview, a matter the father appeared to regard as important.  I do not accept that this is so.  Z’s views as expressed to Ms M were wholly clear.  

3. The father made a short opening.  He confirmed that he wanted all the children to live with him.  He said he did not see how Z living with him was an issue.  He would follow up on the children’s education and housework.  This was important because he regarded Z as not being a good reader and said she would improve with him.  He accused the mother of keeping the children away from him, on occasion for extended periods of time.  He sought that the mother see the children each Friday to Sunday every alternate weekend and half school holidays.  He wanted arrangements to be put in place for Mother’s Day, parents’ birthday, Father’s Day and alternate Christmases and Easters with each parent, together with unrestricted telephone access.  

4. Cross-examination by the mother, scarcely surprisingly, merely revealed that the parties disagreed.  I note that the father expressly asserted that he had not given the childrens’ school the mother’s details, nor put her down on school forms as the childrens’ mother.  He confirmed that, in his view, the school was concerned about the mother because of her actions.  

5. Under cross-examination by counsel for the Independent Children’s Lawyer, the father confirmed that Z had refused to come with him following the 2 June 2013 incident.  Police were involved.  He said all he did was push the mother back into the car.  At this stage, X and Y were in his car and Z was in the mother’s. 

6. He confirmed that both parents had been to see Ms L and that he had paid for three months during the latter part of 2013.  He thought that counselling was worthwhile and that the relationships between all concerned had improved.  He said the children see each other most weekends, but sometimes Z does not come.  The father was concerned that the mother will not obey court orders. 

7. I would interpolate and say that it was clear that the father was only reluctantly prepared to accept that he might have contributed at all to Z being traumatised by the events in the June 2013 changeover incident.  

8. The father said that as a father, he would disagree if Z would not clean her room or do her homework.  He said Z tells him it is easier living with the mother as there are no rules and she does not have to do anything.  

9. The father said that Ms L pointed out how sensitive Z is and had told him to treat her differently and not put pressure on her.  He said that Z does her reading without compulsion and that all the children are different.  He confirmed there has been a tug of war over the children since separation and a final order was necessary.  He conceded that Z would have to change schools if she was to live with him and that Z’s education has been disrupted since separation.  The mother had changed schools a number of times.  

10. It was his view that Z would have to repeat grade 6, but that (omitted) Primary School or, as the case might be, (omitted) Secondary School, would be appropriate, with some friends and relatives at these institutions.  

11. The father confirmed he had not communicated with the mother about the matter of Z’s education and had not been involved at the school she has been attending since the orders made in 2013.  He had spoken to the principal and asked for information, but this was not provided. 

12. The mother confirmed in opening that she wished the children to live with her and spend time with the father as recommended by Ms M. 

1. Under cross-examination by the father, the mother said she had no choice for the two children to be with the father and wanted all the children with her.  She denied changing her position from time to time.  She maintained her position that she was locked in the home during the relationship and not allowed to see her family and that the father had an over-controlling attitude.  

2. Under cross-examination by the Independent Children’s Lawyer’s counsel, the mother was forced to agree that her affidavit filed as recently as 4 August 2014 had agreed with the recommendations of Ms M.  She said that X was saying she was not comfortable with Ms B.  Her position, I regret to say, changed like a weather vane.  At one moment, she agreed that she accepted Ms M’s recommendations, but the next moment, she said she disagreed.  

3. The mother said that Z had been fearful of the father, but was not now.  She said Z told her things after staying with the father and how things went.  She said Z always tells her about her cousins, her sister and her brother, but does not mention the father.  She said Z was happy in her care and happy with her partner, with whom she was expecting a baby, due in February 2015, a matter about which the children were excited.  

4. She confirmed that she had over held the children for a month in 2013, in July, and that they had not gone to school during this period.  She conceded this was soon after orders made in June 2013.  She conceded she had not obeyed the court orders.  I note that the mother said words to the effect, “I take no responsibility for the conflict between the parties.”  

5. The mother was forced to concede that Y has told Ms M at the section 11F interview that the mother hits him and she admitted this was so. 

6. The mother was adamant that following the June 2013 incident, she ended up in hospital, but the police took no action. 

7. She further said that while Ms L was helpful, she did not want counselling as it would not be helpful. 

8. Under further cross-examination by counsel for the Independent Children’s Lawyer by leave, the mother confirmed that Z is in grade 6 now and she is at the stage she is supposed to be and doing very well.  Z does her reading and her homework and will go to year 7 next year.  She had no objection to school information being provided to the father.  

Findings on the evidence

1. Ms M was a witness giving evidence within her area of professional expertise.  She was responsive, courteous and measured.  She was not swayed at all in cross-examination.  I entirely accept her evidence. 

2. Each of the parents, I regret to say, was, to an extent, unimpressive. 

3. The father was certainly consistent in everything he had to say.  He roundly denied all the allegations made against him by the mother.  Nonetheless, I could not evade the impression of an extremely forceful personality and one who may well, at the very least, have appeared to the mother as being controlling and domineering.  

4. I note that he conceded that he had raised his hand to his children. 

5. It is clear that the father has engaged in physical violence against the children in the past.  I see no reason to doubt the children’s account that all four adults have yelled from time to time, both at each other and at the children.  I have no doubt that the parents have hit Y.  His heartfelt plea in the section 11F conference speaks for itself.  

6. The mother was likewise also generally unimpressive.  I formed the clear view she might obey court orders with considerable reluctance.  She has certainly disobeyed them in the past.  Her position was changeable from moment to moment. 

7. It is perhaps sufficient for these purposes to say that it is just as well that the parties have mirror image applications because neither impressed me as being a sufficiently convincing witness to enable firm conclusions to be reached.  

8. So far as the incident on 2 June 2013 is concerned, I would merely say that despite the mother’s numerous assertions over time that she has independent witnesses to support her case, and that she was hospitalised, no material has been subpoenaed to support any hospital admission.  She was, after all, legally represented for a substantial period of time. 

9. I am simply not able to make any finding as to whose version of this extremely unfortunate and regrettable incident is correct. 

10. It is clearly implicit in the positions of each of the parties that despite their all too frequent mutual criticisms, they are prepared to allow the children to spend substantial periods of time (half of all school holidays) with the other. 

11. As I find, despite their obvious limitations and weaknesses and their mutual absence of insight, together with certain carelessness with the truth on both their parts, they are at least adequate parents.  I accept the mother’s evidence that Z is doing at least sufficiently well at school. 

The Final Positions of the Parties

1. Counsel for the Independent Children's Lawyer supported Ms M’s recommendation.  It was his submission that she had seen the children twice, and was in a position to provide helpful guidance. 

2. So far as the June 2013 incident was concerned counsel submitted that there was no assault (I have dealt with this above) and noted the significant conflict between the parents. 

3. Notwithstanding the unfortunate over holding in 2013, there had been relative stability since the orders made on 29 July 2013. 

4. The mother has sworn in her affidavit as recently as 4 August 2014 that she supported Ms M’s recommendations, but in her heart she wanted the children to live with her.  Both parents love the children, but stability is important.  In this particular case counsel supported the sibling separation and submitted that the extant arrangements should continue.  He further submitted that support through Relationships Australia would be appropriate for the parents. 

5. The mother’s final submissions, essentially, were to the effect that she wanted the best for her children.  She was not opposed to prohibition of corporal punishment.  She maintained her position that counselling would not assist. 

6. The father’s final submissions asserted that the children would flourish if they were together.  He said he and the mother would never see eye to and eye and will always dispute everything.  He said he would not beat up on anyone.  He referred to the absence of hospital reports about the June 2013 matter and said the stories were made up.  He said he had a stable job and household, and that X and Y had no fear of him.  He said Z had seen the tragic event.  He accepted he had raised his hand to his children, but did not oppose an order restricting corporal punishment.  He said he wanted to see the children together.  They would get the maximum benefit in their education if they lived with him. 

The Statutory Pathway

1. It is clear from the decision of the Full Court of the Family Court in Goode v Goode [2006] FamCA 1346 that the Court must commence first by considering whether there should be an order for equal shared parental responsibility.

2. No party made any submissions about this issue (although the Independent Children’s Lawyer’s Outline of Case proposed it).  Ms M’s report is silent on the matter. 

3. In my view, it is clear beyond doubt that there has been family violence, not only between the parents in the form of aggravated yelling, but in the form of physical assaults by each of them from time to time upon the children. 

4. Furthermore, each of the parents concedes either explicitly or implicitly that the relationship between them is utterly unsusceptible of any kind of mature or cooperative interaction.  The mother opposes counselling, and the father has asserted directly that he and the mother will never agree about anything. 

5. In my view, an order for joint parental responsibility is inappropriate in these circumstances, and the presumption would clearly be rebutted in any event.  Each parent should have parental responsibility for the child or children who are primarily in their care, but I will order that they be required to notify the other parent of any significant long-term decisions about the children, including decisions relating to their health or education. 

6. The presumption not being applied the Court has to consider the children’s best interests, bearing in mind the objects as set out in s.60B of the Family Law Act 1975 (“the Act”), pursuant to s.60CC of the Act.

7. Nobody is suggesting equal time in this case, and it is clearly inappropriate. Neither side is, in substance, suggesting substantial and significant time within the meaning of the Act. It becomes a matter of the children’s best interests according to the matters in s.60CC.

The Primary Considerations

1. Everybody agrees that it is in the best interests of these children to have a meaningful relationship with each of their parents.  No more needs to be said than that.  

2. Given the lack of insight of both parents, there must be residual concerns as to the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence in each household.  Nonetheless, the parents are the only parents the children have.  The children are going to spend time in each household, and, in any event, I am going to make orders prohibiting the use of corporal punishment upon the children. 

The Additional Considerations – section 60CC(3)(a)

1. Notwithstanding some shades of qualification expressed by both X and Y to Ms M (at least clearly in part in Y’s case fomented by the mother) it seems clear to me that these two children are content to remain with their father and spend time with their mother.  

2. Z is wholly unequivocal (noting that I reject the father’s assertion that Z wanted to stay with him at the end of the family report interviews).  She wishes to live primarily with her mother.  The father will need to be vigilant in his behaviour towards Z following the conclusion of these proceedings.  If he continues to behave in a fashion that Z finds threatening or which makes her scared, there is a real risk that she will revert to the position that she had in 2013. 

3. The children’s views, given their age, should be given some weight. 

Section 60CC(3)(b)

1. X and Y have a good relationship with the father and Ms B and likewise with the mother.  There is no significant evidence about their relationship with Mr V, but I note that the children are said to be excited about the forthcoming birth of their half-sibling in (omitted) 2015.  Given the intensity of Z’s desire to live with her mother, it must be the case that her relationship with Mr V is at least satisfactory.  

Section 60CC(3)(c)

1. The father has clearly at all times sought to participate in decision making about long-term issues in relation to the children, to spend time with them and to communicate with them.  His behaviour has not always been productive as Z’s behaviour in 2013 shows.  While the father is deeply critical of the mother’s alleged lack of interest in the children, I think that, to the extent that this has obtained, it has been essentially because she has been overborne by the father’s somewhat domineering personality.  She has, after all, prosecuted her case to finality.  She clearly does wish to participate in all these matters. 

Section 60CC(3)(ca)

1. There does not appear to be any significant evidence about this matter.  It appears that each of the parents is able to fulfil their obligations to maintain the children when they are in their care.  

Section 60CC(3)(d)

1. The separation of the siblings is clearly problematic.  Nobody pretends otherwise.  The children may miss each other during the week.  It seems probable this is so. 

2. Nonetheless, the children see each other every weekend and spend the entirety of the school holidays together. 

3. Such difficulties as may obtain because of the extant separation, which has basically been under way since mid-2013, are clearly, in my view, offset by the trauma causing Z to go and live with her father would entail.  She has expressed the clearest views about this to Ms M in the family report process. 

4. Correspondingly, uprooting the other two children whose schooling has been relatively settled for some time is likely to be extremely distressing to them, and this is clearly a relevant consideration.  I note further that Mr V was not called to give evidence, and his interrelationship with the other two children is by no means as clear as one might wish. 

Section 60CC(3)(e)

1. While there are numerous difficulties obtaining between these parties, neither side has presented any evidence that there is any difficulty or expense related issue substantially affecting the children’s right to maintain personal relations and direct contact with each of their parents.

Section 60CC(3)(f)

1. These are important matters that have, in a sense, already been largely dealt with.  The father very much loves his children as does the mother.  Both of them lack insight.  This is perhaps particularly worrying in the father’s, to my way of thinking, somewhat rigid approach towards his relationship with Z.  He clearly benefited from the counselling with Ms L, as did Z, as otherwise the spend time regime would not have been able to be resumed.  

2. By the same token, the mother’s lack of insight to the extent to which she has contributed to the difficulties that obtain and her over-holding of the children in direct contravention of court orders suggest that she, likewise, may struggle to sufficiently understand the children’s needs. 

3. In the end however these are the parents the children have.  They must be accepted with such limitations as they may present.  

Section 60CC(3)(g)

1. Neither parent impressed me as being particularly mature for their years, and I have already commented all too often on their lack of insight.  So far as the children are concerned, I note that Y and X are relatively robust, but Z is more sensitive.  This in part explains her desire to remain with her mother. 

Section 60CC(3)(h)

1. This is irrelevant.  

Section 60CC(3)(i)

1. This subsection is also important, but I have already traversed such matters as would fall for consideration in the matters set out above.  

Section 60CC(3)(j)

1. Clearly, there has been family violence inflicted by both parents.  This is extremely concerning.  Neither parent, in my view, really seems to understand the trauma occasioned to their children by such violence as they have inflicted on them, both by direct physical assault and by the process of yelling in both households. 

Section 60CC(3)(k)

1. The evidence about Intervention Orders was far from wholly clear. This scarcely matters, given the findings I have made pursuant to s.60CC(3)(j) immediately above.

Section 60CC(3)(l)

1. It is clearly preferable this long running dispute be brought to an end.  I will be making final orders. 

Section 60CC(3)(m)

1. There are no other relevant circumstances. 

Conclusion

1. In the end, it is clear, bearing in mind all the relevant considerations, that the recommendations of Ms M should be adopted.  They reflect a pattern of events that has been in place for what is (bearing in mind the children’s somewhat tumultuous recent lives) a relatively lengthy period of time.  To change Z’s school yet again (she has been subject to all too many changes of school in the past) would be clearly undesirable. 

2. The conclusion, in my view, can be stated as shortly as by saying that it is quite apparent that Ms M’s recommendations are those that are in the childrens’ best interests.  Z is not prepared, at this stage, to live with her father and in my view the reasons she has expressed, when taken in consideration with all the other factors I have set out above, lead inexorably to the conclusion that she should live predominantly with her mother.  I have already dealt with the living arrangements for the other two children.  While the separation of siblings is undesirable, it is a fact of life. 

3. As urged by the Independent Children’s Lawyer, I will order that the parties attend relationship counselling with Relationships Australia, or some similar organisation.  I will prohibit corporal punishment upon the children. 

4. The children will live with their primary carer, but spend time with the other parent from Friday 7.30 pm until Sunday 7.30 pm each alternate weekend, and half school holidays.  The mother said nothing about special days, but the father’s proposals for shared time of special occasions is essentially reasonable.  I have adopted a spend time regime over Christmas and Easter that reflects orders commonly made in this Court.

5. Given that the parties have or have not addressed these matters in terms, and Ms M’s recommendation about changeover is not precise, I will publish the orders as draft orders and give the parties an opportunity to make any further submissions. 

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  12 December 2014