Coulston and Walters

FEDERAL CIRCUIT COURT OF AUSTRALIA

COULSTON & WALTERS

[2016] FCCA 29

Catchwords:
FAMILY LAW – Parenting – whether the children should live in Western Australia or New South Wales – where the mother failed to comply with interim orders – where concerns about aspects of father’s parenting capacity.

Legislation:

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

Morgan and Miles (2007) FLC 93-343
MRR v GR (2010) 240 CLR 461
Palmer & Hammer (No.2) [2011] FamCAFC 196
Sayer & Radcliffe [2015] Fam CAFC 209

Applicant:

MS COULSTON

Respondent:

MR WALTERS

File Number:

SYC 7243 of 2010

Judgment of:

Judge Altobelli

Hearing dates:

21– 23 December 2015

Date of Last Submission:

23 December 2015

Delivered at:

Wollongong

Delivered on:

22 January 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

PJ Carey Solicitor

Counsel for the Independent Children's Lawyer:

Mr Alexander

Solicitors for the Independent Children's Lawyer:

Verekers Lawyers

ORDERS

The Children, X born (omitted) 2006 and Y born (omitted) 2008 (“the Children”), live with the Mother in the Perth region, Western Australia.
The Mother is to have sole parental responsibility of the children but for the issues of:
(a)relocation of the children’s residential address outside of the Perth region, Western Australia; and
(b)the children’s names
in which there be equal shared parental responsibility with the Father.
The Children are to spend time with the Father on the following conditions and as follows:
(a)except as provided for in these orders, for one week during each of the school holidays, and if NAIDOC week occurs during a school holiday, the children’s time with the Father is to occur during that week;
(b)the Mother is to nominate the week that the Children are to spend time with the Father at least 4 weeks before the end of the school term, failing which is it to be the first week of the school holidays, except in relation to the December/January school holidays when it will be the third week;
(c)with the exception of the December/January school holidays, the Children’s cost of travel is to be borne by the Mother. During the December/January school holidays, the Father is to arrange and pay for the Children’s travel from Perth to Sydney, and the Mother is to arrange and pay for the Children’s travel from Sydney to Perth. Any mid-term travel organised by the Father is to be at his own expense; and
(d)the Mother is responsible for delivering the Children to, and collecting them from, Perth airport, and the Father is responsible for collection from, and delivery to, Sydney airport.
In 2016 only, and notwithstanding the previous orders, the Children’s time with the Father is to take place on the following further conditions:
(a)the Children’s time with the Father during the end of Term 1 school holidays is to be day-only time with the exception of 2 non-consecutive nights;
(b)the Children’s time with the Father during the end of term 2 school holidays is to be day-only time with the exception of 3 nights, to be taken as 2 consecutive nights, then 1 night;
(c)the Children’s time with the Father during the end of term 3 school holidays is to be day-only time with the exception of 4 nights, to be taken as 2 consecutive nights, then 2 consecutive nights;
(d)when the Children spend time with the Father at night time, they are to be based at the home of the paternal grandparents or paternal aunt; and
(e)as from the 2016-2017 school holidays, the Children’s time with the Father at night becomes consecutive, and subject only to the condition that they be primarily based at the home of the Paternal Grandparents or Paternal Aunt.
In addition to the Father’s time in accordance with the previous orders, the Father may spend additional time with the Children as follows:
(a)For one weekend during each school term upon the Father giving to the Mother two weeks notice, provided that:
(i)such time will be spent in the environs of Perth;
(ii)such time will commence at a time after school on Friday and conclude no later than 5:00pm on Sunday;
(iii)during such time, the Father will honour any commitment the Children have to participate in any extra-curricular or sporting activity; and
(iv)such time will be conditional on the Mother being satisfied at change over that the Father is not under the influence of any drug/s or alcohol.
(b)Such further or different time as agreed with the intention that, if the Mother returns with the Children to the environs of (omitted), the Children will spend time with their father each alternate weekend from after school Friday until 5:00pm Sunday, and for one week in each holiday period.
Unless an order expressly provides to the contrary, such time as the Children spend with the Father is further dependent on the following conditions:
(a)if such time is spent in Western Australia, the Children must be accommodated in appropriate accommodation reasonably proximate to the Mother’s home.
(b)the Father must not consume either alcohol or any illicit substance during the period that the Children spend time with him; and
(c)prior to the Children being permitted to remain in the sole care of their father in New South Wales during 2016, the Paternal Grandparents or Paternal Aunt must be satisfied that the Father is able to properly care for the Children (including, but not limited to, not being under the influence of any drug or alcohol) each morning of their stay and must give undertakings to the Court in a form prepared by the Independent Children’s Lawyer recognising the obligation imposed on him or her and their preparedness to accept that obligation.
The Mother and the Father are each to facilitate communication twice weekly between the Children and their other parent with such communication to occur between 5:30pm and 6:00pm on Fridays and Sundays, provided that on Sunday such communication will be by Facetime or Skype or similar audiovisual communication.
Within three months the Father enrol in an anger management course and a parenting after separation course and complete such courses within six months thereafter.
The Father submit to three random urinalyses on 48 hours notice within six months of the date of these orders on the following conditions:
(a)for this purpose, the appointment of the Independent Children’s Lawyer (“ICL”) is extended for six months;
(b)the ICL is to determine the date and is to receive the results of such urinalyses;
(c)the urinalyses are to be conducted subject to ASD/NZS 4308:2008 and to require chain of custody of any sample;
(d)if the urinalyses or any one of them is positive to any illicit substance, or if the Father fails to provide a sample within 48 hours of being requested to do so, the time of the Children with the Father must thereafter be supervised until he has provided three clear urinalyses at intervals of not less than a month as requested by the ICL.
The Mother keep the Father informed of the following:
(a)the school(s) attended by the Children;
(b)any specialist medical appointments or reports provided to the Mother in relation to the Children or either of them;
(c)any proposed change of address, school, contact details, name or place of living of the Children or either of them.
The Mother and Father be hereby restrained from:
(a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the Child/ren; and
(b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the Child/ren or permitting any other person to do so.
The Mother pay to the Legal Aid Commission within 28 days an amount of $2,750.00, being a 50% share of the cost incurred by the Commission in representing the children in these proceedings
The Contravention Application filed 21 August 2015 be stood over to 28 June 2016 at 9:30am for Mention.
Any future Application filed in this matter be listed before Judge Altobelli, provided that he is reasonably available and subject to any application of a party.
Liberty is granted to the parties to re-list the matter on 7 days notice by joint application to the Court in Chambers in appropriate circumstances regarding the interpretation, implementation or enforcement of these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

SYC 7243 of 2010

MS COULSTON

Applicant

And

MR WALTERS

Respondent

REASONS FOR JUDGMENT

Introduction

This case is about two children; X, born (omitted) 2006, who is 9 years old, and Y, her sister, born (omitted) 2008, now 7 years old. Their parents are unable to agree as to where the children should live and how much time they should spend with their father. Their mother is the Applicant. She is 35 years old, describes herself as a (occupation omitted) and lives with her husband in Perth. The children’s Father is the Respondent. He is 43 years old and currently lives in the (omitted) area of New South Wales. These reasons for judgment explain the orders that the Court has made in this case.

Background

The parents started living together in (omitted) 2000 and married in 2004. They separated in October 2010. On 13 May 2011 the parents entered into consent orders, ostensibly on a final basis, though there was a notation expressing the parties’ intention that these orders and arrangements would be reviewed in 12 months’ time. It is clear, therefore, that the parents themselves considered a revision of these orders at the time they entered into them. The orders provided for the children to live with the Mother but to spend time with the Father each alternate weekend from Friday evening through to Sunday evening for both children, and in relation to X each Wednesday night through to Thursday morning. The orders also provided for time with the Father on special occasions and during school holidays. The orders thus expressly contemplated overnight and unsupervised time.
The litigation resumed again in 2014. When the matter came before me on 23 December 2014, on the Mother’s application, the Court made interim orders that the children continue to live with her, that an Independent Children’s Lawyer be appointed, that each parent undertake urinalysis, that the orders of 13 May 2011 be suspended, but that otherwise the Father to spend time with the children during daytime only, for limited periods, and supervised by the paternal grandparents who were to provide appropriate undertakings to the Court.
In January 2015 the Mother unilaterally relocated with the children to Western Australia.
On 23 March 2015 Judge Sexton discharged the interim parenting orders, ordered once again that the children live with the Mother, but spend supervised time with the Father on specified dates and times.
On 27 May the matter came before the Court to consider the issues created by the Mother’s unilateral relocation. On 4 June 2015 the Court made orders for the children to be re-enrolled in their previous school in the (omitted) area and for the children to be returned to the (omitted) area before 13 July 2015. On the children’s return the orders made 23 December 2014 relating to the Father’s supervised time with the children were to be re-instated.
The Mother appealed the interim orders made. The Court dismissed her Application for a stay pending appeal, and the appeal then lapsed. The Mother did not comply with the order for the children to be returned.
A Family Report had been ordered, and Dr H's Report was released on 4 August 2015.
The Father then commenced contravention proceedings. The Mother did not attend when these proceedings were returnable before the Court. On 8 September 2015 a warrant was issued for her arrest, but stayed until 7 October 2015. On 7 October the Court considered the matter further, and reserved its judgment to the next day. On 8 October the Court discharged orders 1 and 2 made 8 September, issued another warrant for the Mother’s arrest, but stayed it pending compliance with orders the effect of which were that the Mother cause the children to spend time with the Father in the (omitted) area of New South Wales, supervised by the paternal grandparent on the dates and times specified in the order.
The matter otherwise was stood over to the final hearing, which commenced 21 December 2015 and ended 23 December 2015.
At the final hearing the Mother, who was representing herself, sought orders for sole parental responsibility, that the children live with her in Western Australia, and spend time with their father during school holidays supervised by the paternal grandparents.
The Father sought orders for equal shared parental responsibility, for the children to be returned to New South Wales, to live with their mother, and for him to spend time with the children each alternate weekend from Friday to Sunday, along with half the school holidays.
By the time of final submissions on 23 December 2015, the Independent Children’s Lawyer’s proposal was for sole parental responsibility for the Mother, lives with the Mother, and spends time with the Father.
This is obviously a difficult case. The Mother and her new husband, to whom she has a child, want to continue to live their lives in Western Australia where he works and has family. The Father wants the children to be returned to (omitted) so that he can continue to see them on a regular basis, but he does not otherwise propose that the children live with him. It is clear that the Mother has been the primary carer for these children and that their strongest emotional relationship is with her.
Both parents make quite serious allegations about the other’s conduct during the relationship and after separation.
It seems relatively uncontentious from the evidence that between the date of the first orders in 2011 till January 2014, the orders worked reasonably well. There were periods when the frequency was not as great as that prescribed by the orders, mainly because the Father moved away either to Sydney for work purposes, or to (omitted), again for work purposes. Whilst he was in Sydney he continued to spend regular time with the children. He appears to have been in (omitted) for a relatively short period of about a month or so.
There was a quite extensive period in 2014 when the Father wasn’t seeing the children. The Mother says that she had concerns about his stability and capacity to care for them. The precise reason why the Father did not spend time with the children is a matter in respect of which the Court will need to make findings.

The Evidence

At the final hearing the Mother relied on her Affidavits filed 21 May 2015, 13 February 2015 and 23 October 2014. In addition she relied on her husband’s Affidavit, that is, Mr M, filed 20 May 2015, and the Maternal grandmother’s Affidavit, that is, Ms L, filed 20 May 2015.
In the Father’s case he relied on his Affidavit filed 20 December 2015 and his father’s Affidavit filed 20 March 2015.The Father was represented by his solicitor, Mr Carey.
Mr Peter Williamson was appointed as the Independent Children’s Lawyer in this case. Mr Alexander of Counsel appeared on behalf of the Independent Children’s Lawyer. The evidence led by the Independent Children’s Lawyer was the Family Report prepared by Family Consultant Dr H dated 3 August 2015.

Outline of Reasons for Judgment

After stating the applicable law the Court will consider the evidence of Dr H in the form of her Report, and then her subsequent cross-examination. Dr H’s evidence is, of course, the only independent and expert evidence in this case.
The evidence of each of the witnesses will then be considered. Thereafter there will be an analysis and discussion of the evidence by reference to the relevant provisions of the Act.

Applicable Law

In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(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.
(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 by 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).
(3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)     to maintain a connection with that culture; and
(b)     to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)     to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(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.

If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)     If:
(a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends or holidays; and
(b)     the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)     how far apart the parents live from each other; and
(b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)     the impact that an arrangement of that kind would have on the child; and
(e)     such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The applicable law in relocation cases has been summarised in many cases including, for example, the Full Court’s decision in Sayer & Radcliffe [2015] Fam CAFC 209:
47. It is a now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders (see Morgan and Miles (2007) FLC 93-343 at paragraphs 72 to 73, Palmer & Hammer (No 2) [2011] FamCAFC 196 at paragraph 28).
48. A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents (see Palmer & Hammer (No 2) paragraph 76; Morgan and Miles paragraphs 80 to 81). It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
50. The legislation therefore requires multiple layers of consideration, but does not provide express guidance as to the order in which such matters are to be considered, or what weight is to be attached, other than to commence with the presumption of equal shared parental responsibility and what follows from that decision.
51. The operation of the legislation in relocation cases has been expressly considered by the High Court in MRR v GR (2010) 240 CLR 461, an appeal from an order of a Federal Magistrate refusing to allow relocation. In joint reasons for judgment, the Court (French CJ, Gummow, Hayne, Kiefel and

Bell JJ) summarised the effect of the legislation and concluded that orders for equal or substantial and significant time are to be guided by the practical feasibility of such time, not merely its desirability. Their Honours said

(pages 464-465, 467):
6. Part VII of the Act (ss 60A-70Q) concerns children. It was substantially amended in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) of the Act provides that it is an object of the Part to ensure that the best interests of children are met, inter alia, by “ensuring that [they] 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”. Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child’s best interests are listed in s 60CC.
7.    Section 65D(1) provides that the Court […] may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) requires the Court to 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. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child. […] Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.
8.    Sub-section (1) of s 65DAA is headed “Equal time” and provides: “If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)    if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
(Emphasis added.)
Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:
“(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)    if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
Sub-section (3) explains what is meant by the phrase “substantial and significant time”.
9.    Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
…
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
(Footnotes omitted. Emphasis added in bold.)
In this case an order for equal shared parental responsibility was made. The orders for time the children have with the father were on an ever increasing basis beginning with 9.00am to 12.00 noon on Saturday, fortnightly to 9.00am to 5.30pm on a Saturday, fortnightly. After May 2012 the time was to include a Wednesday from 2.30pm to 5.30pm. Short periods of time were provided for on special days including Christmas. These orders were hardly substantial and significant time. No reasons were given connecting the orders about time with the father and the order for equal shared responsibility.
Allegations of family are made in this case. The term is expressly referred to in the legislation. Family violence is defined in s 4(1) in the following terms:
“family violence” means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
It is important to note that s 60CC(3)(m) permits the Court to take into account any other fact or circumstance that the court thinks is relevant. Thus, any other form of abusive or controlling conduct that does not necessarily fall within the statutory definition may nonetheless be considered in determining what is in a child’s best interests.
Experience in this jurisdiction teaches that family violence can often cast a long shadow. Thus the impact of violence can endure for many years after it has ceased. Victims, witnesses and others exposed to violence including children may thus experience physical and/or psychological harm long after violent relationships have ended. Nonetheless every case must be determined on its merits and by reference to the evidence.
The relevance of family violence permeates all of the primary and additional considerations referred to in s 60CC(2) and (3). Family violence may have an impact on meaningful relationships (s 60CC(2)(a) and create the need to protect children from physical or psychological harm (s 60CC(2)(b)). Family violence might influence the views expressed by a child (s 60CC(3)(a)), and set a context in which to examine and understand the nature of a child’s relationship with a parent or another person (s 60CC(3)(b)). Family violence might explain a parent’s willingness, or lack thereof, to facilitate and encourage a close and continuing relationship between a child and a parent (s 60CC)(3)(c)). When a finding of family violence is made, a child might be more vulnerable to suffer the adverse effects of changes in their circumstances including separation from a parent (s 60CC(3)(d)). Issues of practical difficulty and expense might be accentuated if there is violence (s 60CC)(3)(e)). Sometimes family violence has an impact on the capacity of the victim to provide for the needs of a child, and raises similar issues about the perpetrating parent (s 60CC(3)(f)). In some cases the maturity, sex, lifestyle and cultural background of a parent provides some context in which to examine and understand violence, though experience indicates that its impacts are often the same (s 60CC(3)(g), (h)). Family violence may well reflect poorly on the perpetrating parents’ attitude to the child, and to the responsibilities of parenthood. Thus, for example, a violent parent may be considered a poor role model for a child (s 60CC(3)(i)).

The Evidence of Dr H

Dr H's Report is dated 3 August 2015. She interviewed the parents, the paternal grandparents, the maternal grandmother and the Mother’s husband. The children were also interviewed and observed.
The Mother expressed concern to Dr H about the Father’s drug use and his aggressive and unpredictable behaviour. Whilst the Mother was not concerned about the risk of physical abuse to the children from the Father, she was concerned about verbal abuse, or what might happen if he were frustrated or drug affected. She did not believe the paternal grandparents were suitable supervisors. She doubted that the Father’s motivation in the proceedings was the best interests of the children. She emphasised the benefits to her and her family in an economic and social sense of life in Western Australia. At paragraph 19 Dr H made this important observation:
While Ms Coulston could not list any positive contributions the father makes to his children’s upbringing, she valued their ongoing relationships with other paternal kin.
In interview with the Father, he expressed concerns to Dr H about the Mother’s real motivation for relocation. He suggested there were reasons the Mother moved that had little to do with the children. He insisted that the children missed him and he missed them. He denied the Mother’s allegations. He emphasised the importance of the children’s indigenous cultural heritage. He had a completely different account as to why he did not spend time with the children from February 2014. The Father was deeply sceptical about the ability of the Mother to comply with any orders for the children to spend time with him, should they be allowed to relocate.
At paragraph 29 and 30 Dr H records the following important observations about the Father:
In general, the issues Mr Walters raised related more to his entitlements and the mother’s fraudulent dealings rather than to his child’s welfare.
Mr Walters does not seem able to see the family situation from his daughter’s point of view, or to imagine them having feelings or views very different from his own. For example, he was dismissive about the children’s likely grief in response to a period of enforced separation from their baby brother, mother and, indeed, stepfather…He did not appear to appreciate that the children might blame him for causing the separation and resent him (even if they dare not display their feelings openly).
The children were observed in their interactions with the parents and other significant adults in their life. At paragraph 35 Dr H records:
Both girls displayed affectionate, trusting relationships with their mother, stepfather and maternal grandmother. Y moved over to sit on her stepfather’s knee, and cuddled him during the conjoint interview. The family atmosphere was warm and comfortable. The mother and stepfather dealt with all children appropriately and tenderly. The children greeted their paternal grandparents politely rather than effusively although they provided tokens of affection on request. They seemed more willing to seek proximity with their father than their paternal grandparents. . Both girls were polite and cooperative with all the adults with whom they were observed, but their interaction with paternal kin was rather stilted. Y sat on her father’s knee. She appeared to be at ease there but she did not initiate much conversation. X initiated the chat with paternal kin. She seemed anxious to please. When it was time to leave X and Y parted without any visible signs of reluctance or regret.

The individual interviews with the girls are recorded at paragraphs 36-40 as follows:
X (8) presented as a pretty girl with hazel eyes and fair curly hair. She was well groomed and looked well-nourished and appropriately developed for age. X indicated some nervousness about whether what she said would be reported to her father in his presence that day. She understood the explanation given about the Court and the Judge (a booklet had been supplied) and agreed that it would be acceptable for me to report to the Judge what she had said. X said she felt very nervous about her father’s response to her expressing a preference to live with her mother and stepfather in Western Australia.
On projective tasks X indicated she was happy at her school in Western Australia (particularly when she was interacting with her new best friend, H) and that she felt very happy and comfortable when she was at home with her mother but not very happy and comfortable when she was visiting her father. She indicated enjoying playing with her cousins during the time that she had contact with her father. She made a comment to the effect that she felt “not safe” with her father because her father had said “I’m going to take you away from your Mum.” Further probing indicated that X could not remember their father ever trying to kidnap them. X spontaneously commented that when she first started to see her father on weekends she felt very nervous (and in fact she often still feels nervous at the beginning of a visit). As visits have progressed she has felt more comfortable. X said it would be bad if she had to see her father every weekend because she would miss her friends. X expressed fondness for her cousins and her aunts Ms E and Ms S. X says she misses her maternal grandmother since moving to Perth. She did not indicate missing her father but thought it would be good to see him and the cousins during school holiday visits to Nan.
Y (6) presented as a pretty little girl with blue eyes and curly fair hair. When asked who she missed Y said she misses Nan. She mentioned that she did not ever miss her Dad (whom she, like X, referred to as “Mr Walters”). It was noticeable from the way both Y and X spoke that they called both Mr M and Mr Walters' Dad but in some way appear to view Mr M as the rightful owner of that title since both of them took pains at times to make it clear to me that they were not talking about Dad but “Mr Walters”.
On a projective task Y indicated that she felt happy at school with her friends and at home with Mum and unhappy when visiting her father. Overall she is content with her life. She also made the comment that she felt worried that her father would take them away from their mother but, like X, gave no specific reasons. Y expressed a great deal of enthusiasm for her new school and her new best friend called S.
In response to the question of whether it would be good to have a sleepover with Dad both girls prevaricated, answering to the effect that it would be nice to have a sleepover at Auntie Ms S’s house with all the cousins. When this possibility was discussed with the family group the mother said that the girls had recently started displaying some anxiety about sleepovers. For example X had recently been to a friend’s house to spend the night but then had requested to return home. When this was probed X agreed that she felt nervous about sleeping away from her Mum’s house except when she was sleeping at Nan’s house. X and Y made comments indicating that they view their paternal grandmother as more interested in playing Bingo than in being with them.
It is important to note that Dr H had before her subpoenaed material. She discusses what is contained in these documents at paragraphs 41 and 42 of her Report. It is unnecessary to extract this summary, in the present context. As will be seen, one of the lines of cross-examination of Dr H by the Father’s solicitor was that she seemed to have accepted the Mother’s contentions about the Father’s violence and drug use, but not accepted the Father’s denials of the same. The review of subpoenaed material conducted by Dr H assists in understanding the view that she adopted.
Dr H’s evaluation is found at paragraphs 43-48 of her report:
EVALUATION
Aggregated information supports the conclusion that the mother is the better candidate for principal residence and parental responsibility. No immediate risk of harm has been demonstrated for the children in her care whereas cursory inspection of subpoena materials lends credence to her claims with regard to the father’s aggression and anti-social potential posing risks for children in his unsupervised care. The children stated a clear residential preference for their mother and stepfather. They expressed no wish to spend more time with their father. They seemed very nervous about their father’s reactions to their views so if they prefer to spend little or no time with their father they would probably be afraid to say so. Enforced family separation between now and Final Hearing is likely to further degrade the quality of the subject children’s attachment to their father if they come to view him chiefly as a nuisance who unsettles their lives and threatens their attachment security to their mother and step-father - if indeed they do not already view him this way.
Although no danger of abuse or neglect has been demonstrated for Ms Coulston her precipitate flight to WA without seeking Court Orders calls into question her ability to make decisions in her children’s best interests. If she does not comply with Orders to return to (omitted) negative inferences will be drawn. Her credibility will be diminished in the eyes of the Court, and her relocation proposal viewed unfavourably. It would be unfortunate if the mother’s defiance of the Court was a determining factor in decisions about the children’s lives since nothing has emerged from this assessment to suggest that X and Y would be disadvantaged by relocation to Perth.
The children’s most sustaining relationships, and those they appear to value most highly, are with their mother, stepfather, maternal grandparents, baby brother, paternal cousins and paternal aunts (in that descending order). If X and Y were to relocate to Perth, visit the paternal kin several times a year and have regular telephone / Skype contact with their father, there is no reason to believe that their affectional ties to paternal kin would rupture. The fact that the mother’s parents live in the (omitted) provides some basis for confidence that the mother would honour her part of the bargain about facilitating holiday visits. The fact that the maternal grandparents have demonstrated their willingness to facilitate handovers thus far provides some basis for confidence that they would continue to do so during future school holiday visits. Such a visitation schedule would be sufficient for identity purposes. The Aboriginal heritage stressed by the father and paternal grandmother seems irrelevant to X and Y at this stage, but it is possible they may show more curiosity as they mature.
Neither a change of principal residence nor substantially shared care would be suitable options to consider for X and Y. Not only does aggregated information strongly suggest that the father is a suboptimal parent but shared parental decision-making is deemed to be unworkable due to the mother’s fearful aversion towards the father and his animosity towards her. Even if the Court were satisfied that the father’s home conditions and lifestyle were safe enough to permit unsupervised visits from the children if they were living in the local area it would only expose the children to stress and discord for them to move often between homes, particularly since they seem to view their father as a source of threat rather than a source of comfort.
Whether or not the father’s time with the children requires ongoing supervision is a matter to be determined by the Court. Given that it seems agreed by all parties that it will likely become too onerous for the paternal grandparents to provide visit supervision long-term, it seems sensible to nominate other mutually-acceptable members of the paternal kin as visit supervisors between now and Final Hearing.
With regard to the requirement that the mother relocate to (omitted) pending Final Hearing, it seems that this may result in the subject children being separated from their younger brother. This sibling separation will grieve them, as well as him. At his young age it is more disadvantageous for Z to be separated from his mother for 4-6 months than it is for X and Y. He is pre-verbal and cannot understand explanations as they can. Furthermore, the maternal grandmother is a major attachment figure for X and Y, so would be well-placed to comfort their separation anxiety. Any distress the girls experience as a result of this enforced separation is likely to rebound on their father as resentment and is thus more likely to weaken rather than strengthen that affectional tie, although they seem too fearful of displeasing him to express open dissenting views. This is probably truer of X than Y who seems less compulsively compliant than her sister.
Her ultimate recommendations are found at paragraphs 49-56.
RECOMMENDATIONS
Substantially or even significantly shared care is strongly contraindicated and there is no realistic prospect of improvement. The mother is the better parent and the children greatly prefer her. X and Y will benefit from maintaining relationships with paternal kin but will not suffer from being apart from their father for the length of a school term. Accordingly it is recommended that:
The children should live with their mother who should make all the major decisions about their day to day care
If the Court permits Ms Coulston to relocate with the children to WA then X and Y should visit their father during school holidays, and have weekly telecommunications.
If the Court does not permit relocation and X and Y must return to live in (omitted) in 2016, then they should spend time with their father and paternal kin on two days on alternate weekends and for one week during school holiday periods.
The father’s visits with the children should continue to be supervised until the Court is satisfied there are no risks of immediate harm posed by his home environment, lifestyle, drug use or potential for aggression.
If the father’s sister Ms S and her husband Mr P are willing to sign the appropriate undertakings then they should be authorised to supervise visits and share transport to handovers with the paternal grandparents
Overnight visits between Mr Walters, X and Y should occur in the home of Mr and Ms S rather than in the home of the paternal grandparents.
Mr and Ms Coulston are encouraged to carefully consider how best to minimise the harm of an enforced family separation between August and December 2015. If sibling separation cannot be avoided then it would be less harmful for X and Y to be separated from their mother while remaining in the care of their maternal grandmother than for Z to be separated from his mother.
Dr H was extensively cross-examined. The following points emerge from that cross-examination:
·    Dr H had read the current evidence filed on behalf of the parents.
·    In relation to why she recommended supervised time, Dr H explained that whilst there were matters of disputed fact which the Court had to decide, her concerns included protecting the children from the possible risk of harm from their father, the stability of the Father’s home environment, and the possible risk to the children posed by the Father’s lifestyle, including the people within whom he associated, and his potential for aggression. She agreed, however, that if the Court came to a different view about these matters, her recommendation for supervision would need to be reviewed. Another important factor, however, was protecting the children from the parental conflict, and thus managing changeovers in a way to protect them from this.
·    Dr H agreed that if the risk of harm issues could be managed, then overnight time was a possibility with the Father.
·    Dr H agreed that the Mother’s motivation for relocation was mixed, and certainly included a desire to move away from the Father because of the problems she had experienced with him.
·    In relation to the children’s indigenous background, Dr H thought that this was best encouraged through contact and communication with the paternal family. She doubted whether the Mother would place any obstacle to the children maintaining a link to their indigenous heritage. She doubted the Father’s sincerity about this issue.
·    Dr H acknowledged that the Mother had clearly demonstrated a capacity to ignore Court orders, but emphasised that in her opinion that should not be a determinative issue in this case, where the focus was on what is in the best interests of the children.
·    Dr H confirmed that the Mother could not list any positive contributions that the Father had made and probably saw no benefit in the children having a meaningful relationship with their father. However, that did not mean that she would not comply with Court orders.
·    If relocation were allowed, she thought that the children spending time with their father during school holidays was probably enough to maintain a relationship with their father. At present, however, the children’s relationship with the maternal grandmother was probably a more significant one for them. She observed that there was no evidence that the children were missing their father, or suffering whilst separated from him.
·    Returning to the issue of the Mother’s compliance with orders, whilst Dr H accepted that the Mother placed nil value on the children’s relationship with their father, she thought that she would comply with the orders if she thought there were sufficient disincentives to non-compliance. She emphasised that the Father had not contributed or participated in the children’s daily lives in recent times, but that he had the capacity to becoming a friendly, affectionate presence in their lives.
·    She confirmed that both children were uncomfortable in the Father’s presence, and in terms of their relationship with him. Both were worried about the Father taking them away from their mother. The basis of the children’s fear could either be something the Father has said or done, or something the Mother has said or done. Dr H confirmed that she saw no disadvantage in allowing the children to relocate. The cumulative factors of the Father’s absence, the paternal grandparents’ absence, and the loss of connection to heritage were relevant and important considerations, but not ultimately determinative in this case, in her opinion. Communication via Skype, as well as school holiday contact, would satisfactorily address the matters referred to above.
·    Dr H agreed that her impressions of the Father as a suboptimal parent depended on her acceptance of what the Mother said over what the Father had said. She emphasised, however, that she took into account aggregated information, as well as the presentation of both the Mother and the Father. She emphasised that the Father’s presentation and discourse style did not seem to be sensitive or child-focused.
·    Nonetheless, subject to the evidence, unsupervised time might be possible. It would depend on the Court’s findings about his lifestyle, aggression, drug use, and the family violence allegations.
·    Dr H agreed that if the Mother’s non-compliance with orders was deliberate and calculated, it would reflect a state of mind demonstrating confused thinking, and raise concerns about her willingness to comply with Court orders, especially if the children were allowed to relocate to Western Australia. However, she emphasised, that the real issue is which parent was better able to meet the needs of the children. From her professional perspective, this was undoubtedly the mother.
Subject to the matters to be discussed below, the Court accepts Dr H’s evidence. Nothing was put to her in cross-examination that caused her to reconsider the recommendations that she had made.

The Mother’s Evidence

The Mother relied on her three Affidavits, filed 20 May 2015, 13 February 2015, and 23 October 2014. For the most part, the Mother gave her evidence responsively. As will be discussed below, there were parts of her evidence where the Court will find she has been honest, indeed disarmingly honest, about past events where she was clearly dishonest. There are also other parts of her evidence where the Court believes she has not told the entire truth.
To the extent that the Mother’s case is that the relationship broke down because of the Father’s drug use and volatile, violent behaviour, the Court accepts the Mother’s evidence, particularly where it conflicts with that of the Father. To the extent that the Mother’s case is that she relocated with the children and her new husband to Perth in order to be away from the Father because of what she considered to be his ongoing harassment, as well as her ongoing concerns about the ability to care for the children, the Court once again prefers her evidence over that of the Father.
The Court finds that there was a violent incident in a motor vehicle in which both parents were travelling together with two other people on 25 April 2010 at (omitted). The Mother says that the Father, who was in the backseat whilst she was in the front passenger seat, “reached over and grabbed me around the neck, strangling me.” The Father characterises this event in a different manner. He accepts that at a time when he was angry with the Mother, he did grab her right shoulder and pull the clothes that she had on. The event was serious enough to warrant the intervention of the other male passenger in the vehicle. Even the Father agreed that he was under the influence of drugs at the time, probably cocaine. His allegation that the others were also under the influence cannot be established. The Mother denies the allegation. This event demonstrates the accuracy of the Mother’s contention that the Father used drugs, was volatile and violent. It is possible for her to have construed the event as an attempt to strangle her. It may well have felt that way to her. Others may have a different perception. It does not change the fundamental nature of the event.
The relationship between the Mother and the Father ended about six months after this incident.
The Mother makes other allegations in relation to family violence during cohabitation at paragraphs 21-30 of her Affidavit filed 20 May 2015. For all practical purposes, she was not challenged about this evidence. To the extent that this evidence was put in issue by the Father, the Court prefers the Mother’s evidence for reasons that will be discussed below in relation to the Father.
The Mother agreed in evidence that she entered into a number of interim consent orders (described earlier in these reasons) and that she did so by consent. She said that she entered into these arrangements notwithstanding the reservations she held. Based on her evidence, however, the Court believes it is more likely than not that any reservations she held about the appropriateness of the orders arose after she consented to them, rather than before or at the time.
The Court accepts her evidence that for a substantial period the orders for the father to spend time with the children seemed to have worked quite effectively with minor, uncontentious changes. For example, in about October 2011 the child X ceased to spend Wednesday nights with the Father. The contact arrangement continued notwithstanding the Father’s move from (omitted) to Sydney to live with a new partner. It is significant to note that in about October 2012 the Mother became aware of certain issues in the Father’s relationship with his new partner, Ms K, the details of which will be discussed in the context of the Father’s evidence.

The contact arrangement was interrupted in December 2013 when the Father told the Mother that he was relocating to (omitted) in Queensland in the expectation of obtaining work on (employment omitted). It is common ground that he returned to (omitted) about four weeks later, having been unable to gain employment. Having regard to the evidence of both parents, the more likely scenario in relation to the Father’s move to (omitted) was that, if he had obtained work as a miner, he probably would have returned to (omitted) to spend time with the children. There is no suggestion at this time that the Mother would not have supported this, or that he would not have sought to implement such an arrangement.
Things appear to have deteriorated on the Father’s return from (omitted). Even the Father admitted that he went through a period of instability, particularly in terms of where he lived, the Father’s relationship with his parents and sibling, and his financial circumstances. This period of instability in the Father’s life disrupted his relationship with the children. To the extent that the Father is critical of the Mother for not facilitating the children’s time with him during this period, the Court finds that, on balance, her concerns were justified. With the benefit of hindsight, the Mother might have done more, but there is far more that the Father could have done to get his life back in order, for the sake of the children. More will be said about this period of the Father’s life when discussing his evidence. To the extent that the Mother alleges that the Father harassed and intimidated her during this period, she was entitled to experience his actions in that fashion. He wanted to resume contact with the children, but she continued to be concerned about issues relating to his behaviour, his possible continued drug abuse, and his residential and financial stability. There was an ugly incident on 26 September 2014 at the Mother’s house. The AVO was made final on 14 November 2014. It should be noted that there was an earlier AVO in 2012. Both of these AVOs will be discussed in the context of the Father’s evidence. The fact of the AVO is indisputable. The events that gave rise to it are not so clear, with the paternal grandfather, in effect, corroborating the Father’s evidence. It is more likely than not that the Mother’s evidence that the Father was “yelling and ranting and raving” is correct.
Towards the end of 2014 it is clear that the Mother and her husband were actively planning a relocation to Perth. Her Affidavits emphasised that the relocation to Perth was because of the redeployment of her husband, Mr M to (employer omitted) in Perth. In her Affidavit of 13 February 2015 she deposed at paragraph 33:
We received notice of Mr M’s posting to (omitted) on 29 December 2014.
The court finds that is true, in a technical sense. In reality, and partly as explained in the Mother’s Affidavit of 20 May 2015, and then further explained in cross-examination, both the Mother and her husband knew the likelihood of the posting to Perth well before 29 December 2014, certainly in December 2013, and probably in October/November that year. Moreover, her evidence, and that of her husband, indicates that in the application made to the relevant department for a compassionate posting they exaggerated, indeed significantly exaggerated, the issues that the Mother was encountering with the Father.
The Mother was clearly deceptive at the time she swore her Affidavit, on 13 February 2015 and 20 May 2015. Moreover, she entered into the December 2014 orders knowing that she was not going to comply. The Court regards these as very serious matters. The orders made in the latter period of 2015, designed to secure her compliance with orders for the children to spend time with the Father, reflect that.
The Mother receives some credit for being honest, indeed disarmingly honest, in her evidence before the Court about the nature and extent of her deception. Moreover, she seemed to openly acknowledge the trust issue that was a necessary consequence of her actions, that is, that neither the Father nor the Court would necessarily trust her to comply with future Court orders. She apologised, and she seemed contrite in her apology. She accepted that there would be certain ramifications for her dishonesty and, for example, readily consented to the Independent Children’s Lawyer’s application for her to pay one half of his costs, that is, $2750.
This is a very serious issue but, on balance, the Court is satisfied that her contrition is genuine, as is the proposal that she puts before the Court. Indeed, she made it very clear to the Court that if the children were ordered to be returned to the (omitted), she would return with them but her husband, and her son Z would remain in Perth. She also accepted the risk of further enforcement proceedings. She acknowledged that the Father’s adjourned Contravention Application had not yet been dealt with (at the Father’s request so that the trial could be finalised), and she further accepted the possibility that the Court would order that any further applications in relation to her children would first be listed before myself, subject to availability and any other application that might be made.
To put it in plain English, the Court formed the impression that the Mother understood she had taken matters into her own hands in the past and that if she continued to do so in the future it was likely that there would be drastic consequences for her, in order to secure compliance with the orders.
The Independent Children’s Lawyer submitted, in the end result, that whilst the Mother’s past actions were arbitrary and in many respects deplorable, her willingness to comply with future Court orders was probably not a significant concern for the Court. The Court accepts this, within the context of the orders intended to be made.
One of the issues in this case is whether the children’s time with the Father needs to be supervised and, if so, by whom. On any interpretation of the Mother’s evidence, she continues to remain concerned about the Father’s use of illicit drugs, his lifestyle, and his aggression. She accepted that the children had never been physically harmed in their father’s care, but it needs to be noted that her concerns were primarily about the risk of such harm, as well as emotional harm in a context where, she says, he continues to have a very negative view about her, and the parents plainly do not trust each other, nor are able to communicate with each other. For his part, the Father cannot see why supervision is necessary and feels that it is an imposition on the paternal grandparents. As will be discussed below, the evidence is quite clear – in fact, the children have not been continually supervised by the grandparents, as the order requires, due to physical limitation, especially for the elderly grandfather. The need for supervision, at least for a limited time, has been established, and the evidence in support of this will be discussed in the context of the Father’s evidence. It is important to note that the need for supervision is established whether the children are living in the (omitted) or in Perth.
Other aspects of the Mother’s evidence will be discussed in these reasons below, where context requires this.

The Evidence of Mr M

Mr M is the Mother’s husband. His Affidavit was sworn on 20 May 2015. He married the Mother on (omitted) 2013, and they have one child together, Z, born (omitted) 2013, now two and a half years old.
The Court is satisfied that his evidence corroborates the Mother’s evidence about feeling fearful and intimidated by the father. The Court formed the view that there were very few direct observations about the Father that Mr M could make, and that his impressions were largely, but not entirely, formed through his wife.
Mr M’s reasons for relocation to Perth were more to do with the illness of his father, and to a lesser extent his mother, both who live in Perth. It is clear, however, that he actively participated in the exaggerated application for compassionate posting, insofar as it related to the Mother’s concerns about the Father.
The evidence about Mr M’s deployment to Perth, for what period, whether and, if so, for how long it was extended, and the prospects of his redeployment back to the (omitted), is quite unclear and in many respects unsatisfactory.
The distinct impression formed by the Court is that there was the possibility for the initial deployment to Perth to be limited for one year but, during the course of these proceedings, Mr M (no doubt with the Mother’s knowledge) sought to extend that by a period of at least one year, and probably two years. The Court is satisfied from Mr M’s evidence that his motive was primarily to remain close to his parents, particularly his father who is both elderly and ill, but he was also motivated by trying to keep his family together, and the Mother and her children away from the Father.
Mr M is not a parent in the present proceeding, and he cannot be made accountable in the same way as the Mother can, for example, in relation to her deceptive acts. He certainly did not prioritise the Mother’s children’s relationship with their father in any of his actions. It is clear that he thought the Mother had every good reason to want to get away from the Father.
There is no dispute that he enjoys a good relationship with the children who call him dad.

The Evidence of Ms L

Ms L is the Maternal Grandmother and her Affidavit was sworn 20 May 2015. Historically, she has played an important role in facilitating the children’s time with their father and in 2015 the children stayed with her and her husband when they were spending time with their father. She has a close relationship with the children. Indeed, interestingly, Dr H was of the view that the children probably prioritise their grandmother’s relationship over their father, if there was a hierarchy as such.
She clearly does not like the Father, does not trust him, and has concerns for the children when he is with them. Indeed, her own distrust and fear has been both transmitted and reinforced to the children. She gave evidence, for example, that she devised a “safe word” that she would use in telephone conversations with X, so that X could safely convey to the grandmother, without alerting her father, about certain things. The Court accepts this was, no doubt, well intended, but it clearly had the inadvertent impact of reinforcing in X that there was some basis to be concerned about spending time with her father. The objective evidence, however, is that the children’s time with their father has, in fact, proceeded uneventfully, for the most part, in recent years when that time has occurred.
The Maternal Grandmother clearly loves the children and seemed willing to continue to act in a facilitatory role, despite the obvious concerns she has about the Father.

The Evidence of the Paternal Grandfather

Mr Walters is the Paternal Grandfather and he swore an Affidavit of 19 March 2015. He corroborates the Father’s evidence about an incident that the Mother alleges took place at her home. The facts will be considered in more detail when discussing the Father’s evidence. As observed earlier in these reasons, however, whatever the factual discrepancy may be about this incident, an Apprehended Violence Order was made.
It is clear from the Paternal Grandfather’s own evidence that he has not strictly adhered to the order for supervision in the sense that there have been times when the Father has been engaged in activities that he could not personally participate in (for example, horse riding) or was not interested in (for example, going to the movies). He did not seem to think that this was an issue.
Indeed, the Paternal Grandfather seemed to struggle to understand why supervision would be necessary at all.
The Paternal Grandfather’s evidence was that he had never seen the Father drunk, even as a teenager. He said that he had never argued with the Father about the use of drugs and alcohol, and had never seen him use drugs. He emphasised that his household had a zero alcohol policy.
In cross-examination he agreed that he was aware of times that when his son did use drugs, but he was quick to add that that was when he was in the relationship with the Mother and he thought that they were both using. In this regard, he said his source of knowledge was both the Mother and the Father. He thought the drug was cocaine. He said that based on his experience as a (occupation omitted) at (employer omitted) and having worked with people under the influence of drugs and alcohol, he could tell whether the Father was under the influence of drugs or alcohol, and had not seen it.
In cross-examination, he agreed that the Father could be verbally aggressive at times, swore, could be physically violent, and certainly had a “short fuse”. He described that his son could be aggressive, would not listen to others, and had, in fact, observed him arguing with neighbours, but he insisted he had never seen his son out of control.
It was put to the Paternal Grandfather that there was a period (presumably in early 2014) when the Father was not welcome in his home. He insisted “never”, but agreed that his son certainly worried him at times, and he has taken off for a while. He was worried at times about his son’s anger. When pressed, he agreed that he had discussed the allegations of his son’s drug use with him and that his son had told him that he only smoked marijuana and that he may have used cocaine once or twice.
The Paternal Grandfather gave evidence of what seemed to be the children’s joyful interactions with their father when they spend time with him.
From cross-examination it appears he has provided funds, indeed substantial funds, to the Father to purchase things such as $4000 earrings and an iPhone. The source of these funds was the Paternal Grandfather’s credit card.

The Father’s Evidence

The Father’s evidence is primarily contained in his Affidavit of 15 December 2015 which, in itself, appears to be a composite of his previous Affidavit, no doubt in an attempt to comply with the direction made for the filing of a single consolidated affidavit. In many respects, the Father’s Affidavit is not very helpful. Its focus appears to be to respond to the assertions contained in the Mother’s evidence. It is quite scant in terms of other evidence that might otherwise have been useful to the Court, for example, more detail about the Father’s current life and routine, more detail about the nature and extent of his parents’ disabilities and, thus, the requirements that this imposes on the Father as carer to his father, and more detail about his financial circumstances.
Some of these matters were dealt with in cross-examination by Counsel for the Independent Children’s Lawyer. Moreover, the Father’s evidence-in-chief about problematic personal relationships since separation, involvement with the police, and drug and alcohol use was minimalist, if non-existent. Where he refers to these issues, it is generally in response to an assertion made by the Mother, but it was otherwise left at cross-examination.
There is no doubt from the Father’s evidence that he clearly loves the children and has only the best of intentions for them. He comes across in his Affidavit as the victim who has been unjustly denied contact with his children as a result of the capricious acts of the Mother. There is a real sense of aggrievement in the Father’s case as to how he has been treated by the Mother’s arbitrary actions, particularly in refusing to comply with Court orders.
By the time of the final hearing, the Father either knew, or should have clearly known, the case that was being made against him by the Mother. She was saying that her concerns about the Father’s capacity to care for the children included issues about his drug and alcohol abuse, family violence not just to her, but to subsequent partners, an unstable lifestyle that included periods of erratic accommodation and relationships, and involvement with the police. It is regrettable that the Father’s evidence-in-chief does not attempt to deal with these issues in a more fulsome manner, but rather left it to cross-examination.
For example, the Father asserts that both he and the Mother “were both social users of illicit drugs.” He then goes on to say that he is no longer using drugs, evidenced by drug tests, and that he is “basically drug free and was at that time as well as now.” Quite apart from the minimalist nature of this evidence, as will be discussed fulsomely below, it is quite misleading in part, and plainly wrong in part.
Where the Mother asserts that he was violent towards her, he denies the same.
Referring to the Mother’s evidence about the point at which he ceased to have the children on each Wednesday night, he asserts (and the Court accepts that this is probably correct) that he ceased this because it was becoming disruptive for the children, particularly as he was then working in Sydney at the time. The Father deposes in his Affidavit that he had, indeed, relocated to (omitted) in Queensland with the expectation of finding work in the (employment omitted) in Queensland, but this did not work out, so he returned. His evidence about this is plausible.
The cross-examination of the Father was a much more effective traversal of the relevant issues before the Court. The Father agreed in cross-examination, and the Court gives him credit for this, that he was not suggesting to the Court that it was in the best interest of the children for them to live with him. He accepted that, for the time being, his focus was on having regular time with the children, but he thought that, in future, it might be possible to progress to equal time.
He was cross-examined about what would have happened if he had, in fact, found work in (employment omitted) in Queensland after moving to (omitted). He seemed to accept that that was, indeed, what he had hoped would have happened and his plan was to still spend time with the children on a regular basis when he was not working and during the school holidays. The Court accepts that the Father’s evidence in this regard is quite plausible. The fly-in/fly-out spends-time-with Father is not an unusual scenario in this Court.
He was cross-examined about why he could not relocate to Perth himself. The Court accepts the Father’s evidence that he is his father’s carer, not just for Centrelink purposes, but as a practical matter. The Paternal Grandfather is clearly unwell and the Father deposed he takes him to doctor’s appointments. His elderly Mother is not able to do the things that he does in assisting his father.
He agreed in cross-examination that communication with the Mother is poor, indeed very poor. It is clear, based on the Court’s impression of the Father’s evidence, that he does not trust the Mother. Indeed, the reverse is palpably true. Any trust he had for the Mother was lost when she blatantly failed to comply with Court orders. His lack of trust in her, on this basis, is quite understandable. Nonetheless, it is interesting to observe the total absence of any complaint about the Mother’s parenting and provision of the children’s needs. The one exception to this is the allegation he raises about injuries to the children whilst in the Mother’s care, including some suggestions of inappropriate discipline by the Mother’s partner. This was not taken further in cross-examination, however.
The Father made some frank and entirely appropriate concessions about decision-making should the children be allowed to remain in Perth with their mother. Whilst it is clear from his evidence that his preference was for the children to return to the (omitted), and for him to be involved equally in decision-making, he seemed to acknowledge that, if they remained in Perth, at the very least he would want to be kept “in the loop” so far as decisions about the children are concerned. The Father receives credit for this. It was an appropriate concession to make in the circumstances. However, it should be noted that the Father had ample opportunity to find out more about the children notwithstanding that they were living in Perth. He knew which school they were attending. He could have and, indeed, should have, made direct contact with the school to get information directly. His failure to do so probably reflects his anger and frustration at the Mother and the family law system at the children not being ordered to be returned to the (omitted) according to the Father’s timetable. Again, the victim mentality clouded his judgment, at least in part.

Towards the end of the father’s cross-examination, he was given by Counsel for the Independent Children’s Lawyer, an opportunity to reflect on his past behaviour. He was asked to accept, for example, that in the past there have been times when perhaps he (that is, the Father) might not have understood just how much he could come across to others as being intimidating. His answer was to the effect: “It comes from both sides.” Clearly the opportunity for reflection was not taken up.
Likewise, he was given the opportunity to reflect on the Mother’s concerns about drug use. He maintained the drug use was no longer an issue. He maintained that his use had ceased entirely. When asked what he would do if orders were made on a final basis for random urinalysis, he said he would comply “if someone else paid, otherwise it’s a waste of money.” Counsel sought to have the Father understand how the court might be concerned about his drug use as an ongoing issue. He was again asked whether he would comply with orders for drug testing to which he replied words to the effect, “if the kids were returned to New South Wales.” Counsel asked the Father: “If they are not so ordered?” He replied to the effect: “Then justice has not been done. I would refuse to do them. It is an invasion of my privacy. It is defamation. There is no reason for it to be done.” He maintained he did not have the money.
Counsel for the Independent Children’s Lawyer persisted and asked the Father about what if an order for drug testing was time-limited, would he then comply? He said he would, and that he would have to find a way to pay for it.
The above evidence is quite concerning. There is once again a touch of the Father believing that he is the victim who has been unfairly singled out for no good reason. There is a sense in which that he viewed drug testing in the context of a power struggle between the Mother and himself, rather than as a matter going to the best interests of the children. Quite apart from all the attitudinal issues inherent in the Father’s evidence, the strong inference to be drawn from resistance to drug testing in the context of this case is that the Father continues to use drugs, probably cannabis.

Meaningful Relationship

The evidence suggests that the children have a meaningful relationship with both of their parents. It is obviously to their benefit for this to continue. The Mother has unquestionably been their primary carer. Nonetheless, all the evidence suggests that the children’s relationship with their father is regarded by them as meaningful despite lengthy periods between visits. It may be that, qualitatively, they experience their relationship with both parents in a different way, with their mother much closer and a more consistent and reliable presence in their lives. An issue in this case is whether the children’s meaningful relationship with their father can subsist if the Mother’s proposal, supported by the Independent Children’s Lawyer, were granted, that is, that they live with the Mother in Perth and spend time with him during each school holiday period with opportunity for further time mid-term. The thrust of Dr H's Report and her evidence is that the children’s relationship with their father can be maintained by visits during the school holidays, supplemented by weekly telecommunication. One would have to be concerned, however, about the impact on these children of reducing the frequency of their physical contact with their father to four times a year, supplemented by other forms of communication. In other cases, that may well be true, but, in this case, there is a history that cannot be re-written which involves the Father having absented himself from the children’s lives, or the Mother causing this situation to arise for good reason, so that the children’s recent experience of their father does not involve seeing him on any frequent basis. As stated, this is a history that cannot be re-written.
On balance, the Court finds that the children can continue to have a meaningful relationship with their father whether they live in Perth, or in the (omitted) area of New South Wales. This is an important consideration, though not ultimately determinative on its own right.

Protecting the Children from Harm

The objective evidence about the children’s interactions with their Father is, on balance, positive. There is no reason not to accept his evidence that the time that the children spend with him has been relaxed, enjoyable opportunities for the children to connect not just with their father, but his family, and indeed their indigenous heritage. The fact is that the evidence indicates that the Father’s time with the children has, in fact, been uneventful. Nonetheless, the Court is also concerned about risk issues. The Mother’s concerns about the children remain unabated and, the Court finds, with good reason. The Court finds that the Father has been violent towards the Mother on ANZAC Day 2010. There is also substance to the Mother’s assertions about abuse and denigration both before and after separation. There is no evidence of physical family violence post-separation. There is, however, evidence that the Father was violent to his partner, Ms K, in 2011. There was another violent incident at a party in 2010. For all practical purposes, the Father conceded in cross-examination that he sometimes had problem managing his anger, but failed to demonstrate any insight into how this might affect other people, let alone his children. Whilst the evidence does suggest that the children have, so far, been spared direct exposure or experiences of the Father’s violence or anger management issues, the risk is there. The Mother was well entitled to be concerned about this.
There is the need to protect the children from the risk of harm associated with the Father’s drug use. The evidence leads to a strong inference that the Father continues to use marijuana. The evidence suggests that he used cocaine as recently as September 2014. Ongoing use cannot be ruled out.
There is a risk of harm to the children if the Father continues to be involved in dealing drugs. The risk is not limited to the Father’s actual drug use, but associated risks of sourcing and then funding drug purchases, and involvement in drug cultures. He certainly was dealing in drugs in the past, by his own admission. The Court has reservations about accepting his denials about continuing drug dealing.
Some of the concerns about these risks of harm to the children can be managed by supervision, certainly at the times of changeover, but possibly also during the children’s time with him. Of course, these risks need to be managed within the practical realities of this case where the children might be living with their mother in Perth whilst the Father remains in the (omitted) region of New South Wales. Whilst on the one hand reducing the frequency of the Father’s time with the children is in itself a risk management strategy, the corollary is that he may be spending longer periods of time with the children that might actually increase the risk of harm to them. It may well be, however, that the Father can self-regulate more effectively for the more limited, albeit longer, periods of time the children spend with him.

The Views of the Children

The children’s views in this case are not determinative. To the extent that the evidence suggests that the girls would prefer to live with their mother and brother and Mr M in Perth, then some limited weight should be given to this, but it is certainly not determinative.

The Nature of the Children’s Relationships

The evidence indicates these children enjoy a good relationship with their mother, their mother’s partner, Mr M, the maternal and paternal grandparents, as well as their father. Clearly, their relationship with their mother is the closest one. The Mother has indicated that if the children are ordered to be returned to the (omitted), she will comply. She will return with them to live at the maternal grandparents’ home. This would separate her from her husband and her son, Z. This is a major upheaval for herself and her family and the Court infers that it will make her parenting of the children more arduous. It is not what Dr H recommends, particularly in circumstances where, qualitatively, the children’s relationship with their father is not nearly the same as that of their mother. Thus, Dr H observed the children’s nervousness at the prospect of spending time with him during the report interviews. The Court accepts there is probably some anxiety associated with the children spending time with their father, particularly in the lead up to this time. But, as previously indicated, there is no reason to doubt the Father’s evidence about the quality time that he spends with them. The Paternal Grandfather’s unchallenged evidence was about the wonderful time that the children appear to spend with their father. Despite this, and at the risk of repeating this theme, the facts are that the history of this case cannot be unwritten, the Mother is the most important presence in the children’s lives, and the Father has absented himself, or was excluded for good reason, at various times.

The Likely Effect of Change

This is a very difficult consideration to assess. The Mother brought about a very drastic, unilateral change in the children’s lives, but there is no reason to doubt her evidence that they are well settled in Perth, have developed a network there, and appear to enjoy and are progressing satisfactorily in school. To bring them back to the (omitted) will be a big change in their lives, not because they are returning to an unfamiliar environment (that is far from the case) but because it would involve taking them away from their brother Z, as well as Mr M who is the main father figure in their lives, rightly or wrongly.
Returning to the (omitted), however, offers the prospect of a return to a familiar environment. The children clearly have a good relationship with the maternal grandparents who have been a positive, consistent presence in their lives. They might be able to return to familiar schools and re-connect with a familiar social network.
This issue is very carefully dealt with in Dr H's Report and, on balance, she felt quite strongly that it was in the best interests of the children that they remain living with their mother, in Perth. The Court believes that, when all the evidence is considered, the least change for the children is to leave them where they are. It needs to be stated, particularly for the benefit of the Father, that the exercise that the Court undertakes is to ascertain what is in the best interests of the children. It is not the Court’s role, in the present context, to punish a parent for bad behaviour such as non-compliance with Court orders, even blatantly so. If it were the Court’s function to punish a parent for bad behaviour, the Father would have to seriously consider the impact of such a policy on him given the very serious concerns raised about him and established, on the evidence.

Issues of Practical Difficulty and Expense

The issues are very substantial in this regard. The frequency of the children’s time with their father would be limited to school holidays, unless he was somehow able to go over to Perth during the school term.
The Mother’s proposal is that the cost of flights between Perth and Sydney be shared but, in her case she conceded that at the very least she would understand why the Court might impose the greater burden of the cost on her in circumstances where the change was precipitated by her. At one level, the superficial level, she appears to have stronger financial circumstances than the Father. She works full time, or nearly full time, whereas the Father is Centrelink dependent and works part time. At a deeper level about financial circumstances, however, the Court has already expressed its reservations about whether the Father is, in fact, earning income from other sources including, possibly, drug dealing. No conclusive finding can be made in this regard. The Mother’s husband, Mr M, appeared to concede in his evidence that a part of their family income might need to be applied towards the cost of air fares for the children.
The child support that the Father pays is minimal. Indeed, one wonders whether the current child support assessment reflects the fact that he is working one day per week but that is a matter for the Child Support Agency. This means that the Mother is, in effect, bearing by far the majority of the costs associated with raising these children herself. That is a matter reasonably to be considered in the context of assessing issues of practical difficulty and expense.
The Court finds that the issues of practical difficulty and expense in this case are not insurmountable. These issues are not, per se, a reason for forcing the children back to the (omitted) if an assessment of their best interests comes to a different conclusion. Thus, issues of practical difficulty and expense are a relevant consideration, but not ultimately determinative per se in this case.

Parental Capacity

The Father’s capacity to parent these children on any extended basis is clearly unknown. He would say he has not had the opportunity. The Mother would say that the reason he has not had the opportunity is because of concerns relating to his parenting capacity. Issues of drug use, the Father’s behaviour whilst under the influence of alcohol, violence, abuse, and possibly a criminal lifestyle involving drug dealing are all matters, she says, that inhibit the Father’s capacity to prioritise the children’s needs, over his own. There is substance to the Mother’s contention. At a basic level there is no doubt that he could more than adequately provide for the children’s physical needs, particularly with the assistance of the paternal family. There are insight and attitudinal issues that will be discussed below that raise concerns in the Court’s mind about his ability to meet the children’s emotional needs.
Indeed, there is a risk that the Court is, in fact, minimising the concerns about the father’s ability to meet the children’s physical needs. For as long as he continues to deny that the use of cannabis is an issue in his life, there must remain a lingering concern about his ability to meet even the children’s physical needs, unless supported by paternal family.
The Mother’s track record of meeting the needs of these children is quite firmly established. She has not prioritised the emotional needs of these children to have a relationship with their father but the Court is satisfied, on the evidence before it, that she had good reason for ceasing the children’s time with their father in the period 2012-2014 (at various times, in varying degrees) because she quite legitimately had concerns about the Father’s lifestyle including residential instability and drug and alcohol abuse. When she unilaterally relocated to Perth, however, she effectively deprived these children of the need they had for their father’s involvement in their lives. She was not meeting their emotional needs in this regard.

Attitudes and Responsibilities of Parenthood

There is much to be critical of both parents in this regard. The Father’s attitude, demonstrated in his evidence, about drug testing and, indeed, drug abuse demonstrated an immaturity, petulance, and dramatic lack of insight into the needs of his children. His fails to understand how his violence and abuse towards the Mother, and indeed towards others, might have an indirect impact on the children, let alone the Mother’s parenting of them. At times, his approach to this litigation was immature. At times he came across as thinking it was all about his rights, rather than what was best for the children.
He was given opportunity, after opportunity, in cross-examination to demonstrate that he had the capacity to reflect on what he had previously said and done and thus demonstrate to the Court that he might be able to better understand how the children might experience what he has said and done in the past. He refused the lifeline thrown to him on several occasions by Counsel for the Independent Children’s Lawyer. There was a real sense of “my way or the highway” in his evidence.
That same sense of “my way or the highway” emerged, at times, in the Mother’s evidence. Her ability to act unilaterally and arbitrarily was breathtaking. She may well ultimately be found to have good reasons for doing what she did, but hers was an end justifies the means approach. It took a very high level of judicial pressure to cause her to comply with orders for the children to spend time with their father. Ultimately, it seems to the Court, only the threat to arrest her for failing to comply with Court orders was the deterrent to non-compliance. Both she and her husband were prepared to grossly exaggerate to his employer so that he might be granted a compassionate posting to Perth, and then have the same extended. She seems to have concluded in her own heart and mind that the quality of the children’s relationship with their father was such that it could be sacrificed in favour of a better life and more stability in Perth. She showed, at times, appalling judgment about what was best for the girls insofar as their relationship with their father was concerned.
Thus, there is much to be critical of both parents in terms of their attitudes to the children and their responsibilities of parenthood. At the hearing, however, whilst the Father remained angry, frustrated and seemingly fixated on punishment, the Mother came across as being more penitent, as well as understanding the potential consequences of what she had done, not just for herself, but for her children. The Court does not doubt her evidence that if the children are ordered to be returned to the (omitted), she will come with them. That would be an enormous sacrifice to make given that, on the evidence of both her husband and herself, both Z and the husband would remain in Perth.
As much as it is sometimes tempting for Courts to punish parents for what society might view as completely unacceptable behaviour, the focus of the Act, and thus the role of this Court, is to make orders that are fashioned in such a way as to be in the best interests of children. Thus, this case is not about punishing the children’s mother for her insolence, just as much it is not about the court punishing the Father for his past criminal acts. Provided the Court is satisfied that the Mother would comply with orders, whatever they might be, the issues of parental attitudes and responsibilities towards children is not, per se, determinative of this case. It is one of several considerations that point to a particular conclusion that the Court believes to be in the best interests of the children.

Family Violence

A number of family violence orders have been made against the Father, one of which is still current. A finding of family violence has been made against the Father arising out of the Anzac Day 2010 incident. The Father’s violence towards his subsequent partner, Ms K, has been discussed and is disconcerting. In each case, the Father sought to minimise the family violence. In each case, his version of the events is not to be preferred. Quite apart from the possible risk to the children directly and indirectly, the fact that the Father has engaged in family violence reflects the very poor role model that he offers to the children.

Parental Responsibility

Having regard to the violence issues, as well as the lack of communication and trust in this relationship the statutory presumption of equal shared parental responsibility cannot apply. Whether these children live in the (omitted) or in Perth, the fact is they will be living with their mother. Provided she keeps the Father involved in the children’s lives and notified about decisions that are made in relation to them, she should otherwise have sole parental responsibility.

Order in the Best Interests of the Children?

The recommendations of Dr H have already been set out. The Court heard no evidence that would cause it to reconsider what it considers to be her primary recommendation, that is, that the Mother should be allowed to relocate with the children to Perth. The Court accepts that Dr H made the alternate recommendation about the Father spending time with the children each alternate weekend, and during school holidays, if relocation were not permitted. There is no doubt, however, that that was not Dr H’s preferred view, and she had such pervasive concerns about the Father that she thought the children would not suffer in terms of their relationship with him by remaining in Perth, but would conversely benefit by the same.
The Independent Children’s Lawyer’s proposed order, communicated to the Court and to the parties before the commencement of submissions on day 3, proposed that the Mother have sole parental responsibility, that the children live with her in Perth, and the children spend time with their father. The Independent Children’s Lawyer proposed that the children spend one week of each of their midyear school holidays with their father at the Mother’s cost and on one weekend each school term in Perth at the Father’s cost. During the Christmas school holidays the children would spend a week with their father in the (omitted), with the cost to be shared equally.
The Independent Children’s Lawyer proposed that the children be accommodated at the home of the paternal grandparents or the paternal uncle, Ms S. In this regard, it seems that both the Mother and the Father had a preference for the Mr P & Ms S, if they were available.
The Independent Children’s Lawyer proposed that a condition of the Father’s time be that he not consume alcohol or illicit substances during the time that the children are with him. This was uncontentious.
The Independent Children’s Lawyer proposed that the Paternal Grandmother, paternal aunty Ms S or her husband Mr P supervise the Father’s capacity to care for the children each morning of their stay with their father. Moreover, the Father’s time with the children be either at the home of the paternal grandparents or that of his sister, the paternal aunt, Ms S. The accommodation requirement appeared uncontentious.
Whilst the Father opposed the need for any form of supervision, the Court believes that the evidence clearly requires some form of supervision. The order proposed by the Independent Children’s Lawyer is somewhat innovative, in the sense that either the paternal grandmother or the paternal aunt or uncle would have to satisfy themselves about the Father’s capacity to care for the children each morning that they are with him. This, no doubt, protects the children from the risk that the Father is under the effect of either drugs or alcohol at the commencement of the day when they are with him. The Court believes that this is a reasonable compromise between the important need to encourage the children’s meaningful relationship with their father, whilst protecting them from harm, but it would be onerous and unreasonable to require this for more than 2016.
An order proposed by the Independent Children’s Lawyer contemplates the possibility that the Mother will return to the (omitted). This is not impossible, given the nature of her husband’s work in the (employer omitted). The proposal, on this scenario, for the Father to spend time with the children each alternate weekend from after school Friday to before school Monday, and one week in each school holiday period, is appropriate and in the best interests of the children.
The Independent Children’s Lawyer proposed an order for communication either by Skype or FaceTime, twice a week. This too is appropriate, and adequate to encourage that meaningful relationship between the children, in between their physical contact with him.
The Independent Children’s Lawyer proposed an order for the Father to undertake an anger management and Parenting After Separation course within six months of orders. This was put to the Father in cross-examination, and he expressed no concerns. The Court believes this can only benefit the Father, and thus is an order in the children’s best interests.
The Independent Children’s Lawyer proposed an order for random urinalysis up to and including the July 2016 school holidays. Again, this is an attempt to adequately balance the risks and issues in this case. By limiting the drug testing regime, to, in effect, half a year, the Father is more likely to comply whilst remaining entirely accountable for his drug use in this period. The appointment of the Independent Children’s Lawyer would need to be continued for this purpose.
The Independent Children’s Lawyer proposed a number of orders obliging the Mother to keep the Father informed about matters pertaining to the children. She made no submission against these orders.
In her closing submissions, it was clear that the Mother largely supported the Independent Children’s Lawyer’s proposals, whilst emphasising a number of key points. She thought it was important for supervision of the Father’s time with the children to continue, but it was not clear from her submissions whether she was suggesting that the regime proposed by the Independent Children’s Lawyer was inadequate in this regard. She also submitted that the orders proposed for the children’s time with their father was too long and that it might be better for the children to increase their time with the Father incrementally, perhaps using the Maternal Grandmother as the base for this. She submitted that the sudden introduction of overnight time in one-week blocks might be difficult for the children. There is substance to what the Mother says, in relation to overnights.
The Independent Children’s Lawyer sought an order for half of his costs to be paid by the Mother. The Mother agreed that she should pay 50 per cent of the Independent Children’s Lawyer’s costs assessed at $2750. The Mother should have three months to pay this amount.
The Father’s closing submissions maintain his position that the children should be returned to the (omitted). His solicitor’s closing submissions emphasised the unilateral nature of the Mother’s acts, and the calculated way in which she had breached Court orders.
Mr Carey, for the Father, emphasised the dangers of making a sole parental responsibility order in favour of the Mother. He submitted that, given her history of non-compliance with Court orders, making an order for sole parental responsibility makes her “not just the gatekeeper, but the keeper of the keys to the gate”. He emphasised that a meaningful relationship could not be maintained if the children were not ordered to be returned.
Obviously, the Court does not accept the Father’s submissions about meaningful relationship and has already said that these proceedings are not about punishing the Mother for breaches of the Court orders. Nonetheless, there is substance in the Father’s concerns about the granting of sole parental responsibility to the Mother in the circumstances of this case. In reply, Counsel for the Independent Children’s Lawyer suggested that the Court might order sole parental responsibility except in relation to issues like change of name and relocation, which would be the subject of equal shared parental responsibility. The Court sees great merit in this approach.
Whilst Mr Carey, on behalf of the Father, didn’t argue against the need for drug testing, he submitted that 24 hours was simply not practicable in the circumstances of this case and that it should be 48 hours. The Independent Children’s Lawyer agreed.
The Court accepts the Independent Children’s Lawyer’s order as the framework for the final orders in this case. However, the concerns about granting the Mother unfettered sole parental responsibility have some substance. The parents should have equal shared parental responsibility in relation to matters of the children’s names and relocation from the city where they are presently living, that is, Perth, but in all other respects the Mother should have sole parental responsibility with an obligation to notify and advise the Father.
There is substance to the Mother’s concern about introducing week-long periods of overnight time between the children and the Father too quickly. The Court is not concerned about week-long time with the Father per se, but rather night times. The Mother’s suggestion of a staggered introduction of overnights in 2016 is appropriate and child focussed. The orders will reflect this.
The Court raised with the parties during the course of closing submissions that, as a means of keeping the Mother accountable for her actions and future compliance with the orders, the Court would consider making an order that any future application in relation to the children be first listed before me, should I be reasonably available, and subject to any further application that the parent might make. There was no opposition to this. The Court will make this order. Whilst the Court does not doubt the Mother’s indication to the Court that she will comply with these orders, particularly in circumstances where the outcome is that which she contended for, if the Mother knows that any future proceedings will be listed before me, it might have a psychological impact on her of knowing that the case will go back to somebody who is intimately familiar with the facts.
It should be noted that the Father’s Contravention Application filed 21 August 2015 was also listed for hearing on the first day of the substantive hearing. The Father chose to adjourn the hearing of this to a future date, because to have dealt with the Contravention Application first would have meant that the hearing could not have been completed in the time allocated, particularly as the matter was heard during the week before Christmas. The Mother agreed to this. The Court believes this was an appropriate decision to make and it can see no disadvantage to the Mother in so doing. The Contravention Application is listed for mention on 28 June 2016 at 9.30. Mr Carey, on behalf of the Father, foreshadowed the possibility that the application might be withdrawn, if the orders are complied with.
It is appropriate in the circumstances not to discharge the Independent Children’s Lawyer until after the July school holidays 2016. The monitoring of the Father’s drug tests is an important ongoing role.
Having regard to all the evidence, the Court believes the orders that it makes are in the best interests of these children.
Even though the Court will make a limited order for equal shared parental responsibility, and is thus required to consider equal time or substantial and significant time, neither is reasonably practicable or in the children’s best interests. Indeed, this would remain the case even if the children were ordered to be returned to the (omitted).
The Court believes that it has considered each parent’s proposals on its merits and in accordance with the legislation. The reality of the children’s relationship with their father in this case is that it is important but cannot be elevated above the children’s relationship with the Mother, their brother Z, and to a lesser extent the Mother’s husband, Mr M. Whilst the Mother indeed left it open to the Court to order her back (via an order for the children to return), the Court does not believe, having regard to all the evidence, that this is the best outcome for the children.

I certify that the preceding one hundred and eighty-seven (187) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 22 January 2016

[2016] FCCA 29

22 January 2016

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