Cubbin and Cutler (No.2)
[2017] FCCA 915
•31 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUBBIN & CUTLER (No.2) | [2017] FCCA 915 |
| Catchwords: FAMILY LAW – Parenting dispute – long-running litigation – parents unable to communicate effectively – the Mother makes allegations about the Father having sexually assaulted her during the relationship – Mother says children repeatedly tell her that they have been molested by the Father – all allegations have been investigated by authorities and nothing has been established – Father and ICL seek a change of residence of the children to reside with the Father while the Father and the ICL acknowledge that such a course will not fix “the problem” – the subject children have many siblings in Mother’s household – importance of sibling relationships not addressed by Father or ICL – Family Consultant did not support a change in residence – family therapy ordered for both parents as well as regular mediated meeting to discuss parenting matters with reporting requirements to Court also ordered in relation to these mediated meetings – no change in residence – equal shared parental responsibility. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC(2), 60CC(3)(a), (b), (c), (ca), (d), (e), (f), (g), (h), (i), 65DAA, 68LA |
| Cases cited: AON Risk Services Australia and Australian National University (2009) 239 CLR 175 Browne v Dunn (1893) 6 R 67 Cubbin v Almond [2014] FCCA 3200 |
| Applicant: | MR CUBBIN |
| Respondent: | MS CUTLER |
| File Number: | CAC 2061 of 2010 |
| Judgment of: | Judge Neville |
| Hearing dates: | 3 & 4 December 2015, 4 May 2016, 15 & 16 September 2016 |
| Date of Last Submission: | 16 September 2016 |
| Delivered at: | Canberra |
| Delivered on: | 31 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Givney |
| Solicitors for the Applicant: | Walsh & Blair, Wagga Wagga |
| Counsel for the Respondent: | Self-represented |
| Solicitors for the Respondent: | |
| Counsel for the Independent Children’s Lawyer: | Mr N Jackson |
| Solicitors for the Independent Children’s Lawyer: | Antoinette Campbell Legal, Bowral |
THE COURT ORDERS THAT:
The parties have equal shared parental responsibility for the children, X (born: (omitted) 2009) and Y (born: (omitted) 2010) (“the children”).
The children are to live with the Mother.
The children spend time with the Father 5 nights per fortnight.
The children shall spend half of each school holidays with each parent.
The Mother be restrained from relocating to the residence known as the “Property I property” located at Property I.
Unless agreed in writing between the parties, the Mother be further restrained from relocating the children’s residence from (omitted), NSW absent any further Order of the Court.
Both parents are restrained from saying unkind or unpleasant things about the other parent to any of the children, in their presence, or allowing any other person to do so.
Both parents are restrained from discussing these Court proceedings with any of the children, or doing so in their presence, or allowing any other person to do so.
The parties are to attend Family Therapy once a month for the next 12 months after the date of these Orders.
The parties are to institute a regime of mediated consultation once a month, to discuss parenting issues in relation to the children.
The Independent Children’s Lawyer be discharged.
THE COURT NOTES THAT:
(A)The Court made Orders on 30 May 2012 for the child Y’s name to be Y, which remains in effect. Further, the child is to be called only by the name “Y” (or appropriate derivative thereof), which course the Father has acknowledged he will do.
IT IS NOTED that publication of this judgment under the pseudonym Cubbin & Cutler (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 2061 of 2010
| MR CUBBIN |
Applicant
And
| MS CUTLER |
Respondent
REASONS FOR JUDGMENT
Introduction & Background
This is a long-running, torridly contested parenting matter involving two children, almost 8 year old X (born (omitted) 2009), and 6½ year old Y (born (omitted) 2010). The parties’ relationship was very short – from 2007 until 2010. The “torridness”, I fear, will not (in all likelihood) mean that the decision of this Court will be the end of the contest but rather that more litigation in other places will ensue as night follows day. But, ever hopeful, the Court certainly encourages the parties – at least for the sake of the children – to stop the litigious warfare and to do something positive, such as follow Orders and let the children enjoy all the relationships in their multi-faceted families.
Not only as a consequence of the earnestness of the bruising contest but more so because of the plenitude of Applications by the Father – which I state simply as one of fact, not criticism – the matter was heard over a significant period of time, and a not insignificant number of days. And yet, at the end of the second tranche of evidence, when essentially only the Mother was cross examined again, Counsel for the Father said that “nothing had changed.”[1] This begged the question at the time, and again for the purposes of these tediously long reasons, why so many Court resources were expended to keep fuelling the litigation if it ultimately made no difference – at least from the Father’s perspective?
[1] Transcript (16th September 2016) p.88.
Even more remarkable was the submission made – twice – by the experienced Counsel for the Independent Children’s Lawyer (“the ICL”) at the conclusion of the trial. Counsel’s submission must properly be framed by the Orders sought, thus: (a) the Father sought that there be a change in residence of the two children who are the subject of this litigious saga to live with him, while still spending [unsupervised] time with their Mother (with whom they have lived, with a large number of siblings, all their lives), and (b) the ICL also sought Orders for a change in residence of the children to live with the Father, while still spending [unsupervised] time with the Mother (and their siblings). The Mother sought that the children should continue to live with her and spend [unsupervised] time with the Father. Counsel for the ICL said (it warrants being emphasised):[2]
[2] T 127. See also the same comment earlier at T 126.
I concede readily, your Honour, that a change of residence is not the remedy to the problem.
Surprisingly, no one identified “the problem” to which the ICL referred. And in consequence, no one addressed any relevant solution(s) to it. Properly understood, “the problem” has two dimensions: (a) the almost non-existent co-parenting relationship between the parents, and (b) why the children (and sometimes others) speak not infrequently about being abused by their Father in circumstances where there is no dispute that they have a close relationship with him. To these multi-faceted problems, the Father and the ICL proffered, in my respectful view, a rather simplistic solution, namely change the residence of the children and for them to continue to spend significant, unsupervised time with the Mother. In my view, this was no solution at all. Or if it was, it was a solution to a different set of problems or issues to those facing the Court. The Father and the ICL, respectfully, actually addressed the consequences of “the problem”, but not “the problem” itself.
Indeed, in the light of what the Father and the ICL primarily sought (viz: a change in residence), rhetorically, not unreasonably I hope, surely one might ask: “why seek a change in residence” if there was to be ongoing, significant and substantial time with the Mother, unsupervised?
And for reasons not explained, neither Counsel for the Father, nor for the ICL, addressed at all the clear and consistent evidence and recommendations of the Family Consultant, who did not recommend any change in residence of the children from the Mother to the Father, and repeatedly confirmed that a change in residence was not what she recommended. Rather, the Family Consultant’s evidence and recommendations were rather selectively used, while the primary issue of change in residence, at least in relation to the Family Consultant’s evidence, was rather carefully avoided by the Father and the ICL.
Reduced to basics, there are fiercely-held views by each parent against the other. On the Applicant Father’s side (the Father is aged 59 years; he is a (occupation omitted); he has not re-partnered), he contends that the Mother has not been facilitating, and does not facilitate his relationship with the two children. He says that the situation has now reached a stage that warrants the children changing residence to live with him. But in doing so, he does not seek that there be no “time with” the Mother.
The highly experienced Family Consultant does not support a change in residence for the children.[3]
[3] The Family Report of Ms S, dated 25th November 2015, became Exhibit A. Its detailed comments and recommendations are set out later in these reasons, together with the Family Consultant’s oral evidence.
For the Mother’s part (the Mother is aged 45 years; she is studying (omitted); she has re-partnered; she is the Mother of a large number of children to different Fathers), she has long held the view that she was sexually assaulted on a number of occasions by the Father during the relationship. She further contends that she does support and facilitate the children’s relationship with the Father but that there are often logistical issues that cause some problems. Further still, she maintains that she has a responsibility to believe her children – specifically Y and X – when they tell her that the Father sexually molests them. These allegations have been the subject of a number of investigations by the Department of Family and Community Services (either “the Department” or “FACS”) and the Joint Investigation Response Team (“JIRT”). Nothing has come from any of these investigations.
The Mother also seeks to relocate to a rural or farming property in the locality called (omitted), which is approximately 70 kilometres from (omitted) in country New South Wales. The Father opposes such a move on the grounds, inter alia, that the facilities on that property are far too inadequate for the children to live there.
The Mother has eight other children (one of whom is deceased) from three previous relationships. The ages of those children range from 23 years to 10 years.
At various stages in the course of the somewhat relentless travails of the parties, the Court has been required to make various determinations, such as in relation to the child Y’s name. And at an earlier point in time, the matter was conducted through the Albury Registry of the Court where Judge Harman was required to make various interim Orders that dealt with various allegations made by the Mother against the Father. His Honour’s comments at that time, in late 2014, still echo or reflect many of the current and ongoing concerns or issues between the parties.
For example, in the judgment of Cubbin & Almond [2014] FCCA 3200 (Ms Cutler’s name was formerly “Almond”), his Honour repeatedly referred to the “dysfunction” (and particular aspects of the dysfunctionality) in the parenting relationship (at [68], [70], [71], [75], [77], [85], [87] and [105] - [106]). His Honour also referred, at [81], to the “risk of physical or psychological harm to these children in each household based on allegations that each parent leads, although not supported by probative evidence.”
At [99] and [102], his Honour said (emphasis added):
[99] Any separation of these children from their Mother’s household will involve the separation of these children from not only their Mother but their siblings. I accept that they are all very important relationships. … these parents were determined to be involved in a relationship with each other knowing full well that the Mother had seven children. Thus the Father must acknowledge and accept the importance of the relationships between these two and those seven. The Mother must also have been aware that if their relationship failed that these children would leave her care for periods of time to practice a relationship with their Father.
[102] The children have relationships of strength with the Mother and their siblings. They are not relationships that will whither [sic] on the vine simply by not seeing those people for two days at a time. Accordingly, I am satisfied that the effect of change is beneficial and not attenuated with disadvantage.
Respectfully, the comments of his Honour (albeit in an interim judgment) remain apposite today. It is very much (but not exclusively so) because of the centrality of the children’s relationships with their siblings that ultimately leads the Court in making Orders for the children to continue to live with their Mother and to spend regular time with their Father. Such Orders are consistent with (a) the earlier Orders of Judge Harman in 2014, (b) the 2015 Family Report of Ms S (Exhibit A), and (c) Ms S’s oral evidence at trial.
Further, the additional Orders of the Court seek to address “the problem” to which Counsel for the ICL alluded but which no one addressed directly. That “problem”, rather than any consequences that flow from it which were really what was addressed by the Father and the ICL, is multi-faceted. It relates to and requires the parties to be assisted to co-parent so that these children can maintain their currently good and happy relationship with both parents, and their siblings. A change in residence as proposed by the Father (who said he was not really ready for such a change) and the ICL (who said that such a course would not fix the problem) (a) will not address the more fundamental issues and (b) would very likely exacerbate them. A change in residence, in my view, in the light of the very long history of the matter and in view of all the evidence, is not in the best interests of the children.
Procedural History & Issues in Dispute
Because of the disjointed and part-heard nature of the final hearing over a number of days with significant periods in between, together with an Application by the Father to re-open, it is important to record the following procedural history: it is not an exhaustive history because it begins, in essence, following the file being returned to the Canberra Registry of the Court from the Albury Registry. The original proceedings commenced in 2010. At the end of this history I also set out the issues in dispute. What follows is in two parts: a table of the procedural history which provides a summary or overview of that history; it is followed by a more detailed or annotated history.
The tabular, procedural history is as follows:
| Date | Court Event | Appearances |
| 19 October 2015 | Matter set down for Final Hearing for 2 days | Mr N by phone Ms Cutler by phone Ms Campbell by phone as the ICL |
| 12 November 2015 | Terms of reference prepared by the ICL and consented to by the Father were forwarded to Ms S for the purposes of the preparation of a section 62G Report. | N/A – Orders made in Chambers |
| 20 November 2015 | Pre-hearing directions | Mr N by telephone Ms Cutler by telephone No appearance on behalf of the ICL |
| 1 December 2015 | Section 62G report released to the parties and the ICL | N/A – Orders made in Chambers |
| 3 December 2015 | Day 1 of Final Hearing | Mr Giveney of Counsel Ms Cutler - SRL Mr Jackson of Counsel |
| 4 December 2015 | Day 2 of Final Hearing (hearing finished – matter stood reserved pending judgment delivery) | Mr Giveney of Counsel Ms Cutler - SRL Mr Jackson of Counsel |
| 22 January 2016 | Father filed an Application in Case seeking to adduce further evidence and re-open trial | N/A |
| 28 January 2016 | Interim judgment delivered – regarding Y’s schooling | Mr N by phone Ms Cutler by phone Ms Campbell as the ICL |
| 3 March 2016 | The Father filed a further Application in a Case seeking to re-open the matter to adduce further evidence and to have orders made, on an interim basis, that the children live with him | N/A |
| 8 March 2016 | The Application in a Case filed 22 January 2016 and the Application in a Case filed 3 March 2016, both filed by the Father, were listed for a 1 day Hearing on 4 May 2016 | Mr N by phone Ms Cutler by phone Ms Campbell as the ICL |
| 6 April 2016 | Leave granted to ICL to interview children at Property I – this Order was then subsequently stayed until the Hearing on 4 May 2016 | Mr N by phone No appearance by Ms Cutler Ms Campbell as the ICL |
| 4 May 2016 | Father’s application to re-open the matter was granted - The matter was listed for Final Hearing for 2 days on dates and times to be advised | Mr N by phone Ms Cutler by phone Ms Campbell as the ICL |
| 19 May 2016 | The matter was set down for Final Hearing on 15 and 16 September 2016 | N/A – Orders made in Chambers |
| 5 September 2016 | Pre-hearing directions – no orders made | Mr N by phone Ms Cutler by phone Ms Campbell by phone as the ICL |
| 15 September 2016 | Day 1 of Final Hearing | Mr Giveney of Counsel Ms Cutler - SRL Mr Jackson of Counsel |
| 16 September 2016 | Day 2 of Final Hearing | Mr Giveney of Counsel Ms Cutler - SRL Mr Jackson of Counsel |
Annotated Procedural History
On 19th October 2015, the matter was fixed for final hearing for two days on 3rd and 4th December 2015. These directions occurred after the original Independent Children’s Lawyer (“the ICL”) withdrew and a new ICL was appointed.
On 12th November 2015, Terms of Reference for the Family Consultant’s preparation of a Report pursuant to s.62G of the Family Law Act1975 (“the Act”) were finalised.
On 1st December 2015, Orders were made releasing the Family Report of Ms S, dated 25th November 2015.
At the hearing on 3rd and 4th December 2015, the parties and Ms S gave oral evidence. At the conclusion of that hearing, Orders were made for the filing of written submissions. The submissions were distinguished between those that related specifically to what school Y should attend, and those that went to parenting Orders more generally.
On the basis of the evidence given at trial, and the written submissions (noting that Ms Cutler has been a self-represented litigant throughout the long and meandering matter), oral reasons were delivered and Orders made on 28th January 2016 in relation to Y’s school.
On 29th January 2016, the Father filed an Application in a Case to adduce evidence from the Mother’s Uncle (Mr S). On 3rd March 2016, the Father filed a further Application in a Case in which he sought to re-open the evidence, and to seek Orders (on an interim basis) for the children to live with him on the basis that the Mother had (at that time) [allegedly] unilaterally relocated.
On 8th March 2016, the Court made Orders for the matter to be re-listed for directions only on 6th April 2016. The Orders made on that date provided for a time-table for the filing of material by the Mother in Response to the Father’s two Applications, and fixed the Father’s Applications in a Case for hearing on 4th May 2016.
On 4th May 2016, with the Father and the ICL represented by solicitors and Counsel (as they had previously been), and the Mother remaining self-represented, following submissions, the Court made Orders, inter alia, (a) granting the Father’s Application to re-open, (b) allowing the Mother to move from Property C to (omitted) (a distance of approximately 40 kilometres or thereabouts and travel time of about 35 minutes), (c) restraining the Mother from thereafter moving a distance greater than 45 kilometres from Property C, (d) fixing the matter for 2 further hearing days on dates to be advised, and (e) reserving the Father’s costs.
On 19th May 2016, the matter was fixed for a further hearing for two days commencing on 15th September 2016.
On 15th July 2016, the Father filed a further Application in a Case in which Orders were sought by which the Mother was to be denied access to “uplift and or copy documents produced under subpoena by (omitted) [psychiatric facility] at (omitted) Hospital.” These records related to the Mother’s Uncle, Mr S.
As an aside only at this stage, I note that this subpoena, issued by the ICL, sought access to records in relation to Mr S who, as noted earlier, the Father had previously sought to re-open the evidence to have Mr S give evidence. In Mr S’s affidavit, filed 20th April 2016, he referred to being admitted as a patient to (omitted) in 2013 in relation to “a mental health condition” (par.3). As a matter of procedural fairness, especially to a self-represented litigant, it is extremely curious that the party who seeks to rely upon the evidence of a new witness should seek to prevent the other party from having access to mental health records of that witness where that witness himself has put his mental health formally before the Court. In my view, the Application to deny the Mother access to these records had more than a tinge of procedural unfairness.
On 15th and 16th September 2016, the Mother only returned to the witness box, together with Mr S. Counsel for the ICL, somewhat cautiously but still, in my view, directly but still somewhat gauchely, criticised the Bench for [allegedly] not advising the Mother that she could cross examine the Father further.[4] With two extremely experienced Counsel at the Bar table, together with their also very experienced instructors, it might be asked, not unreasonably, why the ICL (for example) could not (or did not) explain some matters of procedure to the self-represented Mother in proceedings that, on any view, have been both procedurally and substantively tortuous. So convoluted had the proceedings become, it might be wondered how or why the ICL and or her Counsel would not have assisted the Mother and thereby the Court by checking such basics matters with the Mother beforehand.
[4] See T 122.
True it is that the Court has a responsibility to ensure that all parties are not denied procedural fairness (among other things). However, in circumstances where the ICL assumed a position that was very strongly in the Father’s favour, not to have assisted the Mother could, perhaps, be seen as hindering the procedural fairness due to the Mother, or worse, by silently standing by doing nothing to assist, the ordinary well-informed lay observer might have viewed the situation as akin to a form of complicity by the ICL’s Counsel with the Father. Subject to what is said later in these reasons which record the Mother expressing the view in written submissions to the Court in January 2016 that the ICL was, effectively, biased against her, I simply note that the ICL’s duties and responsibilities are set out in s.68LA of the Act. Otherwise, I take this no further.
All parties and the ICL made oral submissions at the close of the evidence on 16th September 2016.
The fundamental issues that were before the Court at trial, together with relevant Orders/answers to them, are as follows. What follows later in these reasons provides the bases for the answers given to the questions posed here:
(a)Should the Mother be permitted to relocate, with the children, to Property I? Answer: No.
(b)Should the Mother be restrained from moving the children’s residence from their current locality in (omitted)? Answer: Yes.
(c)Should the children’s residence be changed from the Mother to the Father? Answer: No.
(d)Should the children spend regular time with their Father? Answer: Yes.
(e)Is there any risk of abuse to the children in the Father’s care? Answer: No.
(f)Should there be any other Orders in relation to the child, Y’s, name (the Court having previously made a determination in this regard by Orders dated 30th May 2012)? Answer: No.[5]
(f)Should any of the proposed Orders be made on a final basis or only on an interim basis? Answer: all Orders should be made on a final basis.
[5] The Father confirmed early in the trial that he had been calling “Y” “Y”, among other things, because he had been listening to many people, and because he did not like the name “Y.” The Father was very directly warned by me that because this matter had already been determined by the Court in 2012, it risked confusing the child, and it also risked putting the Father in some jeopardy for breaching those Orders. He should listen to the Court rather than to ill-informed others. See Transcript (3rd & 4th December 2015) p.18 - 19. Unless otherwise specified, all references to the Father’s evidence will be from the December 2015 transcript, thus “T” followed by page number.
Other more peripheral issues, such as Y’s name which has been the subject of earlier Orders by the Court arose during the course of the proceedings, as earlier noted. In the light of answers given by the Father, I do not need to make any further Orders in this regard.
Father’s Orders sought
The Father filed his Case Outline on 3rd December 2015, which set out his Final Orders sought. His Orders then sought were as follows:
1. That all previous orders be discharged.
2. That the Father have sole parental responsibility for the children.
3. That the children X born (omitted) 2009 and Y born (omitted) 2010 live with the Father.
4. That the children spend time with the mother:
(ai) if she is living in Property C every second week from after school on Wednesday until before school on Monday;
(aii) if she is living in Property I every second weekend from after school on Friday until before school on Monday;
(b) one half of the school holidays;
(c) from 10:00am Christmas Eve to 2:00pm Christmas Day in odd numbered years;
(d) from 2.00pm Christmas Day to 5.00pm Boxing Day in even numbered years.
5. Changeovers shall occur at the children’s school, or if not a school day, and for Y until he commences attending [sic] school, at 9am with the parent with the child to drop the child to the other parent at their residence, unless otherwise agreed.
6. That each party is authorized to obtain with the authority of the other from each child’s school all school reports, examples of school work, school newsletters, notification of all school activities, parent/teacher nights, and to be informed by school of any emergency, remedial or correctional treatment required by the children as soon as is practicable, and that each parent is entitled to attend school events, parent/teacher appointments and the like.
7. That each party is authorized by the other to obtain from any treating medical practitioner, hospital or medical practice that the children shall attend from time to time any information regarding the children.
8. That the Father and Mother keep each other informed of any sickness, illness or emergency of the children as soon as is practicable but in any event within 12 hours of either child being seen by a medical or allied health professional.
9. That each party provide to the other any medication and details of any medical treatment plan and any directions from the doctor for the children and each party shall administer such medication when it falls due, adhere to any medical treatment plan and follow any directions from the doctor for the children.
10. That the Mother and Father shall keep each other informed of contact address and telephone numbers at all times.
11. That the parties shall notify each other within 7 days of a change of address and within 48 hours of a change of telephone number.
12. That neither party, their agents and servants shall denigrate the other party to the children, in front of the children or within the children’s hearing.
13. That the Mother be restrained from referring to the child Y as ‘Y’ or using the word ‘Y in any writings.
14. That the Mother be restrained from referring to the Father in front of the children as anything other than ‘your Father’ or ‘your Dad’.
15. That the Mother be restrained from allowing the children to call Mr Cutler ‘Dad.’
16. Pursuant to S65DA(2) and 628 of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders - obligations, consequences and who can help, the particulars of which are included in this Order.
On the second morning of the further hearing in September 2016, without seeking leave and without addressing any issue of procedural fairness, the Father filed a further document, “Father’s Minutes of Orders Sought for Further Hearing on 15th September 2016.” It was submitted that the only or primary changes to the previous Minute of Orders Sought by the Father related primarily to some interim arrangements.[6] It was not explained why this further Minute was not provided much earlier. It was but one more matter to address that should have been addressed earlier. Lawyers used to doing things “on the run”, so to speak, may have no major difficulty in dealing with such things. However, accepting the Mother is not a litigious ingénue, nonetheless, she is a relatively unsophisticated self-represented parent who cares for her many children in the midst of this almost never-ending contest, arrayed as she was against four very experienced lawyers. Yet more paper presented to the Court and everyone else so very late in the trial, I suggest, again made it difficult for the self-represented Mother to follow the large and relentless paper trail or paper chase, as the case may be. The terms of that document were as follows:
[6] See Transcript (15th and 16th September 2016) p.92. The transcript of the earlier hearing is from (3rd & 4th December 2015) p.30.
Pending further Order:
1. That all previous Orders be discharged.
2. The Mother shall give all necessary consents to enable and otherwise ensure that the children attend the school excursion occurring for 3 days commencing 31 October 2016.
3. So far as is necessary the Father’s time with the children is extended so as to enable the children to attend the excursion for 3 days
4. That the Father have sole parental responsibility for the children.
5. That the children X born (omitted) 2009 and Y born (omitted) 2010 live with the Father.
6. That the children spend time with the Mother:
(a) during school terms, every second weekend from after school on Friday until before school on Monday, unless the Mother is living at Property I in which case the children are to be returned to the father at 5.00pm on Sunday;
(b) one half of the terms school holidays and in the absence of agreement for the first half in odd numbered years and the second half in even numbered years;
(c) during Christmas school holidays on a week-about basis such time to commence from 9am on a Saturday of school holidays with the first Saturday in odd numbered years and the second Saturday in even numbered years with the children to be returned to the father in any event on the Sunday at 5pm before school recommences in the new school year.
(c) from 10.00am Christmas Eve to 2.00pm Christmas Day in odd numbered years;
(d) from 2.00pm Christmas Day to 5.00pm Boxing Day in even numbered years.
7. That the Mother’s time pursuant to 4(a) be suspended:
(a) during school holidays so that her time in each new term is determined from the weekend prior to the commencement of the term school holidays;
a. during Christmas holidays, with the Father to nominate the weekend for the mother’s time to commence in the first school term of each new year (either the first or second weekend of the term).
8. To give effect to Order 6, the following shall apply:
(a) Changeovers shall occur at the children’s school, or if not a school day, at the front of the (omitted), (omitted) NSW (omitted), unless otherwise agreed;
(b) In calculating the Mother’s time during school holidays the parties will count the number of nights commencing on the last day of the school term to the night before the new school term commences, including pupil free days. If there are 2 midpoint days the mother’s time shall commence or conclude as the case may be at 10.00am on the second midpoint day;
(c) in the event that the Mother has the first half of the school holiday period her time shall commence from after school on the last day of the school term and conclude at 10.00am on the midpoint day;
(d) In the event the mother has the second half of the school holiday period her time shall commence at 10.00am on the midpoint day and conclude at 10.00am on the day before the new school term commences.
9. Notwithstanding any other order, the children shall spend time with the Mother on Mother’s day from10.00 am until before school Monday and Father’s day with the Father from 10.00am until before school on Monday.
10. That each party is authorized to obtain with the authority of the other from each child’s school all school reports, examples of school work, school newsletters, notification of all school activities, parent/teacher nights, and to be informed by school of any emergency, remedial or correctional treatment required by the children as soon as is practicable, and that each parent is entitled to attend school events, parent/teacher appointments and the like.
11. That each party is authorized by the other to obtain from any treating medical practitioner, hospital or medical practice that the children shall attend from time to time any information regarding the children.
12. That the Father and Mother keep each other informed of any sickness, illness or emergency of the children as soon as is practicable but in any event within 12 hours of either child being seen by a medical or allied health professional.
13. That each party provide to the other any medication and details of any medical treatment plan and any directions from the doctor for the children and each party shall administer such medication when it falls due, adhere to any medical treatment plan and follow any directions from the doctor for the children.
14. That the Mother and Father shall keep each other informed of contact address and telephone numbers at all times.
15. That the parties shall notify each other within 7 days of a change of address and within 48 hours of a change of telephone number.
16. That neither party, their agents and servants shall denigrate the other party to the children, in front of the children or within the children’s hearing.
17. That the Mother be restrained from referring to the child Y as ‘Y’ or using the word ‘Y’ in any writings.
18. That the Mother be restrained from referring to the father in front of the children as anything other than ‘your father’ or ‘your Dad’.
19. The Mother shall ensure that the children refer to the father as Dad in her household and is otherwise restrained from encouraging or encouraging others to have the children call the father ‘Mr Cubbin’.
30. Pursuant to S65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.
Mother’s Orders sought
The self-represented Mother did not file a Minute of Orders Sought. However, in her substantive submissions filed on 27th January 2016 under the heading “Mother’s proposal for the children’s time with the father”, she set out the following:
1) That the children spend from 5pm Friday until 830 am Monday alternate weekends, this allows for the children to spend time with the father not babysitters. The children would be dropped to Mr Cubbin’s residence on Friday at 5pm and Mr Cubbin can return the children to school on the following Monday morning. This would give the children stability and prevent homework and readers being left at the other residence, while still spending 3 night per fortnight with the father.
2) The mother also proposes the children spend half of school holidays with the father, to give the opportunity for the father to take leave from work and spend quality/quantity time with the children. This arrangement would in fact increase the father’s time with the children, as the father would have less need of babysitters, the father would also have the opportunity to take the children to meet their fathers many half siblings.
The Mother subsequently stated during her final submissions at the further hearing in September 2016 that she wished for the children to live with her and spend alternate weekends with the Father, and every Monday and Tuesday evening each week.[7]
[7] T 119.
At the conclusion of the further hearing in September 2016 it was agreed by all parties that the Father would spend half of each school holiday period with the children.[8]
[8] T 131.
In addition, during the course of proceedings the Mother indicated that whilst she would ideally like to move to the property in Property I, she would remain living in (omitted) should the Court order her to do so.[9] The question of whether the Mother’s indication should be taken on its face or otherwise accepted was the subject of submissions by Counsel for the Father and Counsel for the ICL.
[9] T 115.
Independent Children’s Lawyers Orders sought
The ICL provided her Case Outline and Orders Sought to the Court on 14th September 2016.[10] After some discussion on the morning of the first day of this further hearing, this Case Outline was amended in Chambers to include otherwise missing paragraph numbers for ease of reference. The ICL’s Orders sought, taken from par, 80 of the Case Outline, were as follows:
[10] The ICL had filed an earlier Case Outline on 26th November 2015.
1. The children live with the Father who shall have sole parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2010 including medical, educational and religious needs.
2. The children spend time with the Mother as follows:
a. From after school on Friday until the commencement of school on Monday in each alternative week whilst she lives in (omitted).
b. If the Mother relocated to Property I then the children should be returned to the Father on Sunday evening at 6pm unless Monday is a public holiday in which case the children should be returned at 6pm on Monday. If Friday is a public holiday then time should commence at 9am on the public holiday with the Mother collecting the children from the Father’s home if it’s not a university or work day. If it is a university or work day then the Mother is to collect the children from the Father at 4pm at his home.
3. Each parent be at liberty to take a holiday of up to ten days with the children in gazetted school holiday time in Term 1, 2 and 3 by providing each other with not less than 28 days’ notice of such proposed time and arrangements. In order to facilitate school time holiday the following shall apply:
a. If there is a dispute about holiday time the Mother is to have the first block holiday request after the making of these Orders which is to alternate between the parents if there is a clash of proposed times; thereafter:
b. Such holiday time is to be provided by the requesting parent including exact changeover times, dates and any other specific particulars 28 days prior to the holiday time occurring.
c. If no request for block time occurs by either parent then the orders herein continue.
d. Whichever parent had the last holiday block is to provide the other parent with the next holiday block if requested, if there is no request from the other parent for block time, then the requesting parent’s time is to be facilitated as if it was an Order of the Court.
4. In Term 4 school holiday time the children are to spend time with the Mother as follows in 2016 and each even year thereafter:
a. From the conclusion of Term 4 until 5pm on the 24 December at 5pm;
b. From 10am 30 December until 5pm on 10 January 2017;
c. From Thursday at 10am before the commencement of school until the commencement of school Term 1, 2017.
5. From 2017 onwards and each alternate odd year thereafter the children shall spend time with the Mother in Term 4 long summer holidays as follows:
a. From 5pm on 24 December until 10am 30 December;
b. From 10am 11 January until 5pm on Thursday before the commencement of Term 1 of that year.
6. The children are at liberty to spend time with the Mother on any of the sibling’s birthdays who reside in her household as well as her birthday. In order to facilitate that the Mother is to provide the dates of C, D, B and A’s birthdays to the Father within seven days of the date of these orders and thereafter the following shall apply:
a. If the Mother is celebrating the birthday on a school day then she is to collect the children from school on the day of the siblings or her birthday and return the children to school the following morning at 9am;
b. If the birthday is being celebrated on a weekend then the Mother’s arrangements to celebrate the sibling’s birthday or her birthday need to fall on her weekend times as set out in Order 2 herein.
7. The children shall spend time with the Mother each alternate Easter commencing 2018 from 10am Holy Thursday or conclusion of school if a school day, until the commencement of school on Tuesday. If Easter falls in the school holidays then Order 3 herein is to apply as the enforcing Order and this Order is suspended.
8. On either of the children’s birthday the Mother is to be a liberty to spend time with the children as follows and providing always that she confirms seven days prior to the birthday by text to the Father that she is available:
a. From 2018 and each alternate year thereafter from after school until the commencement of school the next day, if a school day.
b. If a non school day then the celebration is to be arranged on her alternate weekend as set out in Order 2 herein or 3 if in a school holiday period.
Medical
9. On all times and occasions the children are in the care of the Mother if they raise any matter of a medical nature or requiring investigation the Mother is to notify the Father and the ICL of this, if she is still engaged, and in all circumstances, unless prescribed otherwise by Police, is to return the children to the care of the Father WHO is to ensure while any investigation is undertaken that the following occurs:
a. The children attend school unless a medical certificate is provided to the school;
b. Ms H, Ms M or another responsible adult employed to assist the Father with the care of the children, are to be generally present while the children are in his care and pending the investigation being concluded.
c. Bring an application in this Honourable Court with 28 days of such investigation being notified to him.
10. Each parent is to notify the other as soon as practicable in the event of the children suffering any serious illness of injury or requiring hospital admission whilst in their care.
11. Each parent is to advise the other of any change in their current postal address, address or contact telephone number within 7 days of such change occurring.
12. That on any time or occasion the children wish to speak with either parent when in the other parent’s care then the parent with whom the children are in the care of is to facilitate a private place and provide a telephone to the child to make the call.
13. Pending the children concluding their primary education the following further orders are to apply:
a. The Father is to notify the Mother of any changes to the children’s education and ensure she is provided with copies of all school reports, notices of performances and school photographs.
b. The names of the children’s primary care professional are to be provided by the Father to the Mother within 21 days of the date of these Orders and thereafter within 21 days of any changes to those arrangements including but not limited to doctor, dentist and any treating therapist or psychologist of the children.
14. Each party is restrained by injunction from discussing or showing the children or either of them content or written information regarding these proceedings OR discussing or speaking of these proceedings in the hearing, eyesight or presence of the children at any time these orders remain enforceable.
15. Each parent is restrained by injunction from calling or allowing either of the children to be called or known as anything other than Y or X.
16. That the Mother be restrained by injunction from referring to the Father in any term other than his name or “Dad” if speaking directly to the children.
17. That the Mother is to ensure as much as practicable, that she does not allow any other member of her household to refer to the children’s Father in any term other than Mr Cubbin.
18. That the Mother is to immediately notify the Father of any medical attention provided to the children while in her care including the name and phone number of the professional.
19. The Mother and Father are each to engage with their closest service provider to ensure they complete within three months of the date of the Orders the following:
a. Circle of Security and
b. Parenting post separation eight week progress; AND
c. Provide a copy of those completed course [sic] to the ICL.
20. That the Independent Children’s Lawyer shall be discharged 12 months after the date of these Orders.
The Evidence of the Parties
The Father and the Mother gave evidence at various times in the course of the somewhat protracted hearing. The Father only gave evidence, albeit in two discrete tranches on consecutive days, during the first two days of the hearing in December 2015. The Mother gave evidence during the first two days of the hearing in December 2015, and again during the third and fourth days of hearing in September 2016.
At the outset, a few matters are important to record about the evidence of the parties before getting into the minutiae or other relevant detail of it.
First, for better or for worse, subject only to a relatively brief interlude when this matter was in the docket of Judge Harman (as earlier observed), I have had the carriage of all matters involving these parties since 2010. The quite regular engagements with them, as well as of course during the protracted trial, have given, I suggest, a much greater level of opportunity to observe and to assess these parents. This is to say that I have had a much greater exposure, so to speak, than would usually be the case, to consider the evidence and the history of all relevant factors that pertain to parenting Orders that should be made in the best interests of the children, pursuant to s.60CA of the Act.
This is not to suggest, I hasten to add, or to claim that I have any level of infallibility or omniscience about these parties and their children. Doubtless some Judges (either in this Court or elsewhere) might take a different view of certain matters in relation to decisions I have taken in the past or even in the present set of litigious circumstances. That is hardly surprising, particularly in family law matters where, ultimately and invariably, there is required to be the “careful exercise of a structured discretion” by the Court.[11] In short, the Court’s judgment is the exercise of its discretion having regard to all the evidence and the requirements prescribed in Part VII of the Act. That said, respectfully, it seems to me that the approach and course(s) taken by Judge Harman has been entirely consistent with what I have done in the past and, as noted later in these reasons, what I am compelled to do in the current proceeding.
[11] The description of “careful exercise of a structured discretion” is “borrowed” respectfully from Boland J’s seminal judgment in Morgan v Miles (2008) 38 Fam LR 275 at [74].
However, in the senses set out by the High Court in Fox v Percy in relation to the significant opportunities that are only available to a trial Judge, in my view, precisely because I have had so many opportunities to engage with these parties over so long a period it has allowed me almost the luxury of such a protracted period of assessment that no other Judge could ever have.[12] Other than the parties themselves, and the Father’s solicitor, no one else has had such an extensive series of ongoing occasions to test the dynamics of the relationships and the evidence regarding what Orders are in the best interests of the children who are the subject of these regularly litigated proceedings.
[12] Fox v Percy (2003) 214 CLR 118. In particular, see the extended discussion by McHugh J beginning at [65] ff.
Secondly, as a result of the Court’s regular, consistent observations of the parties over many years, as well as during the somewhat lengthy trial, the Court has been able to well and thoroughly assess something of the character and traits of the parents, indeed much more so than in most other matters. In this regard and being in no way critical of either of them, artifice, nuance, sophistication and subtlety (for example) are not part of their kin or character. Rather, things are invariably very much “black and white”, especially when it comes to dealing with and or making decisions about their children. While the uncomplicated (another word for “black and white”) might have its benefits in many respects, it has often made decision-making and other things (e.g. communication) often-times rather fraught. A certain bluntness is simply a fact of the lives of each of these parents. This has obviously been both blessing and curse in many respects.
In the light of these comments, it was, from my perspective, somewhat curious that both very experienced Counsel (for the Father and the ICL) often approached questions to the Mother that seemed predicated upon her being a more intuitive and or nuanced and sophisticated individual than she in fact is. This led, not infrequently, to frustrations on many sides when the question(s) put did not elicit what might otherwise, in different circumstances, have been a more obvious answer. Indeed, in my view, criticism of the Mother was often at least implied because she answered in such a black and white, or un-nuanced, manner. But both Counsel often pressed on with the pursuit of questions in the same way without seemingly appreciating with the nature and character of the witness involved. Regularly, she would not yield to certain propositions put simply because the so-called obvious answer was not obvious to her. I did not take her answers to be exercises in obstruction or obfuscation.
Thirdly, because the Father obviously does not have the volume (and diversity) of family responsibilities to which the Mother must regularly attend, and because he has the resources (and the Mother does not) to retain legal representation (again no criticism is intended in any respect – it is simply a statement of fact), he was very much more shielded and guided by his legal team than was the Mother, who was necessarily more exposed in an evidentiary sense. There is little doubt that just as the Mother’s difficulties, doubts and problems have been very much more easily probed and exposed because (a) the Father has always had either or both solicitor and Counsel at his disposal, (b) the Mother has had no such legal protection or guidance, and (c) the ICL very early in the trial confirmed her position that was adverse to the Mother, the so-called “forces” arrayed against her were formidable. Again, this is not a criticism of anyone (including the ICL – she is/was at liberty at any time to decide where the weight of her views were directed). Indeed, it may have been the case in at least one instance where the Court’s responsibilities to assist a self-represented litigant were not as diligently exercised as they should have been. This occurred towards the end of the final part of the second stage of the trial; it is noted in more detail later in these reasons.
Further, such was the Mother’s concern about the so-called [legal] forces she perceived to be arrayed against her that during the second part of the trial (in September 2016) she made occasional complaint, after having already noted her concerns in submissions to the Court in January 2016 about the alleged or perceived “bias” of the ICL against her. For example, early in the resumed trial she said that it had been quite a while since she had received anything from the ICL, notably by registered mail; she also said that she had not been notified of anything by the ICL.[13] Such perceptions/comments led her to say that she did not tell the ICL about all things because she did not trust her.
[13] See Transcript (15th September 2016) p.12.
However, it is appropriate to note a couple of other matters regarding the evidence, particularly of the Mother and certain matters that she confronted.
For example, the Mother took questions put to her by both Counsel very literally. This often led (as I have just noted) to not infrequent confusion (and not only on the part of the Mother) and the need for clarification regarding either or both what was being asked (and perhaps an explanation why it was being asked) and the answer given. It also led to not infrequent frustration (in addition to the confusion) - not only on the Mother’s part.
None of these comments are criticisms; they simply record the reality of how many parts or aspects of the cross examination of the Mother played out in Court. It also partly explains how and why some of the questions put to the Mother, and the answers given by her, may have seemed to have been framed deliberately to put her evidence in a worse light than was properly or reasonably the case (e.g. in relation to why she permitted the child X to spend time with the Father when she considered him to have molested her). It certainly seemed, on the Mother’s evidence that very regularly she did not appreciate (or fully so) how and or why she had (or had not) taken certain action. As I said, she took action, and answered questions, very literally. Detailed examples are given later in these reasons.
I should also mention that often there was, in my view, an unwarranted implied (sometimes more overt) criticism of the Mother for her [alleged] failure to look at documents produced under subpoena, or documents that were made available to the Court pursuant to s.69ZW of the Act. Usually, the Mother said something to the effect of she did not know either that she could look at them, or that she only had access to them quite recently, and or that they were so voluminous she did not have the wherewithal to look at them in detail. It might also be noted (as a statement of the obvious) that she almost certainly did not appreciate what to look for in any event. With so many family demands from a large number of children in her care, and being a self-represented litigant, so many of these kinds of express or implied criticisms against her should not have been made. Respectfully, this was especially or surprisingly so of such experienced Counsel.[14]
[14] In this regard, I note, without criticism, that at the outset of the hearing, Counsel for the ICL sought an indulgence in relation to him needing to leave the hearing somewhat early due to some personal parenting issues to which he was required to attend. It was readily granted. See T 9, 167 & 193. The Mother did not seek any such forbearance in her nightly drive to and from Property C to Canberra and related matters.
The Mother was also criticised for her lack of attention to the detail of or in the Family Report that was released only shortly before the commencement of the hearing. Given that it was released so close to the hearing, this criticism also should not have been levelled against a person in the situation of the Mother. This was raised at the time in response to a proposition put by Counsel for the ICL to the Mother that she was in some way “negligent” in her preparation for the hearing in having only “scanned” the Report. For reasons already given which I need not repeat, I considered then, as I do now, such a proposition as unfair in all of the circumstances.[15] Further, a little later in the course of the Mother’s cross examination (a) the Mother confirmed that she had read the Family Report overnight in between travelling back to Property C and attending X’s awards night and returning to Canberra the following morning,[16] and (b) the Report was only released to the parties pursuant to Orders dated 1st December, the Mother noted that she was informed of these Orders with a copy of the Report on 2nd December with the hearing commencing on 3rd December.[17]
[15] See T 159 – 161.
[16] For ease of reference, I note that according to Google Maps, the distance between Canberra and Property C is approximately 264 kilometres, and a drive of approximately 3 hours one way.
[17] See T 161.
I turn to the substantive oral evidence of the parties.
The Father’s Evidence – 3rd December 2015
In the light of what has been stated earlier in these reasons, it will be clear that this matter was part heard following the initial final hearing in December 2015, the further hearing being conducted over two days on 15th and 16th September 2016. The Father only gave evidence during the first two days of trial. Summarised, it was as follows.
The Father, as earlier noted, is a 59 year old (occupation omitted). He lives in (omitted), which is approximately a 30 minute or so drive from the Mother’s residence in (omitted). Early in his evidence he said that he was not very well prepared for a change in residence if the children came to live primarily with him.[18] He also confirmed that, due to work commitments (among other things) he relied upon third parties, including a nanny or nannies, to assist him with the care of the children when they are with him.[19] He said that he did not feel it was necessary to consult or to advise the Mother that a nanny (or nannies) were caring for the children overnight if he could not do so.[20] Respectfully, I disagree. Known family or friends is one thing; an unknown, paid nanny is quite another and should at least be notified to the other parent.
[18] Transcript (3rd & 4th December 2015) p.30.
[19] The Father’s work roster for December 2015 became Exhibit C.
[20] T 38 – 41.
Further, the Father made criticism of the Mother about not advising him of information regarding the children; but he was content to do (or strictly, “not” to provide) exactly the same to the Mother.
After a series of earlier questions by Ms Cutler to the Father, which became somewhat more heated with comments, there was the following somewhat plaintive plea to the parties by the Court (emphasis added):[21]
[21] T 16.
HIS HONOUR: Seeing that we’ve let this go for a little time. One of a number of concerns that I have is that – one of the considerations at the end of section 60CC(3), is making an order that is going to lead to the least possible amount of further litigation.
MS CUTLER: Yes.
HIS HONOUR: It’s no prejudicial [sic: “pre-judgmental”] comment. It’s simply a statement of fact. But, given that you, Mr Cubbin, and you Ms Cutler, have been litigating in this court, at least since 2010, the court might be able to take judicial notice of the fact. And I’m not trying to be glib. I’m very concerned, in every relevant respect, that you don’t play well together, at all. And therefore, at one level, it’s almost really not going to make any difference what orders that I make, because that’s not going to repair or heal, or make better, but I’m very open to suggestions, the parenting relationship. Because, clearly, the level of hostility and difficulty that attends the parenting relationship is palpable. It’s – it just colours everything that both of you say and do. Would you agree with that, Mr Cubbin?‑‑‑Yes.
Ms Cutler? [sic: Cutler]
MS CUTLER: All right. Yes, your Honour.
HIS HONOUR: So at some stage, whether it’s now or some time in the course of the trial, I would be very pleased to hear from either or both of you as to what, if anything, you might be able to suggest to me that’s going to make the parenting relationship, at least in some way, better that it is now. Because it’s so caustic, it’s so hostile, which, clearly, is not good for either of you and is clearly not good for the children.
MS CUTLER: No, it’s not.
HIS HONOUR: So if you’ve got any suggestions, I’m all ears, as they say.
This exchange highlighted at the time, and remains the case now, one of the most basic issues that properly and realistically under-pinned what Counsel for the ICL stated to be “the problem” but which was rarely addressed during the trial, namely the seriously troubled co-parenting relationship. It should have been properly and thoroughly addressed. Unfortunately, this rarely occurred and was all but ignored in submissions. A complex range of issues – serious co-parental strain plus the information and understanding of the children about what is and what is not abuse – were treated with a seriously inadequate and inappropriate panacea – a change of residence for the children. Serious issues require much more nuanced and serious attention than such a radical but inapt response, which would very likely lead to more problems and compound the existing ones.
Again, somewhat early in the trial, following certain questions to the Father and various answers he gave regarding the Mother’s alleged relocation from Property C (where she was then living) to Property I, the Mother expressed concerns about (a) the Father “influencing” the ICL and that (b) because of that influence, the Mother considered that she had been “branded a liar” by the ICL.[22]
[22] T 17.
The Mother’s range of questions to the Father really focussed on matters such as the health care of Y which, as important as that is, did not assist much in advancing matters.
In response to questions from Counsel for the ICL, I note the following evidence from the Father.
First, after explaining that he was seeking a sole parental responsibility Order, which was obviously different from the existing one for equal shared parental responsibility, the Father explained that he sought it because in his view it would protect him from being slandered (my word) in the Mother’s household where, he said, he was mentioned as a rapist, paedophile and stalker.[23] It was then explained to him that such an Order would not prevent the Mother from referring to the Father by such names (or any others) in her household. The Father said that he understood this but still persisted with seeking that Order for the reason given. Understandably, he said he was offended to be called such names.
[23] T 25.
At the same time, even being called such names the Father conceded that it did not stop the parties from making decisions that were in the children’s best interests. The Father fairly and commendably said that the children’s best interests “outweighed all else.”[24]
[24] T 26.
Yet, immediately after confirming that he and the Mother could make decisions regarding the children, the Father said that he never gets told anything by the Mother about decisions involving the children.[25] And he said that he and the Mother had not spoken [face to face] for probably more than three years. They do, however, communicate often via text message.[26]
[25] T 27.
[26] T 27.
There followed a longer exchange with the Father regarding his proposal to change the residence of the children (noting that the ICL had already declared her position which was also in favour of a change in residence of the children).
The Father acknowledged that if there was a change in the children’s residence there would be some months of adjustment for them, because they would miss their Mother. He also said that he would accommodate the children seeing their Mother if they wished to do so during the “transition.”[27]
[27] T 28.
Asked whether he had sought any professional advice in relation to the children changing residence, he said he had not but that this suggestion was “a good point.”[28] Again respectfully, for someone who is proposing such a significant change in the care arrangements of young children, and with relatively limited experience as a parent and work commitments that limit, to some degree, his availability, the Father’s answers here, in my view, indicated a certain lack of insight.
[28] T 28 – 29.
The Father conceded, in the light of further questioning, that the children may need some counselling if there was to be a change in residence to deal with such a situation. He said that he had not explored any such counselling but it was something that was “on his mind.”[29] This led the Father also to concede that he probably was not very well prepared for a change in the children’s residence.[30]
[29] T 30.
[30] T 30.
The Father said that he did not think that his work roster would pose any difficulty for the children because they were used to it. He seemed to miss the point of the ICL’s question when it was highlighted that the roster had formerly “worked” (so to speak) with the children spending 5 nights per fortnight with the Father, but who was now proposing that the children live primarily with him. The December 2015 roster (Exhibit C) that was before the Court indicated that the Father would be away from home for 10 nights in that month, which was common or usual he said each month.[31] Longer term rosters for the Father were not provided to the Court; he did not know why this had not occurred. Certainly, given the frequency and the volume of documents filed and information provided, it was indeed curious if not unfortunate that this basic information was not made available.
[31] T 31.
The Father confirmed that he had not made his roster information available to the Mother. He accepted that it was or probably would be useful information for the Mother to have.[32] He also said that he did not regret his failure to advise the Mother of this work information that included his availability (or lack of it), but later conceded that in terms of providing basic information such as a work roster would be a reasonable thing to do.[33]
[32] T 33.
[33] T 34 - 35.
The Father confirmed (as he had done to the Family Consultant – Exhibit A par.24) that he was planning on retiring when he turned 60, which would be in (omitted) 2018. He said that he would be able to readily provide for the children if they came fully into his care; he also said that his health was “very good at the moment”.[34]
[34] T 38.
Counsel for the ICL explored with the Father his use of and the availability of nannies, notably a Ms H, who is the daughter of a friend of the Father. Ms H has children of an age similar to the children who are the subject of these proceedings. The Father says that Ms H is regularly available to care for the children, even at quite short notice. He pays her in cash. He did not consult the Mother about using the services of Ms H. She looks after the children at her residence, not the Father’s. Ms H has four children of her own, which means that when looking after X and Y, she is looking after six children all aged under 10 years. He repeated that he saw no need to advise the Mother of these arrangements. The Father also confirmed that he had not set out in any material before the Court (and therefore to the Mother) either the frequency or the number of hours Ms H had been looking after the children over the past three months.[35]
[35] T 38 – 43.
The Father confirmed that he employs a different person (Ms M) to look after the children overnight when the Father is away for work. He said that he has known Ms M for approximately 20 years. This arrangement seems to have been a more recent engagement. On the Father’s evidence, the children have been cared for overnight, in the previous 12 months, once per month, and if they came into his primary residence, he agreed that the children would need to be looked after more frequently overnight by someone other than himself. Again, the Father confirmed that he had not advised the Mother of any arrangements he has with Ms M and her caring for the children overnight when he is at work.[36]
[36] T 43 - 46.
If there was a change in the children’s primary residence, and they spent (on the Father’s then Application) five nights per fortnight with the Mother, the Father’s primary or only reason about the children spending that amount of time with their Mother was his concern that the Mother speaks ill of the Father in front of the children and accuses him of being a rapist or paedophile. In short, he said his concern was about the Mother’s attitude towards him. Fairly, he conceded that the children loved both parents equally.[37]
[37] T 48 – 49.
In relation to the change in residence, there was the following exchange with Counsel for the ICL (emphasis added):[38]
Now, other than neglecting their medical needs, do you know of any other instances where you believe that the mother has neglected the children?‑‑‑The fact that the kids tell me that the mother is – is not home very often. They’ve told me that she’s at work at (omitted). She’s at the farm. And they don’t get to see her very often.
But, nevertheless, you’re confident that it’s in their best interests that they see their – they live with their mother, continue to live with them five nights out of 14 every – every fortnight?‑‑‑I’m not confident but I do not want to see the children – not have some sort of relationship with the children.
And you believe that that proposal adequately protects them?‑‑‑I would have to say it’s to be seen. I don’t know.
You’re not really sure about the proposal you had before?‑‑‑I – you know, I’m hoping that the – once the children change – if the change – if the children change residence, that maybe we can get some sort of communication relationship going with the mother that will facilitate, you know, some of the issues that are happening.
You don’t seriously say that, do you, sir?‑‑‑I don’t believe it will probably happen, no.
[38] T 50.
Following this, still by reference to an earlier filed Case Outline on his behalf, the Father said that he considered the Mother to have failed in providing the emotional and intellectual needs of the children, and generally failing to parent the children. But notwithstanding these “failures” the Father continued to propose that the children spend five nights per fortnight with the Mother.[39] This had been his position since 2014, but in answer to a number of questions from the ICL, he said that he was having second thoughts about his [then] proposal.[40]
[39] T 49 – 51.
[40] T 51.
If the 9:5 arrangement sought by the Father (in his favour) was made, he said that while he recognised that it would mean a reduction of the children’s time with their many siblings, he did not think that it would make any difference to the children.[41] In my view, this showed then and shows now a concerning if not an alarming lack of insight by the Father about the importance or significance of the sibling relationships.[42]
[41] T 52.
[42] See s.60CC(3)(b) and (d) of the Act. The Father’s lack of insight in this regard may also be relevant in relation to s.60CC(3)(f) and (i).
Later, in relation to this same issue or “consideration”, after reading comments made by Judge Harman in his judgment (at [99]) that considered the sibling relationships to be “very important”, the Father accepted that those relationships were “very important.”[43]
[43] T 52 – 53.
Later still, in response to further questions from the ICL regarding these sibling relationships, and those questions noted that the Father had not referred to them at all in the material filed on his behalf, the Father said that the failure to make mention of this matter was “probably an oversight.” He also said that he probably had not considered these relationships until he was asked about them in Court.[44] This was an important and significant concession which, again, in my view, goes to the Father’s insight (or lack of it) in relation to the care of the children and his appreciation of certain important considerations as a parent to which he needs to have proper regard.
[44] T 54.
In relation to certain hygiene matters concerning X that he set out in his affidavit, sworn 17th September 2015 (par.46), the Father said that he had not raised them with the Mother and that he relied only upon what he had been told by his daughter regarding them.[45]
[45] T 54 – 56.
In the course of a longer discussion about what the Father considered might assist the co-parenting relationship between the parties, the Father said that some sort of professional counselling for both parties might assist, at least to get them both talking to one another.[46] In my view, this was an important if not seminal input from the Father. Indeed, this was one of the very few occasions that “the problem” was actually faced directly and in some way addressed.
[46] T 60.
He said that a change in the children’s residence would be something of a “solution”, albeit not a complete solution. He this would provide a “stable environment” where his parenting would be “consistent and fair” and that they would have no fear of corporal punishment while in his care.[47] He also acknowledged that the children have a meaningful relationship with the Mother; he said it was “obvious” that the children “still love their Mother.”[48]
[47] T 60 – 61.
[48] T 61.
In my view the Father did not explain how or why a change in residence for the children would provide them with a stable environment because he was less than clear that such a radical course (a) relevantly took into account what impact such a change would have on the children’s relationship with their Mother, (b) equally relevantly took into account what impact such a change would have on the children’s relationships with their siblings, and or (c) relevantly addressed how the use of nannies when he was working would assist in developing a good and close relationship with either parent and or the children’s siblings.
The next parenting matter of substance related to the lack of information and co-ordination of medical treatment and the sharing of such information between the parents.[49] The Father confirmed that there was little if any sharing of medical information between the parents regarding the children. He agreed that it would be best if the children saw only the one doctor.
[49] See T 67 ff.
Next, the Father was taken to his trial affidavit (September 2015) which annexed a copy of X’s school report. He said (at par.34) that it was, to him, “troubling.” Counsel for the ICL pointed out to him that the Report actually noted that X was doing “very well” at school.[50] After going through a number of aspects in the Report, all of which showed that she was doing very well, the Father said that it was the issue of “homework” that concerned him. The child was then aged six years old. There followed a discussion about the Father’s understanding or belief about the need for a certain regular regime in relation to homework. He conceded that a change in residence was not going to alter any particular homework regime or “obligation” in this regard as he saw it.[51]
[50] T 68.
[51] T 69.
The Father identified that the relationship with the Mother deteriorated after the Court made Orders in relation to Y’s name in 2012. He said that the relationship got worse essentially because the Mother has, by and large, refused to speak with him since that time.[52]
The Mother’s Evidence – Part One (3rd & 4th December 2015)
[52] T 71 - 73.
In answer to questions from Counsel for the Father, the Mother gave the following evidence.
At the outset of her evidence the Mother advised that she had married Mr Cutler only the week prior to the hearing. Otherwise, apart from a brief series of questions concerning the parentage of and any “contact” arrangements in relation to the Mother’s older children, the first point of note in the Mother’s cross examination was that (a) she had only recently thought that the Father’s increase of time with the children would best occur during school holidays, and (b) that she had not (and would not) send a “text” (SMS) message to the Father to advise him of such a proposal because she was “very wary of him.”[53]
[53] T 84.
The Mother accepted that the parenting relationship and communication with the Father was “very poor.”[54] To improve it, she said that it had actually improved since the last Court event(s) because, she said, the Father now addressed her more respectfully, and in turn she is more comfortable responding to him. She said that both parties needed to put the children’s interests first and that each of them needed to be more respectful to the other. In terms of communication generally, there was the following exchange with the Bench:[55]
[54] T 85.
[55] T 85.
Do you understand that I can’t co-parent this matter along with all the other hundreds of other matters, so therefore I can’t be looking over both of your shoulders about people being respectful and ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ polite and informative?‑‑‑Yes.
So is that going to happen once these court proceedings are over; that is, that both of you are going to be respectful and keep each other properly and reasonably informed about information relevant to the parenting of the children?‑‑‑I think so, your Honour. The – I was not aware that I had to inform Mr Cubbin every time one of the kids got a runny nose or a bruise or a sneeze or a cough. I’ve since been informed that, you know, every aspect of their life, no matter how minor, needs to be discussed with him. And I find it very tedious.
The Mother continued to contend – and strongly so - that she was sexually assaulted by the Father during their relationship. However, in her oral evidence she said that through counselling she has now come to the view that the Father is never going to apologise to her in relation to these matters and therefore she has decided simply “to get over it.”[56]
[56] T 86.
She said that she (or her Husband or one of her older children) went to her property at Property I pretty much every day. She did so to maintain the property such as feeding animals, maintaining stock (she said that she has 37 head of cattle), repairing fences and the like. She said that this property was purchased for approximately $125,000 in 2013. Some of the funds for this purchase (perhaps $45,000) were borrowed from her Father.[57] She said that the accommodation at Property I was suitable and appropriate, contrary to the Father’s assertions.
[57] See T 88 – 89.
She said she was aware that the Father did not wish her to relocate to Property I. She also said that, in her view, the Father simply wanted to control her life (or try to do so).[58]
[58] T 91.
The Mother confirmed that Mr R (who is the Father of a couple of her other children), and Mr Cutler (her new Husband) were both in Court but were not on affidavit.[59] She said that Mr R had provided material in earlier matters before the Court but did not wish to be involved again. The Mother further said that her Husband, Mr Cutler, suffers from dyslexia and has a hearing deficit which requires him to wear a Cochlear implant (and a hearing aid). These things lead to him becoming “very confused very quickly.”[60]
[59] T 91 – 92.
[60] T 92.
The Mother also confirmed that the two youngest children call Mr Cutler “Dad”, and sometimes “Mr Cutler.”[61] She also accepted, at least inferentially, that Mr Cutler is a significant figure in the lives of the children. This was because, among other things, he was their Godfather.[62]
[61] T 93.
[62] See T 95 – 96.
There was much discussion with the Mother, towards the end of the first day of this part of the hearing, regarding her attendance at the Property I property. Much questioning focussed on where the Mother’s multiple EFTPOS cards were used (and by whom); she said that she had four such cards that were used by various members of her family. They were all linked to one single bank account. In short, she said that generally, she attended that property on Mondays and Tuesdays (as well as weekends), but that (as earlier noted) other members of her household attended the property every day. She also confirmed that at the end of September she was on two-week work placement at (employer omitted).[63]
[63] T 98 – 101.
She said that there was power at the Property I property from two generators. The generators were also used at the Mother’s [then] Property C property. There are kerosene lamps at that property – six in total. These were necessary because the electricity had been disconnected at the Property C property. The issue of the use of kerosene lamps remained the subject of discussion in the early part of the cross-examination of the Mother on the second day of the hearing. In the result, because the Mother no longer lives at that property, it is unnecessary to canvass her evidence on this subject further.
The Mother said that it would cost approximately $25,000 to put in a solar electricity system at the Property I property. She did not have a specific or formal quote for this.[64] Her daughter Ms J has lived on this farming property since December 2014.
[64] T 115.
There was also significant discussion regarding (a) the construction material used in the [main] building/residence at Property I (corrugated iron on the outside and plasterboard on the inside), (b) the availability of water on the property (Ms Cutler said there are rain-water tanks, holding 50,000 litres), (c) the amenities available at the township of (omitted), especially for children (there is a tea room; there is a park at (omitted), and at (omitted) both of which are approximately a 20 minute drive away), and the distance from the property to the township of (omitted) (approximately 12 kilometres). The property can only be accessed by four wheel drive.[65] The Mother confirmed that the property was isolated but that it was a suitable place to raise children.
[65] See generally T 116 – 119.
The Mother confirmed that (at that time – December 2015) she had not advised the Father that she had pre-enrolled the children into a school in (omitted) – the same school that some of her older children currently attend.[66]
[66] T 123.
There were a series of questions put to the Mother in relation to reports she had made to JIRT (Joint Investigation Response Team) in 2014 in which she had contended, based on reports from X to her Mother (the Mother contended), that the Father had abused the child. At that time, because of the allegations, the Mother had withheld the children for six months from spending time with the Father.[67]
[67] T 125 ff. See also the follow-up discussion regarding the JIRT investigation, concerns about X being potentially isolated, and the recommendation that she attend pre-school. T 129 – 132.
The Mother said that generally she (or the children) do not talk about or mention the Father in her household. But if there is mention of him it is either by a reference to him as “Dad” or “Mr Cubbin.”[68] She said that she does not mention him because he is not “part of our immediate family.” She said that this was not, however, the view of the children but only her view.[69]
[68] T 128 – 129.
[69] T 129.
The issue of allegations against the Father regarding abuse of X were considered further in the context of (a) there being no adverse comment or intervention by either JIRT or the Department of Family and Community Services (as that Department now is; “the Department”) or the Police, and (b) the child continued to spend time with her Father. The Mother simply stated that she had a responsibility to refer her daughter’s statements to relevant authorities, which led to X being examined at hospital and interviewed by the Department.[70] She also said, in my view somewhat incredulously, that the child simply accepts such conduct by the Father (e.g. the Father allegedly putting his hand down her pants) as “normal behaviour.”[71]
[70] See T 131 – 134.
[71] T 135.
The Mother said that in 2014 her reasoning for being scared of the Father is not her reasoning now – which I took to be that she no longer feared the Father, at least in the way(s) that she formerly did. She also said that, by and large, the children are happy and content to go to spend time with their Father.[72]
[72] T 137.
The Mother said that, contrary to what Judge Harman had said in his earlier judgment, she was (a) accepted into the indigenous community in (omitted), and (b) there was documentation now available (but not formally before the Court) that confirmed her indigenous heritage. The children’s schools have been notified, she said, of their indigenous heritage.[73]
[73] T 138 – 139.
There were further questions to the Mother regarding the child Y attending pre-school (or not) and how such a course may have benefitted him. Likewise, there were questions to the Mother about (a) the Father taking the children (but especially Y) to a doctor for medical attention (the Mother said that she had no difficulty in such a course being taken by the Father when the children are in his care), and (b) providing the child with medication in a circumstance where Y had a temperature. In this latter situation it was clear that (i) the Father arranged for someone (presumably one of the children’s nannies) to take Y to the doctor because the child had a temperature of 38 degrees, and (ii) the Mother’s preferred course would have been to give the child Panadol and see if the child’s temperature would come down.
In my view, this episode, and “SMS communication” between the parents in relation to it, showed little more than the following things: (a) perhaps the Father does not have the long parenting experience that the Mother has, and (b) the parents have different approaches to parenting (leaving the use of nannies to one side). Neither of these observations are meant to be critical of either parent; they simply show “difference”, and that “difference” is not necessarily “opposition”, although it may be viewed by one parent or the other as “opposition” because of the history of contest.
The next topic of submissions was the Father’s use of “nannies”, which the ICL found to be unproblematic and almost a necessary feature of modern life for some families.[188]
[188] T 126.
There followed a series of submissions about how the Mother had failed to put in place any relevant protective barriers in relation to the children being exposed to either possible abuse and or discussion about abuse. Unsurprisingly, Counsel was asked what sort of barriers might be put in place by the Mother. The exchange was as follows (emphasis added):[189]
[189] T 126.
Now, of course, going back to the mother’s position, if, on the other hand, she says, “Look, I genuinely believe that the children were sexually abused”, as I submit she did say yesterday, the fact that she doesn’t put up any protective barriers in relation to looking after the children – in fact, she’s addressing your Honour today by saying that there should be an extension of the father’s time – in my submission, that would suggest someone who is grossly neglectful in relation to protecting the children and another reason why the father should be the primary caregiver of the children in the future. Now, your Honour, the ‑ ‑ ‑
HIS HONOUR: And so what sort of protective barriers would you have in mind, Mr Jackson?
MR JACKSON: That’s a very good question, your Honour. In terms of how can we stop the mother if she’s inclined to do what she has been doing in the past? Is that the nature of the question you have asked me? The answer is I don’t have a real answer for that….
This exchange led into Counsel for the ICL submitting (as noted earlier in these reasons) that a change in residence would not “remedy the problem”. I simply observe that it is curious that the Mother is criticised for not putting in place any protective barriers but the ICL cannot suggest what those barriers might be.
Counsel for the ICL also raised concerns about the Mother’s lack of information regarding her move to (omitted) and her moves within (omitted). He also expressed concerns about what to do in relation to the children spending time at the farm at Property I; he was not formally opposed to it but doubted that such visits would remain just that – visits. He doubted that the Mother would abide by any Orders of the Court.
Counsel for the ICL did note from the Family Report (pars.74 and 82) how enthusiastic the children were with the Father. It was curious that nothing positive was taken from such comments and observations about the children, notwithstanding a number of investigations, appearing to have good and close relationships with both parents. The focus of the ICL was on the good relationship that the children had with the Father. But this necessarily begged the question (that was never addressed): if the Mother’s household was so poisonous, how is it that the children continue to have such a good relationship with the Father? Could it be that the Mother’s household is not as poisonous as suggested by the Father and the ICL, and that it is as relatively basic and uncomplicated as the Mother suggested.
In any event, Orders were made by consent at the conclusion of submissions for an increase in the Father’s time with the children to be half school holidays.[190]
[190] T 131 – 132.
Consideration & Disposition
In making Orders that are in the children’s best interests, pursuant to s.60CA of the Act, the Court is required to have regard to the relevant evidence and to assess it in the light of the statutory scaffold or pathway prescribed in Part VII of the Act.
Throughout the course of these wearisomely long reasons, from time to time I have commented on various aspects of the evidence, including the not insignificant gaps in it (primarily on the self-represented Mother’s side). I have also commented on various submissions that have been made by the parties and by the ICL. I need not, and will not repeat those earlier comments.
In the course of the trial and otherwise I observed that the issues throughout the long course of the matters ultimately remain relatively narrow. They relate essentially to the primary residence of the children and the time-with arrangements for the non-resident parent. Added to these matters is the Mother’s now more lukewarm wish to reside primarily at her farm at Property I, noting that she has stated to the Court on more than one occasion that she is more than content to remain living in (omitted).
These matters of course do not directly address “the problem” of the extremely poor co-parenting relationship and the children’s beliefs and or comments about their Father abusing them.
Indeed, regarding the “issues in dispute”, Counsel for the Father observed in the course of his final submissions that if the Mother had been more reasonable and the Father accordingly had more faith in her there would be no application for a change in the children’s residence.
I remind myself of the following matters from two Full Court decisions.
First, in Mulvany v Lane, May and Thackray JJ said, at [76] – [77]:[191]
[76] It is important to recognise that the miscellany of “considerations” contained in s.60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
[77] It needs also to be remembered that the importance of each s.60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catchall consideration in s.60CC(3)(m), namely “any other fact or circumstance that the court thinks is relevant”. By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child’s best interests.
[191] Mulvany v Lane (2009) 41 Fam LR 418.
Secondly, in the slightly later decision in Slater v Light the Full Court (May, Thackray & Austin JJ) said, at [45]:[192]
The Act does not mandate the discussion of considerations under s 60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations despite the nomenclature of sub-sections 60CC(2) and 60CC(3) …
[192] Slater v Light (2012) 45 Fam LR 41.
Thirdly, I remind myself also of the often-cited decision of Brown J in Mazorski v Albright, whose comments have been regularly endorsed by later Full Court authority.[193] Her Honour’s comments, suitably amended to take account of more recent statutory changes to the legislative pathway, relate (among other things) to what constitutes a “meaningful relationship” for the purposes of the Act. At [3] – [6], her Honour said:
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[193] Mazorski v Albright (2008) 37 Fam LR 518. Her Honour’s comments have been cited with approval in cases such as Sigley v Evor (2011) 44 Fam LR 439 and Maluka v Maluka (2011) 45 Fam LR 129.
Then at [24] – [26], in the context essentially of a discussion of the operation of s.65DAA, her Honour stated:
[24] The New Shorter Oxford English Dictionary on Historical Principles (Clarendon Press, Oxford, 1993) defines ‘meaningful’ as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. ‘Meaning’ is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning).” A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive.” These definitions are repeated and further fleshed out in the Oxford English Dictionary (Second Edition, Clarendon Press, Oxford 1989). It defines “meaning” (“in generalised use”) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary (Fourth Edition, Macquarie, 2005) defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Against these basal principles I note the following by reference to the considerations in s.60CC(3). I follow the sequence of considerations in that sub-section without always mentioning each part of it.
Having regard to the ages of the children, I take their brief and discursive comments, for example, stated to the ICL in a more recent meeting with them (accepting that this evidence is not formally before the Court) as of quite little moment. For the same reason – young age – their comments to various Departmental officers cannot, in my view, be given very much weight at all for the purposes of sub-paragraph (a) of s.60CC(3).
There was little doubt, by anyone, that the children have a good and close relationship with both parents (s.60CC(3)(b)). So much was stated in the evidence of the Family Consultant. Nor was there was anything in the ICL’s aide-memoir provided to the Court with her Case Outline document that contradicted this general assessment. Indeed, given the number of siblings (and others) who turned up for the discussion with the ICL, it reinforced the closeness of the children’s relationships with their siblings, a factor relevant to this sub-paragraph as well as others noted below.
In my view, it was extremely curious – and much more besides – why no one made submissions about this genuinely positive aspect of the children’s good and close relationship with both parents. Again by way of observation only, it may have been that the proponents of a change in residence did not do so because of the awkward questions surrounding why and how such a disruption as proposed would actually benefit the children in circumstances where they are, perhaps surprisingly, generally doing well (at school and otherwise) and they continue to have such loving relationships with all around them. Presumably also there was no mention or submission by the Mother precisely for this reason; put rhetorically, why change something that, for the children, is generally working? As always, the issue is the parents, not the children – but little was made by way of suggestion to fix this over-arching problem. Rather, as submitted, it was a case of ‘let’s just focus on a change in residence’, which was acknowledged by Counsel for the ICL that such a course would not fix the problem of the extremely difficult parental relationship. And as the Family Consultant acknowledged, absent a “no contact” case (which was not run by the Father or the ICL), any negative comment could still occur (in either household) when the children were present.
This very difficult parenting relationship (especially for the purposes of s.60CC(3)(c)) has been played out, for many years, with both parents regularly not advising or informing the other parent about matters that relate directly to arrangements for the children, whether it be in relation to school camps, birthday parties, enrolment at pre-school, and almost all else. Again, almost overwhelmingly, the focus of everyone, especially in the pro-change in residence camp, has been to focus on all the negatives. There was little focus at all on looking at any possible solutions to assisting the parents to gradually work towards something approaching a business-like, co-parenting relationship. For example, in his oral evidence, the Father said that perhaps some counselling would assist; a simple, practical, useful suggestion or acknowledgement that was then ignored. It will not be ignored by the Court; detailed and longer terms counselling and family therapy is essential – to assist everyone – parents and children.
In my view, this family and these children need assistance, not more disruption. A change in residence is not going to address the more fundamental problems of the poor co-parenting relationship. Some basics, it seems to me, which I am not aware have ever been tried, should be pursued. For example, not only must there be some genuine effort by all to engage, longer term, in family therapy. Also, the parents should have a regular, monthly mediated meeting to discuss up-coming parenting matters for the children. Both parents need to ensure that all notices from the school are received by each of them – electronically. These basic things should have been canvassed long before all this never-ending and tortuous litigation.
Although raised in more general terms by the Father in submissions, I do not otherwise understand that there are any claims made against the Mother (or the Father for that matter) that would warrant any adverse comment pursuant to s.60CC(3)(ca). Indeed, the ICL’s aide-memoir (being part of her Case Outline document, filed 15th September 2016) records (par.25) that at her meeting with them (and as it turned out many of their siblings also) “The children were all [X, Y, Mr M, Ms J, A, B, C and D] well presented and reported “good” relationship with Mr Cutler except when he is getting in trouble with Mum.”
To take this aspect further, what is very much more relevant, and directed equally or more so to the children’s relationship with both parents (for the purposes of s.60CC(3)(b) as well as for sub-par.(d)) are the comments and observations of the Family Consultant of the children with both parents as recorded in the Family Report. Indeed, it was one of the few areas of almost unanimity among all who have been engaged in this litigious saga that the children love their Father, and their Mother. It was very clearly implied in comments by the Family Consultant in her oral evidence and by Judge Harman in his interim judgment, that the children have a close relationship with their siblings. It was suggested by the Father that because those siblings who still live in the Mother’s household are somewhat older than the children who are the subject of these proceedings those sibling relationships were not so important.
Certainly, in relation to s.60CC(3)(d), the sibling relationships were very significant for Judge Harman. They are important from the Mother’s perspective. They were acknowledged by the Family Consultant in her oral evidence, as well as by the children in their comments to her recorded in the Family Report. In my view, the Court must have significant regard to the sibling relationships in the Mother’s household. They are undeniable factual matters. The claim that because there are a few years difference between X and her next senior brother (who is aged 11), is a distinction without a difference.
For my part, in the light of all the evidence, a separation of the children from their siblings for much longer periods as proposed by the Father would be a very significant disruption in their lives. It is not in their best interests for this to happen. It should not occur.
Moving to s.60CC(3)(e), given the relative proximity of the parties to each other (obviously in general terms), and given that no substantive submissions were made (or evidence given) other than if the Mother was to relocate to the farm at Property I, I do not understand there to be any relevant issues under this consideration. That said, I accept that if the Mother was permitted to relocate to Property I, there would be extra travel involved as well as the issue of the likely necessity of the use of a four-wheel drive to enter and exit the property.
In relation to s.60CC(3)(f) and (g), again while general criticism was made of the Mother and her general circumstances (notably, mainly of the alleged lack of amenities on the farm – recalling however that the children said to the Family Consultant that they liked being at the farm; and that they all presented well to the ICL), and in relation to her attitude towards the Father, having regard to all the evidence, the matters previously noted in relation to sub-paragraphs (b), (c), (ca) and (d) apply equally here. They need not be repeated. In my view, the ICL’s submissions that focussed on the general activity in the Mother’s household (in the light of her (omitted) studies), compared to the Father’s work commitments and his use of “nannies”, again did not take matters very far.
In relation to matters pertaining to Aboriginality, there is little evidence formally before the Court. The young children comment generally that they know nothing about Aboriginal matters, while the Mother gave evidence of significant involvement in such things. In all the circumstances, I need do little more than note this as a consideration without necessarily attributing very much weight to it.
Regarding s.60CC(3)(i), the ICL in particular raised concerns about what information the Mother was conveying to the children regarding the Father and any investigation that was being undertaken at the time. Somewhat curiously, without reference to any particular information, said that she had concerns about the Father’s “capacity to support the children’s relationship with the Mother if they lived with him.” She said further (as noted earlier in these reasons) that “having met with the children” neither the Father nor the nannies speak negatively about the Mother in his household. I simply note how readily accepting the ICL was of the children’s comments in this regard, noting too that relevant detail of these discussions was not before the Court.
In any event, having regard to all the evidence, in my view there are concerns about the degree of care taken in the Mother’s household to ensure that there are no inappropriate discussions with or by the children (or the siblings) relating to the Father. It is imperative that not only should the parents and the children have family therapy, and the children especially have assistance to understand – in an age-appropriate way - what is, and what is not, abuse. And the Mother must be very diligent in ensuring that any such talk in her household is not to be tolerated.
I accept that both parents, in quite different ways, earnestly love and care for the children. Again, subject to proper attention by the Court to the various reports and investigations that have embroiled them, ultimately the issue is very much less about any relevant risk to the children but more so the very strained co-parenting, as indicated by the Family Consultant many months ago in December 2015. Basal/foundational causal issues have never been addressed; it is way past time for that to occur. A change in residence addresses none of them.
In relation to any family violence Order, I need only note such an Order concerning the Father and the investigation that was undertaken in May 2016. Ultimately, no further action was taken as a result of the investigation concluding and that there would be no charges laid against the Father.
Given the history of the matter, it is difficult to conceive of a situation, or Orders, that will not lead to any further litigation. That said, as a matter of fact only, the Father (and never the Mother) has been the initiator of all proceedings in this Court. He has done this because (he says) of the Mother’s actions (or lack of them) in compliance (or lack thereof) with Orders. The ICL’s written submissions (par.76) confirm that it is difficult to conceive of any Order that would be least likely to lead to further litigation. “The problem” remains (a) the co-parenting relationship and (b) the apparent beliefs of the children in relation to the Father, noting again that they love both parents and have good, close relationships with them (and their siblings). In the Orders proposed by the Court, these issues are addressed; they were not addressed by anyone else, notwithstanding that the Family Consultant noted them in her evidence a long time ago.
Other matters relevantly to consider, not otherwise dealt with under the statutory pathway, relate to the Family Consultant’s evidence and recommendation (noted already many times) (a) for there to be no change in residence, and (b) to ensure (as far as possible) for the children not to be unsettled.
I note too the comments of Judge Harman, at [65] and following, in his judgment in December 2014, where he recorded that both parents entered into a relationship clearly conscious of the number of children the Mother already had. His Honour noted too that the best thing for the children was for a “change in their parents so that they may practice those relationships [with both parents] with support and without stress.” His Honour also noted that while there was almost complete dysfunction between the parents, an Order for sole parental responsibility was also not made. On the evidence before me, I agree.
I should also note that the evidence of the Father confirmed that he was more than a little unprepared to have the children spend much more time with him (for work and other reasons), which would require the use of nannies. Properly, he acknowledged that the children love their Mother very much.
Given that the children plainly love their Father, and equally love spending time with him (as the Family Consultant reported), it is extremely difficult to accept the submission, particularly of the ICL, to the effect that the children remaining in the primary care of the Mother poses a risk to the children of the Mother [continuing] to speak ill and disparagingly of the Father. As earlier noted, if that were the case, it patently has not achieved such a terrible state for the children. Indeed, if the “risk” was being played out, their clearly close relationship with the Father speaks eloquently and simply that even if were true, it is of no effect. And there is the Mother’s consistent and clear evidence that she does not speak about the Father at all in her household. The case of “risk” as argued by the ICL, is not made out; it did not refer at all to the evidence of the Family Consultant which refuted it.
I also agree, on the basis of the evidence before me, with his Honour’s comments that the children have relationships of strength with their Mother and with their siblings.
In short, the Orders shall provide for the children to live nine nights per fortnight with their Mother, and five nights per fortnight with their Father. The school holidays, as previously agreed between the parties, shall be divided equally between each household.
Notwithstanding the inherent and obvious difficulties, there will also be an Order for equal shared parental responsibility. Such an Order triggers the Court to have regard to s.65DAA of the Act. An equal time arrangement is not apposite having regard to the ages of the children and other matters of logistics, not least the number of other children in the Mother’s household and the Father’s work commitments, such as the Court can know them in the absence of relevant and updated evidence in this regard from him. In my view, the 9:5 arrangement will readily satisfy the requirements of that section in relation to “substantial and significant time” having regard to the terms of s.65DAA(2) and the comments of the High Court in MRR v GR.[194]
[194] MRR v GR (2010) 240 CLR 461.
There needs to be, as already indicated, a regular mechanism for (a) the family to be assisted in their various relationships, which will require (b) the family to engage in family therapy for at least 12 months, preferably once per month (this must also provide for the children to receive assistance regarding their “beliefs” regarding their Father), and (c) for the parents to institute a regime of mediated consultation, again once per month, to discuss only parenting issues regarding the children.
As well, the parties are to undertake the courses recommended by the ICL as set out in her Case Outline. Upon completion of each course, each parent is to provide the head of the Family Consultants at the Canberra Registry of the Court with confirmation of completion. This is to occur within one month of completing each course.
Further, every six months, each party is to provide the head of the Family Consultants at the Canberra Registry of the Court with a summary of dates and issues that each parent has addressed at the monthly “mediated parenting meeting”. Those reports are to be provided for the next five years and are to be placed on the Court file by the Family Consultant.
The parents are also required to confirm with the Court, via the means indicated with the Family Consultant, when and with whom the children will be attending to address their “belief system” in relation to their Father, and how long such a regime of assistance will take as recommended by the counsellor/therapist retained.
Various, other ancillary but still important Orders are also necessary to be made, such as a strict non-discussion Order regarding these proceedings or any past investigation, and equally a strict non-denigration Order in relation to both parents, in both households. The Mother must be restrained from relocating/changing the children’s residence, absent any Court Order or written consent from the Father.
For the reasons given, in addition to those already indicated, the following Orders are, in my view, in the best interests of the children:
(1)The parents are to have equal shared parental responsibility for the children X and Y;
(2)The children are to live nine (9) nights per fortnight with the Mother, and five (5) nights per fortnight with the Father;
(3)The children shall spend half of each school holidays with each parent, noting that this school holiday Order was agreed between the parties at the conclusion of the trial.
It remains only to remind the parents – again – of the central importance to stop litigating and to let the children enjoy the relationship with each parent (and the rest of the respective families). This was emphasised in a decision quite some time ago, where Strauss J (as part of a Full Bench otherwise comprising Watson SJ and Bell J) said (at Fam LR p.48):[195]
[195] Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC ¶91-113.
There are few greater evils in family law than recurring litigation about custody and access. It is detrimental to the child, particularly so if he is old enough to appreciate that his parents are in legal conflict. It saps the mental, emotional and financial resources of the parties. It taxes the resources of the court and of the community.
I certify that the preceding three hundred and nine (309) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 31 May 2017
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
-
Remedies
0
9
2