Dautel and Dautel

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAUTEL & DAUTEL

[2017] FCCA 3254

Catchwords:
FAMILY LAW – Parenting – mother re-partners soon after separation – children do not successfully adjust – parents live in different states - whether father will encourage children’s relationship with mother if they live with him – order that children live with the father.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC(2), 60CC(3), 65DAA

Applicant:

MS DAUTEL

Respondent:

MR DAUTEL

File Number:

DNC 584 of 2015

Judgment of:

Judge Young

Hearing dates:

15 & 16 December 2016, & 21, 22 & 23 February & 23 June 2017

Date of Last Submission:

23 June 2017

Delivered at:

Darwin

Delivered on:

21 December 2017

REPRESENTATION

Counsel for the Applicant:

Ms Romeo

Solicitors for the Applicant:

Margaret Orwin Barrister & Solicitor

Counsel for the Respondent:

Ms Giacomo

Solicitors for the Respondent:

Cater & Blumer

Counsel for the Independent Children’s Lawyer:

Ms Palavra

Solicitors for the Independent Children’s Lawyer:

Northern Territory Legal Aid Commission

ORDERS

Parental Responsibility

The mother and father have equal shared parental responsibility for the children, X born (omitted) 2005, Y born (omitted) 2007 and Z born (omitted) 2012 (“the children”).
The mother and the father will make a genuine effort to come to a joint decision about:
(a)Their education;
(b)Their religious and cultural upbringing;
(c)Their health;
(d)Their names; and
(e)Changes to their living arrangements in the event that they impact upon one parent’s ability to spend time with them.
If the parties cannot to come to a joint decision about a major long term issue, they will do all things necessary to participate in family dispute resolution with an accredited Family Dispute Resolution Practitioner.

Live with

That the children live with the father and commence living with the father no later than ten (10) days prior to 22 January 2018.

Spend time

That the children spend time the mother as agreed, but failing agreement as follows:
(a)For a period of eight weeks of the Queensland school holidays with the time to comprise the following:
(i)the whole of the school term one, two and three holidays (three holidays of two weeks) and two weeks of the Christmas school holiday period; and
(ii)where the children spend two weeks of the Christmas school holiday period with the mother, the two weeks are to be in the first half of the holiday period in even years and the second half of the holiday period in odd numbered years; or
(iii)if the mother provides three months’ notice to the father, two of the school term one, two and three holidays (two holidays of two weeks) and four weeks of the Christmas school holiday period; and
(iv)where children spend four weeks of the Christmas school holidays period with the mother, the four weeks are to be in the first half of the holiday period in even years and the second half of the holiday period in odd numbered years.
(b)Other times as may be agreed when the mother is in the same locality as the children and provides the father with two (2) weeks’ notice.
That all costs of travel pursuant to Order 5 be shared equally between the parties unless otherwise agreed.
That should the parties be in the same locality then the children spend time with the mother on Mother’s Day and spend time with the father on Father’s Day from 9am to 5pm.
That should the parties be in the same locality for the children’s birthday, then if the birthday is school day the mother spend time with the child from after school until 8pm and if a weekend day then for a period of 4 hours from 12pm – 4pm.

Children’s communication

The children communicate with:
(a)The mother two times per week on Tuesday and Sunday from 6.30-7.00 pm the children’s local time by telephone, Skype or Facetime call.
(b)The father when in the mother’s care on Tuesday and Sunday from 6.30 – 7.00 pm the children’s local time by telephone, Skype or Facetime call.

Communications between the parents and about the children

For communicating information between the parties, the mother and father shall:
(a)Communicate by telephone matters of an urgent nature; and otherwise
(b)Communicate by text message or telephone about day to day matters including arrangements for the children to spend time with each party.
Each of the parties shall do all such things and sign all such documents so as to authorise and, where appropriate, direct:
(a)any doctor, psychologist, social worker, counsellor, therapist or other health professional treating or having professional contact with the children;
(b)any school which the children attend;
(c)the director of any extra-curricular school or other activity in which the children are involved,
(d)to provide to the other party such information as might reasonably be required about the children together with any report, assessment or other such document provided to a parent in respect of the children.
Each of the parties shall notify the other of any serious accident, illness or other emergency affecting the children as soon as reasonably possible after its occurrence.

Consulting health professionals

That, within 21 days from the date of this Order, the father shall arrange an appointment for Y to see a health professional in relation to her nocturnal enuresis and, the father shall notify the mother and the independent children’s lawyer of the same within 48 hours of making the appointment so that the mother may make arrangements to participate in the consultation.

Medical and schooling

That each parent be entitled to obtain directly from any school attended by the child/ren, copies of any school reports, school photos or any other verbal or written information relevant to the child/ren’s education, and for this purpose, each parent will immediately notify the other parent of the names and contact details of any school attended by the child/ren and keep the other so informed.
That each parent be entitled to obtain directly from any health or welfare professional or any other professional attended by the child/ren, copies of any reports, notices of other relevant verbal or written advice relating to the health and welfare of the child/ren and for this purpose, each of the parents will immediately notify the other parent of the names and contact details of any relevant health or welfare professional and keep the other so informed.

Injunctions

The parents be restrained and an injunction issue restraining the parents from:
(a)Using physical discipline or threats to physically discipline the children or allowing others to do so.
(b)Involving or discussing inappropriate adult issues with the children.
(c)Denigrating each other or any member of their family or persons of significance within the hearing or presence of the children.

Independent Children’s Lawyer

That the independent children’s lawyer be and is hereby discharged.

By consent

Independent Children’s Lawyer’s costs

Pursuant to s.117 of the Family Law Act 1975, the mother and father pay to the Northern Territory Legal Aid Commission the portion of their respective share of the independent children’s lawyer’s costs as assessed by the Northern Territory Legal Aid Commission.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 584 of 2015

MS DAUTEL

Applicant

And

MR DAUTEL

Respondent

REASONS FOR JUDGMENT

This is a parenting matter involving three children: X, 12 years old, Y, nine years old and Z, five years old. X is a child of the mother’s from a previous relationship. He was four or five months old when the parties began the relationship and he has had little to do with his biological father. The father in this proceeding is the only father X has known. X’s biological father was served with notice of the proceedings but took no part in them.
The parties began their relationship in 2005 and separated in November 2015 in (omitted). The mother, who is 30 years old, re-partnered soon afterwards with Mr B. The father, who is also 30 years old, left (omitted) and relocated to (omitted) where he continues to live. He has also entered a new relationship although the evidence at trial was that he was not living with the woman.
The mother’s proposal is that the children continue to live with her and Mr B in (omitted), Northern Territory. The father’s proposal is that the children should live with him in (omitted), Queensland.
The proceeding commenced in December 2015 when the mother sought a recovery order for the children. The mother’s affidavit of 25 November 2015 in support of her recovery application said that the father took the children to (omitted) in New South Wales after she told him the relationship was over in November 2015. She deposed that the father had threatened to kill himself and punched and smashed a car window in front of the children. She deposed to having spoken to the father on the telephone and told him that “he could have the children for two weeks” but he needed to return them after that. She deposed that the father had returned to (omitted) later in November 2015 but failed to return with the children. She deposed that the father was mentally unstable and wanted to eliminate her from the children’s lives.
On 23 December 2015 the matter came before me. Both parties were legally represented. It was ordered that the father return the children to the mother two weeks later in New South Wales at the home of the maternal grandparents.
A somewhat different picture of these events appeared from the trial affidavits. The mother herself conceded in her trial affidavit that on 16 November 2015, that is about nine days before her affidavit in support of the recovery application was filed, that she had had a further conversation with the father and agreed that the children could remain with him for eight weeks in New South Wales. The mother did not explain why this information had not been contained in her earlier affidavit. She also failed to mention that she was then living with Mr B who was substantially unknown to the children. I am satisfied that the mother materially misled the court when she sought the recovery order. For this and other reasons I am not satisfied she was always a reliable witness.
The reason for the mother reneging on her agreement that the children could remain with the father for eight weeks is unclear but could be related to the fact that the parties had an unpleasant altercation when the father returned to (omitted) without the children. I suspect she then changed her mind.
She may also have suspected that the father had no intention of returning the children because of his threats not to return them. After he took the children to New South Wales he enrolled them in a local school, presumably with a view to having them commence the next year living with him. Her suspicions were probably well founded.
In any event the children returned to (omitted) with the mother at the end of the school holidays in early 2016. As mentioned, the mother was then living with Mr B and the children were introduced into that relationship with little or no preparation. The consequences of that were one of the issues dealt with in the trial.
The mother’s position at trial was that the children should continue to live with her. The mother proposed that the children spend half of the Christmas and long midyear holiday and the entirety of the short April and October holidays with the father.
The mother said she had always been the primary carer of the children. She said the children were well settled with her and Mr B in (omitted) and doing well at school. She described Mr B as “amazing with the children”. There was little evidence of Mr B’s parenting capacity or capacity to support the mother. Mr B affirmed an affidavit deposing as to his good and developing relationship with the children. In evidence Mr B also confirmed that he has a child from a previous relationship with whom he has little contact. He had not seen the child for two years. I will consider Mr B’s evidence in more detail below.
The mother was critical of the father deciding to leave (omitted). She said that it was unnecessary and that he could have kept his job and seen the children regularly had he stayed. While I accept there is some truth in the mother’s assertion, it seems likely that the father was in emotional turmoil following the breakdown of his relationship with the mother and sought to relocate to a place where he had lived before and where he felt he had some family support from his sister and her family. The mother said that she was unable to relocate to (omitted) because of the limited employment prospects there for her and Mr B. In any event I consider these issues to be rather peripheral, although the children’s familiarity with (omitted), where they lived from 2008 to 2009 and then again from 2010 to 2013, and their relationship with their paternal cousins is a factor that will need to be considered.
The mother was also critical of what she alleged was the father’s inability to hold a steady job. She said they had moved to many places over the years in New South Wales and Queensland, largely because the father had lost jobs through bad conduct and because of chronic financial stress resulting in the parties becoming bankrupt in 2013. It is clear from the evidence that the parties had moved a great deal over the years. There did seem to be some evidence that the father had difficulty holding a steady job and there was some doubt about whether the father would continue to live in (omitted) in the long term. At the time of trial he was employed as a (occupation omitted). On the other hand, the mother said in evidence that she did not necessarily see herself and Mr B living in (omitted) in the long term. I consider there is no certainty of stability of residence for the children wherever they live.
The mother also alleged that the father would be unlikely to support the children’s relationship with their mother if they lived with him. She pointed to conduct of the father while the children were in his care suggesting an unwillingness to encourage the relationship with her and some particularly hostile behaviour from the father’s sister, who lives in (omitted), and his mother. In my view, this is a real concern.
The father’s trial affidavit was unrelentingly negative about the mother, an attitude also displayed in his oral evidence. The mother’s affidavit was also negative about the father (although she seemed less hostile to him in her oral evidence). To add to the concern about the father’s willingness to encourage a relationship between the children and their mother should they live with him, I am satisfied that some of the more serious allegations he makes against her are untrue or not supported by the evidence. I will deal with a couple of examples.
The father deposed in his trial affidavit that his sister had said to him “I thought you should know that Nan and Pop once saw Ms Dautel [the mother] grab Z by the shirt and shake him violently. We didn’t want to tell you at the time”. “Nan” and “Pop” are not defined but I assume that this is a reference to the father’s parents, that is, the paternal grandmother and grandfather. The paternal grandmother, Ms J, affirmed an affidavit for trial. No mention was made by her of this incident nor was any other evidence adduced. Obviously enough, if a serious allegation of this nature is to be made it should be made in a form other than second-hand hearsay. I infer that the failure to adduce direct evidence on this issue is because such evidence would not assist. The mother denied this incident occurred and I accept her evidence.
The father also alleged that the mother took the children to the home of her friends and the “friends were using speed and marijuana whilst the mother and children were there”. The father alleged that he remonstrated with the mother about this but she refused to cease visiting her drug using friends. I am satisfied that the father’s allegation is that the mother deliberately and directly exposed the children to serious drug use and refused to cease doing so. The mother denied this. The father’s allegation was tested in cross-examination. In relation to the allegation that the mother’s friends used marijuana he said that on one occasion in 2013 he had gone to the mother’s friend’s house to pick up the mother and the children in the late afternoon or early evening. He said that he had seen one of the occupants of the house, a man, smoking marijuana outside or in the yard of the home with a friend. He said that this was neither in the immediate presence of the mother or the children nor in the view of the mother or the children. There was one occasion only. He stated that the mother did not use marijuana herself.
In relation to the use of “speed”, which he confirmed was a reference to methamphetamine, the father said that on another occasion at a barbecue at the home of the mother’s friends one of the guests in conversation had told the father and the host that he had used methamphetamine on occasions when travelling away for work. There was no methamphetamine use at the barbecue or at the home then or at any other time of which the father was aware. The father denied that his allegation that the mother exposed the children to methamphetamine use was untrue. I am satisfied that the allegation is untrue and was deliberately so. I am satisfied that the father was an unreliable witness prone to exaggeration and, at times, untruthfulness. I generally do not accept the father’s evidence unless it is independently supported.
The mother alleged that when the children were removed to New South Wales and were staying in the paternal grandmother’s home prior to the recovery order that the father did not encourage the children to telephone the mother because there were few, if any, telephone calls over the period of about eight weeks they were away. In his trial affidavit the father deposed that he would say to the children every day “Do you want to call your mum?” but they would usually say “No”. In cross-examination the father said that he “encouraged it every day” but the children did not call their mother. I am satisfied the “encouragement” went no further than asking the children if they wished to call the mother. The children were with the father and in the paternal grandmother’s home at this time. The father was clearly very angry with the mother and his mother subsequently also demonstrated her hostility to the mother. I suspect the children were aware of this. I am not satisfied that the father gave any real encouragement to the children to call the mother, such as placing the call himself and giving the children privacy.
The mother annexed to her trial affidavit a series of text messages from the father around the time of the separation. The father, in late night and early morning text messages, demanded to speak to the mother and threatened that if she did not answer the telephone he would “never bring the kids back” or that he would “make sure you never see or hear from these kids again”. It is easy enough to understand that these messages were sent in the context, from the father’s point of view, of a sudden and distressing relationship breakdown but they indicate, in my view, that the father was unlikely to be doing much in the ensuing weeks to encourage communication between the children and their mother. The father’s sister took upon herself in December 2015 to send the mother a text message describing her as a “lying, cheating, unloving, selfish, narcissistic, cunt of a human being … rot in hell you dirty slut”. Similarly, in a telephone call intended to settle the changeover arrangements for the children in January the father’s mother insulted the mother by calling her, among other insults, a “cheating bitch” and a “slut”. She was cross-examined about this and professed not to remember whether she had said this or not. I have little doubt she did and that she remembered it. Her evidence to the contrary was untruthful.

It is easy to understand that things may be said in the heat of the moment which, on calmer reflection, might be regretted. However, there was no sign of any regret by the father or his mother for the deeply insulting remarks made to the mother or any apparent awareness of how this might be detrimental to the best interests of the children. I am satisfied that there is a real basis to the mother’s concern that the children’s relationship with her will not be encouraged by the father and his family if they live with him.
The mother also raised concerns about the father’s mental health and, she said, his failure to accept the end of the relationship. She alleged that he had threatened suicide on more than one occasion. The father admitted saying words to the effect “you’d like if I kill myself, wouldn’t you” but denied that was a threat of suicide. I feel unable to make any definite finding about this matter but generally adopt the assessment of the family report writer which is referred to below.
The mother was cross-examined about various matters. I have mentioned some areas where I did not accept her evidence. I consider her decision to introduce the children into the household with Mr B without any preparation to have been an immature and unwise decision. There is clear evidence that the children found the experience difficult and confusing. There is some evidence that they continue to find it so. I will address this further in considering the evidence of the family report. More generally, I assessed the mother as a loving mother and a caring parent. I do not accept the father’s allegations that she is a slothful and neglectful parent.
One matter that did concern me was the mother’s evidence about X’s knowledge that the father was not his biological father. It appeared to be an accepted position that X had frequently visited the parents of his biological father in New South Wales over the years and had a good relationship with them. It was not clear whether X knew that they were his biological grandparents and there was some evidence to suggest the contrary. On the other hand, X’s surname is (omitted) (which I take to be the mother’s maiden name as it is not the name of his biological father) and as this is different to that of his siblings that would be likely to suggest to X, as a 12 year old child, a difference between him and his siblings. Neither the trial affidavit of the mother nor the father gave any detailed evidence about this issue.
The mother gave evidence that she had told X in June 2016 that the father was not his biological father. In cross-examination it was put to the mother that the reason she had not encouraged any contact between X and his biological father was that he was violent and a drug user. The mother denied that and said the reason was that the father knew and did not like X’s biological father and did not want X to have anything to do with him. She said she went along with this so as not to “confuse the situation”. Her evidence on this point was not challenged. She said that X was, perhaps not surprisingly, confused by the news. It is difficult to know what motivated the mother to give X that information at that point in time. It was not put to her that she wished to affect the outcome of the litigation. She has not raised an argument that X should not live with the father because he is not the biological father. She appears to accept that the children should remain together whether living with her or with the father. In my view that is to her credit. Similarly, the father wants each of the children, including X, to live with him. He does not appear to draw any distinction between the children on that basis and that is to his credit.
Mr B was the only other witness who gave evidence in the mother’s case. He said that he has a good relationship with Z. Somewhat surprisingly, he said that, as he worked nightshift, he cared for Z at home when the mother went to work during the day. This must have been confusing for Z as he had little or no previous relationship with Mr B. Mr B described his relationship with Y as having a “fairly rough beginning” because “the huge transition could have been extremely difficult not only for her but for the two boys as well”. He said that his relationship with Y had improved in recent months as they got to know each other better. He said of X said he “found building a relationship difficult to begin with” but said they seemed to get along well now.
Mr B also said that he had a three-year-old son living in New South Wales whom he had not seen for 18 months (two years at trial) because of the opposition of the mother of that child. He denied that there was any reason for her opposition other than the fact that he had left the relationship. He said he had not applied for court orders but was considering doing so. I assessed Mr B as a young man (his age was not given evidence) with little experience of children. His willingness to begin living with the mother immediately after her separation from the father and to agree to introduce the children into the new household so quickly indicates inexperience and lack of maturity, notwithstanding that the decision was primarily the mother’s. In cross-examination he denied telling the father that he had a history of methamphetamine use and he denied ever threatening any of the children with an egg flip. He denied using corporal punishment on Z. Mr B appeared to be a generally truthful witness. As an example, there was some cross-examination about when the relationship between the mother and Mr B began. The mother asserted, falsely I find, that the relationship did not begin until December 2015. The mother had given evidence that shortly after the separation she had stayed in a Darwin hotel with Mr B but denied sharing the same room. Mr B said frankly they had slept in the same room.
Mr B appeared well meaning and generally supportive of the mother. His evidence displayed no hostility towards the father.
There was one aspect of Mr B’s evidence that I did not find completely satisfactory. It was put to him in cross-examination by the father’s counsel that he had on one occasion written “L” on X’s forehead. Mr B admitted that but denied the suggestion that the letter stood for “Loser”. Later in cross-examination the independent children’s lawyer asked him what the letter stood for. He said he did not remember and that it was just “immature mucking around with the kids”. The mother was also cross-examined about this incident and confirmed that it occurred. She strongly denied that she would permit X or any of her children to be described as “Loser”. It was not put to the mother or Mr B that these denials were false but I find it a little difficult to accept that Mr B did not remember what the letter stood for. If indeed it stood for “Loser” that might give rise to concern that the “immature mucking around” had overtones of bullying.
As I have mentioned, the father’s trial affidavit was unremittingly critical of the mother. He made a number of allegations I have found to be false. He also made allegations that the mother had forced X to go to school dressed as a “princess” when the children went to school dressed as a character for “book week” and that X was forced to make his own school lunch. I will refer to these allegations again in considering the evidence of X’s school teacher. The father also alleged that the children were locked in their rooms without supervision and their basic needs for care and nurture were not met. I do not consider these allegations to be credible.
The father’s mother affirmed an affidavit for trial. The affidavit was primarily concerned to criticise the mother and Mr B based on negative reports of her and Mr B allegedly given by the children. That is, the affidavit was largely devoted to hearsay evidence from the children. The affidavit alleged that Y said that she had been threatened by the mother and Mr B with being hit with an “egg flip” (a kitchen implement) if she did not make the bed fast enough, that her mother said she would need to make chocolates and sell them at school if she wished to have a birthday party and so on. She also alleged that the children had expressed clear wishes to live with their father. I do not consider the father’s mother to be a reliable witness and, with one exception, I give a little weight to these assertions. The exception relates to the claim made by Y in her interview with the family report writer that Mr B had once threatened to smack her with an egg flip and she felt “unsafe” when this happened. Mr B denied this happened and the mother said she had not witnessed it. I do not consider that the evidence is reliable enough to make a finding.
The independent children’s lawyer called evidence from two witnesses. Ms N was X’s year six primary school teacher in 2016. She described him as a very affectionate child, making her cards, drawings and letters and describing her as the “best teacher ever”. She said he was the only male student who demonstrated such behaviour. She described him as socially awkward and immature. She thought he struggled to create and maintain friendships at school. She thought he was at risk of bullying.
Ms N said his academic progress was a “mixed bag”. She said he was better at maths than English, was good at spelling and usually handed his homework in on time. She said he was tracking at a “D” grade for most things but would receive a “C” for the year overall.
Ms N said that X seem to have difficulty consistently focusing on tasks. Although there had been no formal assessment she had wondered if there were some indications of Attention Deficit Disorder. She had spoken to the special education coordinator and arranged for him to have three sessions to help his transition to high school in 2017. She was concerned he may “get lost in the crowd” in a bigger school.
Ms N raised two other issues of concern. She said that X sometimes refused to eat or avoided eating and would refuse to show her his lunchbox. On one occasion recently she had asked him whether he had packed lunch and he replied “no, we didn’t have much in the cupboard, Mum needed to go to Woolies”. After discussion she decided not to pursue the matter. The next day X made a point of showing her that he had brought food for lunch.
Whether the reason given by X for not bringing lunch was accurate may be doubted. Y’s class teacher, Ms G, gave evidence that Y always brought a healthy lunchbox to school. The mother in cross-examination said that the children were expected to pack their school lunches the night before and she checked whether they did so. She said X was reluctant to eat at school and she had discussed the issue with his teacher. I am not satisfied that X’s reluctance to eat at school and, perhaps, reluctance to pack a school lunch is the result of neglect by the mother.
The other issue raised by Ms N was what she described as X’s interest in “being girly”. She said his personality can appear feminine at times and she thought his behaviour was odd for a boy of his age. She gave as an example X deciding to dress as a “princess” for book week. She said he wore makeup as part of his costume and was obsessed with applying makeup throughout the day. He was flamboyant and engaged in attention seeking behaviours including singing “I’m a Barbie girl”. On other occasions he has shown an interest in being with girls and singing. She thought he struggled internally with parts of his personality and how he feels. At other times she said he can be the opposite and like “one of the boys”.
Ms N also said that she had formed the belief that X was struggling with his home environment. She said X made a point about not talking about his home life and in class discussions about, for example, what students had done on the weekend, X avoided discussing his family. He did not speak about his mother or his father other than on an occasion when he said he was going on holiday with his father and on another occasion when he said his mother was coming to the parent teacher evening. She believed his reticence was unusual. She said she had contacted X’s mother about her concerns.
The independent children’s lawyer also tendered a letter from the (omitted) High School after X had commenced school there at the beginning of 2017. His attendance was excellent. He was on track to pass maths and science. His “spelling age” was 12.8 years (slightly ahead of his age). He was said to enjoy drama and his teacher expected a good result. He was said to complete work and to work well in a group, sometimes taking a lead role and leading by example. This letter was written, at most, a few weeks after X had commenced school and does not contain the nuanced information contained in Ms N’s evidence. It is difficult to know how accurate are its observations or how much weight to give it.
Ms G, Y’s grade 3 teacher, gave evidence that Y’s attendance at school was excellent. She had been absent only two days during the year, once after spending time with the father and the other in order to travel to Darwin to meet the independent children’s lawyer. She said that Y had a couple of good friends at school. She was always well presented and, as noted, attended with a healthy lunchbox.
Ms G said that Y talked about her visits to her father and was excited about seeing her father, cousins and grandparents. On one occasion she had said “I’d like to live with Dad coz I get to see my cousins and they have kittens”. This was said around about the time of the father’s first visit after the separation of the parents. Y had not mentioned preferring to live with either parent after that. When Y talked about her mother it was about very general everyday things. She sometimes mentioned “Mr B” (Mr B) in the context of him collecting her from school.
A family report was prepared by Mr R. He described the father as presenting as a calm, thoughtful individual who held significant concern for the safety and well-being of the children. Mr R said that the father:
“did not appear to be unduly driven by anger, resentment or bitterness, but presented his views in a calm and considered matter, and emphasising that he just wanted the Court to look at the fact of the matter and to make a just decision”.
The father admitted that the mother had been the primary carer for the children during the relationship but he emphasised his concerns about the welfare of the children in the mother’s household and her decision to enter into a relationship with Mr B. He enumerated his concerns to the family report writer, including allegations that Mr B had disclosed that he had been heavily involved in the use of amphetamines in the past and was not allowed to see his child, that Mr B had threatened the children with an “egg flip”, that Mr B and the mother did not supervise the children properly, that Z was left unattended by Mr B while the mother was at work, that the mother and Mr B did not actively parent the children but let them spend excessive amounts of time watching television and playing digital games, that the children did not feel safe in their current environment, that Y had “gone off the rails” due to her dislike of and discomfort with her current living arrangement and that the mother had been observed shaking Z by the shirt when she was angry with him. The father told Mr R that the sources of his information were from the children and Mr B’s former partner.
In response to the allegations levelled at him by the mother, the father admitted breaking the windscreen of the mother’s car while she sat in the driver’s seat although he denied that the children had observed this.
In response to the mother’s allegation that he had insisted on her informing the children of the reasons for her choosing to leave the marriage, he said that he wanted the children to understand the reason for the mother choosing to end the marriage because he had experienced the breakup of his parents when he was a child and it had left him confused and anxious. He denied that he sought to pressure the mother into disclosing her alleged “wrongdoing”, namely the affair with Mr B. Mr R observed that it was difficult to see what comment the mother could have made to the children that would have satisfied the father’s demand. Mr R described the issue as “concerning” because:
“it could be construed as a willingness on the part of the father to involve the children in the parental dispute and to encourage them to take a negative view of the mother as a result of her disclosure of wrongdoing”.
Mr R described the mother as a somewhat anxious and quiet individual who expressed considerable frustration with the father and his attitude towards her and the children. She said he exercised a highly unsettling influence over the children and had encouraged the children to be disrespectful and naughty to her and her partner. She described X and Y as unsettled and difficult after their father “had gotten in their ear”. She said Y was “listening to her father” and being difficult and non-compliant at times as a result. She said X was displaying “a bit of attitude” and as “back chatting and rude” towards her and Mr B at times.
She also said that the children were becoming more settled with the current arrangements as time progressed. She said it was difficult for Mr B to get close to the older children because of “what the father tells them” but she described Z as “loving him (Mr B) to death” and that Mr B looked after Z while she was at work. She denied that Mr B was violent to the children and denied that he used illicit drugs.
After noting that the mother said she and Mr B began to live together in (omitted) 2015, within a month of her separation from the father, Mr R recorded her as claiming that Z had met Mr B on “countless” occasions prior to them commencing cohabitation. She also said that the older children had met Mr B on more than one occasion when she had taken them to the workplace when she worked with Mr B. He noted that Mr B reported having met the children on only one occasion before he and the mother began living together. The mother acknowledged that it may have been preferable for Mr B to be gradually introduced to the children as her new partner but said that in the circumstances that had not been possible (because of the need to find alternative accommodation for herself and the children when rental accommodation was difficult to find) and the children did not appear to be unhappy about Mr B’s presence in their new home at that time.
Mr R observed that in these circumstances:
“… it would not be the least surprising for the children to experience some difficulty in adapting to this unexpected change given the children’s lack of a relationship with Mr B and his injection into the life of their family. In my opinion the decision to cohabit at such a difficult and vulnerable time in the life of the family could be construed as a lack of sensitivity to the needs of the children and a lack of child-focus on the part of the mother. By any reasonable viewpoint it can be viewed as less than ideal circumstances in which to enter into cohabitation with a new partner, and to reasonably expect that the children would be happy and comfortable with such an arrangement in these circumstances”
Mr R noted that the mother spoke positively about the father describing him as a “good father” who had “done a lot” with the children when the family was together. However, she expressed concern about how the father would manage full-time care of the children given that he worked full time. She also voiced concerns that the commitment of the father to the children was motivated more by unresolved relationship issues than a desire to be a parent to the children. She also expressed concern about his mental health given what she alleged was a history of suicide threats. She said, however, that apart from these comments, the father had no history of mental health issues and the comments were never made in the presence of the children.

The mother said that she had spoken to the children about future living arrangements and she also understood that the father had told the children they had “the option to decide” who they wished to live with. X had replied that he did not know and she believed that X was “OK” with the current arrangement and that he enjoyed his friends, school and sporting interests and was becoming more settled over time. She described Y “as happy where she is” but is also stating that she would like to live near her cousins given the closeness of her relationship with her cousin, A, who is a year older than her. The mother said the children were happy to be back with her but also acknowledged that the children had been happy on their holidays with the father. She believed “the children’s happiness and where they felt most stable and secure” to be the main thing for the Court to take into account in determining parenting arrangements.
Mr R interviewed Mr B by telephone. Mr B reported that he and the mother had begun living together in a place of their own during the time the children were in the care of her father in December 2015. He reported that on the return of the children to the mother, things had initially gone well. The children were excited about the new home and having their own rooms but he said that their behaviour changed as a result of the ongoing influence of the father upon them. He said he believed the father spoke in a negative manner about him to the children and actively undermined the willingness of the children to accept his presence in the home and his relationship with their mother.
Mr B said that he had a three-year-old child from a previous brief relationship with whom he had no contact. He said the mother of the child was difficult and resentful towards him following the separation. He had legal advice and sought mediation but was not in a financial position to pursue the matter. He said he had spoken with the father on one occasion when the father had refused to return the children to the mother. He said the father had telephoned him and abused him. He denied ever making any disclosure to the father about methamphetamine use and said that his only illicit drug use had been smoking marijuana as a teenager.
Mr B acknowledged that it had been difficult establishing a relationship with X and Y in the circumstances of the parent’s separation and this had been made more difficult by the father and the children’s paternal grandmother seeking to undermine the children’s relationship with him and encouraging them to be non-compliant and disrespectful. He described his relationship with Z as good but said that his relationship with X and Y was sometimes difficult. He said that “85% of the time” the relationship was good but there were times when the children were difficult and non-compliant. He denied smacking the children and said he believed this allegation was a product of the father’s influence over the children. Although he acknowledged sending Z to his room at times, he said that discipline of the elder children was left to the mother.
Mr B said that the situation had placed “some pressure” on his relationship with the mother as they both struggled to deal with the difficulties they faced in managing the children’s behaviour. He said they “clashed” at times but said they “deal with it” and there is “nothing drastic” about the disagreements that occasionally arise. He gave the impression that any disagreements were a natural part of the process of developing relationships and boundaries within the family. He reported that there were many “happy times together” as a family.
The children were brought to the interview by the mother who travelled with them from (omitted) on the morning of the interview. The children had only returned to the care of the mother about four days earlier after having spent almost 3 weeks of school holiday time with the father in (omitted).
The children were healthy, well-cared for young children who were reasonably confident in engaging in the assessment process. They were initially spoken to as a sibling group and then X and Y were interviewed on their own. They were observed at times in the waiting area with each of their parents and consistently gravitated to their father and interacted with him rather than their mother.
X presented as a quiet, somewhat guarded young boy who was hesitant at times in commenting upon his family situation. He appeared anxious at times and was keen to maintain his loyalty to both parents but as also wanting to express his concerns about the current parenting arrangements. He would not express a view about which parent he would like to live with but said it was “too hard” and he was willing for “the judge to decide”. He spoke positively about his friends and schooling in (omitted) and said it was “sort of good” living in (omitted). He said visiting (omitted) was “pretty good” and clearly enjoyed the time he spent there with his father. He said he enjoyed seeing his family there, particularly his cousins. He recalled having lived in (omitted) in the past and said he had enjoyed that. He said he still had old friends at the local school in (omitted). He also described having good friends as one of the positive aspects of living in (omitted). He said he was also attracted to (omitted) by the presence of family and viewed this as a positive aspect of living there with his father.
X was asked if he felt “safe” living with his mother and Mr B. He was hesitant and uncomfortable in responding to the question but eventually said “sometimes”. He was hesitant about expanding on this response but when Mr R mentioned Mr B’s presence in the home as a possible issue X appeared, according to Mr R, “somewhat relieved that someone else had been able to identify his concern”. X affirmed that “sometimes” he did not feel safe in the presence of Mr B. He was reluctant to elaborate beyond stating that sometimes he was worried about being smacked by Mr B. (It should be noted that X did not say to Mr R that he had been smacked or subjected to corporal punishment by Mr B).
In contrast, X reported that he felt safe with “Dad” and nothing worried him about being with his father. He said that he missed his father and his father had bought him a phone so they could talk more regularly to each other.
Y was more talkative and outgoing than X and openly shared her views about the family situation. She said she had greatly enjoyed her holiday time with her father and the opportunity to spend time with other family members including her grandmother, her aunt and particularly her cousin, A. Y said A was one year older and she and A enjoyed a close relationship. She said that she was also friends with A’s friends and A had been inclusive of her in her friendship group. Y remembered living in (omitted) in the past and said she enjoyed it at that time.
Mr R asked Y what it was like living in (omitted) now that the father no longer lived with them. Y said it was “not much fun anymore” and that they “don’t really go places” like they had done before. She said she “missed” her father and looked forward to talking to him on the phone.
Y found it difficult to express a clear view about future living arrangements. She said that she had friends in (omitted) but no family and in (omitted) she had family but no real friends of her own. She expressed the view that it would be good if she could live with each parent for a year and then change over every year but acknowledged that could pose problems for her schooling. She said if this was the case there would be “no more fighting” between the parents and everything would be “even” and fair.
Mr R asked Y if she felt safe in each parent’s home and whether there was anything that worried her about being in the mother’s or father’s home. She said that she felt safe with her father and said that nothing worried her about being with him. Like X though, she was somewhat hesitant in discussing the issue of safety in the mother’s home and did not initially respond to Mr R’s question. She was asked about the presence of Mr B in the mother’s home. She said that she did not see a lot of him as he worked most evenings. She described her mother and Mr B as sleeping in on weekends until 10 am or 11 am. She said that at such times there was nothing to do but watch television or play with the dog. She said she sometimes felt bored and as a result got into trouble for doing things she should not do. She was asked if she was ever smacked and said “there had not been much smacking” and it was more likely she would be grounded or sent to her room if she misbehaved. She reported that she had been threatened with smacking by Mr B on one occasion and claimed that he had threatened to smack her with an egg flip and that she felt unsafe when this occurred. She said she had not reported this to her mother but said that whenever Mr B was around and appeared to be getting angry she would go to her room and stay there.
Mr R reported Y as being ambivalent in discussing future living arrangements. She said that if the court decided she should remain living in (omitted) that would be “nice” but added that it would “also be nice to live with Dad too”. She said it was “too hard” to decide.
Z was not interviewed due to his young age. Mr R noted that he presented as a bright, confident young boy who was active and playful when observed with his siblings. It was noted during the interviews that he often sought proximity to his father and engaged happily and freely with him.
Mr R characterised the case as “difficult and finely balanced”. He said that the views expressed by X and Y when interviewed suggest they are not happy with the current parenting arrangements. He said that given that the separation was relatively recent and the children were still adapting to the absence of the father from their day-to-day lives this was not surprising. He thought, however, that in addition to this, the children were expressing concern about the presence of Mr B in the mother’s household and feeling “sometimes” unsafe in the situation. He acknowledged that children are often reluctant to accept the presence of any new partner or step-parent following separation and will be loyal to the other parent and often wary and slow to engage with the new partner of either parent.
He thought the situation in this case was somewhat different because X and Y had both indicated that that they did not always feel safe around Mr B and were fearful of being smacked by him. Both expressed this in separate interviews and Mr R did not doubt the veracity of their claims. He did not accept the mother’s assertion that this was the result of being influenced by the father. He thought it was notable that the mother reported that both children had been naughty and non-compliant at times. He thought it was likely that discipline had been an issue that the mother and, possibly, Mr B had had to address in asserting their authority over both children in dealing with this difficult situation.
Although the mother tended to blame the father for causing these disciplinary problems, Mr R thought it was more likely that the children were responding negatively to the mother’s decision to cohabit with Mr B so soon after separation, without any “getting to know you” process or graduated introduction of Mr B into family. Mr B and the mother commenced cohabitation while the children were with the father in New South Wales immediately after separation and the children returned to find Mr B living with the mother as her new partner. Mr R thought these circumstances alone were likely to cause the children to be unsettled and discomfited in returning to live with the mother and it would not be surprising if they acted out their negativity by displaying poor behaviour directed at the mother and Mr B. Mr R expressed the opinion that the decision by the mother and Mr B to live together at such a time and in such circumstances, reflected poorly upon the mother’s judgment and displayed a lack of sensitivity to the children’s needs at a time when they required support in adjusting to the parents separation and living distant from their father. He thought the introduction of Mr B into the mother’s household made this process far more complicated and difficult for the children and caused them significant distress and discomfort and caused a likely negative effect upon their relationship with their mother.
Commenting on the alleged suicide threats made by the father, Mr R said he thought the asserted threats were, at best, intemperate and impulsive comments made at a time of high emotional arousal and, at worst, an attempt to manipulate, intimidate and threaten the mother. However, he did not accept that there was a real basis for the mother’s asserted concerns about the father’s mental health. He observed that there was no history of mental health problems and after separation the mother had agreed to allow the children to travel interstate with the father for eight weeks.
In response to the concerns raised by the mother about whether the father was motivated by resentment towards her and unresolved relationship issues, Mr R observed that the father did not appear to be driven by feelings of resentment and bitterness towards the mother but presented his views in a calm and considered, though frustrated manner, while simply asking the court to investigate the concerns he raised. However, he accepted that unresolved relationship issues may be a motivating factor in the father’s proposal but that it was also possible that on the basis of information available to the father he was acting protectively in relation to the children.
Mr R saw the father’s proposal that the children live with him as having merit. He noted that the (older) children reported that there were times when they did not feel safe or secure in their current home environment. He said they were “equivocal in expressing their level of satisfaction with the current arrangements and it is clear they are somewhat troubled by the current arrangement”. In relation to the issue of stability of residence, Mr R observed that the children had at the date of the report (August 2016) lived in (omitted) for two years but they had also lived in (omitted) and in many other places in the past and he thought they were to some extent accustomed to relocating from time to time. He saw their current situation in (omitted) as “far from stable given the absence of their father from their life, and the requirement that they adapt to living with Mr B whilst he and the mother explore the viability of an ongoing and committed relationship”.
While acknowledging that the children were still adapting to the separation of their parents and coming to terms with the absence of their father from their everyday lives, Mr R thought that the current circumstances suggested that this was going to be particularly difficult for the children. He said that simply giving the children more time, or even Mr B moving out of the family home, may not necessarily lead to the children being happy, happier or feeling safer and more settled.
In Mr R’s opinion the children were capable of making the transition to the father’s care in (omitted) with minimal difficulty. They had lived there before and have close family living in (omitted). The children themselves cited this as a significant factor in weighing up the options. He said the children would also miss their mother and friends in (omitted) and it would be important that they have ample opportunity to spend time and communicate with her if they were to live in (omitted) with the father.
Mr R cited the following observations as supporting his view:
·    The children have a positive relationship with their father and view him as an active and loving parent.
·    The mother described the father as “a good father” who “did a lot” with the children.
·    The mother does not believe the father would harm the children.
·    There are no behavioural or emotional indicators to suggest the father’s mental health is impaired.
·    The father has strong family support in (omitted) and the children are highly positive about living closer to extended family.
·    The children are familiar with (omitted) and are likely to adapt well to living there.
·    The children’s relationship with their mother is somewhat troubled at the present time.
·    The children report that “sometimes” they do not feel safe living with the mother and Mr B and fear being smacked by Mr B.
·    The circumstances of the mother cohabiting with Mr B display a lack of sensitivity to the children’s needs.
·    The mother and Mr B described the children as acting out and exhibiting challenging behaviours that leads to tension in their relationship.
Mr R cited the following observations as not supporting his view:
·    The mother has been the children’s primary carer.
·    The children are settled in school and have good friends in (omitted).
·    The father has possibly sought to sway the views of the children and has not been supportive of the mother’s decision to re-partner and, possibly, not supportive of the children’s need to adjust to their changed family circumstances.
·    The father has possibly been prone to making impulsive threats of suicide in an effort to assert control during heated arguments with the mother.
·    The father may not be supportive of the children maintaining a relationship with the mother in the future given his resentment of Mr B’s presence in the mother’s household and his stated concerns about the safety of the children living with Mr B.
·    Z is still very young and may be less adaptable to change in comparison with his older siblings.
Mr R recommended that the parents have equal shared parental responsibility for the children.
He recommended that the children live with her father in (omitted) and spend time with the mother for half of all Queensland school holidays with the parents sharing equally in the cost of travel. He recommended that the children communicate with the mother by telephone or other electronic means such as Skype at all reasonable times as agreed between the parents and, in default of agreement, but not least one occasion in each week at a time agreed between the parents.
I generally accept that there was evidence to support the opinions expressed by Mr R and each of the observations noted by him. The observations are a succinct summary of the competing factors in this case.
Some particular observations are merited. In relation to the children’s statements that they sometimes do not feel “safe” in the mother’s household and fear being smacked by Mr B, it is noteworthy that neither of the older children gave any specific examples of the infliction of corporal punishment. I am unable to conclude on the evidence that corporal punishment, still less excessive corporal punishment, has been inflicted on the children. Another, and possibly related factor, is my positive finding that the father made deliberately false allegations about the mother exposing the children to illicit drug use. I also specifically find that the mother has not exposed the children to abuse or neglect as alleged by the father.
In my view there is clear evidence to support the concern expressed by Mr R that father may not be supportive of the children maintaining a relationship with the mother in the future given his resentment of Mr B’s presence in the mother’s household. The father’s failure to facilitate the children’s telephone contact with the mother during the time the children were with him after separation is an example of this.
On the other hand, I am unable to find that the behaviour of the father, and the related behaviour of his family members, is likely to be repeated in future once the emotional turmoil of the separation and litigation is over. Although I have formed an adverse view of aspects of the father’s conduct, it is noteworthy that the children appeared in their interviews with Mr R to be anxious to be “fair” to both parents and to avoid criticism of either of them. This would seem to indicate that the children would not be easily swayed to a hostile view of their mother and they would be resistant to any attempts by the father to undermine their relationship with the mother.

Each of the parties made written submissions. The mother’s written submissions extended over 20 pages, the father’s written submissions were 23 pages long and the independent children’s lawyer ran over 26 pages. I do not propose to canvass each submission but I have attempted to address the submissions made by each party about factual matters in the findings and otherwise I will summarise the most relevant or salient points made.
In relation to Mr R’s recommendations, the mother submitted that “the Family Report writer accepted without question, the concerns the father raised with him and saw the father is a more credible parent”. I do not accept this submission. As an experienced family consultant, Mr R would know that critical claims by one parent against the other are often qualified or disproved during a trial. As is clear from the second set of dot points listed above, Mr R expressed some reservations about the father’s motivations and attitudes.
The mother also submitted that Mr R failed to take into account that the circumstances of the parties had changed after the family report interviews. It was not clear from the submissions what these circumstances were, other than a further period of relative stability in school and the mother’s household. Beyond that, I am not satisfied that there was any significant change in circumstances.
The mother also submitted that the father and the paternal grandmother will not encourage the relationship between the children and their mother. I accept that is a risk but I am not satisfied that it is likely. The reluctance of the children to be critical of either parent and their determination to be “fair” in the interviews with Mr R suggests that their loyalty to both parents will not be easily undermined.
The father’s submissions, unsurprisingly, emphasised Mr R’s adverse observations about the mother’s judgment in commencing cohabitation with Mr B so soon after separation and the consequences for the children. The submissions also emphasised the children’s remarks about not feeling “safe” in the mother’s household and fear of being smacked by Mr B.
It was submitted by the independent children’s lawyer that both the father and the mother generally lacked credibility and she referred to some of the matters that I have already addressed. For the reasons given above I accept that submission.
The independent children’s lawyer submitted that the father would be unlikely to encourage the children’s relationship with their mother and that there was a risk of the relationship deteriorating. She emphasised the father’s failure to encourage telephone calls to the mother while the children were in New South Wales and the demonstrated hostility of the father’s mother and sister to the mother.
The independent children’s lawyer questioned the accuracy of Mr R’s observation that the father “did not appear to be unduly driven by anger, resentment or bitterness” and submitted that the evidence at trial suggested that this observation should, at least, be qualified, particularly in view of the father’s false evidence about the mother exposing the children to methamphetamine use and other allegations. She submitted that these allegations and the allegations made by the paternal grandmother - which I have found lack credibility - are indicative of the disdain and distrust of the mother expressed by the father and his family.
The independent children’s lawyer also submitted that the apparent concession made by Mr R that the children may have adjusted to Mr B’s presence in the household in the months since the family report interviews should be taken into account. I accept that Mr R gave evidence to that effect in cross-examination but I am not satisfied that it was an expression of anything more than a logical possibility. The overall thrust of Mr R’s evidence was that he was satisfied that the children were uncomfortable with the presence of Mr B in their mother’s household and there were few, if any, signs that was likely to change.
The independent children’s lawyer also made some submissions about Y’s bed-wetting or enuresis. This is a long-standing condition of which both parents are aware. The father was critical of the mother in relation to her management of the condition and Mr R suggested that it was concerning that the mother, who cared for Y on a day-to-day basis, had not sought medical advice. The mother’s attitude appeared to be that this was an occasional condition and Y was likely to outgrow it. In the absence of any expert evidence, I do not feel able to draw any useful conclusions about the subject. However, I accept, as submitted by the independent children’s lawyer, that the parents should seek medical advice.
The independent children’s lawyer also made submissions about family violence and evidence of coercive and controlling behaviour by the father. There was clear evidence that the father broke the windscreen of a car while the mother said inside it. The evidence about whether the children were actual witnesses is unclear but I accept that the children were, at least, nearby when an act of family violence perpetrated by the father took place. The independent children’s lawyer also pointed to the coercive text messages sent by the father to the mother. The father’s behaviour reflects poorly on him and, in my view, adds to concerns about the father’s hostility to the mother. The independent children’s lawyer submitted that his behaviour added to doubts about whether the children will be able to maintain a meaningful relationship with the mother if they lived with the father. I accept that the evidence provides some support for that submission.
The independent children’s lawyer submitted that a most important consideration was the likely effect of any changes in the childrens circumstances, including the likely effect on the children of any separation from either of the parents. The independent children’s lawyer pointed to the evidence that the children had lived in (omitted) from about March 2014 and before that they had lived in 11 different houses in three different states (New South Wales, Queensland and Northern Territory) in 10 or 11 years. The independent children’s lawyer submitted that another change would not be in the children’s best interests. Mr R expressed the opinion that the children would adjust successfully to another move because they have lived in (omitted) and other places in the past and that they are accustomed to relocating. He also expressed the view that the current situation of the children in (omitted) is far from stable. In response the independent children’s lawyer submitted that:
i.the numerous moves have had a negative effect on X;
ii.the instability would continue as the children would be separated from their mother and primary care giver and that, according to the opinion of Mr R, Z was still very young and may be less adaptable to change in comparison with his older siblings although he would probably be guided by the reactions of his older siblings;
iii.there is a real risk that the children’s relationship with their mother would not be supported by the father or the paternal family;
iv.there was limited evidence about the father’s stability in (omitted) and his capacity to be the primary carer for the children as a single parent with a full-time job;
v.the children are more settled in (omitted) and X has recently embarked upon an important milestone being his transition to high school; and the mother has supported the children in their relationship with the father and they have spent quality time with him in the paternal family over the school holidays.
The independent children’s lawyer addressed these matters in detail.
In relation to the first matter the independent children’s lawyer pointed to the evidence from Ms N of X’s vulnerability at school and his vulnerability to bullying. She also pointed to the evidence of Ms C from (omitted) High School who, on the basis of a few weeks at most, at the school said that X “seems happy and has some strong friendships from primary school which is carried across to [high school]”.
In my view, there was no clear evidence that the number of moves the family had undertaken had had a negative effect on X. On the contrary, the evidence pointed to other issues. The concerning aspects of Ms N’s evidence about X related to his refusal to speak about his family at school, his difficulty reading social situations, including difficulty forming friendships, his below-average academic performance, his “girly behaviour” and his vulnerability to bullying. Mr R expressed the opinion that X’s refusal to speak about his family could be a result of family conflict, his discomfort with the presence of Mr B in his mother’s household and difficulties in adjusting to the recent information his mother had given him about his paternity. The other matters would appear to point to issues of personality and ability rather than the negative effects of the family moves. Ms C’s evidence, apparently inconsistent with Ms N’s observations, may be superficial given the short time X had attended (omitted) High School.
In support of the submission that a move to the father’s care in (omitted) would introduce further instability into the children’s lives, the independent children’s lawyer pointed to the evidence of the father who agreed in cross-examination that constantly moving did have an impact on the children and moving away from friendships formed in primary school and, in the case of X, continued in high school could possibly be disruptive for them. She also pointed to the evidence of Mr R in cross-examination who said that moving was possibly one of a range of factors, including exposure to conflict and uncertainty about his future situation, that were affecting X and his academic performance. In relation to Y, the independent children’s lawyer submitted that the evidence of her teacher, Ms G, was that she had a couple of good, long-standing friends and that her academic performance was at or just above expected levels. The independent children’s lawyer pointed out that Z had spent the majority of his life in (omitted) and that they are that the longest he has spent away from his mother was eight weeks when he was in New South Wales with his father and siblings after the separation. She submitted that given Z’s young age there was an added risk in separation from his mother.
Generally in relation to the issue of instability, Mr R gave evidence that there was instability in the children’s relationship with the mother as a result of the introduction of Mr B into the household and he believed there were indications that the relationship of the children, particularly the older two children, with the mother was troubled as a result. The older two children’s statements to Mr R about not feeling safe or fearing smacking from Mr B supported, in my view, that observation. Mr R also said that the fact that the children had lived in (omitted) and had cousins to whom they were close in the community and in the schools they were likely to attend would mitigate the possible adverse effects of a further move. In relation to Z, Mr R thought the possibility of adverse effects would be mitigated by the presence of his siblings. While the independent children’s lawyer’s submissions are important, the likely adverse effects of the children moving from a relatively stable external environment: friends, school and location in (omitted), must be balanced against strong and troubling indications that the children, particularly the older children, have not accepted Mr B’s introduction into their household.
Another factor that must be taken into account is the mother’s evidence that, while she had no present plans to leave (omitted), she did not envisage living there permanently. She gave evidence that she may move from (omitted) in “possibly two years”. Neither the mother nor Mr B has any particular tie to (omitted) other than their employment. I consider that the mother and Mr B are unlikely to reside in (omitted) in the long term.
In relation to the submission that there was a risk that father and the paternal family would not support the children’s relationship with the mother it must be said that this is a real concern. On the other hand, there was no evidence that the mother would not support the children’s relationship with their father. I have found that the father failed to encourage the children to telephone the mother during the period they were with him in New South Wales after separation. I have found that aspects of his evidence about the mother were deliberately untrue. His mother and his sister behaved in an immature and offensive way to her. These matters give rise to a real concern in my mind about his willingness to encourage the relationship. On the other hand, Mr R was of the view that the father presented in a calm and reasonable way expressing genuine concerns about the children. Given my findings about the father’s conduct, I have some difficulty accepting that view.
A factor that provides some reassurance is that the children were interviewed by Mr R soon after spending the midyear holiday with the father and steadfastly refused to criticise either parent or express a view about which household they preferred to live in. This suggests to me that either the father refrained from denigrating the mother over the holidays or the children have a well-developed relationship with both parents that gives a degree of “immunity” in the face of undermining behaviour by the other parent or both. I am satisfied that there is clear evidence that the children would be resistant to undermining behaviour by the father. It is also of relevance that the mother did not complain that she had been unable to speak to the children over the recent holiday. Another factor is that the parents have agreed that whatever the outcome of the case the parent with whom the children are not living will pay all travel costs and the other parent will not seek a child support assessment. That suggests a degree, at least, of cooperative parenting. Although I am satisfied that there is a risk that the father will not encourage the children’s relationship with their mother, I am unable to find on the balance of probabilities that he will discourage it and, in any event, this is merely a factor, although an important one, which must be considered.
The independent children’s lawyer also submitted that the father’s capacity as a primary carer was unproved and that given his unstable employment history there must be doubts about his capacity to care for three children. The father gave evidence that his employer would support him in relation to his responsibilities to care for the children. He said that he would set up a television and various play items in his office to occupy the children for the approximately hour and a half from after school until he finished work. Mr R also expressed the view in cross-examination that the father would be likely to receive some support from his sister and brother-in-law who have children of similar ages. The independent children’s lawyer submitted that because the father’s sister and brother-in-law lived some 20 km outside (omitted), the degree of support available from them might be questionable. It is difficult to make any definite findings on this issue but the indications of the children in their interviews with Mr R were that the father was an engaged, active and “fun” father. I see no real evidence to suggest that the father will not on a practical, day-to-day basis adequately care for the children.
The independent children’s lawyer submitted that because the competing proposals are that the children live with the mother in (omitted) or the father in (omitted), that school holiday time is the only practicable way the children can spend time with the other parent. The cost of travel in either case will be the same at about $2,000 a visit. The parents have agreed that, given the high cost of travel, the parent with whom the children do not live will pay the travel costs in lieu of child support.
The independent children’s lawyer submitted, and I accept, that both parents have demonstrated a lack of sensitivity and insight into the emotional and psychological needs of the children. She mentioned the father removing the children from school and taking them to New South Wales at short notice, the father breaking the car window while the mother sat in the car, the father’s failure to shield the children from his anger and distress, the father’s and the father’s mother’s failure to ensure that the children telephoned and spoke to the mother regularly while they were in New South Wales, the timing and circumstances of the mother’s decision to re-partner with Mr B immediately after separation and introduce him into the children’s household in circumstances where the children had no existing relationship with him, and the mothers decision to tell X about his paternity before his holiday with the father and shortly prior to the family report interviews.
The objects of Part VII of the Family Law Act1975 (Cth) and the principles underlying it are set out in section 60B. The objects are to ensure that the best interests of children are met by:
(a)ensuring that the children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring the children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring the parents fulfil the duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never live together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parent should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child the court must regard the best interests of the child as the paramount consideration and in determining what is in the child’s best interests the court must consider the matters set out in subsections 60CC(2) and (3). Subsection (2) provides that the primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Greater weight is to be given to the considerations set out in paragraph (2)(b). Subject to the isolated incident referred to above there is no evidence that the children have been, or are likely to be in future, subjected or exposed to abuse, neglect or family violence.
In a case such as this, where both proposals contemplate that the children will live a great distance from one of the parents, a finding that a parent would not facilitate the children having a meaningful relationship with the other parent would strongly militate against an order that the children live with that parent. I have given anxious consideration to that factor. If the children continue to live with their mother this will not be a concern. However, the father’s failure to encourage telephone contact between the children and the mother when he took them to New South Wales after separation is a matter of concern as are some of the allegations made by the father against the mother which I have found to be false and which indicate hostility towards the mother. Similarly concerning is the conduct of the father’s mother and sister towards the mother. As against this, there were no other complaints about the father’s failure to facilitate telephone contact during holiday periods and the complaints about the conduct of the father’s mother and sister relate to the very turbulent circumstances of period immediately around separation. The father and mother were able to agree on time spending arrangements during the trial and they have agreed on the cost of travel. Further and perhaps most importantly the children appear to have a firm and loving relationship with each parent which I find is unlikely to be easily disturbed by undermining behaviour from one parent. There is a risk that the father will not encourage the children’s relationship with their mother but I am unable to find on the balance of probabilities that he will discourage it. I am satisfied he will comply with orders of the court and, at a minimum, facilitate the children spending time with the mother during school holidays.

The additional considerations the court must consider are set out in subsection (3).
(3)(a) – views of the children
X did not express any preference for living in his mother’s or his father’s household. He did not know where he wanted to live. He felt that it was “too hard” and he was willing for the judge to decide. He said it was “sort of good” living in (omitted) and visiting (omitted) was “pretty good”. He enjoyed the time he spent there with his father and enjoyed seeing his family. X said he still had old friends at the local school in (omitted) but described good friends as one of the positive aspects of living in (omitted).
Of great concern is X’s hesitation and discomfort in responding to the question about whether he felt “safe” living in the household of his mother and Mr B. He was reluctant to elaborate to the family report writer but said he was sometimes worried about being smacked by Mr B (notwithstanding the absence of evidence that he was in fact smacked). This concern is reinforced by the evidence of X’s primary school teacher, Ms N, who knew X well. She described X as a sensitive and vulnerable child. She was struck by his refusal to discuss his home life and she was obviously concerned about it.
X reported that he felt safe with his “Dad” and said that nothing worried him about being with his father.
Y told the family consultant that she had greatly enjoyed the holiday time she spent with her father and the opportunity this gave to spend time with other family members including her grandmother, aunt and particularly her cousin A. A is one year older and she said that she and A enjoyed a close relationship. She said she had enjoyed living in (omitted) in the past. When asked about what it was like living in (omitted) now that her father no longer lived with them, Y said that it was “not much fun anymore” and that they “don’t really go places” like they had previously done. She said that they would go out more when her father was there and that she “missed” him and looked forward to talking to him on the phone.
She was asked about whether she felt safe in each parent’s home and whether there was anything that worried her about being in her mother’s or father’s home. She said she felt safe when she was with her father and that nothing worried her about being with him. Like X, she was somewhat hesitant in discussing the issue of safety in the mother’s home and did not initially respond to the family consultant’s question. She said Mr B had once threatened to smack her with an egg flip and she had felt “unsafe” when that occurred. She said that she had not spoken to her mother about this. She said that whenever Mr B was around and appeared to be getting angry she went to her room and stayed there. She described her mother and Mr B as sleeping-in on weekends sometimes until 10 am or 11 am. She said she then became bored and had nothing to do but watch television or play with the dog. She said that she sometimes got into trouble through boredom.
Like X she was ambivalent about living arrangements saying that if the court decided she should remain living in (omitted), that would be “nice” but added that it would “also be nice to live with dad”. She said it was “too hard” to decide.
Z was not interviewed.
The family consultant said the views expressed by X and Y suggested they were not happy with the current parenting arrangements. Mr R acknowledged that at the time of the interviews the children were still adapting to the absence of their father from their day-to-day lives and acknowledged that children may be reluctant to accept the presence of any new partner or step parent following separation. However, Mr R thought that the situation of the children in this case was somewhat different because both X and Y had both indicated that they did not feel safe around Mr B and were fearful of being smacked by him. They expressed this concern in separate interviews and he said he had no reason to doubt the veracity of their claims. Mr R did not observe anything in the presentation of the children and their interviews to suggest they had been unduly influenced by their father in describing the concerns about Mr B. Mr R also noted that the mother reported that both children had been naughty and non-compliant at times and he and he inferred that discipline had been an issue as the mother and possibly Mr B had sought to assert their authority in dealing with the situation. Although the mother blamed the father for causing these disciplinary problems, Mr R thought it was more likely that the children were responding negatively to the mother’s decision to cohabit with Mr B so soon after separation without any “getting to know you” process or graduated introduction of Mr B into family. He thought it unsurprising that the children were not happy in the situation and acted out their negativity in poor behaviour directed at their mother and Mr B.
In the case of X, Ms N’s conclusion that X was struggling with his home life supports Mr R’s view, which I accept.
3(b) – nature of the children’s relationships
Each of the children has a close relationship with each parent. Although it was not in contention that the mother has been the primary carer for each of the children, the evidence suggested the children were very close to their father as well. Although noting that the children had returned to the mother after holiday time with the father only four days before, Mr R noticed the children consistently gravitate to the father and to interact with him rather than the mother in the waiting area outside the interview room. Y said in interview that since the father no longer lived with them it was “not much fun anymore” and that they “don’t really go places” like they had done previously. In interview with Mr R, the mother also referred to the father as having “done a lot” with the children during the relationship and commended him for being a “good father”.
Although Z was not interviewed he presented as a bright, confident young boy who was active and playful when observed with his siblings. It was noted that he often sought proximity to his father and engaged happily and freely with him.
Mr R’s observations were not challenged.
As noted, both X and Y had indicated to Mr R that they did not feel safe around Mr B. Although there was no evidence that Mr B had used corporal punishment on the children, there was evidence that they are mistrustful and uncomfortable with him. Mr B himself said that the relationship with the two older children had been difficult although he said he got on well with Z. Although Mr R acknowledged that the relationship may have improved between the time of interviews and trial, there was no evidence that this had in fact occurred.
It appears that X and Y have a good relationship with their cousins in (omitted). They appear to have good relationships with their paternal and maternal grandparents. X has apparently been encouraged to get to know his biological paternal grandparents by both parents.
3(c) – extent of the parents’ participation in decisions about the children, spending time and communication with the children
There was no evidence that either parent had not sought to participate in decisions about the children or to spend time and communicate with them.
3(ca) - the extent to which the parents are fulfilled their obligations to maintain the children
There was evidence that the father and the mother had entered into an agreement where the father was to pay all travel expenses in lieu of the mother not seeking a child support assessment. This would suggest that the obligation to maintain the children had been borne more by the mother. However, the parents have agreed that this arrangement is to continue even if the children reside with the father. Another factor to be noted is that the father has no legal obligation to maintain X but contributed to X’s maintenance during the relationship and proposes to continue to do so.
3(d) – likely effect of any change in the children’s circumstances
I have dealt with the most important considerations flowing from a change in the children circumstances in paragraphs [95] to [102]. If the children reside with her father in (omitted), they will be moving from the mother who has been their primary carer and the town where they have lived since 2014. This will involve a separation from existing friends and the home they know. On the other hand, the older children appear to have favourable memories of (omitted) and have previously attended school there. In addition to the father members of the extended family live there, including cousins to whom they are close. In my view, these factors are likely to mitigate the adverse consequences of a move to (omitted). I am also satisfied on the basis of the evidence at trial that there are strong indications that the children are unhappy in their present circumstances living with the mother and Mr B. In my view, they are likely to be happier living with their father.
3(e) – practical difficulty and expense of spending time with and communicating with a parent
Given the competing proposals the only practicable arrangement is that the children to live with one parent and spend holiday time with the other parent and otherwise communicate by telephone or other electronic means.
3(f) - the capacity of each of the children’s parents to provide for the needs of the children and 3(i) - the attitude to the children and to the responsibilities of parenthood demonstrated by each of the parents
I accept the independent children’s lawyer’s submission that both parents have demonstrated a lack of sensitivity and insight into the emotional and psychological needs of the children. The father acted precipitately in removing the children to New South Wales at the time of separation and he and his mother failed to shield the children from conflict. The mother’s decision to re-partner with Mr B immediately after separation and introduce him into a home with the children demonstrates a lack of insight into the psychological and emotional needs of the children. She struggled to recognise the children’s adjustment difficulties and placed the blame for their behavioural difficulties squarely on the father and his family who, she said, “got into their ears”. The mother’s unilateral decision to tell X about his biological father before his holiday with the father in (omitted) was questionable although her motivation and the consequences for X are unclear.
3(g) - the maturity, sex, lifestyle and background of the children and of either of the children’s parents, and any other characteristic of the children that the court thinks relevant
X is not the biological child of the father. He is nevertheless close to the father and has grown up with the father as his social father since he was a baby. It appears X may have some social difficulties, as identified by his primary teacher Ms N. There was no particular evidence that these will be better addressed by one parent rather than the other. However, the father’s misreading of X’s enjoyment in dressing up as a “princess” for book week and his willingness to “blame” the mother for that is a point of some concern. It may be evidence of the father’s lack of insight. It is to be hoped that the father is capable of reflecting on the special consideration that X may need as he grows into adolescence.
3(j) – family violence
There have been some allegations of family violence, particularly the evidence that the father broke car windscreen when the children were nearby, if not present. The mother also gave evidence that the father had threatened suicide in circumstances that may constitute threatening, coercive or controlling behaviour. There is, however, no evidence that family violence is a continuing issue.
3(k) - order least likely to lead to further proceedings
There is no indication that either of the competing proposals of the parties is more likely to lead to the institution of further proceedings than the other.
3(m) - other relevant factors circumstances
There are no other relevant facts or circumstances.
As there will be an order for equal shared parental responsibility, it is necessary to consider section 65DAA. Neither party suggested that it is reasonably practicable for the children to spend equal time with each parent. They must live with one parent and spend holiday time with the other parent. The requirement that the children spend substantial and significant time with the other parent is subject to the reality that they will be living in different states.
I am satisfied that it is in the children’s best interests that they live with their father in (omitted). The most important factor in my view is that there is clear evidence that the children, particularly the two older children, have not adjusted well to the introduction of Mr B into their home. I am satisfied they are likely to be happier in the father’s home. While there is a risk that the father will not encourage the relationship of the children with the mother, I do not consider it to be a likelihood and I give it less weight.
The children will spend school holidays with their mother. The Queensland school year is made up of four terms with three short holidays of about two weeks each and a Christmas holiday of 6 weeks. The father’s draft orders propose that the children spend half of each school holiday (or about six weeks) with the mother. The Northern Territory school year is made up of four terms with holidays of about one week, three weeks, two weeks and a Christmas holiday of six weeks. The mother’s draft orders, based on the Northern Territory school year, proposed that the children spend the entirety of the two short holidays, two weeks of the three-week holiday and half of the Christmas holiday (or about eight weeks) with the father. The independent children’s lawyer’s draft orders, also based on the Northern Territory school year, proposed that the children spend time with the father as agreed but failing agreement for the whole of the June/July holidays (three weeks), the whole of the term three school holidays (two weeks) and three weeks of the Christmas holiday (or about eight weeks).
I propose to make orders that the children spend time with the mother as agreed between the parents but failing agreement for eight weeks of school holidays. However, I propose to give the mother some flexibility in how the eight weeks are to be arranged. I will make orders that the children are to spend the whole of each of the Queensland term holidays with the mother (three holidays of about two weeks each) and two weeks of the Christmas holiday but, in recognition of the expense involved, the mother may, on three months’ notice to the father, choose to have the children spend only two of the three term holidays with her and an additional two weeks, or four weeks in total, of the Christmas holiday. This will be a total of eight weeks. An order will be made that the cost of travel be shared equally between the parents. If the parents wish to enter into some other arrangement in relation to the cost of travel they may, of course, agree to do so.
There will also be ancillary orders in relation to telephone another communication during the week. I will also make orders that provide for the mother to spend time with the children in (omitted) if she visits there.

I certify that the preceding one hundred and thirty eight (138) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 21 December 2017

[2017] FCCA 3254

21 December 2017

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Family Law

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