DELANEY & DELANEY (No.2)

[2015] FCCA 2735

FEDERAL CIRCUIT COURT OF AUSTRALIA

DELANEY & DELANEY (No.2) [2015] FCCA 2735

Catchwords:
FAMILY LAW – Parenting.

Legislation:

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

Goode v Goode [2006] FamCA 1346

Applicant: MR DELANEY

Respondent: MS DELANEY

File Number: DGC 2631 of 2014

Judgment of: Judge Small

Hearing date: 8 May 2015

Date of Last Submission: 8 May 2015

Delivered at: Melbourne

Delivered on: 8 May 2015

REPRESENTATION

Counsel for the Applicant: Mr Goddard

Solicitors for the Applicant: Portelli & Co

Counsel for the Respondent: Mr Allen

Solicitors for the Respondent: Trapski Family Law

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1. The children W born (omitted) 2001, X born (omitted) 2002, Y born (omitted) 2004 and Z born (omitted) 2006 (“the children”) shall live with the wife.

2. The children shall spend time and communicate with the husband as follows:

   (a)during school terms on each alternate weekend from after school on Friday to the commencement of school on Monday, or Tuesday if Monday is a school holiday, commencing this day, 8 May 2015;

   (b)from after school each alternate Thursday to the commencement of school on Friday beginning on 14 May 2015;

   (c)for one week in each of the second and third school term holidays in 2015 by agreement and failing agreement from after school on the last day of term until 6 PM on the second Saturday;

   (d)on each of X, Y and Z’s birthdays in 2015 by agreement between the parties and failing agreement from after school until 7:30 PM if a school day, and from 10 AM till 2 PM if a nonschool day when the children would not normally be spending time with the husband pursuant to these orders;

   (e)from 6 PM on the night before Father’s Day until 6 PM on Father’s Day should it fall on a day when the children would not normally be spending time with the husband pursuant to these orders;

   (f)by telephone, FaceTime, Skype or other electronic communication at all reasonable times and the wife shall facilitate that contact; and

   (g)at other times by agreement between the parties.

3. Time spent pursuant to paragraphs 2(a) and (b) of these orders shall suspend during all school holidays and shall recommence in the next school term as if the holidays had not intervened.

4. Changeover that does not occur at the children’s school/s shall occur at the wife’s home at the commencement of time spent and that the husband’s home at the conclusion unless otherwise agreed.

5. The wife shall ensure that the children are appropriately supervised by an adult before and after school each day and that they attend school on each school day.

6. The parties and their servants and agents be and are hereby restrained by injunction from:

   (a)abusing, insulting, belittling, rebuking or otherwise denigrating the other; and

   (b)discussing these proceedings.

   in the presence or hearing of the children or any of them, and from permitting any other person to do so.

7. Each party shall notify the other as soon as practicable in the event that the children or either of them suffer a serious illness or injury while in his or her respective care, and shall authorise any medical practitioner treating the child to provide information to and consult with the other parent.

8. Each party shall notify the other of any change in his or her address or contact details within seven days of such change.

THE COURT ORDERS BY CONSENT UNTIL FURTER ORDER THAT:

1. The parties shall jointly arrange for the child W to attend upon a child psychologist or appropriately qualified counsellor for the purposes of therapeutic counselling and each of the parties, and any of the other children as may be deemed appropriate, shall attend upon such counsellor as requested by him or her.

2. Pursuant to s. 62G(2) of the Family Law Act 1975 the parties and the children W born (omitted) 2001, X born (omitted) 2002, Y born (omitted) 2004, Z born (omitted) 2006, (“the children”) attend upon Mr T for the purpose of an updated Family Report. Such Report to be annexed to an Affidavit sworn by Mr T and filed with the Court no later than 31 October 2015.

3. The costs of the updated Family Report to be paid for at first instance by the Father, and the Mother’s half share of those costs be taken into account in the final property settlement.

4. The Family Report to deal with the following matters:

   (a)any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in ss. 60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)the likely effect on the children if the Court were to make Orders in terms of the father’s/mother’s proposed orders;

   (d)any other matters that the Family Consultant considers important to the welfare or best interests of the children.

5. The parties send copies of all of their Court documents to the Family Consultant within seven (7) days of being requested to do so by the Family Consultant. 

6. If a party is not represented by a lawyer, then within seven (7) days of being notified of the Family Consultant that party do deliver or cause to be delivered to the Family Consultant copies of the following documents:

   (a)all relevant applications and responses filed by him/her, or filed on his/her behalf, in the current proceedings;

   (b)all relevant affidavits filed by him/her, or filed on his/her behalf, in the current proceedings; and

   (c)any family violence intervention or restraining orders currently in force.

7. For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

8. The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.

9. If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyers to) notify the relevant Family Consultant of his or her need to attend Court no less than seven (7) days prior to the Final Hearing.

10. All extant interim applications be otherwise dismissed.

11. Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Delaney & Delaney (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 2631 of 2014

MR DELANEY

Applicant

And

MS DELANEY

Respondent

REASONS FOR JUDGMENT

1. The matter of Delaney comes before me today for interim hearing, having been adjourned for that purpose from the duty list on 26 February 2015.  The substantive proceedings involve both parenting and property matters and I am asked to make interim orders in both areas today. 

2. The parties commenced living together in about 1993 and were married on (omitted) 1995.  They separated finally on 14 July 2014, when the husband left the former family home.  There are four children of the marriage, namely, W, born (omitted) 2001, X, born (omitted) 2002, Y, born (omitted) 2004, and Z, born (omitted) 2006.  Since separation, the children have essentially lived with the mother, although there have been periods when they have lived with their father, who has obtained rental accommodation in (omitted). 

3. The wife is a full-time student, studying (course omitted) at (omitted), and the husband works part-time for about 20 hours per week.  Each parent seeks interim orders today that would see the children living with him or her and spending time with the other parent.  Mr Delaney seeks an interim order that he have the sole use and occupation of the former matrimonial home at (omitted) in (omitted), and while there is no formal application for such an order on behalf of the wife, it is almost implicit in her application to have the children live with her as she has been living in that property since separation.

4. A family report was prepared by Mr T after interviews conducted in November and December 2014 and that report is dated 25 February, but it was not made available to the court until this morning. 

5. Some relevant background to this dispute is that in September 2014, a couple of months after separation, W, who was then 13 and a half, went to stay with her father after a dispute with her mother.  She returned to her mother’s care shortly thereafter and she later appeared, when speaking to Mr T, to dismiss that incident, saying that it was over and all was well. 

6. The parties came to court – I think it was in November of 2014 and orders were made allowing Ms Delaney to take the children overseas for the summer holidays.  Before they went, the parties attended upon Mr T for the preparation of that family report.  And then, on the day after the last interviews with the children, the mother and the children left Australia for a seven week holiday in (country omitted) and they were there until, I believe, (omitted) 2015.  They travelled in both the (country omitted) and (country omitted) and the husband joined them for two days while they were in (country omitted).

7. There is no evidence before the court to show that anything conflictual took place during that trip.  The wife, however, broke her arm after slipping on the ice and I think may have returned to Australia with her arm in a cast. 

8. Salient events took place on 16 and 17 and the early hours, I think, of 18 February 2015, and the husband’s version of those events is set out in his affidavit sworn and filed 30 April 2015.  He says that he had had to travel to Sydney for work purposes and had arranged for the children’s maternal grandmother to care for them on the night of 17 February.  The wife is estranged from her parents and when she discovered the children were going to stay with them, she became angry and collected the children from the husband’s home to take them to school and, I infer, so that they would stay with her from that night.

9. W apparently sent a text message to her father saying that she wished to return to his home to stay by herself on that night and arrangements were made for her to do so and for her to contact her grandmother if she needed any assistance.  The husband says he received a telephone call from W at about 12.50 am.  W was saying that someone was essentially prowling around, he says, his residence and that she could see torchlight.  He then contacted the maternal grandmother before calling W back. 

10. It then became apparent that the person who was on the property was the wife, who had come to collect W.  It appears that there was some sort of altercation between the maternal grandmother and the wife and that the police became involved.  W apparently spent that night at the home of her grandmother, before returning to the husband’s home where she has remained ever since.  She has refused to return to her mother’s home and has had very little contact with her mother, other than at a sporting event and for some time over Easter.

11. X, Y and Z have remained in the care of the wife since 17 February 2015 and, I understand, have spent regular time with their father.  The husband says that the wife’s inability to care for the children on her return from (country omitted) and her subsequent asking him to care for them over several weeks, her plans to live on or near campus while she studies and the events of 17 February 2015 lend further weight to his previously stated view that the wife is unstable, inconsistent in her care of the children, and unable to care for them properly.  He asks for an interim order that all four children live with him in the family home, pending the final hearing. 

12. The wife’s version of these events is, unsurprisingly, very different.  She says that after spending 24 hours a day with the children over a period of some seven weeks, and after suffering a broken arm, she was exhausted on her return to Australia and simply needed a rest.  In an affidavit sworn and filed on 4 May 2015, the wife says that she asked the husband to take care of the children for two weeks because of that reason, and also because they had only seen him for two nights in the past seven weeks, that being in (country omitted).  It is her evidence that the husband, in fact, did not agree to having the children for two weeks and only took care of them intermittently over that initial period.

13. The wife says that on a date which is not specified in her affidavit, which I infer must have been sometime between (omitted) and (omitted), her level of exhaustion and pain from her arm and some misbehaviour by the children, caused her some great distress, and in fact she says she “lost it” and she called the husband, telling him that she was bringing the children to him, which she did.  They then stayed with him for two weeks, after which she says she was feeling restored and replenished and rested and the children came back to her care. 

14. She says that on a date which, again, I have had to infer, but I infer to have been 17 February, she and W had a disagreement because W had been disrespectful to her.  The wife says that W became physically aggressive, punching and hitting her and screaming abusively at her.  She says that the other three children were very distressed by that circumstance and that when W asked to go to her father’s home, she felt it would be in everybody’s interests for her to do so, so as to allow W to calm down and to allow the other children to recover from the outburst. 

15. The wife states, unsurprisingly again, that she greatly regrets having taken W to her father’s home on that day.  She says the only time she has seen W since that date was when she attended W’s (hobby omitted) grand final and when she was allowed by the husband to participate in some parts of the family holiday at (omitted) over the Easter weekend. 

16. The wife says that W is a typical teenager who has disputes and agreements with her mother and that such disputes had essentially blown over in the past when they had occurred.  Ms Delaney seeks orders that all four children live with her and spend time with their father, pending the final hearing.

17. The facts of what happened in mid-February 2015 are in dispute between the parties.  This is an interim hearing and I cannot make findings of fact about those matters.  I can only do that after all evidence has been tested at trial.  All I can do now is to focus on the matters that are agreed and make orders that I believe to be in the best interests of the children, pending the final hearing. 

18. What is agreed is that the children had what appears to have been an uneventful and enjoyable holiday with their mother over the long summer holidays, that the mother broke her arm during that holiday, that the children spent some considerable time in their father’s care in the period immediately following the holiday and that after an incident on 17 February 2015 W has lived with her father and spent no individual time with her mother, while X, Y and Z have lived with their mother and spent significant time with their father.

19. The family report of Mr T recommends that the children live primarily with the husband and spend weekend time with the wife and I note that at this stage that is the only independent evidence that is before the court, although it is not, at this stage, for reasons which are unclear, in affidavit form.  I nevertheless take it to be a true copy that I have been given of the report of Mr T.

20. It is a little disconcerting because when I look at the body of Mr T’s report, he appears to be leading to different recommendations than those that he ultimately makes.  For instance, he states that the children’s wishes are that they remain with their mother, that they feel closer to her, that they want to stay living in the family home, and he says, clearly, that their primary attachment is to their mother, while they have an appropriate and close relationship with their father.

21. W, in particular, seemed to dismiss any concerns about the fact that she had gone to stay with her father for a few nights last September and she was clear that she wished to remain in her mother’s care at that stage. 

22. After making comments that he had no concerns about the children in the care of either parent, Mr T then makes the recommendations that the children live with their father and spend limited time with their mother.  I note that Mr T’s report is dated 25 February 2015, about a week after the incident which saw W go back to her father’s care.

23. It is common ground between the parties that Mr T was asked to conduct further interviews with the children, but that the wife did not agree to such interviews and they did not take place.  What appears to me to have been a change in Mr T’s thinking between the writing of the body of the report and the making of the recommendations contained in it will, no doubt, be a matter for cross-examination at trial. 

24. The husband seeks an order for an updated report before the final hearing of this matter, which is listed in November 2015, and given the somewhat tumultuous events which have intervened since Mr T last interviewed the parties and the children, I intend to make that order.

25. The parties agreed that an order be made for W to attend counselling and that each of the parties attend with her upon the request of the counsellor.  In these circumstances, I think that is a very sensible agreement, but it occurs to me that it may be that the counsellor might think that family therapy is the most appropriate circumstance and therefore I am going to make the order as sought, and I will make it by consent, but it will include the younger children, should the counsellor think that appropriate.

26. There are cases – and I think this is definitely one of them – where a therapeutic solution is likely to be far more effective in the long term than a purely legal one. 

27. The submissions of counsel for the parties are that, essentially, the husband wishes to live with the children for nine nights a fortnight and have them live with their mother for five nights a fortnight, and he wants, of course, the sole use and occupation of the family home.  The counsel for the father points out the matters that have developed since the preparation of the report, if not its release, and laid out before me the events of that night according to his client.

28. He says that the wife blames the husband for the altercation between the wife and W, but he says that blame is not consistent with what has actually happened.  It is clear, he says, that W does not want to see the wife.  There has been some contact, but clearly no consistent or individual time.  He says – or the husband says – that he wants W to see the wife and that he has tried to facilitate that.  He says, through his counsel, that he might have been a bit clumsy about that, but that he has tried to get W to see her mother.  And it is because of that that he wants W to see the counsellor and for the parties to be involved.

29. He says that he wants the children to live with him because the wife is unable or unwilling to ensure that the children go to school and notes that the wife wasn’t facilitating time with the father post-separation.  He says that it is in the children’s best interests to live in the family home and that if the children are to live with him in the interim, he should have sole use and occupation of it.  I do not think that there is any dispute between the parties that the children will continue to live in the family home, no matter which parent is primarily responsible for their care.

1. When I asked counsel for the husband how the husband proposes that the wife should support herself if she were to move out of the family home he said only that she had some income from what was later divulged to be Austudy and a family tax benefit perhaps.  And he says that he, the husband, is completely flexible in his working hours and would be able to take care of the children at any time.

2. The husband lives in (omitted) and the wife lives in (omitted).  The children all go to school in the local area and there does not seem to be any problem with that.  I understand that W now catches the train to school when she is with her dad.

3. The husband says that he is afraid that the events of February will repeat.  That the wife will have another period where she is unable to cope, and that she will effectively bring the children to him and then want them back later.  He says that the wife’s study and her social life, indeed, interfere with her capacity to look after the children in any consistent manner.  So his fear is that this situation will remain fluid and inconsistent for the children.  He says he can provide stability for the children and that he can take care of all their needs and he wants an updated report by the trial as I said.  And I will make that order.

4. Counsel for the wife pointed me to the family report of Mr T in which counsel says, he eerily foreshadowed the current situation.  He points out, and he is right, that Mr T thought that the incident that happened in September, which W downplayed considerably in her conversation with him may have been slightly manipulative on W’s part.  And frankly it would be a rather odd 13 and a half year old who in these situations did not try and play her parents off against each other.  That is what 13 and a half year olds do.  And I know she is 14 now.

5. The wife, Mr A says, is critical of the husband’s response from the time that W has stayed with him since February.  He says it is a permissive response and that W should not be allowed to dictate the terms of her living arrangements.  She is now 14.  She turned 14 only a few days after that incident on 17 February about nine days later or so.  And I have said to the parties that it is my view that a 13 year old does not get to dictate where she lives.  That that is a matter of parental responsibility and something to be decided by her parents. 

6. The message that counsel for the wife says is being given to W is that if she has a problem she can just run away to dad if she has a problem with her mother rather than facing the problem and dealing with it.  He says that is a very dangerous message to be giving to an adolescent child.  I tend to somewhat agree with that proposition. 

7. Mr A says that W should be – I think what he said was that, “She should be told she is part of the family.”  It was something like that.  And that, “Therefore she should come home,” and, “She cannot just run away from her problems.”  He pointed to what I have already said about the apparent dissonance – and I will only say apparent because I have not got Mr T here to ask about it – but what appears to be the dissonance between the body of the report and the recommendations at the end of it.

8. And he points out also that when X was asked what would happen, X was the one who said most definitely that he wanted to stay in the family home.  And that when he was asked, “What would happen if it was your dad living there instead of your mum?”  He basically said, “Well, that would be all right because then I would still be staying in the home and I would still be seeing my friends.”  But then he became quite distressed and Mr T did not press him any further on that.

9. I can infer nothing from that without Mr T being here.  And I just mention it because it was mentioned to me, but it is nothing I can make any finding about or take any inference from.

10. Counsel for the wife says that he is concerned about the attitude of the husband when W was told that her mother would be coming to the house and he said to her, “Well, there is nothing I can do about that.”  It was said that he might have better have said something like, “Well, she is coming because I think it would be a good idea for us all to get together and talk about this issue”, or, “That it is good for the whole family if she comes.” 

11. I think hindsight is 20-20.  And when things are up in the air and volatile it is very difficult for parents to be making judgments that they might have made at other times.  And I have to say that while it may not have been totally appropriate for the father to have behaved in that way I do not criticise him particularly for that.

12. Mr A made a legal – what I will call a legal submission in relation to the matter of Goode v Goode about the pathway I need to take in coming to a decision about what happens in this case. That of course is what I am bound to do. And I will start the issue of the legal matters by saying that the law in relation to parenting matters is pretty clear. When making any parenting order I must regard the children’s best interests as my paramount consideration. That is set out in black and white in s.60CA of the Family Law Act.

13. Section 60CC then sets out something like 16 separate issues that I need to consider when I am looking at what is in the best interests of the children. I am not going to go through every one of them now. We would be here all afternoon. But I will refer to those that I think are most relevant in this case.

14. There are two primary considerations set out in subsection 2 of s.60CC. They are, first:

    The benefit to children of having a meaning relationship with parents.

    And second is:

    The need to protect children from physical or psychological harm as a result of abuse, neglect or being exposed to family violence.

    Where those two considerations conflict, section (2A) tells me very clearly that I must put more weight on and take more notice of the need to protect the child from harm over the benefit to the child of having a meaningful relationship with both parents.  That would seem axiomatic to me, but it is there nevertheless in a section which was inserted into the Act only a few years ago.

15. From what Mr T says of his observations of the children with the parents there is little doubt in my mind that these children all have meaningful relationships with both parents.  And the order that I propose to make will ensure that those relationships continue and are given room to develop pending final hearing.  As I have said, it is almost axiomatic.  There is obviously a need to protect children from physical or psychological harm.

16. There is some evidence from the wife, which I note is denied by the husband, of family violence that has occurred between the parties in the past.  And it does appear that the relationship between the parties was somewhat tense and at time somewhat volatile.

17. When marriages and relationships break down it is often difficult for the parties to distinguish between their role as a member of the couple which is no more from their role as the parent of the children of the relationship.  All relationship breakdowns involve pain, anger, disappointment and grief for what might have been.  It is vital for children that their parents are able to separate their feelings about the breakdown of the relationship from their ability to provide appropriate care and support for the children as their parents. 

18. If they fail to do so there is a danger that the conflict between them will have a deleterious effect on the children’s emotional and psychological development.  And in that sense that is the kind of harm that I think we should be looking at in relation to these children:  that the harm that they might suffer as a result of the conflict that happens between their parents is every bit as dangerous as any physical harm, which I do not say they are at risk of at all – there is no evidence of that – but it is just as dangerous.

19. The Family Law Act then sets out – those are the two primary considerations, and then there are the other 14 additional considerations that I am obliged to take into account. And the first is the views of the children. Those views being seen in the light of the children’s maturity and understanding. When Mr T interviewed the children they were clear in their view that they all wish to remain with the mother living in the family home. What is unclear at this time is whether W’s current wish to stay with her father is based on that one incident or whether it is a generalised thing. And I cannot make finding about that.

20. The second factor I need to consider is the nature of the relationship of the children with their parents.  And apart from what I can see – well, so far I can only see ordinary adolescent conflict between mother and child in relation to W.  All the children appear to have close and loving relationships with both parents.  That is not to say that there are not concerns about the relationship between W and her mother, but it is hoped that the counselling that both parties have now agreed to will address those concerns.

21. The next matter I have to take into account is the extent to which each of the parents has taken the opportunity to be involved in the child’s life, effectively.  And it would appear that although this family did not divide tasks in the way that many families do, both have been involved with the children, and both have taken all steps possible to spend time and communicate with them since separation.

22. I do not consider the wife’s stated inability to cope with the children on the return from (country omitted) when she had a broken arm and she had been with them 24 hours a day for seven weeks as necessarily a negative thing.  And as I say, I cannot make findings of fact.  There may be other facts that surround that that would change that view but I cannot make findings of fact at this time.

23. I then need to consider the likely effect of any change in the children’s circumstances, including the likely effect on the children of any separation from either one of the parents or from each other.  In this situation the siblings have been separated in terms of everyday life.  And that cannot help but have had an effect on all of them.  And W for all intents and purposes has been separated from her mother for more than two months now.  And that separation at the age of 14 for a young girl cannot help but have had a significant impact on her as well.

24. However, it is the next factor that I think is often in this Court if not the most important factor then certainly up there in the top three.  And that is the capacity of the child’s parents to provide for the needs of the child, including the child’s emotional and intellectual needs.  The husband deposes to serious concerns about the wife’s ability to meet the children’s material needs.  He alleges that she has left them alone to get themselves up and to school.  He alleges that the house has been left in an untidy and dirty manner.  And he questions her capacity to provide appropriate meals for them and to take care of the house as it was he, he says – and it seems to be agreed – who performed those tasks during the marriage.

25. The wife says that it has taken the children some time to get used to the fact that she is now the parent who cooks and cleans for them.  But they have come to understand that that is now the situation.  And she is adamant that she is able to provide that care for the children.  Again, I cannot make findings of fact about that.  That will be a matter that will be tested at trial.  However, there doesn’t seem to be any objective evidence that the children have been neglected.  I do not think there has been any involvement of the Department of Human Services in this family, and Mr T certainly raised no concerns about that issue at all.

26. But it is in the area of the children’s emotional needs that the Court is often caused most concern, and that’s certainly the case here.  The conflict between these parents, and the fact that the husband is apparently allowed W to dictate her living arrangements on more than one occasion are very concerning matters.  The fact that the wife appears to have had several instances of feeling unable to cope with the full time care of the children all indicate some lack of capacity in the parents to meet their children’s emotional needs.  And I am, I must say, very concerned about these children’s emotional needs, and particularly the younger children given that all the attention at the moment is being given to W.

27. Another matter that I need to take into account is the attitude to the children and the responsibilities of parenthood.  That is their attitude both to the child and to their responsibilities as parents that have been demonstrated by the children’s parents. 

28. I must say it is concerning to the Court that both parents appear to have restricted the other parents’ time with the children, albeit in different circumstances.  In the aftermath of the separation the children apparently did not see their father for some time.  And now W has been separated from her mother for more than two months apart from some incidental contact.

29. Mr T says that the husband sees little positive benefit to the children in them having a close relationship with their mother, and he expresses some concern about that attitude.  I would certainly think that if that is shown to be the husband’s true attitude about the mother it would certainly reflect a lack of insight on his part.

30. The wife too has demonstrated some lack of insight into her responsibility for ensuring that the children have a close and appropriate relationship with both parents.  And indeed if the allegations of the husband about the mother leaving the children alone, about her going out all the time and neglecting the children were to be proven true, then that would certainly be of great concern to the Court.  However, in this regard the mother has made several statements that she believes it is important, and not least in her conversation with Mr T, that is it indeed important for the children to have a relationship with both of their parents.

31. I also have to take into account the issue of family violence.  Family violence of course comes in many forms.  It is not just restricted to physical assault, and it can include controlling and coercive behaviour by one party towards the other.  In this case the wife makes significant allegations against the husband in that regard.  Although again I cannot make findings of fact about that.  Again, however, if those allegations were proven to be true at trial, or if I were to make a finding about them at trial that would be a salient factor in any parenting orders made at that time.

32. When I take all of the above issues and the other matters set out in s.60CC, sub-s. (3), and especially the separation of the siblings and the husband’s attitude to the mother of his children, I find that it is in the best interests of all four children to live with the wife until the final hearing of this matter in November this year. That is not to say that a different decision might not be reached when all evidence is before the Court and has been tested.

33. It follows from that decision that the husband’s application for sole use and occupation of the family home has not been successful.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 7 October 2015