Doonan and Bradshaw

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOONAN & BRADSHAW

[2014] FCCA 2666

Catchwords:
FAMILY LAW – Parenting dispute – separated children aged 5 and 3 – both parents seeking children live with them and spend time with the other – significant cross – assertions of drug and alcohol abuse – mother re-partnered – mother’s new partner threatening and prone to violence – whether children at risk with partner – family report writer recommending children live with father – both parents flawed – children to live with father and spend time with mother.

Legislation:
Family Law Act 1975, s.60CC

Goode v Goode [2006] FamCA 1346

Applicant:

MR DOONAN

Respondent:

MS BRADSHAW

File Number:

MLC 10855 of 2013

Judgment of:

Judge Burchardt

Hearing dates:

8, 9 & 11 September 2014

Date of Last Submission:

11 September 2014

Delivered at:

Melbourne

Delivered on:

28 November 2014

REPRESENTATION

Counsel for the Applicant:

Ms Bowen

Solicitors for the Applicant:

Gleeson and Co

Counsel for the Respondent:

Mr McLeod

Solicitors for the Respondent:

Ebejer & Associates

Counsel for the Independent Children’s Lawyer:

Ms Macgregor

Solicitors for the Independent Children’s Lawyer:

Macgregor Solicitors

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 10855 of 2013

MR DOONAN

Applicant

And

MS BRADSHAW

Respondent

REASONS FOR JUDGMENT

Introductory

This is a difficult parenting dispute about the best interests of two young children, X born (omitted) 2009, and Y born (omitted) 2011. There is a welter of material before the Court in the parties’ affidavits, and there are numerous issues to be addressed.
Putting the matter shortly, the father seeks that the children live with him from the beginning of January 2015 and spend time with and communicate with the mother on alternate weekends after child care/kindergarten/school until the commencement of same on Monday. Importantly from his point of view, he seeks that the children not be left in the sole care of Mr M, who is the mother’s partner.
The mother’s position is that the children should live with her and spend time with and communicate with the father for three consecutive weekends until 4:00pm from after childcare/kindergarten/school on Friday until 12 noon Monday at crèche or kindergarten or at the commencement of school. She naturally opposes the restraint sought in respect of her partner, Mr M.
Additionally, there is a dispute about which school X should attend next year, but for all practical purposes, as the Independent Children's Lawyer submits that issue will be determined by the outcome of the primary dispute.
The Independent Children's Lawyer’s final submissions were more opaque. The Independent Children's Lawyer opposes the children being separated (as they presently are and have been for some time). The Independent Children's Lawyer seeks that changeover not occur, as it has done on occasions, at a police station but a more neutral venue. The Independent Children's Lawyer noted that the family report favours the father but the Independent Children's Lawyer expressed significant concern about the father’s failure to facilitate X spending time with the mother.
For the reasons that follow, I am going to order:
(a)That there will be an order for equal shared parental responsibility.
(b)That the children transition into their father’s care, as recommended by the family report writer, by early 2015;
(c)That the children live with him thereafter and spend time and communicate with the mother on each alternate weekend from Friday after childcare/kindergarten/school until Monday morning.
(d)I am going to order additionally that the children spend half of school holidays with each of their parents; and
(e)I am going to order therapeutic family counselling for all concerned to address the all too numerous subsisting between them.

Some Relatively Uncontroversial Background

The father was born on (omitted) 1978. He lives with his mother and brother in a property that the brother and the father jointly own. They appear to have lived there for many years.
The father had a very considerable criminal history as a younger man, albeit that he has been largely trouble-free for some years.
The mother was born on (omitted) 1990. Although not overmuch was made of this in the evidence, it is clear that she had, at least in part, a troubled upbringing. She reported to the family report writer that she experienced conflict in her family home and went to stay with the father and his family when she was 18 but later returned home. The parties commenced cohabitation in a relationship midway through 2008 when the mother was just 18 years of age. At this time, of course, the father was 30 years old.
The children were born in 2009 and 2011 respectively, and separation took place in July 2012 when X was three years old and Y was 12 months old.
There is vivid dispute as to exactly what arrangements took place thereafter in respect of the care of the children, but on any view X has been with her father throughout the entirety of the time since.
In September 2013, the mother re-partnered with Mr M. They started cohabitation three days after the commencement of their relationship when Mr M moved into the maternal grandmother’s home with the mother where they lived for some time. They are expecting the birth of their first child in (omitted) 2014.
They presently live in their own accommodation which, like that of the father, in my view has appropriate space to accommodate the entire family.
Mr M has an acquired brain injury as a result of a violent assault on him some years ago, and lives on a pension. He is also bipolar.
The father works in his own business as a (occupation omitted), and from his evidence, which was not the subject of any significant or effective challenge, earns enough money in working very short amounts of time to support himself and to pay his debts as they fall due.
The mother is a student and hopes to work in (omitted) when she eventually qualifies in some years’ time.

An Overview of the Affidavit Evidence

As already indicated, the parties have filed copious affidavit material. I have, of course, read and reread the entirety of the file and have regard to all of it. Nonetheless, any endeavour to paraphrase the parties’ material would make this judgment unduly prolix. I will concentrate on those aspects of the affidavit material that seem to me to be of significance.
The father’s first affidavit, filed 12 December 2013, was filed in support of his recovery order application filed contemporaneously. He deposed that, having dropped the children to visit their mother on 7 October 2013, the mother over held. He explained his concerns about the welfare of Y in the company of Mr M and explained the reasons why it had taken him some time to bring his application. The affidavit devotes paragraphs 20 to 30 to allegations about Mr M, whom the father described as a “criminal, a recovering drug addict”, and he deposed to threats made to him by Mr M.
These threats were, if true, extremely serious. A flavour is given by the first one mentioned in the affidavit said to have taken place on

9 October 2013 to the effect, “I’ll come and fix you up fuckhead”. The father also deposed to have taken out an application for an Intervention Order, which was subsequently dealt with by way of an undertaking. The father complained that the mother and Mr M were deliberately alienating Y from him and were getting Y to call Mr M “daddy”.
A Facebook extract to this effect was annexed as D-2 to the affidavit of the father. Annexure D-2 shows extracts from the mother’s Facebook posts. On 29 August 2013, the mother posted:
“I don’t regret having my kids, but I regret having them with such a selfish bastard!
Who the fuck favourites kids?”
On 27 October 2013, the mother posted a glowing reference to Mr M and went on to say:
“Thank you for everything baby, me and Y are so lucky to have you in our lives! I’ve never seen her look up to someone as much as she looks up to you, and even when she calls you dad or daddy! – it’s so cute!”
The Facebook entry also includes a picture of the mother and Mr M embracing, with Mr M’s arms around the mother and also around Y, who is clinging onto her mother’s back. I find this photograph somewhat off-putting. The embrace is clearly an intimate one, and I question whether it was appropriate for the child to have been involved, as she clearly was.
The tenor of the texts on these Facebook entries, while understandably enthusiastic given the relatively recent relationship, in my view are in large part immature and childish.
The father’s affidavit deposed to the parties’ history, the background to their relationship and the advent of their children. At paragraph 65 the father complained that the mother had after Y’s first birthday started to go out more and more with her sister and her mother. The father deposed that the mother had, putting the matter broadly, largely left all parenting duties to him, with the assistance of the paternal grandmother and his elder brother Mr J.
The father deposed that, post-separation, in July 2012 essentially commenced when the mother had not had any interest in seeing X and had seen Y only occasionally, around about two days a week at most. The father deposed that on the occasions that X went to her mother the mother would ring up several hours later and tell him to come and get “the bitch”.
The father deposed to an Intervention Order application by the mother which he said came as a complete surprise to him, and the fact that he had himself taken out a cross-application against the mother.
The paternal grandmother filed an affidavit on 13 December 2013 supportive of her son’s position. Ms L was not, however, called to give evidence, so I bear that matter in mind.
The mother’s first affidavit was filed on 17 December 2013. She took issue with the father having been agreed to be the primary carer of the children following separation. She complained of the father’s work commitments and said he was unable to look after the children. She said she had only allowed X to spend more time with the father and the paternal grandmother because of threats of self harm by the father. She further alleged that the father had a drinking problem and had threatened to self harm on a number of occasions.
The mother also deposed to having been physically assaulted by the father, including on one occasion in front of the children in November 2011. On that occasion, she asserted, the father attempted to choke her in front of the paternal grandmother and his elder brother.
Noteworthily perhaps, the mother asserted that the father was in the habit of leaving the children with his own mother, Ms L, “who is 82 years old and has hip issues and other physical issues”.
The mother’s affidavit asserted that the father had in October 2013 sent two friends, Mr D and Mr N (surname unknown), to her home to threaten her and Mr M.
The affidavit went on to allege the father’s criminal history, asserted that the mother does not take drugs nor does her partner Mr M, and that they were homely people who loved looking after the children. She proposed that both children be returned to her care.
Otherwise, the affidavit essentially traversed the father’s material, taking issue with most of it.
The father responded promptly on 19 December 2013. Naturally enough, he took issue with most of the issues the mother had raised. He denied sending his friends round to threaten the mother and all allegations of family violence. The father annexed as exhibit D-1 further entries on the mother’s Facebook in response to the mother’s claims to be a homely person. These show the mother at (omitted) Club on 30 March 2013 and 14 April 2013. This of course was before the commencement of her relationship with Mr M.
One entry, while in one sense not directly relevant to the proceedings, is nonetheless disturbing. On 26 August 2013, the mother published a poem in the following terms:
“I’m gonna slash and gash
Cut another hole in your ass
Spill blood on the walls and play tennis with your balls
If the phone rings
Don’ t answer the call
I’m gonna slit your throat, fuck you like a goat
Peel your foreskin off and make a Winter coat.”
The relevance of this extract is not the distaste that it gives rise to, although I concede that I find its terms offensive, but rather the sort of immaturity and state of mind that it shows on the mother’s part only about a year ago.
The father denied, effectively, all the serious allegations made against him and asserted, inter alia, that his mother and elder brother could testify to the fact that he had never committed family violence against the mother. The father also complained of Mr M’s criminal record, but the materials annexed as D-4 need to be approached with caution, because amazingly it emerges there are two Mr M’s, both with the same date of birth and both of whom have had criminal records.
Annexure D-5, however, is a series of extracts from Mr M's Facebook. These are unattractive but not, in my view, of major significance, save to the extent they show a level of immaturity on the part of Mr M.
Perhaps unsurprisingly the father’s brother, Mr J, filed an affidavit on 19 December 2013, wholly supportive of the father and denying any family violence. Once again, Mr J was not called to give evidence.
On 8 May 2014 the mother filed her next affidavit. She deposed she had not had X in her care for some time and that X had refused to visit since 15 April 2014. She detailed an unhappy series of events where X had been taken to changeover but refused to go with the mother. She sought that arrangements for changeover be changed, so that the father not be present, and that the changeover take place at X’s kindergarten. She further complained that the father was not appropriately keeping her informed of and involved in the children’s medical treatment.
On 13 May 2014 the father filed a further affidavit in Court. This was designed to bring the Court up to date, so to speak. Notwithstanding this, a certain amount of the events was a rehash of earlier complaints about Mr M. The essence of the affidavit was a series of complaints about Mr M’s volatile and inappropriate behaviour and the resultant alleged concern of the father that the children did not want to go to see the mother because of Mr M’s violence to them.
The affidavit condescended to hearsay descriptions of Mr M’s alleged difficulties with a previous partner and disputed the alleged failures to properly consult with the mother as to the children’s health and their treatment.
Perhaps the most noteworthy material arising from the affidavit is annexure D-2. These are a further series of Facebook posts. These Facebook extracts show an exchange commencing with the mother with someone called Mr A and progressing to involvement by Mr M. These extracts show a marked propensity to violent threats on the part of Mr M. Mr M made a post addressed to Mr A, whom it turned out in evidence he had never met, to this effect:
“Listen here hero don’t be threatening me with guns!!! I have my licence too faggot..!!! N good on u for 13yrs of kickboxing coz ur gonna need it I was brought up on the streets!!! Anytime any place anywhere.”
There then followed an exchange which, inter alia, appears to have involved Ms A (I would infer a female relative of Mr M’s), dealing apparently with circumstances when Mr M was arrested and he went to jail. Mr M posted:
“But wen u bashed that cop Mr M he deserved it bcos he said u where resisting but u clearly weren’t & wat else he said wasn’t on he could’ve gotten in2 serious trouble if u wanted 2 take it further.”
More telling is Mr M’s reply:
“I know X da cunt deserved everything I gave him… telling me he would hand cuff me n make me watch him rape my sister n bash my mother…..it still makes my blood boil… I wont let anything happen 2u X remember that...”
The tenor of the various extracts is a mixture of threatening, violent, immature, un-self-controlled and racist remarks.
It would appear from one of the posts that at least from time to time Mr M’s interrelationship with his own family is conflicted.
The father’s next affidavit was filed on 26 May 2014. He deposed to difficulties in trying to get X to spend time with the mother and repeats his concerns as to Mr M’s violence. The father deposed that X and Y had told him that Mr M had hit them. He further deposed that he had been taking X to a Dr K, a psychologist, as well as a doctor, regarding problems that X was facing arising out of the proceedings. Annexure D-1 is a record from the medical practice which X attended, but I note that while it records matters which would on their face go to support the father’s position, it seems quite clear that any disclosures made by X were very much made in the context of the immediate presence of her father.
The mother’s next affidavit was filed in support of her contravention application on 24 July 2014. She complained of the failure of the father to comply with orders for X to spend time with her. She repeated her concerns that the father was still consuming alcohol to excess.
On 21 August 2014 an affidavit of Mr M was filed. He responded to the father’s allegations against him and deposed at paragraph 5:
“At no time have I raised a voice or physically disciplined the children.”
Mr M did not deny having a criminal record, but denied ever being violent towards a woman or child. He took issue with the assertion that X was scared of him and said that X is a normal, happy child when she spends time with the mother and himself. Mr M also took issue with several matters raised in the family report, which by that time had been released, and went on to respond to the assertions made about his tumultuous prior relationship. He said that it was the ex-partner who was the one violent to him. He admitted that he had lost his licence for drink driving but said “I am paying the penalty for that and have learned my lesson.”
He also took issue with a minor incident recorded by the report writer about spiders which, in my view, is of no great moment.
The mother’s affidavit, filed 21 August 2014, is essentially a reprise of prior matters and adds little. She made a number of criticisms of the family report, which, in my view, are not made out.
The father’s affidavit, filed in court on 27 August 2014, in my view, adds little, save that it is deposed that on 4 August 2014 X told the father that Mr M had kicked her in the knee and pointed to a bruise on her leg.
The father filed a further and final affidavit on 4 September 2014. He denied allegations of alcohol use. He responded in detail to the mother’s affidavit, taking issue with the matters raised.
In particular, he annexed D-7, a notice of order made at the Magistrates’ Court of Victoria at Sunshine on 25 June 2014. In relation to a charge that he had made a threat to kill the mother on 14 September 2013, the same was “Struck out - Withdrawn.”
The father annexed as D-9 copies of clean drug and alcohol screens. He further confirmed that his mother was 71 at the time the respondent mother asserted in her affidavit that she was 82. He asserted that the mother would have known the paternal grandmother’s age, because she helped organise her 70^th birthday party the year before.
The father annexed annexure D-12 a copy of a doctor’s certificate said to arise from the kicking of X by Mr M. That medical certificate relevantly asserts:
“This is to confirm that X consulted me today, as She is suffering from right knee pain and after examining her I found bruising on her right knee, ROM is normal, no tenderness. As patient said her mother’s partner kicked her knee.”

While I have no doubt X did say that to the doctor, I have equally no hesitation in concluding that the father fomented the report in those terms.
Annexure D-13 is a certificate from the same doctor, saying that:
“X does not want to see her mother because she is afraid of her mother’s partner (as she said).”
The doctor has not been called to give evidence and while, once again, I fully accept that X made the disclosure to him, it is difficult to evaluate it in circumstances where the father so clearly would have been there and of a mind to achieve such an outcome.

The Family Report

Ms C set out the details of the parties and the character of their competing claims at pages 1 to 7 of her report. In my view, her characterisation is an accurate distillation of the materials. At pages 8 to 9 she set out the current arrangements for the children. I note that X attends (omitted) Preschool on Monday, Wednesday and Friday and Y attends (omitted) Childcare in (omitted) on Wednesdays and Fridays. Changeover occurs either at kindergarten/childcare centre or at other times at the (omitted) Police Station. Ms C noted the difficulties with X spending time with her mother at paragraph 19.
On page 10 Ms C identified the issues in dispute, in my view generally correctly as being:
·    What parenting arrangement will be in the children’s best interests;
·    What, if any, is the risk to the children in the care of their mother and Mr M;
·    X’s observed high levels of anxiety at separation from each parent;
·    Inconsistent parenting arrangements and the impact on X and Y of the ongoing conflict between their parents.
Ms C detailed her interview with Mr Doonan on pages 10 to 13. Inter alia she recorded the visits of X with Dr K, the psychologist, and noted that Dr K had not met with or spoken to the mother about X.
Ms C recorded at paragraph 29, page 12, that X has difficulty using the toilet for bowel movements and she will ask for and insist on wearing a nappy at such times. The father further reported X wants to drink from a baby’s bottle but that she is almost weaned off that need.
Ms C recorded that the subpoenaed police records about the father cover the years 1995, 1997, 2001 and 2008 and the father’s convictions for offences related to dangerous driving, intentional criminal damage, resisting arrest, drunk in a public place and traffic and possession of cannabis (paragraph 33, page 13).
The interview with Ms Bradshaw runs from pages 13 to 15. I note that the mother has had difficulties as a child and still has difficulty in her relationships with some of her close family members. Unlike the father, the mother was of the clear view that the children were managing changes well and got on well with her partner and were excited about the forthcoming baby (paragraph 37, page 14).
Mr M was also interviewed and the record of his interview is at pages 16 to 17. Mr M reported his acquired brain injury as a result of a random attack in late 2012. Mr M hopes to be able to return to work as a forklift driver. At paragraph 43, page 16, Ms C recorded:
“Mr M indicated he plays with X and Y and helps out with their care. He appeared emotional and had tears in his eyes when he was asked if he had hit or yelled at the children. He said he has never hit or yelled at the children. Mr M described his own experiences at parenting and said he was raised to be respectful to all people and that he would never harm a child or a woman.”
Ms C noted at paragraph 44 the police records in relation to Mr M, which report a number of convictions between the ages of 23 and 30 (i.e. very recently) for drinking driving offences and resisting arrest. She went on to say:
“The number of family violence incidents and applications for Intervention Orders in the police records suggest Mr M may have difficulty in containing and managing his anger when in conflict with others. The police were called on six occasions to the home of Mr M’s former partner and her children throughout 2012 and July 2013. Mr M also caused damage to property at the home of his former partner.”
A further record of family violence incidents involving Mr M and his sisters is no longer relevant, as it seems that this related to the other Mr M.
The paternal grandmother was interviewed, but, in my view, that adds little in the circumstances.
Ms C recorded her interviews with the children and observations of the children with the parties at pages 18 to 22. I note that at paragraph 49 Ms C recorded:
“In discussion about spending time with their mother and Mr M, X did not express any overt fear of Mr M. She quietly said “Mr M has got a hat and scarf, I like his scarf and we play ball with mummy and Mr M.” X volunteered that they have to be quiet at their mother’s home and get sent to their room if they make noise. Ms Bradshaw said Mr M senior has had heart surgery and still recovering which is probably what X was referring to. In discussion with X about spending time with her mother, she said “I cry and don’t want to go to Mummy’s [be] cause I am tired.”
There then followed an account of an issue to do with spiders, which I will return to but which I regard as being of little moment.
At paragraph 50 Ms C continued:
“The mother and Mr M entered the room as the children smiled and ran to them. Mr M joked and bantered to X with a style of humour that is essentially adult and to which young X smiled politely but clearly did not comprehend. Both adults then encouraged the children to draw on the whiteboard. The girls excitedly engaged as they drew around their hands and wrote their names. X did not ignore Mr M but she was more focused on attention from her mother. Ms Bradshaw was responsive, encouraging and patient with X as she helped her navigate her way around a computer game. Mr M focused his attention on Y who was busily engaged in imaginary kitchen play and instructed Mr M as to what she wanted him to do. He followed her lead and engaged playfully with Y. X was observed as circumspect with Mr M in this setting but she did not appear fearful of him, just more focused on having mother’s attention.”
It is not necessary to refer to the observation of the father and his brother, Mr J, with the children, as it is clear that that was uniformly positive.
Feedback from Learning Childcare (omitted) is addressed at page 22. Relevantly, this informed:
“Y is reported as a quiet child who has only recently begun to interact with other children and staff. There is no reported or observed stutter in Y’s speech. Her father and sometimes her paternal uncle often bring Y. She is reported as experiencing some separation anxiety when her father leaves but in recent months she has adapted to him leaving. Ms Bradshaw has only recently begun to attend and usually Mr M accompanies her. It was observed Y was often reticent to kiss and hug Mr M goodbye.”
Feedback from (omitted) Pre-School at page 23 relevantly stated:
“X is reported as a productive, thriving, engaging member of the kinder community and there are absolutely no delays evident in her learning. X is described as school ready, she is considered as quite bright and always shares information and participates well. There are no concerns regarding X’s speech, her ability to toilet age appropriately in this setting and her development is all reported as normal. Both parents indicated X had some delay as compared to Y. Both parents attend the kinder regularly and are reported as repeatedly engaging in behaviours that demean the other and as demanding of staff time to manage any difficulties with the parenting arrangements. Whilst X is reported to have said independently that she did not want to go to her mother’s home because of Mr M, the staff have not observed any reluctance by X to go home with her mother and Mr M at the conclusion of the kinder session.”
I do not propose to set out the evaluation section in detail, but the following extracts are, in my view, significant.
Ms C wrote (paragraphs 60-66):
“60. Mr Doonan and Ms Bradshaw appear to be reasonably attached and connected to their children. The reported anxiety in X’s behaviour about spending time with her mother, reflect her emotional distress, which may be as a result of the parental separation. X now spending significant time with her mother may also have exacerbated her separation anxiety.
61. Each parent alleges that the other poses a risk to the children. Mr Doonan believes Mr M threatens the children’s wellbeing and safety as he has a reported history of violence, family violence, verbal threats and drug and alcohol use. Ms Bradshaw believes the children are at risk in the father’s care because of his reported alcohol abuse and that the paternal grandmother undertakes the primary care of the children when the father is at work. DHS have not found cause to intervene with the family indicating in their assessment that the children are not at risk in either parent’s care.
62. The current situation appears to have evolved initially from Y not being returned to Mr Doonan’s care for an extended period and then because X was not routinely spending time with her mother. There is little trust between the parents regarding decisions about their children and they frequently deride the other’s parenting capacity. The parenting relationship has been further exacerbated by the family dynamics, which appear suffused in tribal warfare, as each parent, Ms Bradshaw’s partner and extended family are involved in the parenting arrangements for the children.
63. Post separation, the parents needs appear to have become more important than X and Y’s need for stability and predictability. The children have had to manage random periods of time with their mother, adjust to being split as Y spent more time with Ms Bradshaw and X more time with Mr Doonan. Both have been the victims of the ongoing parental bickering and tensions at changeover.
64. X is reported at kinder as initially having heightened separation anxiety but otherwise she is thriving and developmentally appropriate in every way. However, her presentation about spending time with her mother and at changeover reflects a child with a high level of anxiety and emotional distress. This suggests X’s separation anxiety and traumatised presentation may be exacerbated by the hostility she witnesses between her parents and her reported fear of Mr M.
65. X will begin school in 2015 and predictability and consistency in her routines will be important as she negotiates the developmental challenges associated with adapting to the school environment. Transitioning back and forwards between homes where all the adults exhibit considerable negativity and from which they have been unable to quarantine the children, will not be in her best interests.
66. Y has not had optimum opportunities to develop her attachments. Separation occurred when she was just twelve months of age and the next two years were spent primarily with her father with random periods with her mother and then a lengthy period where she had no contact with her father and sister. The impact of this would have been confusing and traumatising for Y. At childcare Y struggles with separation and is reported as socially quiet and isolated at childcare.”
Ms C went on to analyse the parents’ capacity to care for the children in terms that are generally more favourable to the father than the mother, and then dealt with Mr M. It should be noted that Ms C’s assessment of Mr M was perhaps distorted by the reference to the family violence orders sought by his sisters which in fact never occurred.
At paragraphs 74-75 Ms C summarised the matter as being:
“74. The children have two parents who both love and care about them and each along with other family members provide them with different and enriching experiences. There are competing applications for the children to live primarily with each parent. Although there are many positives for the children to spend almost equal time with each of their parents, the hostility and the lack of capacity for effective parental communication and co-operation about the needs of their young daughters, does not augur well for continuing the current arrangement. X’s reported persistent reluctance to spend time with her mother and Mr M and her considerable anxiety at changeover as well as the reported difficulties between Mr M and Mr Doonan and the involvement of extended family, also contribute to an arrangement that is not in the children’s best interest.
75. X and Y are young and the relevant literature strongly supports the view that young children, especially in the absence of a co-operative parental relationship, benefit if they are anchored in a primary residence. On balance and on the basis of the information provided and the assessments it is recommended the children live in a primary care arrangement with Mr Doonan and spend consistent time with Ms Bradshaw. Such an arrangement will provide X and Y with predictable routines and minimal transitions which will reduce their exposure to conflict and provide them with a cohesive sense of their whole family.”
Ms C went on to make a number of recommendations consistent with that primary finding, including a transition to the father’s care by the end of 2014 and various ancillary matters.

The evidence given in Court – the father

This case ran over a number of days. As with the affidavit material, any endeavour to traverse it in detail would lead to this already lengthy judgment being yet longer again. I propose to paraphrase.
The father was called and gave evidence in chief about the difficulties he has trying to make X go to her mother. He said that following the most recent Court hearing, at which he had been informed he would be sent to jail if he failed to comply with Court orders, he had used more force and with a lot of struggle had been able to drag X kicking and crying from the house, saying she was scared, but made her go to kindergarten. He said that X loves kinder but fears Mr M. He said that the last two weeks have been a little bit easier.
He confirmed that he had been trying to reconcile with the mother following separation. He also sought to explain a Centrelink application as having been done essentially at the mother’s behest.
He was not moved in cross-examination as to the extent to which Y spent time with the mother and continued to maintain that Y was not with the mother following separation, until she was over held, for more than two days per week.
He said that the three/four regime was not going well, and that Y was happy to come home. He said that the mother and X do not get along, that X loves attention and the mother is preoccupied. He said the problems are with Mr M.
The father was cross-examined in some detail about his employment in (occupation omitted). It is sufficient to say that I accept the father’s evidence that he can work any days that he wants, that he does not work on the weekends, and that he works parts of one to two days per week, which adds up to a day and a half a week. Despite the vigour and skill with which he was pressed I had to say that I found his version of his work practices convincing. He makes enough money to live on and is simply not wishing to work more so as to spend time with looking after the children.
The father was adamant that X had been smacked by Mr M. He said he really does try to make X visit her mother but said words to the effect, “I can’t bring myself to carry her kicking and screaming with fear in her face.”
The father was aware that the Department of Human Services (“DHS”) are not taking his complaints further (although a current investigation is underway) and was not satisfied with DHS responses.
The father admitted being charged with a threat to kill arising out of an incident in December 2013 but said that the case was dismissed as it was all false. He was cross-examined about his criminal record but said he had changed since 2008. This was the last of his relevant convictions. He said he does not drink or touch drugs and has grown up since he became a father.
The father was adamant that Y had told him that Mr M smacked the children and said Mr M has a temper. He says he has never hit his children and does not have to discipline them much. He admitted keeping X at home for eight weeks because of overheating and variable temperature. He said he called the mother and kept her updated about this.
Under cross-examination by the counsel for the Independent Children’s Lawyer the father said X was due to start school next year and was school ready. She no longer uses nappies and just uses a cup for drinking milk. The toileting had been satisfactory for about two months. It had resolved suddenly. The father said X should go to (omitted) school where he himself went and he was very critical of (omitted) which he said was further away and in a bad area with a lot of crime. He said most of the 20 children in the kinder group were going to (omitted) and a particular friend called A was going to (omitted). He conceded that a cousin of X’s attends (omitted) but that cousin is older. He has not completed paperwork for the schools because he was leaving this decision to the Court.
Cross-examination about the children’s routine when in his care was in my view unremarkable. I note that X has not been to the dentist, something both parents bear responsibility for. The father denied speaking badly about either Mr M or the mother and repeated that X does not want to go to her mother even though he tries to tell her nice things will be there. He repeated that X had told him that Mr M had kicked her in the knee and that she pointed at her knee whilst saying this.
The father confirmed that if he is not at home the paternal grandmother looks after the children with assistance from his brother Mr J. He said he had not had a drink since March 2014, and I would say that I accept this evidence which was given with sincerity. The father is a social drinker only.

The evidence of the mother

In evidence in chief the mother confirmed that she seeks that X attend (omitted) School. She has a cousin there. It was indeed the school she herself in part attended. She said (omitted) was an easier school to get to being five minutes on back roads from where she lives, but she would have to go on the freeway to get to (omitted) and would drive past the father’s house. I interpolate and say that from the map exhibit A1, which is conceded to correctly show the positioning of the parties’ dwellings and the schools it is clear that the mother would not have to go past the father’s house to get to the (omitted) school.
Under cross-examination the mother was adamant that following separation she had Y from Mondays to Friday, but not X because the father did not want her to leave home. She maintained that the paternal grandmother and the father’s brother saw the father choke her in 2011 and there was another witness but that person is impaired. She said that the paternal grandmother screamed to Mr J (the father’s brother) to get the father off her, but conceded that this description was not set out in her affidavit. She confirmed that she did not call the police. She said she had left for a week and taken her children with her. Once again she conceded that this was not in her affidavit material. The mother was cross-examined about the extent of her relationship with the paternal grandmother. She said that she was not sure how she got on with the paternal grandmother and that the grandmother was constantly helping the father with his work. Some of the mother’s answers about the paternal grandmother had all the appearance of being made up on the run.
The mother conceded that despite any earlier difficulties, the relationship between Mr J and the children was no good.
The mother was adamant that the father had a drinking problem on an ongoing basis and said she had videos from September to October 2013 showing him throwing the children around and being drunk. She said the police went around eventually, but the children were okay. She conceded again that the reference to the video was not in her affidavit material.

The mother was cross-examined about her assertion that the paternal grandmother was in her 80s. It was put to her that she had organised the grandmother’s 70^th birthday party while living with her. She was driven to concede that this was true.
The mother said that after separation she only saw X when it suited the father, and this had involved only two nights since separation.
The mother confirmed that she had known quite a bit about Mr M when she first met him, and had not been concerned by what she knew of his history, as she had her family there. They lived at first with her own mother. She said that Y was always at the father’s when Mr M was there. She had only found out later about Mr M’s disqualification for drink driving. She had allowed some unsupervised contact between Mr M and the children. They had moved to his parent’s home in (omitted) in October 2013.
The mother had refused to let the father see Y because of the father’s threat to kidnap her. This, of course, was a threat allegedly made by his friends when they came to threaten her. She had not asked the father about it. The mother’s remarks were, at times, gratuitously critical of the father. For example, she stated that if the father moved, he would not tell her and give her his address. This remark was not made responsively to any question.
The mother denied that Mr M had sworn at or abused the father. She said Mr M does not say Y is his child now, and has not taken over the father’s role. She said Y calls Mr M and that she does not encourage her to call him dad.
When taxed with exhibit D-2 and Y calling Mr M dad, her answers were unconvincing.
The mother was taxed with having described herself as the primary carer of X in an earlier affidavit, and had to concede that she had said this.
The mother said that Mr M drank at the start of their relationship, but stopped in February 2014. The mother was taxed with paragraph 5 of her affidavit filed 17 December 2013 in which she said, “I do not drink or take drugs, and neither does my partner, Mr M.”
Given her evidence that Mr M was drinking until February 2014, that assertion was plainly untrue.
The mother says that Mr M uses time-out to discipline the children. He puts the children into their room for five or 10 minutes. He does not lose his temper while the children are with him. He is bipolar and on medication.
Taxed with the Facebook posts involving Mr A, the mother admitted that Mr M has threatened other people. She said that she assumed he has threatened the father, but has only left Mr M alone with the children once. She said Mr M has grown up since he last lost his driving license in 2013 at the age of 30.
The mother confirmed the difficulties with getting X to come and spend time with her, but said that she does have an interest in X. She denied that Mr M attended (omitted) Police changeovers and denied Mr M misconducting himself on the occasion referred to by the father when it was asserted that Mr M had misbehaved as the father was leaving changeover. She said she was not sure if the father was abused by Mr M on this occasion even though she was present. Her answers in this regard were most unconvincing.
The mother dealt with the spider incident and said that X does not like spiders but Mr M is even more arachnophobic. She said there were two spider cards in a pack. I would interpolate and say that I accept this aspect of the evidence which puts this minor and irrelevant sub-issue to one side.
The mother was adamant that the father did not encourage or facilitate contact, notwithstanding exhibit D-4 which showed the father texting, “Call now if you want”.
The mother was cross-examined about an argument between Mr M and his former partner, Ms S. Ms S threatened to kick the mother in the stomach and hurt the unborn child. The mother took the children away after about a minute, although the incident itself continued for about five minutes.
The mother said that she wanted Mr M to go to a Father’s Day celebration, even though she is aware of the hatred between the father and Mr M. The mother confirmed that changeovers were easier at kindergarten and that X did not like the changeover at the (omitted) Police Station. She confirmed that her proposal is not for alternate weekends, but the father should spend three out of four weekends with the children. The mother confirmed that X is not behind at school and has no problems reading.
Under cross-examination by counsel for the Independent Children’s Lawyer, the mother confirmed that she did not know Ms S but was aware that her relationship with Mr M broke down in 2012. Her application for an Intervention Order against Ms S was due to be heard the next day. The mother has a learner’s driving license and proposes to complete her test after the baby is born. She said she does not know how the baby will be until its birth. There is an issue about excess water on the baby’s brain.
She said that she had lost a child at 13 and a half weeks gestation in February 2014. Mr M gave up alcohol after that. She confirmed that one of X’s front teeth is black, but does not know why. She confirmed that the children get on well and it is hard for them to be separated. They share a room. She confirmed that Mr M’s parents do the driving as she has no license and Mr M’s is suspended. She said she would get Mr M senior or the train to get X’s school. She said the station is a 15 minute walk from where she lives. It is five minutes to (omitted) by car and 15 minutes to (omitted).

The evidence of Mr M

Mr M adopted his affidavit as true and correct.
He confirmed that he used to drink and sometimes still does. He drinks on special occasions. He does not drink when the children are in his care. He said his last drink was two glasses of scotch on Father’s Day. He confirmed that he met the mother in September 2013 and moved in with her after three days on 12 September. They subsequently moved to his parent’s house. He admitted getting on the phone once to the father. The mother had been receiving texts every day threatening her which he had seen.
He said he answered the phone and told the father to call only about the children. He denied threatening the father. He said he told the father not to ring seeking “to roll around in the hay again”, a remark I would take to be consistent with the father’s desire to reconcile. He said that Y called him dad once but she had been corrected. He said this happened again three weeks ago. He had not seen the Facebook entry describing this as cute.
Under further cross-examination, he said that he had threatened the father. He said the father had sent two friends around to the house and threatened that this would be the last time he would see Y. He had obtained an Intervention Order against the father’s friend. He said he could not remember what he had said when he threatened the father and was not able to say if the mother had overheard. He said Y was asleep in bed at the time. He said he was swearing towards the end of this conversation, but he had not threatened the father more than once.
Like the mother, he asserted that video Facebook shows the father drunk and throwing the children around and he said that, “I believe everything he is saying is due to jealousy.”
He denied the assertions of misconduct at changeover. He confirmed that he is bipolar. He said if he is happy he gets very happy, and if he gets upset, he is really upset. He said he has not got a bad temper, but that if the dog kills chickens, that makes him angry.
He said things outside on the farm do not make him angry. In contradistinction to the mother, he said he did not discipline the children at all. Never. He said he does not give the children time-out. He said he had never been so angry that he had to go for a walk.
The father was cross-examined about his relationship with Ms S and its sequelae. He attributed all violence in that relationship to Ms S, and that this had led to the numerous police attendances.
He gave details of the contretemps with Ms S in August 2014. While he denied any misconduct on his part, it was clear during this stage of the cross-examination that Mr M was extremely angry. His demeanour was unmistakeable. Mr M was cross-examined about his relationship with his two sisters. It is clear that that relationship is either bifurcated or poor.
Mr M adamantly denied hitting X in the knee. He said he had a good relationship with her. He said he had not scared X about spiders. He said he was petrified of spiders himself. He said that X was not scared of him, and there was no reason for her to be scared. During this passage of his evidence, Mr M’s temper was obvious.
Cross-examination by the counsel for the Independent Children’s Lawyer elicited that Mr M is a qualified (occupation omitted) who still has his (omitted) license. An Intervention Order proceeding against Ms S is still outstanding. He said that the first time he had heard of any allegation that the bashing that led to his brain injury might have arisen out of some misconduct on his part with a young male was in this trial.

The evidence of Ms C

Under questioning by counsel for the Independent Children’s Lawyer, Ms C made it clear that the pregnancy of the mother would not have altered her recommendations. She said she was aware of the father not complying with Court orders about X because of the child’s distress. She was not aware that the father was not taking her to kindergarten on a considerable number of days. She said the kindergarten staff had told her that both the parents were a problem because they argued and tried to involve staff. She was concerned about X’s absences but this would not alter her views. She remained of the view that there were still risks with Mr M because of his previous history.
She referred to the difficulties of the children already experiencing conflict and violence. She also was of the view that only Mr M’s mother was doing the driving in the household at the moment was problematic. She was less concerned about the father’s criminal history, the most recent incidence of which was 2008. She would be more inclined to recommend equal time if Mr M was not there, but the mother has no home of her own.
Under cross-examination by counsel for the father, Ms C confirmed that the interviews with the parents gave her the impression the father had been the primary carer after separation, although there were differing versions as to how this had occurred. Ms C had found the parties’ accounts of the time spent in some ways hard to understand. There were, however, no problems between the children and the father and Mr J.
When questioned about discipline in the mother’s house, she said the mother sends the children to their rooms. She said that Mr M denied hitting the children. This brought tears to his eyes. Mr M was playful and engaging with Y during observation. She confirmed that there was no developmental delay on X’s part, although the mother had raised this issue at the section 11F conference. She said Y had separation anxiety and had problems separating at childcare. It was very important that Y had a primary place of residence, given that separation took place when she was only 12 months old and she has had an unsettled history of residence thereafter.
Under cross-examination by counsel for the mother, it was put to Ms C that X had only been spending any significant time with the mother in the last fortnight. Ms C said this would alarm her and that she had not understood that X had not spent time with the mother. She had felt only that X was not going routinely to changeover. She said that she accepted that X had told the father she was scared of Mr M. The father said that X said that Mr M yells and hits her. Ms C did not accept this as a fact. Mr M was demonstrably upset when this was put to him.
Ms C confirmed that she did not say the children were not safe with the mother but she felt that the children needed routine which would be better met with the father. Ms C was concerned that X was not spending time with her mother but believed the father was trying to protect her from being distressed. Ms C was not sure what X’s distress was and was not sure whether it was the mother or Mr M or leaving her home where she had lived all her life was the problem. She said this was a highly anxious child with significant regressive behaviours, for example, the nappies and the bottle.
Ms C opined that Y’s experiences of her mother might have been different to her sister’s. It was possible X had not had care from her mother at an early age. X was only anxious about her own parental issues and the kindergarten director said X was doing well. Ms C was not sure if X was being blocked from seeing her mother. Y has different anxieties and is isolated at childcare and does not want to go. There was separation anxiety when she left her father.
Ms C denied that there was an excessive emphasis on Mr M in her reports and material.
In the cross-examination about X’s toilet training, Ms C pointed out that this sort of behaviour was not uncommon where there is anxiety.
Ms C was clearly of the view that the mother had not looked after X well when X was young, possibly as a result of the mother’s own age and having other things to do at that stage.
Ms C conceded that the father did not recognise how important it was that the children have a good relationship with both parents.
Ms C thought the father’s concerns about Mr M were genuine. She noted that X’s behaviour at changeover was well-observed and extreme. Something else was operating. X sees the father’s place as her home.
Ms C was not aware that X had been absent for weeks from kindergarten because the kindergarten staff had not told her. The kindergarten staff told Ms C that X said she did not want to go to her mother because of Mr M, but when they came, she was happy to go with them. She said children will do what they are told and is not surprised that X leaves kindergarten with her mother and Mr M.
Ms C noted that the difficulties referred to in paragraph 67 of her report refer to the issues surrounding Mr M. It is more likely that this is not because of not spending time with their mother. It is more likely because of the conflict between the parents. Children see this sort of conflict and become anxious.
Ms C noted that the father’s concerns about the children are genuine and that he has done the best he can. She thought the father would benefit from educational assistance, regardless of the result of this case, about how children pick up on their parents’ anxieties. She thought that the father could facilitate a relationship with the mother, provided this sort of assistance was given.
Ms C recommended family counselling with someone like Relationships Australia and noted that Y’s relationship with her mother was much stronger than that of X.

Some further observations about the witnesses

It is convenient to start with Ms C first. She was the only professional witness called. In my view, her evidence was given with evident sincerity and well within her area of expertise. She was quite prepared to and did make appropriate concessions, most particularly to questions put to her by counsel for the mother. She candidly conceded that she had not been fully aware (or, in truth, aware at all) of the extent of X’s absences from kindergarten and the extent to which she had not spent time with her mother.
The father’s failure to comply with Court orders in this regard and the failure to make X attend with her mother was concerning to her.
I should make it clear that I accept the veracity of Ms C as a witness without qualification.
The father struck me as being intellectually limited and emotionally somewhat fragile. While he was not giving evidence, he sat in the court with a female family member with her arm around him. I infer this was probably his sister. He sat with a demeanour one might describe most accurately as tragic, looking almost despairing.
Having said this, however, his answers in the main struck me as honest. He responded directly to questions put to him under cross-examination and while it is clear that, in a number of respects, he is notably lacking in insight, I accept the truthfulness of his evidence in a general way.
The mother, I regret to say, was not a good witness. I have already referred to a number of instances in which her evidence had the appearance of being made up on the run, or evasive. Some of her evidence was plainly untruthful. Her earlier assertions, for example, that the paternal grandmother was 81 years of age and that the mother herself had been the primary carer for X following separation, made on oath in affidavits, were patently untrue and she must have known that at the time she was swearing the affidavits.
The mother, in addition to being an unconvincing witness, also impressed me as being immature for her years and lacking in emotional self-control, as indicated by her sometimes puerile and offensive entries on her Facebook posts.
Mr M was also, in my view, not a particularly good witness. It was quite clear at times that he had some memory impairment and I draw no adverse inference from this, given his most unfortunate injury.
Nonetheless, the transcript will not reveal the evident tendency to temper that I observed in Mr M on more than one occasion. He is a big man, far bigger than the father, and I would have no doubt would be terrifying if roused.
That he does, on occasion, become roused is apparent from the mother’s evidence. She said that Mr M has to go for a walk when he is angry, whereas he himself denied it that this was ever the case. She said that he disciplines the children with time-out and he denied ever disciplining them.
It is readily apparent that I must approach the evidence of both the mother and Mr M with caution.
I regret to say, and it is most unfortunate that I should have to make a finding of this sort, as it must necessarily be distressing, that Mr M’s demeanour was entirely consistent with the appalling, threatening Facebook posts he has felt it appropriate to make from time to time. He is a man to whom violence is no stranger.

Findings on the facts

I have no hesitation in finding in the face of the evidence as a whole, that following separation the children remained with the father. It is not possible to make precise findings as to quite why this took place but it is clear that that was so. The mother, whose relationship with X appears historically to have been more distant, spent very little time with her thereafter. Y remained primarily in the father’s care, seeing the mother from time to time as the mother felt appropriate.
The father wished to reconcile with the mother, but unfortunately for him, Mr M came upon the scene. The extraordinary rapidity of the development of the relationship between the mother and Mr M says something about their impulsive behaviours and personalities. Within four days of meeting, Mr M had moved in to cohabit with the mother at the maternal grandmother’s home.
The mother over held Y, possibly because of some ill-advised remark of the father, and prevented the father from seeing her until the Recovery Order application. On any view, this was an immature and inappropriate response. It resulted in the splitting of the siblings for a protracted period of time.
It is impossible to make findings about the mutual allegations of threat and counter-threat, save that I have no doubt whatsoever that, as the mother herself ultimately conceded, Mr M has made threats to the father. He is well capable of doing so both in terms of physique and personality.
The extreme inter-personal hostility that has continued between the father and Mr M has as its causes all too obvious matters. First, Mr M has prevented any reconciliation possibility that the father admitted he was pursing. Second, there may well be an element of ongoing jealousy on the father’s part about the relationship between the mother and Mr M. Far more importantly than this, however, Mr M has threatened the father with violence in terms which I suspect would have been convincing.

I accept that the father is only a social drinker. I am concerned that the mother has asserted, on oath, that Mr M has not had a drink since February 2014, when Mr M’s own evidence shows that he is still drinking, albeit on a much reduced basis.
I am not able to find that Mr M has ever hit X. The father is hyper-vigilant about Mr M, whom he detests in any event, and thinks capable of any misdemeanour. I have no doubt that Mr M loses his temper from time to time and whether he yells at X or merely in her presence, I have no doubt that at least the latter has occurred. It would go to account for the circumspection in Mr M’s presence recorded by Ms C’s observation.
Nonetheless, Ms C was convinced that Mr M’s denials of violence to the children were sincere and while it is for this Court to make the final findings of fact, I give proper credit to Ms C’s opinion. I cannot be absolutely sure that Mr M has never hit the children, but I can certainly not find that he has.
Insofar as the assertions of violence by the father on the mother are concerned it is, once again, impossible to make a finding. The father’s brother has denied the incident and on any view the mother did not report it to the police. One would have thought that she would have done had it occurred. Mr J was not called to give evidence and so far as I recall, this matter was not touched upon by either side. It may be that I am in error in this recollection.
In any event, I am certainly not able to find that the father has assaulted the mother in this way. More importantly, perhaps, there is no suggestion that the father has ever assaulted the children or has anything other than a close and loving relationship with them.
As I find, the mother has historically been less concerned about X than Y. The rapidity with which she encouraged the child to adopt Mr M as a kind of de facto father is a matter of concern.

The statutory pathway

In the context of this case, it is not necessary to repeat the celebrated passage in Goode v Goode [2006] FamCA 1346 at paragraph [65] in full.
Both parties seek an order for shared parental responsibility. The Independent Children's Lawyer has not said anything to the contrary. Ms C’s report, at paragraph 76, also effectively recommends it. In these circumstances it is not necessary to say more. There will be an order for equal shared parental responsibility.
The making of that order requires consideration of orders for equal time, or in the event that this is not appropriate or practicable, substantial and significant time as defined in the Family Law Act 1975 (“the Family Law Act”).
Although the parties have been, from time to time, in something akin to an equal time arrangement, neither party now seeks it. Ms C’s report is strongly against it. In my view, it is clear that equal time is not appropriate or in the children’s best interests. It would also be impractical given the problems with schools to which it would give rise.
Turning to the question of substantial and significant time, neither side’s proposed regime accords with the definition in the Family Law Act. Ms C has recommended a regime designed to ensure that the children have a secure home base and I fully accept that recommendation. Accordingly, it would be inappropriate to make an order for substantial and significant time.
This then brings us to the crux of the matter, namely which parent should the children primarily live with. This matter is, of course, to be determined pursuant to the matters set out in s.60CC of the Family Law Act.

Section 60CC - the primary considerations

Everyone agrees that it is to the benefit of these children to have a meaningful relationship with both of their parents, at least superficially. Whatever reservations the father may have in truth about the mother having a relationship with the children, his formal position, at least, is that there is clearly a benefit in this. In the face of Ms C’s finding that both of these parents love their children and have a basically good relationship with them, it is clearly beneficial to them to have a meaningful relationship with both children.
The question as to whether there is a need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, a matter to which greater weight must be given (see s.60CC(2A)), is slightly more difficult. However, it should be noted that neither parent is seeking to exclude the other entirely from time with the children. Accordingly, whatever hesitations one might have about either parent, it is insufficient to outweigh the benefit to the children of having a relationship with both parents.

Additional considerations - Section 60CC(3)(a)

It seems clear that at the present time X has, from time to time, expressed a marked reluctance to spend time with her mother. X is, however, only five and her views, in my opinion, probably in large part reflect her father’s view about Mr M. Little weight can be given to her views accordingly. Indeed, X expressed no overt fear of Mr M to Ms C. Y has not expressed any views.

Section 60CC(3)(b)

The children clearly have a well-established and warm and loving relationship with their father, and a very close relationship with their uncle, Mr J, and the paternal grandmother. They have lived most of their lives with these three people.
The children, equally, have a close and loving relationship with their mother. Y appears to have an excellent relationship with Mr M. X’s relationship with Mr M is more nuanced as indicated by Ms C’s report. There is no evidence of the relationship between the children and the maternal grandmother nor the parents of Mr M with whom the mother and Mr M presently live.

Section 60CC(3)(c)

There is no doubt that the father has taken all appropriate steps to participate in making decisions about major decisions about long-term issues relating to the children (to the limited extent to which this has yet occurred) and to spend time with and communicate with the children. The mother’s position, by way of contrast, is slightly more difficult to work out.
I have not been able to avoid the conclusion that immediately upon separation the mother was focused upon other matters. On any view, she has not been as concerned to inter-relate about X as much as she has been with Y, although I emphasise that I have no doubt that the mother loves X dearly.

Section 60CC(3)(ca)

In the peculiar circumstances of this case, this section has little work to do. The father works no more than he has to, but I accept that he does this so that he can better spend time looking after the children. The mother has not had much opportunity to maintain the children because they have only fleetingly been in her care with the exceptions of the times Y has spent with her after separation.
So far as the time the parents were together is concerned, it is not possible to make conclusive findings, nor in the circumstances is it necessary to do so. Events have well and truly moved on. I do note, however, and accept, Ms C’s observation that the mother probably was less engaged with X when she was very young. My conclusion reflects a combination of the mother’s extreme youth at the time and the current state of X’s relationship with her mother.

Section 60CC(3)(d)

Both parents seek that the children live together. It is clearly high time that this occurred. It is clear on the evidence as a whole that the children love each other and miss each other. The effects of separation have been described by Ms C, in my view, convincingly, as detrimental to Y.
The question inevitably arises as to what will happen if separation from the other parent takes place in the sense that they cease to live in a three/four relationship and move to something less.
It is not possible to be certain quite how the children will take the imposition of a new regime, but given that on any view of the matter, there has to be a new regime, this is a matter that simply has to be accepted.

Section 60CC(3)(e)

This subsection has no work to do in the particular circumstances of this case.

Section 60CC(3)(f)

Both of these parents have, in my view, flawed personalities. The father is curiously fragile and does not understand the vital significance of X’s relationship with her mother. The mother is immature for her years (as indeed is the father, in my view) and both present to me as parents who may well have their difficulties. Nonetheless, they are both loving parents whom the children both love. They are at least adequately able to look after the children when in their care and to provide for the needs of the children accordingly. However, the father requires further assistance, as Ms C said, in the form of education to understand the importance of X’s relationship with her mother, this being part of her emotional needs.

Section 60CC(3)(g)

Both these parents are, as I have already said, to an extent immature. The father’s lifestyle seems to me to be unobjectionable. I have rejected the criticisms of him as being drug and alcohol affected (his screens are entirely in his favour). Unlike the Independent Children’s Lawyer’s counsel, I commend the father for deciding to work less, earn less and have more time with his children. His evidence that he has grown up since he became a parent and the absence of convictions since 2008 support the proposition that following a troubled youth, he has now matured.
The mother is plainly still a person lacking in self-control. The offensive nature of her stupid Facebook posts makes this clear. The Facebook exchanges recorded with Mr M, albeit reflective of the first infatuation in their relationship, (something that cannot be the subject of excessive criticism as it is on one view a universal human experience), nonetheless do cause me some concern.
Nonetheless, the father’s assertion that the mother is, so to speak, an out of control party animal, is plainly not made out. She lives in the country on a 20 acre property, not in the middle of the central business district.

Section 60CC(3)(h)

This is not relevant.

Section 60CC(3)(i)

I have already dealt with this matter in other paragraphs. Both of these parents love their children but have their weaknesses.

Section 60CC(3)(j)

There is no doubt in my view that there was family violence within the extended meaning of the Family Law Act, involving arguments, shouting and screaming while the parties were living together. So much is obvious from the materials as a whole. Nonetheless that is not now a matter of any moment. The threats made by Mr M to the father are a regrettable part of the factual background.

Section 60CC(3)(k)

I am obliged to pay regard to the Intervention Order taken out against Mr M by the father and I note the Intervention Orders taken out by the mother against the father and his attempt to take one out in response. In the context of the case, while concerning, none of these matters take the matter any further.

Section 60CC(3)(l)

It is plainly desirable to make orders that will bring this litigation to an end. Nonetheless, there is one aspect of the matter that causes me concern.

Section 60CC(3)(m)

Any other matters. Ms C’s report recommends that the children live predominantly with their father. I agree. They have lived predominantly with him as their primary carer all their lives, save for the occasions when the mother has over held Y. Ms C’s report and her oral evidence were ultimately unequivocal. They support the children remaining in the primary care of their father.
The concerning aspect of the matter, and the one that clearly caused the more nuanced submissions of the Independent Children’s Lawyer, is the disgraceful failure of the father to take X to kindergarten so that she can spend time with her mother. I have no reason to doubt that X’s behaviour is extreme, but the fact is that she leaves kindergarten perfectly easily with her mother and Mr M. It is as I find far more probable than otherwise that the reason for X’s behaviour is her anxiety flowing, at least in large part, from her understanding, intuitive as it may only be, of the tensions between her father, Mr M and thereby her mother.
The father’s concerns about Mr M are understandable. Not only has Mr M threatened him, the mother has plainly also sought to promote Mr M as the child’s father. I do not for a moment accept the proposition that Y has only called Mr M “Dad” once. The mother’s Facebook post shows that she was lauding this, even at the start of the relationship. Furthermore, the mother’s attempt to have Mr M attend a Father’s Day celebration, knowing that the father would be there, and knowing that the father would detest Mr M’s presence, speaks volumes about her understanding of the role that Mr M ought or ought not to play in the children’s lives.
The father needs to get to grips with the fact that the mother has moved on and formed another relationship. Whether he is conscious of it himself or not, and given his intellectual deficiencies I would not be surprised if he were not, he is seeking to punish the mother and to restrain X from having a relationship with her mother. He needs to get out of that mindset forthwith.
In order to assist him in doing so, I propose to order further counselling through Relationships Australia, designed to assist the father in dealing with his own emotions about Mr M and about the necessity of getting X to have a relationship with her mother.
X surely also would benefit from counselling to assist her in understanding that she is perfectly permitted to and indeed ordered to spend time with her mother. I will hear the parties as to what orders might best achieve this latter aim.
Likewise, the mother and Mr M should attend counselling to enable them to understand the undesirability of fomenting the negative views that they clearly express about the father, and all these parties need assistance in regulating their emotions as adults.

Conclusion

Notwithstanding the concerns I have set out, the material in this case as a whole leads inevitably to the conclusion that the children should live predominantly with the father and spend time with their mother as recommended by Ms C. Not only will I make the orders that Ms C has recommended, but I will further order that the children attend the school closest to the father’s house. This is plainly the most practical way to proceed.
I do not propose to make orders that the children not be brought into contact with or left alone with Mr M. They are plainly unworkable. In the ultimate I have not been persuaded that Mr M is untruthful when he says he never hits children. I would express some doubt as to whether that is the case with women.
All parties will be prohibited by injunction from using physical discipline on the children. The mother and Mr M will be ordered not to permit either child to call Mr M “Dad” or “Daddy” or otherwise to refer to him as their father.
Given that the recommendations in the family report have been somewhat overtaken by events, I will request the Independent Children’s Lawyer to prepare draft orders and will then, if necessary, hear from the parties.

I certify that the preceding two hundred and six (206) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 28 November 2014

[2014] FCCA 2666

28 November 2014

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Abuse of Process