EMD and FYM - [2004] FMCAfam 694

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EMD & FYM

[2004] FMCAfam 694

FAMILY LAW – Children – contact – residence – parenting capacity – family violence – children subjected to numerous changes in residence – children need stability – where mother suffers major depression – mother’s future arrangements uncertain – father has more settled future arrangements – where parents have poisonous relationship – contact arrangements structured so that parents do not come into contact with each other.

Family Law Act 1975, ss.60, 62, 68
Real Property Act 1900, s.87

R and R: Children's wishes (2000) FLC 93-3000
H v W (1995) FLC 92-598

Applicant:

E M D

Respondent:

F Y M

File No:

PAM5732 of 2003

Delivered on:

7 December 2004

Delivered at:

Parramatta

Hearing dates:

30 & 31 August, 13, 14 & 15 September 2004

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Ms A. Rees

Solicitors for the Applicant:

Photios Vouroudis & Co.

Counsel for the Respondent:

Mr J. Heazlewood

Solicitors for the Respondent:

Higgins & Higgins

Counsel for the Children’s Representative:

Ms. R Druitt

Solicitors for the Children’s Representative:

Legal Aid Commission of NSW

ORDERS

The father and the mother have joint responsibility for making decisions about the long term care, welfare and development of the said children Nicola (not her real name) born in 1995 and Luke (not his real name) born in 1997.
The father and the mother have sole responsibility for making decisions as to the day to day care, welfare and development of the said children whilst they are in their care.
“The children” Nicola born in 1995 and Luke born in 1997 reside with the mother as follows:
(a)Each alternate week from the end of school on Thursday to the start of school on the Monday immediately following.
(b)For one half of each gazetted New South Wales school holidays as agreed between the parties AND failing agreement being the first half in years ending in an even number which shall include years ending in a zero and the second half in years ending in an odd number.
(c)On the children’s birthdays as follows:
(i)If the birthdays fall on a school day, from after school the evening prior to their birthday until the start of school the day of the birthday in years ending in an even number. In years ending in an odd number from after school on the children’s birthday until the start of school the next day.
(ii)If the children’s birthdays fall on a weekend whilst they are in their father’s care, for four hours from 9 am to 1 pm.
(d)For Mother’s Day in each year if it falls on a weekend whilst the children are in their father’s care, from 9 am to 5 pm.
(e)By telephone each Wednesday night between 7 and 7.30. The children are to call the mother.
(f)At such other times as agreed between the parties.
(g)Notwithstanding the above orders, during the forthcoming December/January school holidays for three weeks commencing 10 am January 2005.
(h)Notwithstanding the terms of these orders the children shall be in the care of the mother:
(i)Form 10 am to 5 pm Christmas Day 2004;
(ii)From 2 pm Christmas Eve 2 pm Christmas Day in 2006 and each even numbered year.
(iii)From 2 pm Christmas Day to 2 pm Boxing Day in each odd numbered year.
(iv)For a period of time on the day of the birth of the mother’s child due to be born in December 2004 or at the request of the mother a day immediately following to enable the children to see the baby as soon as practicable at or shortly after the birth.
Notwithstanding the terms of these orders the children will be in their father’s care:
(a)On Father’s Day between 9 am and 5 pm;
(b)From 2 pm Christmas Day to 2 pm Boxing Day in 2006 and each later even numbered year, and
(c)From 2 pm Christmas Eve to 2 pm Christmas Day in each odd numbered year.
Weekend care by either party is suspended during school holidays.
Unless otherwise defined in these orders school holiday care by either party shall:
(a)Commence at 10 am;
(b)Conclude at 5 pm;
(c)Be calculated from the day after the last day of school until and including the day immediately before school resumes;
(d)Pupil free days are deemed to be part of school holidays;
(e)Years ending in a zero are defined as years ending in an even number.
After each school holidays, the mother shall have residence of the children on the first weekend after school has resumed if the children have been with her during the first half of the school holidays and on the second weekend if the children have been in her care in the second half of the school holidays.
If the mother’s weekend residence occurs on a day adjacent to a public holiday, it shall be extended to include the public holiday. If the public holiday is a Friday it shall start at the usual time on the Thursday. If the public holiday is a Monday it shall conclude at the usual time on the Monday.
If either party intends to take the children on holidays or take the children away from their normal place of residence for a period of in excess of 48 hours they shall give the other party prior written notice of the intended date of departure; the proposed destination and address, mobile telephone or landline number where the children can be contacted.
During school holidays the children shall have telephone contact with the other parent between 7 and 7.30 pm each Wednesday. The parent with whom the children are then residing shall cause the children to telephone the other parent.
Once the children start competition sport, both parties are responsible for ensuring that the children attend that sporting commitment whilst the children are in their respective care and the other parent is restrained from attending.
Each of the parties is entitled to obtain directly from any school attended by the children or from any health or welfare professional or other professional attended by the children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
Each of the parties shall do all such acts and things necessary to comply with any treatment prescribed or recommendations made by a health practitioner for assessment or treatment of the said children including any need for hospitalisation.
Within 28 days the father shall enrol in an anger management program. Thereafter the father shall complete the program commencing as soon as a placement is offered to him. He shall give the children’s representative a copy of his certificate of completion.
The parties shall agree on a family general medical practitioner who will be the children’s primary treating doctor. To the extent possible the parties shall ensure that the children attend their agreed treating doctor accompanied by one of the parties, except in the case of an emergency.
Neither party shall enrol the children in a continuing activity that requires the children to attend that activity during periods when the children are in the other party’s care unless both parents agree that the children should participate in it.
Both parties give each other not less than twenty-one (21) days notice in writing of their intention to change address.
Both parties are restrained from using marijuana while the children are in their care.
Both parties shall keep the other advised of contact telephone numbers. These telephone numbers are to be used for telephone contact or otherwise in relation to matters concerning the children only.
For the purpose of changeover, other than when the children are being collected from or returned to school, the children shall be delivered at the commencement of the periods when they are to reside with the mother to the home of M J S at Leura one hour prior to changeover and returned to her residence one hour prior to the end of the children’s time with the mother. The party delivering the children to M J S’s home shall leave immediately upon delivering the children so as to ensure they do not come into contact with the other party.
The father shall provide a minimum of one complete outfit for each of the children to wear during weekends with their mother and a minimum of two complete outfits for each of the children during school holidays. The mother is to ensure that these clothes are returned to the father at the conclusion of her residence period.
The father shall ensure that the children are able to take with them any personal items that they may ordinarily use on a daily basis when staying with their mother and she shall ensure that those personal items are returned when the children returned to their father.
Both parties are restrained from:
(a)Speaking or permitting any other to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the children’s hearing.
(b)Discussing any proceedings between the parents in the presence or hearing of the children or permitting any other person to do so.
(c)Contacting or attempting to contact the children by any direct or indirect means except as provided for in these orders.
The mother shall do all things necessary to obtain an appointment with a treating psychiatrist as soon as possible and thereafter follow the reasonable recommendations of that psychiatrist in respect of her treatment including taking any prescribed medication.
The mother shall do all things needed to ensure that M J S contacts the father and informs him of her baby’s birth on the day that the child is born. The father is to cause the children to be delivered to M J S’s home so that the children can have contact with their mother and see the baby.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calender month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
All outstanding applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM5732 of 2004

E M D

Applicant

And

F Y M

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application concerning residence of two children, Nicola (not her real name) who is 9 years old and Luke (not his real name) who is 7 years old. When their parents separated in late 2002 the children left the family home to reside with their mother. She lived in rented accommodation also in the same suburb, which meant that the father was able to have contact with the children most days. In late October 2003 the mother and children returned to the family home and remained there until there was a violent altercation on 6 November 2003. Since about Christmas 2003 the children have lived with their father and after a short period when contact failed, they have had contact with their mother three weekends in four.
The mother asks that the children live with her and agrees that they should have regular contact with their father. She claims that she has been the children’s primary carer and that the father was content that the children live with her until he discovered she had re-partnered. Her case is that the father is a violent and abusive partner and that he provides a poor role model for the children. Because the father works full time she says he has delegated responsibility for the children’s care to his mother. The mother claims that the father and his family actively undermine her relationship with the children and should the children remain with him her relationship with the children is in jeopardy.
The father denies most of the mother’s allegations and says that his behaviour must be considered within the context of his working hard to maintain the family with a partner who suffers major depression. The father alleges that the mother’s depression limited her capacity to care for the children and the burden that fell to him within the family was more onerous than is commonly the case. He claimed that the mother has re-partnered with a paedophile and that the children are at risk in her care. Whether as a consequence of her depressive disorder or for some other unspecified reason, he says that the mother shows scant regard for the children’s need to attend school. In her care he says the children face uncertainty about where they live and where they may attend school. Although he believes that the children love their mother, he says they do not want to live with her because of they fear I S and are tired of her peripatetic lifestyle.

Chronology

The mother was born in 1970, she is 34 years old.
The father was born in 1971, he is 33 years old.
On 13 December 1988 the father was convicted on his plea of guilty to assaulting the mother.
The parties commenced cohabitation in May 1989. When they commenced cohabitation the mother was 18 years old and the father was 17 years old. They lived in rented accommodation in the mountains.
Nicola was born in 1995. After Nicola’s birth the mother remained at home and the father continued to work full time as a builder in his father’s business.
Luke was born in 1997. Shortly after Luke’s birth it became apparent that the mother’s health was deteriorating and she was subsequently diagnosed with postnatal depression.
In May 1998 Dr B referred the mother to the Pialla Psychiatric Unit at Nepean Hospital. On 8 May 1998 she was transferred to St John of God Private Hospital where she remained until discharging herself contrary to medical advice on 18 May 1998. She was diagnosed as suffering major depression and having panic episodes[1]. Whilst the mother was in hospital the father’s mother assisted him with the children’s care. Upon her discharge the mother convalesced at her parent’s place. The children remained with her and the father visited on weekends.
[1] Exhibit F
About three weeks later the mother and children returned to Katoomba and the parties resumed cohabitation. The father continued to work full time and the mother was primarily responsible for the children’s care.
In early 1999 Nicola commenced preschool two days per week.
During 1999 the mother’s anxiety and depression deteriorated and she was referred to the Nepean Anxiety Disorders Clinic, a division of the Psychological Medicine Department of the University of Sydney. In June 1999 she was placed on a waiting list for assessment as a precursor to a group treatment panic disorder program. The mother was offered a series of appointments, which she cancelled because she was concerned about travelling from her home to Penrith and explained that she had family problems that she wished to address. Eventually, the mother attended an assessment in September 2000 and in November 2000 was admitted into the five-day residential program. While the mother was in residence the father and his mother cared for the children.
In July 1999 the parties and children moved into the family home. This is where the father and children currently reside.
In early 2001 Luke started preschool two days per week. Nicola commenced kindergarten. She did not settle into this school and was removed at the end of first term. Nicola was then enrolled at the local Public School where she still attends. This school is about 500 metres from the family home.
During 2001 the parties separated although they continued to reside together.
In September 2002 the mother rented a home in the same suburb only a short distance from the family home. She and the children moved into the rented home shortly afterwards.
On 2 October 2002 the mother attended the clerk of Lithgow Local Court and filed an application for residence. That same day the clerk of the court posted a copy of her application to the father at the family home[2]. Upon receiving the application the father attended the mother’s home on 8 October 2002. Having argued with her about the application the father took the family car that was then in the mother’s possession. Having received a letter from the mothers demanding the cars return on 11 October 2003 he returned the vehicle.
[2] Annexure C, father’s affidavit
On 17 October 2002 final orders were made on the mother’s application at Lithgow Local Court[3]. The father denies that he signed the orders. A close friend of the mother’s allegedly witnessed his signature affixed to the orders. Although her friend was available to give evidence she was not called in the mother’s case. Thus the father submits the court would conclude that her evidence would not have assisted the mothers case. The orders are in the following terms:
[3] Annexure B, father’s affidavit
The applicant and respondent have agreed to the following orders being made by consent by the presiding magistrate at Lithgow on 17 October 2002. The parties request that the parities be dealt with in their absence. The orders consented to are as follows:
1.   That any rule or regulation not complied with be dispensed with.
2.   That the children of the relationship, namely Nicola born in 1995 and Luke born in 1997 to reside with the mother and that the mother be responsible for all decisions relating to the day to day care of the children.
3.   That the mother and father have joint parental responsibility for all of the long-term decision relating to the welfare of the children, including all medical, educational and religious decisions to be made.
4.   The father to have contact with the children as such times and places as agreed upon between both parents.
The mother’s lease on her rented home expired in about October 2003. She stayed briefly in a rented caravan before returning to the family home. At that time the father was working away during the week, returning to his home on the weekend. His mother had recently returned from overseas and the father’s parents were staying at his home. Without prior discussion with the father, the mother and children moved back in. The mother considered that she had an interest in the house and notwithstanding the father’s probable objection, she was determined to reside there.
On 24 October 2002 Lithgow Local Court forwarded copies of the orders made 17 October 2002 to the parties. The mother’s copy was sent to her parents’ address and the father’s copy was sent to the family home. He denies receiving the orders. I do not accept his denial. Nor do I accept that the father did not sign the orders. When he signed the orders he was having daily contact with the children. The arrangements whereby the children lived with the mother and he had free and easy contact with them suited him. He was able to work full time and have contact. When he denied receiving the orders the father went one step too far. I was concerned that the witness was not called. However it is likely he took the car because he was angry about the mothers application. I do not accept that he thereafter ignored the matter. His solicitors letter[4] merely indicates some uncertainty. The fact that he postulates that orders might exist suggests that he at least knew that this was a possibility. As far as the parties and children’s arrangements were concerned there were no changes made after the orders were made. This shows that until the mother in effect forced his hand, the father willing to ignore the mother’s parenting difficulties that he now raises.
[4] Exhibit B

The mother and children remained living at the rented home until early October 2003. The father visited the mother and children most afternoons during the week. After school he often took the children back to the family home and to visit his parents. He and the children returned to the mother’s home by 6 pm where the family often shared the evening meal and the father often stayed overnight. The children’s time on weekends was spent with both parents. At no time during this period did the children sleep at the family home.
On 5 November 2003 both parties consulted solicitors concerning property settlement.
On 6 November 2003 the parties argued at the end of which argument the father effectively threw the mother out of the home. Having been locked out of the home without her keys, the mother left without the children. Later that morning the father chanced upon the mother and chased her in his car to the children’s school. The father left and the mother’s friends contacted Police. At 11 am accompanied by police the mother returned to the family home. The police had issued an apprehended violence summons and interim order for the mother’s protection from the father. When they arrived at the home a heated argument developed between the father and the police. He was restrained and taken away in a police van. Before the van departed the father’s father arrived. He was agitated and developed heart palpitations, which he, his wife and the father believe was a heart attack. He collapsed and was taken away by ambulance.
At about 2 pm, accompanied by her brother and a Pastor, the mother went to the family home intending to recover the children. Aided by her brother, the mother forced her way into the home and took the children. At that time the paternal grandmother was caring for the children.
The mother and children then stayed in a local caravan park for approximately two weeks until the mother was able to rent another home nearby.
On 12 November 2003 an interim apprehended violence order for the mother’s protection from the father was made at Katoomba Local Court. The order continued until 18 February 2004.
On 27 November 2003 the father was involved in a head on collision and charged with drive manner dangerous. He is defending these charges.
At about the same time as these events were occurring, the mother commenced a relationship with I S, a close friend and work colleague of the father and paternal grandfather. The father and paternal grandfather discovered the relationship shortly after it commenced. This was a volatile period during which the father frequently retained the children. Notwithstanding that she had a residence order in her favour the mother did nothing about the difficulties she was experiencing in having the father return the children to her after contact. The children went to the father shortly before Christmas 2003 at which time he refused to return the children to the mother at all.
In early December 2003 the mother and I S became engaged.
On 31 December 2003 the father filed an application for residence at Lithgow Local Court. At about the same time the mother filed an application for a recovery order.
On 8 January 2004 within the context of the mother’s application consent orders were made in the following term:
1.That the applicant and the respondent share residency of the children Nicola born in 1995 and Luke born in 1997 as follows:
(a)Commencing Saturday 10 January 2004 the father shall deliver the children to the mother’s residence at 9.00 am where the said children shall reside for four days until 9.00 am Wednesday 14 January 2004 when the mother shall deliver the said children to the father’s residence at 9.00 am.
(b)The said children shall remain in residence with the father for a period of three days until 9.00 am Saturday 17 January 2004 when the father shall deliver the said children to the mother’s residence.
(c)Thereafter the parties shall share residency of the said children alternating on a four day three day basis so that the children are with the mother four days one week and with the father the other three days, then with the mother three days the other week and with the father four days.
3.When the said children commence school residency changeover on Wednesdays shall occur by one parent delivering the children to school at or before 9.00 am and the other parent to collect the said children from school.
4.That the parties have joint responsibility for the day to day care of the said children.
5.That the parties have joint responsibility for the long term care, welfare and development of the said children.
6.That the parties undertake that should either of the said children become traumatised during residency they will return the child or children to the other parent as soon as possible.
7.That each of the parties shall immediately notify the other of any accident or illness affecting either of the said children.
8.That the parties undertake not to denigrate each other or discuss these proceedings in the presence or hearing of the children.
9.Telephone contact between the children and the non-resident parent be liberal.
The Lithgow proceedings were adjourned and later linked with the proceedings the father commenced in this court.
Notwithstanding these orders, the parties did not implement a shared parenting arrangement. The father alleges that the children refused to have contact with their mother and that he was unable to persuade them to do so.
On 6 February 2004 the mother filed a contravention application complaining about the father’s failure to deliver the children to her.
On 7 February 2004 the father was required to deliver the children to the mother. He and the children arrived at the mother’s home at 10 am. The father alighted from the car and the children remained inside. The father yelled to the mother “this is all your fault”. She went to the drivers’ door and found that it was locked. The mother then went to the other side and it too was locked. In spite of her entreaties the children refused to open the doors. While she was talking to the children, the fathers’ sister and then his parents arrived. They parked about 25 metres away where the father joined them and all watched the mother’s futile attempts to encourage the children from the car. The father did nothing to assist her or the children. Between them the parties called the police, fire brigade and an ambulance. This was unnecessary and did nothing more than escalate the children’s distress. Eventually the mother gave up and the father and children left. The father and his parents claimed it was merely coincidence that his family arrived. I do not believe them. I have no doubt that having done nothing constructive to prepare the children to return to their mother, the father knew that it was unlikely that they would get out of the car. It suited his purpose to have the children demonstrate what he regarded as their rejection of their mother. This incident reflects poorly on him and his family.
On 11 February 2004 further interim orders were made in the proceedings. These orders are set out below:
1.That interim orders made at Lithgow Local Court on 8 January 2004 are revoked.
2.That on an interim basis the mother is to have contact with “the children” Nicola and Luke for the first three weekends of each calendar month commencing from after school Friday until before school Monday.
3.That contact in Order 2 above is to commence February 2004 and it is agreed that the mother will have contact on the weekends commencing Friday 13 February 2004 to 20 February 2004.
4.That the father is to have continuous contact with the children at all other times.
5.That in addition the mother is to have contact with the children for the first week of the April 2004 school holidays and will return the children to the father at 9:00am on Monday 14 April 2004.
The first contact occasion since Christmas 2003 occurred between the children and mother on the weekend of 13 February 2004. That weekend the mother and children spent most of the weekend at I S’s home.
On 1 March 2004 the interim apprehended violence order was made final and operates for twelve months.
On 14 May 2004 the father was injured in a fight at a Katoomba hotel.
On 19 August 2004 the father was charged with breaching the apprehended violence order. He denies breaching the order and was granted bail. This relates to a threatening telephone call allegedly made to I S on 10 August 2004. This matter has not been finalised.

The evidence

At the hearing the father relied on the following evidence.
·His affidavit sworn 2 August 2004 and his oral testimony.
·The affidavit of his mother, S D sworn 2 August 2004 and her oral testimony.
·The affidavit of his father, E D sworn 23 August 2004 and his oral testimony.
·The affidavit of P S sworn 14 September 2004 and his oral testimony.
·The affidavit of A J sworn 14 September 2004 and his oral testimony.
The mother relied on the following evidence.
·Her affidavits sworn 4 February 2004, 11 February 2004, 16 August 2004, 31 August 2004 as well as her oral testimony.
·The affidavit of I S sworn 16 August 2004 and his oral testimony.
·The affidavit of S S sworn 30 August 2004 and her oral testimony.
·The affidavit of K I sworn 30 August 2004. This witness was not required for cross-examination and I accept his evidence.
·The affidavit of Dr T sworn 13 September 2004 and his oral testimony.
Both parties and the children’s representative tendered documents that became exhibits.
At the end of the hearing the children’s representative submitted a minute of order that sets out the children’s representatives preferred outcome.[5] The father agreed with this approach in almost all respects. The mother’s counsel submitted a minute of proposed orders[6] which also differed significantly to her original application. These exhibits are incorporated in this judgment.
[5] Exhibit J
[6] Exhibit K
Pursuant to s.62G(2) on 14 May 2004 I ordered that a family report be prepared for the hearing. Michael O’Sullivan a psychologist and family court counsellor interviewed the parties, the children and other relevant people on 9 August 2004. Mr O’Sullivan prepared a report dated 20 August 2004[7]. He recommended, “The information gained for this report raises serious issues about the ability of both parents to provide for the long term needs of both children. The issues of the practical, physical and emotional availability of the parents to the needs of Nicola and Luke are still unresolved at this time for the children’s long term best interests. Given these issues and until the long term stability of care of the children can be assured by either parent it is assessed that in the interim the children have increased weekend contact with their mother”[8]. Mr O’Sullivan expanded on the difficult situation the children are in under cross-examination. At the end of his oral testimony the essential thrust of his report remained unchanged. Mr O’Sullivan revealed that he has considerable relevant clinical experience and demonstrated competence in his report, interviews and analysis. He was not successfully challenged on the accuracy of his reporting of important factual matters. I accept the court counsellor’s evidence and give it considerable weight.
[7] Exhibit A
[8] Paragraph 39, Exhibit A

The mother’s circumstances

The mother resides with I S and his three children in his lower mountains home. She and I S are engaged and expecting their first child together in December 2004. I S and his wife S S have three children, B who is 8 years old, J who is 4 years old and C who is 2 years old. S S lives on the Central Coast. She has contact with her children three weekends a month, from Friday to Sunday and during the school holidays.
Prior to Nicola’s birth, the mother completed a TAFE course in childcare and thereafter worked in various childcare centres in the lower mountains. She has not worked in paid employment since Nicola’s birth.
I S is employed full time and primary responsibility for managing their home rests on the mother. With the birth of her baby imminent the mother has no plans to return to paid employment. Financially I S is responsible for the family. His has a modest income and presently is selling his home because the mortgage is in default. Although he and the mother wish to remain in the same vicinity this is uncertain. The mother says that because of the father’s harassment of her and I S it would be untenable for them to live in the same area. I agree that the parties cannot live close by to each other. Chance meetings have been problematic thus far. Both sides have harassed the local police with complaints about the other. Living nearby will continue and the tensions between the parties continue unabated. The mother and I S rushed into their relationship and their baby is unplanned. However as time is passing they remain confident that their decision to marry was a good decision and look forward to their baby’s birth. They are loyal to each other and both find their relationship fulfilling. There is good reason to expect it to succeed.

The father’s circumstances

The father lives with the children at the family home in the mountains. He and his father built this home. It is a modern four-bedroom property in which both children have their own bedrooms. This is the family home and provides both children with a comfortable standard of living. The home is approximately five minutes walking distance from the local public school, where Luke is in year 2 and Nicola is in year 3. Luke has always attended the local public school and Nicola has attended there since second term in kindergarten. Both children are well integrated in the school, where they have friends and their education needs are well provided for.
The father works with his father in the Blue Mountains. His father’s business is well established. Because he works with his father, the father has a degree of flexibility not readily available to many employees. Since the children have lived with him, the father has adjusted his hours of work so that he is able to take the children to school in the morning and collect them in the afternoon. Most afternoons he finishes work by 2.30 pm. He is keenly interested in the children’s education and in his care; the children’s school attendance has improved dramatically. Nicola has received merit certificates and both children’s school records show that living with their father they are faring far better in terms of completing homework, school attendance and presentation. After school each day the father takes the children to his parents’ home. They live on a five-acre property and there, both children play with their pets and bike ride. At about 6 pm the father and children return home where he supervises Nicola’s homework. Although he denied it, I am satisfied that on a reasonable number of occasions, the father returns to work after he has collected the children from school. On these occasions the children’s paternal grandmother, cares for them until he returns. She has been actively involved in the children’s lives since their birth and they are well cared for and comfortable when she supervises them.
Luke enjoys football and the father is keen that he plays in the local football competition. Unfortunately, the parties have been unable to cooperate sufficiently to enable Luke to play, both insisting that he play in a different competition and that the other is not present during any game. The father has refused to send Luke’s football gear with him on contact. Not surprisingly, Luke has let football slip by the wayside.
Although the father said he had great difficulty encouraging the children to have contact with their mother, he noticed a change after the June/July school holidays. Although he denied doing so the father resisted the children’s representative suggestion that the children should spend half of the July school with their mother. His solicitor’s letter dated 1 July 2004 addressed to the mother’s solicitor outlines this stance very clearly.[9] When the children’s representative pursued the issue in a letter dated 2 July 2004[10] he agreed. Upon their return the children have been less stressed about contact. I have no doubt that the father’s consent was strongly influenced by the children’s representatives’ stance and the proximity of this hearing. Put simply he agreed because withholding his consent may have been damaging to his case. Notwithstanding the cynical nature of his consent, his general approach towards the children’s contact with their mother has softened and he agrees that the children need regular contact, including extended periods of block contact.
[9] Exhibit C
[10] Exhibit D
Fundamentally, the father is concerned about the mother’s parenting in two respects. Firstly, he says she minimises the effect of her depressive disorder on her capacity to care for the children. Thus, he says she fails to recognise the significance of her inability to get the children to school, to maintain a reasonable routine, to develop their independence from her and to maintain their home without real significance. Secondly, he says the mother’s living circumstances, in particular residing with I S and his children, even if appropriate during contact (which he does not concede) have been confronting from the children’s point of view. He believes that neither the mother nor the children would cope as part of a blended family with six children. Thus, he contends that long term the children’s relationships with both parents will fare better if the children live with him and have regular contact with their mother. This is because in his care the children will have a stable routine, be well cared for physically, intellectually and emotionally and generally better able to manage their familial relationships.

Relevant Law

Residence and contact orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B is important as it provides the context within which the relevant section 68F(2) factors are to be examined and ultimately weighed. The importance of section 60B factors varies from case to case. Where there are no countervailing factors, the section 60B principles may be decisive.
Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the residence and contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in Section 68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act

Determining the children’s best interests

An important issue in these proceedings concerns the manner in which the court should treat a child's expressed wish concerning matters relevant to his or her welfare. The Full Court of the Family Court considered this issue in R and R: Children's wishes (2000) FLC 93-3000. Their Honours cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H v W (1995) FLC 92-598. "The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children." Once a child's wishes are established the next part of the exercise requires analysis of the wishes followed by a balancing exercise measured against other factors relevant to the child's welfare. The process is described thus: "There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a commonsense way as one of the factors in the overall assessment of the children's best wishes." R and R: Children’s wishes (supra).
Court counsellor O’Sullivan interviewed the parties, paternal grandparents, I S and children. His investigation of the children’s attachments, wishes and adjustment included individual sessions with the children as well as observations of them with the adults. Reporting on Nicola he said, “Nicola wished that “Mum and Dad would get back together and I just want to live with Mum and Dad at the same time”. She replied that she liked her mother, “Guess because she’s my mum” and replied she likes her father, “Guess he’s because he’s my dad”. She stated, “Mum is getting married and she is pregnant and I don’t like it too much as I don’t like the guy she is marrying. He says things about Dad and Nan and Pop that upset me and he yells at Luke”. Nicola commented that even though her parents are separated she wished they were together. She considered that she would, “Be with Dad sometimes and go with Mum sometimes like half each, Monday until Wednesday, then Wednesday until Friday”. She stated that, “Sometimes she stays with Nan and Pop and her father picks her up from school and on weekends we go to Mums”. She noted that she, “Gets along okay” with the other children on the weekends”.
When he reported on Luke, the court counsellor said, “Luke wished that, ‘Dad and Mum are back together, but it will not happen because Mum is with another man’. He commented that I S is, ‘Mean to me and shouts at me very loud so I think I really want to stay with Dad’. He then stated, ‘I like Dad more because he plays with us and Mum hugs the other man and she would go off and not play with us’. Luke replied that he likes his mother, ‘Because she hugs us and don’t like it when she hugs him and we are left out’ and he likes his father, ‘Because he hugs and plays and tells jokes’. He commented that he is sorry and again wished that his parents, ‘Be back together’.”
From his discussions with the children, the court counsellor concluded, “Nicola and Luke both presented as anxious and confused young people and their physical appearance denoted children that were tired and worn out by the family dispute. They appeared to be very aware of the adult family conflict and entrenched in the alienation/alignment issues that preoccupied the parties.” I accept his opinion that the children are burdened by the acrimonious environment that they share with their parents and there is significant doubt about whether their wishes are driven by their own needs or their perceived needs of their parents and paternal grandparents. I have no doubt that these children are exposed to their parents and grandparents hostile views of each other. Their dislike of each other was palpable in the hearing and in spite of their protestations that they protect the children from their harsh opinions of each other I do not accept their evidence. Since November 2003 the children have been involved in a number of distressing incidents during which they observed the adults shouting at each other about them. For example, on 7 February 2004, 6 November 2003 and recently by Luke’s bedside while he was in hospital. The father has allowed the children to overhear abusive telephone calls he has received from I S and the children have overheard the father’s unpleasantness to their mother. Because these children have been so burdened by their parents acrimonious dispute it is unlikely that they are able to focus on their needs rather than their position in their parents dispute. The children love their mother yet have found it difficult to go on contact. While their feeling that they have been displaced by I S influences this, their anxiety has meant that they have suppressed their desire to have contact with her. This demonstrates that the children do not feel free to express their own feelings. Even in the neutral setting of the court counselling section it is unlikely that they felt free to say what they feel. There is a sense of fantasy in their desire to have their parents reconcile and for the family to be reunited. All of these matters mean that the children’s wishes as to where they live must be treated cautiously.
It is apparent that prior to separation the mother was primarily responsible for the children’s care. The father helped out as much as he could, but the demands upon his time from work, travel to and from work and building the family home necessarily substantially limited the time he had available with the children. Many weeks he worked six days in the week. Thus during the working week, his involvement was limited and the time available with significant involvement in the children’s care centred on weekends and during holidays.
When the parties started their family they decided that the children should enjoy all the benefits that derive from a parent’s full time care. Thus the mother gave up paid employment and from the time of Nicola’s birth she was intimately and more extensively than any other person, responsible for the children’s day to day care. Not only was she primarily responsible for the children’s actual care, but also responsible for making most of the daily parenting decisions that needed to be taken. Thus, in spite of the father’s concerns about the mother’s health and judgment, he usually left it to her to make the daily parenting decisions for them both. It was the mother who took the children to playgroup, pre-school and involved herself in the children’s lives to an extent that the father did not. Whilst the father assisted with the children’s care when he arrived home in the evenings, he did so in the context of the mother’s full time care of the children. Until the parties separated the paternal grandmother significantly supplemented the mother’s care of the children. When the mother was hospitalised or unwell she cared for the children. It was her practice to visit the mother and children most days and many weeks she spent a number of full days caring for the children, the home and assisting the mother.
When taking the parties’ history, the court counsellor discussed the parties’ understanding about who had been primarily responsible for the children’s care before they separated. Based on their discussions, he correctly concluded that, “the mother has been the primary carer of the children until November 2003”. The father does not challenge the mother’s claim nor this opinion. I am satisfied that as at the date of separation the children’s mother was their primary care giver. That situation has changed and the children’s father is far more extensively involved in their care than previously. Of course the corollary to this is that the children’s mother’s involvement is significantly less. Against this background, the court counsellor’s observations of the children with their parents and the other adults were potentially highly significant.
Reporting on his observations of the children the court counsellor wrote, “Nicola and Luke entered the play/observation room with their father. They played in the sand tray, with the puppets and plastic animals. The father actively directed and encouraged the play and the children responded positively. The children appeared to enjoy the attention of their father and the father initiated varied activities and the communication was task focussed. The interaction was active and vocal and appeared enjoyable for the children. Nicola and Luke were in the room (after their father left) when their mother entered and kissed both seated children who sat and did not respond. However Nicola showed her mother the sand tray and both easily engaged in play together and Luke happily joined in the activity. The mother engaged with each child in different activities and the communication was very vocal but quieter. The children, particularly Nicola, were more vocal with their mother than their father and the mother was responsive to their requests. The interaction appeared more reactive to the children’s initiated activities and the mother’s comments were affirming and affectionate. The children appeared to enjoy the activities with their mother. The paternal grandparents were then observed in the room and Nicola pulled chairs up for them to sit and watch her and Luke play with the puppets. The children responded positively and were attentive to their grandparents who encouraged the puppet play. The father had a problem sitting in the low chairs and the children were encouraged to draw on the whiteboard. Nicola engaged easily with her grandmother and sought her attention while the father and Luke enjoyed their time together as they all drew figures on the board. The interaction appeared familiar and enjoyable”.
From these observations, the court counsellor concluded that the children displayed a close relationship with both parents. The father actively engaged the children in a range of activities that were physically energetic, child focussed and happy. With their mother, their interaction was quiet and less directed. Although the parents have different parenting styles the observation sessions reveal that the children are comfortable in their father’s company and mostly at ease with their mother. Leaving their father’s care they found it difficult to immediately respond warmly to their mother, however, her calm persistence enabled them to relax and demonstrate their obvious affection for her. Their affection is clear from their description to the court counsellor of the activities they enjoy with their mother and their difficulty in accepting I S’s involvement in her life. Their inability to accept him as their mother’s partner is probably reinforced by the father’s attitude, but most strongly driven by their sense that they have been displaced. Overall, there is nothing compelling in the children’s relationship with their parents that distinguishes whether one parent rather than the other is better able to meet the children’s long term needs.
The children’s positive relationship with the father’s parents reflects their substantial involvement in the children’s lives over a long time and their demonstrable capacity to provide for the children’s needs when they are together. The children’s relationship with their paternal grandparents is a valuable relationship from the children’s point of view. Irrespective of whether the children live with their mother or their father this relationship will continue. If the children live with their mother the children will not have as extensive contact with their paternal grandparents, however because the father includes them so significantly in the children’s lives, the children’s relationship with their paternal grandparents will be maintained irrespective of which parent they live with.
Since separation the children have changed residences on a number of occasions. In their mother’s care they lived at the rented home at Katoomba, for about two weeks in a caravan park and returned to the former matrimonial home. When contact between the children and the mother resumed, although she had her own rented home, they spent most of their time with her at I S’s home. No less significantly, the children’s care arrangements change dramatically in that they no longer reside with the person who was their primary care giver and reside with their father with substantial care provided by his mother. From the children’s point of view these apparently random changes in residence and living arrangements have been destabilising. From November 2002 any sense of security and stability that their settled home and parent’s care may have given them, has been substantially undermined. Most children need a reasonably settled routine because this contributes to a sense of order and enables them to deal with the world with certainty. With a reasonable routine and a settled living environment, children need not be burdened by concerns about what lies ahead. These worn out, weary children show all the signs of children who are vulnerable to the physical and emotional consequences of continuing instability. The many changes they have endured since November 2002 mean that they have an acute need for their future living arrangements to be as stable as possible.
It is plain is that I S will have primary responsibility for his children’s care long term. It is likely that there will be periods when S S is unable to even have contact with their children. I S, probably out of loyalty to his wife, minimised the effect on their children of living with a parent who has multiple personalities. I have no doubt that in their mother’s care, both prior to I S and S S’s separation and until the children returned to I S, their home environment was disturbed and at times emotionally volatile. Although these proceedings did not focus on the S children, they are likely to have an even more acute need for a stable home life than other children. I have considerable reservations about their capacity to cope with the children’s inclusion in their home on a substantially full time basis.
I S owns his home with his former wife. Prior to their separation, I S gave S S money to pay their mortgage. Unknown to him, she failed to pay the mortgage and in September 2003 the National Australia Bank served a s.57(2)(b) Real Property Act 1900 notice. The bank has taken no further action because they have agreed to sell the home. Presently, the amount due to discharge the mortgage is $165,000. However, I S is unable to fully pay the instalments and the arrears continue to climb. I S hopes to sell the property for about $280,000 and in addition to selling costs must repay his mother $36,000. In total he is likely to receive no more than about $60,000 from the sale. Although I S and the mother would like to remain living in the same area, it is unclear whether they will be able to afford to. Initially, they plan to rent a home. They believe they can rent a home for between $200-250 per week. I S initially claimed that he earned about $900 per week, although conceded that his retainer was $576 per week. His wage records were subpoenaed[11] and revealed a different picture. In the months leading up to the hearing, his highest weekly pay was $891. Most weeks his net pay was between $540 and $609. When rent or mortgage payments are deducted, it is apparent that I S will continue to be under financial pressure and his ambition to own a home or live in comfortable rental accommodation may be difficult to achieve. This is because there are many changes ahead for the mother. In her care, the children must almost certainly change school, Luke will change soccer teams, they must adapt to residing with I S, something that will be confronting for them both short and long term and is thus likely to undermine their capacity to settle in his home. The mother does not have settled accommodation and although the children relate well enough to the S children, they rarely see each other and it is at best speculative about whether, if living together, the children will accept each other. The primary reason the children are unsettled with I S is they perceive that he has come between them and their mother. Living in the same home, the same scenario viz a viz his children and their mother is highly likely to develop. Irrespective of my other concerns about the mother’s capacity to provide the children’s long term needs, I am far from satisfied that she is in a position to provide the children with a stable long term living arrangement. This is a matter to which I give significant weight and weighs in favour of the father’s residence application.
[11] Exhibit H
By comparison, the father’s arrangements are far more secure. He has a well established home that he plans to live in long term. In his care the children will remain at their schools, which is an important consideration given the instability and all other aspects of their lives that has swirled around them since November 2002. It is highly likely that both children value the stability offered by being able to continue friendships with their schoolmates and relationships generally in the school. I have far greater confidence that the father will ensure that the children go to school regularly. In their mothers primary care, the children have an alarming rate of absenteeism. When Nicola was in kindergarten the mother often collected her at lunch time because she was lonely and needed the child with her. Eventually the school intervened and the principal established goals for Nicola’s attendance. In 2002 Nicola was absent from school on 41 days and missed 28 days in 2003. The mother gave no adequate explanation for these absences and I am satisfied that they overwhelmingly relate to the mother’s inability to organise to get the child to school and her desire to have Nicola at home with her. Luke was absent from school in 2002 on 31 days and 33 days in 2003.[12] These absences have the same cause. The father’s parents compliment his ability to provide the children with an essential routine during the school week. To a far greater extent than the mother does, the father appreciates that with all the changes the children have endured it is essential that they have routine and long term stability. He has struck an appropriate balance between his work commitments and the children’s needs such that long term I am satisfied that in his care they will have stable living arrangements, stable care arrangements and their need for stability adequately provided for. This is a matter to which I give considerable weight and weighs in favour of the father’s application for residence.
[12] Exhibit I
The parties live reasonably close by and are able to implement regular contact. Because of their poisonous relationship, it is abundantly clear that the parties should come into contact with each other during changeover as minimally as possible. Thus, contact changeover will take place to and from school. The father is concerned that the mother will fail to deliver the children on time, something that has been a feature of her prior care and which has continued during even when the children have been on contact. For example, the mother decided that she would not send the children to school on a few Mondays keeping them with her for a family day. Her cavalier attitude to the children’s education is concerning. However, as she is now aware that neither the school, the father or the courts will cooperate with her approach, the risk that she will routinely fail to deliver the children on time after contact diminishes somewhat. If she continues to keep the children home or fails to have them at school on time, the father may need to contemplate bringing on an application to vary the orders. Balancing the distressing scenes that may unfold during contact changeover if the parties collect and return their children from their homes are potentially more damaging emotionally than the risk that the children will be late to school after contact is educationally. The father has been present at school on a number of occasions when the mother was due to collect or return the children. His presence was unnecessary and adds to the mothers and children’s stress. So that contact changeover at school may succeed the father will be restrained from attending at or within one kilometre of the school within one hour of changeover. He will also be restrained from having anyone else attend on his behalf.

S S suffers a dissociative disorder. She has had a series of strokes and the effect of her dissociative disorder is when ill she has multiple personalities. She is under the supervision of a treating psychiatrist, and takes Zoloft an antidepressant medication and Valpron for strokes. When she and I S separated, she took the children and moved to a womens refuge. At that time she was mentally unwell. She accused I S of having sexual intercourse with J S which allegation a refuge worker referred to the police. The allegations were investigated and J S interviewed by a JIRT officer. J S made no disclosure of abuse. Since then, S S has retracted her child abuse allegation and also her allegation that in 2003 I S threatened to kill her and her mother. Now that she is medicated and receiving generally appropriate psychiatric assistance, she profoundly regrets her prior allegation and disavows them. I accept her retractions and am satisfied that I S did not sexually assault J S, nor threaten S S. The father and his father maintained the paedophile allegation notwithstanding that they knew it was made by S S and that I S’s children now lived with him. Maintaining the allegation was frankly outrageous. It was done for narrow minded, ignorant reasons. In this instance the father and paternal grandfather came to this court intent on using rumour and innuendo that they knew lacked substance. The paternal grandfather first heard of this from a local police inspector. It is concerning that this type of highly damaging information can be revealed without authority. Their evidence on this issue has undermined their credibility.
S S strongly supports I S’s continued care of their children and accepts that their long term interests are better served living with him. S S was plainly partisan and came to the court with the intention of persuading the court that the children should live with their mother. In doing so, she attempted to corroborate the mother’s evidence of family violence and of the father’s marijuana use. On these and a number of other matters, her evidence was confused and generally unsatisfactory. Although well meaning, other than on those issues where I have made findings consistent with her evidence, I give her evidence no weight.
I will deal with subsection 68F(2)(g)(i) and (j) together. Family violence is an important issue in these proceedings.
The father was convicted of assaulting the mother before they lived together. An important aspect of the mother’s case is that the father is unable to meet the children’s needs on a full time basis because of his propensity for abusive antisocial behaviour and domestic violence. In essence she says he is a poor role model. Because of his behaviour towards her she is concerned about his treatment of the children. She claimed that her attitudes towards him as a parent, in essence, derived in no small part from her experience of him as a partner. To the extent that she has been unable to meet the children’s needs it is alleged that his harassing behaviour has substantially contributed to this outcome.
Factual issues such as this are difficult to adjudicate. That is because there are rarely witnesses who can corroborate an allegation or its denial. Courts frequently accept the uncorroborated testimony of victims of family violence, relying to no small degree on the integrity of the witness. It is reasonable and necessary that they are prepared to do so. The nature of domestic violence means that it is often accompanied by shame and victims can take a long time to gain the courage to seek assistance. Abusers are often dominating and the victim does not have the strength to in effect stand up to them. Thus, the absence of prior complaint does not necessarily undermine allegations of family violence. In this case, however, on the mother’s evidence there were witnesses to a number of events during which she said the father assaulted her. These witnesses were called in the father’s case in reply. None of them corroborated the mother’s allegations. During the mother’s many attendances on medical practitioners and health care professionals, she was asked routine questions concerning relationships. These included specific questions about family violence. On each and every occasion, the mother denied that she was the victim of family violence. She complained that the father was verbally aggressive towards her and said that she was not physically mistreated. As the evidence unfolded the mother’s claims became increasingly extravagant and she used domestic violence in its widest meaning, describing oral arguments and belittling remarks. She claimed that she had been sexually assaulted by one of the father’s associates. When the issue was explored the incident complained about occurred when in her late teens, this associate kissed her once without her consent. She attempted to make much more of this incident than scrutiny of the event warranted.
When the mother returned to the family home in late 2003 she returned even though she anticipated that the father did not want her there. There can be no suggestion that he coerced her return. In this instance, the mother demonstrated that either she was willing to expose the children to continuing violence or that she is not afraid of the father. Her actions are entirely inconsistent with concern that there may be further violence fear. If the mother was afraid that the father may be violent, it is extremely unlikely that she would have forcibly returned to the home and remained there knowing that she was not welcome. Nor would she have provoked a physical confrontation at the home in order to regain the children.
There was a vast amount of evidence given concerning the events on

6 December 2003. The father and his parents claim the mother, her brother and police instigated a dreadful fracas which culminated in the paternal grandfather’s collapse and removal by ambulance and the father’s removal in a police van. Although the mother denied the father’s arrest, the reality is that although not charged he was forcibly removed from his home. With the father temporarily out of the way, the mother was free to recover the children. Again, accounts between the father and his parents and the mother differ dramatically. The mother’s brother was intimately involved in the incident, yet did not give evidence. There was no explanation offered that explained his non-attendance. I infer that his evidence would not have assisted the mother’s case. The only independent witness to the incident was a local assistant minister. The mother called him to the police station at around 1.30 pm. Accompanied by the mother’s brother, the trio drove to the former matrimonial home to try and recover the children. The pastor made a statement to the police on 6 November 2003[13]. Although available for cross-examination he was not required. I accept his evidence as the best account of what took place that afternoon. It is to the following effect:
We arrived at that address about 3 pm. We all got out of the car and went up to the front door, which was closed. G knocked on the door. F was standing behind him, and I stood behind and to the side of G. A woman opened the door, who I know was S D, E’s mother. G said, “We’ve come to pick up the kids”. S appeared to become aware of the situation and became distressed. I noticed a change in her demeanour from being relaxed to her face tensing. She slammed the door shut.
G turned the handle of the door and pushed it open. I got the impression that S may have been trying to force it closed whilst he did this. G said, “This is F’s home and I have her permission to come in so she can take the kids”. At this point G had opened the door and he walked in, ending up face to face with S. She started yelling. I did not pick up exactly what she was yelling. Nicola and Luke appeared in the hall at the back of the house. S yelled to them to get back, go back or go out the back, or something similar. G then put his arms around S and jostled her into a doorway off the hall. I could see G’s back. I saw a pair of hands down to his side, which I assume were S’s. She seemed to be struggling with him. G appeared to be trying to restrain her.
F walked into the house. G said something to S, but I couldn’t hear clearly what. I did hear him say to F, “Get the kids”. F went and got the two kids, then led them out of the house. I followed F, then G came out behind us. When I was about half way up the driveway, about 10 metres from the house, I heard G’s voice from the vicinity of the front of the house. He said, “Get the kids in the car”.
F got the kids in the car. I reached the car and turned to see G coming up behind me. He was now about halfway up the driveway.
From the time G held S to the time we walked out the door it was probably about 10 seconds. At all times whilst I was in the house, G and S were both standing. G’s demeanour throughout this was calm but urgent.
[13] Exhibit E
The mother agrees with the paternal grandmother’s claim that she fell to the floor. The grandmother claims she was pushed, whereas the mother alleges that the grandmother fell having knocked into a hall table. There is no doubt that the grandmother and G was involved in a struggle as one attempted to take the children and the other attempted to resist. The children saw the entire incident. The father and his parents, particularly his father are determined that action is taken against G for assault. Having failed to persuade the police that G committed an offence, the grandfather consulted lawyers with a view to commencing an action for civil assault. Notwithstanding that this can only exacerbate the tensions in the family, the grandfather is determined that his wife will be avenged. His actions have nothing to do with the children’s best interests. At his stage of life one can only hope that he will reconsider his stance and appreciate that there will be virtually nothing to be gained from proceeding further and in all probability only distress if he continues.
The affidavits are replete with examples of telephone calls between the male adults threatening each other with awful consequences. I have no doubt that the father has made offensive and threatening telephone calls to I S. Similarly I have no doubt that I S has made similar calls to the father. The children are aware of the calls and the details of some. Both sides have referred the matters to police, hence the apprehended violence proceedings against the father. His recent complaints to the police appear more motivated by a tit for tat exercise than fear.
The father denied that his assault conviction had any proper basis. Yet he was convicted and I do not doubt that he assaulted the mother as claimed by her. I accept the mother’s evidence that he used bad language towards her during their relationship and since. He chased her in his car on 6 November 2003 and his behaviour towards her partner has been entirely unacceptable, as was the language he used about the mother. When angered, the father could be formidable. His is a forceful personality and when he chased her or yelled at her she reasonably felt frightened of him. I am concerned that the father has been charged with driving in a manner dangerous, speeding and about his involvement in a pub brawl in May 2004. Although not convicted these incidents tend to corroborate the mother’s evidence that he can be a volatile bully. Thus I do have concern about the father as a role model. Because of these concerns the father will be ordered to attend an anger management course so that he can acquire the necessary skills to deal calmly with matters than anger or frustrate him. There is thus a small risk that in their father’s care the children will see him behave towards others in an aggressive and offensive manner. The risk that they will witness violent behaviour is remote.
The mother has not satisfied me as to the veracity of the other allegations of abusive behaviour levelled against him. I am satisfied that she has reviewed the many years of their relationship and given an exaggerated account.
The mother complained that the father regularly smoked marijuana, which I accept he did. Convicted of growing four marijuana plants the father claimed these belonged to the mother. I do not accept his evidence. The mother failed to disclose that she also used marijuana, but not as extensively as the father did. Neither appears to have used it so that the children were aware of it or that it affected their parenting ability. Both claim that they no longer use it, which I accept. For abundant caution I will include an injunction against doing so.
The father’s claim that he saw I S use amphetamines while they were watching the final of the rugby World Cup was another malicious allegation made in pursuit of his vendetta. I give it no weight.
There is no evidence that there is any violence in the mother’s home with I S. I am satisfied that in her care there is virtually no risk of exposure to family violence. This weighs in favour of her residence application.
During the hearing, the mother consulted Dr T, a consultant psychiatrist. He is not her treating doctor and saw her once for an hour. Dr T provided a report dated 2 September 2004 and gave oral evidence. He reported, “Her presentation is consistent with a diagnosis of panic disorder with comorbid depression (DSMIV diagnostic criteria). She is currently on antidepressant Luvox 50 mg half tablet a day. The mother has good insight into her condition, she realised that she has a history of a mental condition and that she should continue her medication and seek periodic psychiatric review. She informed me that she had discussed with her obstetrician the risk of her developing a post-natal mental depression. She has a moderate risk of postnatal depression given her past history, but she has a condition, which should respond to treatment if diagnosed promptly. It is my opinion that The mother’s psychiatric condition is episodic and it does not interfere with her capacity to care for her children provided she has periodic psychiatric review and seek professional help if she develops further episodes of the condition. During her previous episodes of her condition, she had not exhibited any signs of aggression or incapacity to care for her children. It is my opinion that she should be able to care for five children (three from her current partner and her own two children) and a newborn child. I recommend that she continues to take her medication, Luvox 25 mg a day and that she see a psychiatrist every two months over the next few months until a year after the birth of her child”.
During cross-examination, he said that the mother told him she had been diagnosed with mild depression, yet it was clear from her clinical notes that she was diagnosed with major depression. The mother withheld that she discharged herself from St John of God against medical advice and that she had failed to attend numerous follow up appointments and accept referrals to relevant mental health services. Thus when he accepted her account of her history that she was compliant with recommendations for treatment and that her symptoms had not impacted upon her care of the children, he agreed that this was inconsistent with her actual rather than self reported history. He agreed with the proposition that for mental health issues, the past is a good predictor for the future. Faced with a better understanding of the mother’s considerable non-compliance, he resiled from his reported opinion and said that she is at a high risk of developing post-natal depression which would continue for about one year. Rather than bi-monthly appointments, he said she needs fortnightly attendance upon a psychiatrist so that she has much closer scrutiny of her mental health.
The mother minimised the effect of her depressive disorder on her capacity to care for the children. Indeed when the hearing commenced the mother had not addressed this issue in any significant manner. Dr T was only consulted after I raised my concern about the paucity of evidence concerning the mother’s wellbeing. The mother described her symptoms to Dr H in December 1999. Reporting back to her referring GP Dr H[14] wrote “For the last 17 months she has considered to herself to feel weak, unsteady and no longer herself. For the last 5 months she has really been unable to cope at home, she can’t cook, she’s not able to sleep throughout the night and now has a number of symptoms including trouble focussing, shaking all over (particularly at night), difficulty with coordination, excessively agitated by noise, a strange taste in her mouth and inability to think clearly. She also has a fairly chronic headache which sometimes can be quite severe and is associated with nausea, vomiting mild headache which can persist all night. There is a family history of her mother having headaches and vomiting. …there’s a fairly extensive family history of depressive illness with her great-grandfather committing suicide, her grandfather experiencing severe depression, an aunt and her mother also experiencing depression and her brother committing suicide. She accepts that she has a sensation of panic or anxiety and feels on edge a lot of the time. She has been concerned however with some of her symmatic symptoms and wondered whether there was anything severe going wrong.” Her treating GP wrote[15] supporting her admission to Tresillian saying “She can’t cope with the children, with doing anything in the house. She says she can’t cope with another day home alone with the children.” This is consistent with the paternal grandmother’s evidence that the mother did not cope with the home and children and that she was substantially involved caring for the home, children and the mother.
[14] Exhibit F
[15] Exhibit G
The mother says that she feels much more settled living with I S and that he is a far more supportive partner than the father was. Thus she claims the risk that she may become depressed is remote.
I am satisfied that it is highly likely that the mother will suffer post-natal depression. I S has protected her from the reality of the financial pressures he is under and it was only during this hearing that she learned that they are likely to lose their home and that financially their position is precarious. The mother’s family has a history of mental illness, particularly depressive disorders. She has had various anxieties and other adjustment disorders, from the age of about 17. Against a long background of anxiety disorders, panic attacks, agoraphobia and postnatal depression, there is, even putting the imminent birth of her baby to one side, a significant risk that the mother’s various disorders will recur. When unwell, these interfere with her capacity to meet the children’s intellectual, physical and emotional needs. This is a factor upon which I place significant weight and weighs in favour of the father’s residence application.
Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes. Ideally courts should make parenting orders that minimise the prospects of future litigation. Litigation is costly in emotional and financial terms and has the effect of standing in the way of parties moving on with their lives. It can undermine their capacity to parent to the fullest extent of their ability. To the extent I am satisfied that the court should make orders that will be least likely to involve these parties and their children in future litigation. Although there were early instances where the father failed to comply with orders, he has reliably ensured that the children have had contact with their mother in accordance with the court’s orders. The mother has failed to return the children at the end of contact, withholding them from school so that she could have more time with them. When parents have as acrimonious a relationship as these parents have, there is always the prospect that there will be future litigation. I take that into account. I contemplated whether I should order the parties to attend counselling with the aim of improving their communication. However, neither is likely to benefit from short term counselling and long term therapy although desirable, is not feasible at this time. The court can only hope that with the proceedings ended the parties may decide to reframe their relationship and introduce a degree of civility and respect that is surely lacking.

Conclusion

This has been a difficult case. I share the court counsellor’s concerns that there are aspects of both parties’ parenting that are concerning. Ultimately, there are two primary factors that tip this finely balanced case in favour of the children substantially residing with their father. Firstly, in his care they will have stability. Both children will attend school regularly and on a day by day basis they will enjoy a routine which will enhance their competence and sense of personal stability. By comparison the mother’s living arrangements are highly uncertain. Secondly she suffers a depressive disorder which, when untreated limits her ability to meet the children’s intellectual, educational and emotional needs. Rather than meeting the children’s needs, when she is unwell they must meet hers. Her depressive disorder has caused her to keep the children away from school to such an extent their education in her care is severely compromised. While she and I S are genuinely motivated to provide well for the children their own circumstances are complex. They under estimate the effect on the children of trying to adapt to a blended home residing with a person they presently resent and children with whom they have only recently started to form a relationship. Notwithstanding my concerns about aspects of the father’s behaviour as a role model or that in his care the children may continue to be exposed to offensive comments about the mother and I S I am satisfied that the children’s best interest are served by remaining with him.
The orders will reflect the children’s representative recommendations. Although the father opposes the mother collecting and returning the mother collecting the children from school this strategy is essential in order to minimise the prospect that parents will come into contact with each other. The parents are unable to conduct themselves civilly and direct dealings almost guarantee the children will witness continuing bickering and abusive behaviour. They must be protected from this as much as possible. I accept that changeover at school means that the mother may be late collecting the children or delivering them to school. I S will do his best to assist her however his employment may limit his availability to do so. If the mother is routinely late collecting the children or delivering them to school this arrangement will require further consideration. Presently, the mother is motivated to be more reliable and I am satisfied the risk that she will not do so given that it is only twice a fortnight is only modest.
The parties agreed that a mutual friend is an appropriate person to conduct other changeover. So that the parties do not come into contact with each other at her home upon delivering the children each must immediately depart.
I will make a series of injunctions that require the parties to communicate information concerning the children to each other and enable each of them to obtain information directly from schools, health authorities and the like. So that the parties need not speak to each other they should contemplate establishing a communication book whereby relevant information passes between them. In order to provide a clearly defined structure for the children’s living arrangements, the orders include injunctions which limit the parties and others from contacting the children whilst in the other parent’s care, other than in specified circumstances. This is intended to enhance the children’s time with both parents and free the children of trying to deal with one parent in the presence of the other. The orders are also intended to stop the husband’s parents from contacting the children whilst they are with their mother. This to date their contact has been unsettling for Nicola in particular and their relationship is sufficiently strong that there it will be unaffected by absences when the children are with their mother. So that the children can enjoy their sports and extra curricular activities without being concerned that the parents might both attend an unpleasant scene ensue, the parent with whom the children are then residing will be responsible for ensuring the children’s attendance at any relevant activities and the other parent is restrained from participating.
At the children’s representatives’ request and with the father’s agreement specific orders are made for the provision of clothing and belongings between the two homes. This will enhance the quality of the children’s time with their mother. She will have a positive obligation to return any items when the children go back to their father.
I have carefully considered whether there should be an order for joint long term responsibility. It is difficult to see how these parties will effectively communicate on matters concerning the children's welfare. However, both parties and the children’s representative consider this outcome desirable and in spite of my misgivings I will order it.
In the long term, I am satisfied that these orders are in the children’s best interest. The children will have the opoprtunity to enjoy special occasions with both parents. In a well structured and ordered living arrangement their relationships with both parents should continue to grow. Provided the mother complies with the order that she attend a psychiatrist and abides the psychiatrist recommendations I am satisfied that she is able to meet the children’s needs during the periods that the children will live with her.
For these reasons I make the orders identified at the start of this judgment. I am satisfied that they are in the children’s best interests.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Ryan FM

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Associate: S. Mashman

Date: 7 December 2004