EXTON & FAHEY

[2017] FamCA 13

FAMILY COURT OF AUSTRALIA

EXTON & FAHEY [2017] FamCA 13

FAMILY LAW – CHILDREN – With whom the children should live – Where leading up to final hearing the children reside in separate households – Where the children have a meaningful relationship with both parents – Where the mother proposes the children remain separated and the father proposes both children live with him – Where the father fears the bond between the children will be lost if they remain separated – Where the Family Consultant shares the father’s fear –  Where the parents live a three to four hour drive apart – Where both children have been diagnosed as on the autistic spectrum – Where evidence supports the mother has physically restrained if not punished the eldest child – Where the father has been observing the child and formulating a plan for assessment – Where the father can stay calm and in turn calm the children when they are misbehaving or upset – Where the mother cannot regulate her own emotions enough to assist the children in regulating their own – Where the mother felt burdened when caring for both children and provided differential treatment – Decided the children need to be protected from this differential treatment – Decided an order for the children to live together will mitigate the chance of further applications by the parties – Ordered the children live with the father.

FAMILY LAW – CHILDREN – Parental responsibility – Where both parties agree they have communicated poorly – Where there is an Apprehended Violence Order in place for protection of the father and his current partner – Where the current partner is fearful of the mother – Decided sole parental responsibility should vest in the parent with which the children reside – Ordered that the father have sole parental responsibility.

Family Law Act 1975 (Cth), ss 60CC, 64B

APPLICANT: Ms Exton

RESPONDENT: Mr Fahey

INDEPENDENT CHILDREN’S LAWYER: Denise Clark Solicitor

FILE NUMBER: (P)NCC 2326 of 2013

DATE DELIVERED: 19 January 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Cleary

HEARING DATE: 28-30 November 2016 and 1-2 December 2016

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Boyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Denise Clark Solicitor

Orders

1. That all prior parenting Orders in relation to A born … 2007 and B born … 2010 (“the children”) are discharged.

Parental Responsibility

1. That the father have sole parental responsibility for the long term care, welfare and development of the children.

Residence

1. That the children shall live with the father commencing 21 January 2017 at 12.00 noon.

Time with the mother

1. The children shall spend time and communicate with the mother as follows:

(a)On one weekend during each school term from 5.00 pm on the fifth Friday of the school term until 5.00 pm on the following Sunday;

(b)Commencing in 2017, for the first half of each school holiday period being from 12.00 noon on the first Saturday until 12.00 noon on the middle Sunday in each of those holidays and from 12.00 noon on 23 December for 14 days in odd numbered years and from 12.00 noon on 27 December for 14 days in even numbered years;

(c)For the weekend of Mother’s Day on the times provided in Order 4(a) above; and

(d)As otherwise agreed between the parties in writing from time to time.

Communication with the mother

1. The mother may telephone the children:

   (a)On each of the children’s birthdays between 4.30 pm and 5.30 pm on a school day and between 8.30 am and 9.30 am on a non-school day.

   (b)Each alternate Thursday with the mother to initiate the call at a time between 6.00 pm and 6.30 pm and the father to permit and assist each of the children to speak to their mother NOTING that the father may remain in the room with the children during the call and may, at his discretion, terminate the call in respect of either or both children if he becomes/they become upset.

Schools

1. The father may forthwith enrol B at C Public School or such other school as he decides for the 2017 school year.

2. The Independent Children’s Lawyer (“ICL”) shall provide a copy of these Orders to:

   (a)The principal of C Public School; and

   (b)The principal of G Public School.

3. The father shall authorise the principal of the school/s which the children attend to forward to the mother (at her expense if any) copies of all documents relating to the progress and welfare of the children at school, including but not limited to school reports, applications for school photographs, and invitations for parents to attend events at school.

4. That the father shall advise the mother of any change of enrolment for the children or either of them at school.

5. Commencing in 2018 the mother may attend events to which parents are invited, including concerts, sports carnivals and speech days, at the children’s school/s subject to any direction otherwise by the principal NOTING that if the mother wishes to attend Parent/Teacher interviews she must make a separate appointment to the father.

Information

1. The father shall keep the mother advised of the names and contact details of the medical and other practitioners which provide advice, therapy and treatment for the children or either of them.

2. The father shall authorise the children’s practitioners to speak to the mother and provide information to her about the health and treatment of the children subject to the willingness of such practitioners to communicate with the mother.

Injunction

1. Pursuant to Section 68B(1)(c) of the Family Law Act 1975 the mother Ms Exton is restrained from attending, entering or remaining in:

   (a)The current residence of the children, namely D Street, Town C in the state of New South Wales, and any subsequent residence.

2. Changeover shall take place either:

   (a)At the home of the maternal grandfather in Suburb E with the father or his nominee to deliver the children to the maternal grandfather no less than 15 minutes before the time stated in these Orders and the mother or her nominee to collect them no less than 15 minutes after the time stated in these Orders; or

   (b)If the maternal grandfather is unavailable, at the home of the paternal aunt at Suburb M with the father or his nominee to deliver the children to the paternal grandmother/paternal aunt in that home, no less than 15 minutes before the time stated in these Orders and the mother or her nominee to collect them no less than 15 minutes after the time stated in these Orders;

   NOTING that if the mother is present in the home when the children are delivered by the father she is to remain away from the father and children until he has left the premises and NOTING that if the father is present in the home when the children are delivered by the mother he is to remain away from the mother and children until she has left the premises.

3. The father shall advise the mother by email, to the address she provided to him on 2 December 2016, on no less than one occasion per calendar month of relevant events in the lives of the children relating to health, education, sporting and social activities including current photographs and details of any medical appointments that the children attend.

4. Communication between the parties in regard to the arrangements for the children shall be by email, except in the event of communication of a genuine emergency which may be by telephone or text.

Costs of ICL

1. Within 28 days of the date of these Orders, the ICL shall provide to the parties and my associate any costs application she proposes to make disclosing costs and disbursements and any contribution already made by either party.

2. Unless costs are agreed the application can be listed on a date to be determined.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Exton & Fahey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2326 of 2013

Ms Exton

Applicant

And

Mr Fahey

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders for two boys, A aged nine and B aged six years at time of trial.

2. The older child lives with his father, the younger child with his mother.

3. Both children have been diagnosed as being on the autistic spectrum. The older child is more affected than the younger.

4. The younger boy has serious speech delay and is now having speech therapy.

5. There is an Apprehended Violence Order (“AVO”) in place, current to May 2017, for the protection of the father and his partner from the mother.

The Applicant Mother

1. The applicant is the mother of the children. The mother represented herself at trial.

2. The mother is aged 33 years. Her household consists of herself, the younger child B, and on a regular part-time basis her partner of two years Mr H.

3. The mother cares for the child and receives a Supporting Parents Benefit. She has recently returned to work, part-time, as a beauty therapist. She hopes to do further study.

4. The mother lives in Town G, a town in the Hunter region. Her partner lives in the same town but has recently sold his home and is contemplating where to live next.

5. The mother thought he may move to the town of Town N which is 50 kilometres further north east from Town G. The mother said she was considering going with him.

6. Mr H was more circumspect. He is waiting for the outcome of these proceedings.

The Respondent Father

1. The Respondent is the father of the children. The father represented himself at trial.

2. The father is aged 34 years. In addition to the older child A, his household consists of himself, his partner of almost two years, Ms S, aged 30 and her two children, a girl aged nine and a boy aged six years. Ms S’s mother is also a member of the household.

3. Ms S takes an active role in the care and supervision of the child A along with her own two children.

4. The father lives in a very small town in the Macarthur region of New South Wales. The property he lives in is rented. Ms S’s mother has been the lessee of the premises for ten years.

5. The father is employed as a Manager at a tourist venue on the South Coast of New South Wales, about one hour’s drive from his home. He has been accorded flexible work arrangements including late starts, early finishes and the ability to work from home.

The Households

1. The two households are about 245 kilometres apart on a line north and south of Sydney. It is not less than a three hour car trip.

Applications

1. Each party had sought an order for residence of both children.

The Applicant Mother

1. The mother changed her position before the Court just prior to trial. She has concluded, to her credit, that the older child is doing well in the care of his father, is attending an appropriate school in respect of his autism, and is emotionally settled.

2. The mother therefore proposes that the status quo of one child with each parent should become final, with the older child living with the father and the younger child remaining with her.

3. There are proposals for each child to spend time with the other parent in a way which maximises time for the children together.

4. The mother also proposed orders in the alternative titled “If mother resides in or around the Sydney South area”.

5. There is no evidence from the mother that she does intend to move to the south of Sydney nor where she would live and work if she did so. At its highest, her evidence was that she might move to that area if both children were living with their father as a result of these proceedings.

The Respondent Father

1. The father has maintained his current position, that both children should live with him, since he made an interim application to that effect in October 2015.

2. Previously, at least from July 2014 when final orders were made by consent, to that effect, the father had supported the children living with the mother and spending regular time with him. That changed after the older child came into his care.

3. The Case Outline[1] tendered by the father provided orders sought in their final form.

   [1] Exhibit 3

History of Relevant Events

1. The parties began living together in 2006 when the mother moved to live with the father in his parents’ home in Sydney.

2. Shortly after they began living together the mother learned she was pregnant. The parties moved to their own rented property.

3. The older child was born in mid-2007.

4. In the following year the parties separated.

5. In 2009 there was a brief reconciliation during which the mother conceived the parties’ second child, B.

6. In August 2009 the mother decided to move to Town T, a town on the far North Coast of New South Wales, to be closer to her mother and extended family. The father agreed to the move.

7. The younger child was born early in 2010.

8. In or around mid-2011 the parties again separated and have not reconciled.

9. The relationship was characterised by mutual acrimony, verbal abuse and occasional physical abuse usually by the mother on the father.

10. That pattern of conduct has continued over the more than five years since separation.

11. In July 2013 an interim AVO was made for the protection of the father and children from the mother.

12. On 17 September 2013 the father filed an Initiating Application in the Family Court together with a Notice of Risk. He proposed that both children live with him. The mother filed her Response in opposition soon after.

13. In October 2013 there was a final AVO against the mother.

14. On 1 November 2013 a Children and Parents Issues Assessment (“CAPIA”) was provided to the Court. The Family Consultant recorded the high level of conflict and mutual allegations of domestic violence. Her view was that the mother was receptive to feedback but the father was not. Further investigation was recommended.

15. On 20 November 2013 interim orders were made by consent for the children to stay living with their mother.

16. In March 2014 a Family Report was released.

17. The Report recommended that the children live with the mother, that the mother have sole parental responsibility and that the children spend regular time with the father.

18. In July/August 2014 two significant events occurred.

19. On 31 July 2014, the parties signed final consent orders (“the 2014 Consent Orders”) which reflected both the recommendations of the Family Report and their own agreement about geographical location.

20. The mother was to relocate south from Town T to the Mid North Coast with the children. The father had committed to living there too. A school for the older child (through Aspect - the peak body for Autism) was chosen.

21. The second event was that in late July or early August, the mother and her current partner met online and began the relationship which has continued, with one break, to date.

22. The 2014 Consent Orders failed almost immediately.

23. The mother did not move to the Mid North Coast.

24. Without reference to the father, she obtained an exemption from school in Town T for the older child for the last term of the 2014 school year. In October 2014 or thereabouts the mother then moved south with the children to Town G into the home of her partner.

25. The mother does not concede even now that by her actions she breached Court orders, instead she blames the father.

26. In December 2014 the father began a relationship with his current partner.

27. In January 2015, after the father understood that the mother would not move to the Mid North Coast, he moved south to a suburb of Wollongong to be closer to his partner and to new employment.

28. In January 2015 the mother made a fresh application to this Court for variation of the final orders, by then six months old.

29. The father failed to comply with directions and to appear at Court for several months.

30. On 14 May 2015 both parties attended a Child Dispute Conference. The father continued not to respond to orders and directions until July 2015.

31. On 7 August 2015 the father finally filed a Response supporting the children living with the mother but seeking more extensive time and a raft of orders for specific issues.

32. In September 2015 the mother separated from her partner Mr H and moved with the children to Sydney. The mother was struggling and angry with the father for what she perceived to be his failure to help her. She asked, or perhaps told, the father to take the older child to live with him. The father agreed. The older child began living with the father.

33. The mother says it was a temporary arrangement only, until she was able to find suitable accommodation. I do not accept that it was so. Rather, I consider that the mother wanted the father to take on the care of the older child and no time limit was discussed.

34. In October 2015 the father and the older child moved in to live with his partner and her family in the property at Town C. The child was enrolled at school for fourth term.

35. Soon after, the mother reconciled with her partner and decided to move with the younger child back to Town G to live. She wanted to take the older child with her. The father did not agree.

36. On 12 October 2015, after the first day of school for the older child, the mother went to the home of the father and his partner. The younger child was in her car.

37. The mother was upset. The school had contacted her. The older child had had what the mother calls a “meltdown” and the father identifies as “frustration” at bell time. The evidence establishes that the father had told the child that Ms S’s mother would collect him from school, which she did. The mother had told the child that his father would collect him from school. The sole basis for that information was the mother’s belief that it would be so. These conflicting messages may have affected the child. It could have been something else.

38. The mother without prior notice drove to the father’s home in Town C. She sent the father a text message “Come and get his iPad at the gate”.

39. The evidence of the mother is that she wanted to give the older child his iPad, give him a cuddle, and reassure him. She also said “I felt then that it wasn’t the right situation for him and wanted to take him back.” On balance, I consider the mother went to the father’s property intending to take the older child with her.

40. The parties disagree about events other than the fact that both children were present. The mother says Ms S pushed her, and the father then picked her [the mother] up and threw her to the ground.

41. The father says when the older child ran out to greet the mother she began pulling him to her car. The father asserts that the mother “barged him” causing him to fall onto the child.

42. There are allegations of mutual abuse and threats.

43. The police were called.

44. The mother was arrested, cautioned and taken to the police station.

45. It was a terrible incident for the children to be a part of and to witness.

46. The mother has since stated to the younger child that the father “slammed her to the ground” on that occasion.

47. The police regarded the mother as the aggressor and I take that conclusion into account in finding that on balance it is likely that the mother went to the property with the intention of removing the child and was prepared to use force to achieve that end.

48. On 27 October 2015 interim orders were made in this Court. The 2014 Consent Orders were suspended; further orders provided a confirmation of the status quo, that is, one child with each parent.

49. On 6 November 2015 the mother was charged with assault arising from the incident at the father’s home.

50. On 23 December 2015 interim orders were varied as to spending time arrangements and a Family Report ordered.

1. The mother did not comply with orders for holiday time. After the Christmas holiday period the mother retained the older child and attempted to re-enrol him at school. The school declined having seen Court Orders. The child was returned to the father

2. On 1 April 2016 the Family Report was released.

3. The mother conceded to the Family Consultant that she had kicked the older child in the stomach whilst he was spending time with her.

4. There were interim recommendations. The preferred option of the Family Consultant was that both children live with the father and there be a period of about three months when they spent no time with the mother.

5. In the alternative, if the younger child continued to live with his mother, the recommendation was that the maternal grandfather supervise the mother’s time with the children and that changeovers take place at his home in the absence of the partners.

6. No long term recommendations were made.

7. On 2 May 2016 directions were made for an interim hearing the following month.

8. On 20 May 2016 at the Local Court, the assault charges against the mother were dismissed. An AVO was put in place for 12 months for the protection of the father and his partner from the mother.

9. On 10 June 2016 the matter was adjourned part-heard on the application of the mother.

10. On 28 July 2016 interim orders were further varied, the main effect of which was that the older child spend time with his brother and mother on two weekends per term supervised by the maternal grandfather.

11. On 10 August 2016 the matter was set down for trial for five days.

12. On 28 November 2016 the trial began and concluded within the allocated time.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The mother

   (a)Further Amended Initiating Application filed in Court on 28/11/2016;

   (b)Notice of Child Abuse, Family Violence or Risk of Family Violence filed 16/10/2015;

   (c)Affidavit of the mother Ms Exton filed 21/10/2016;

   (d)Affidavit of the mother filed in Court on 28/11/2016;

   (e)Affidavit of the mother’s partner Mr H filed 21/10/2016;

   (f)Affidavit of the maternal grandmother Ms L filed 21/10/2016;

   (g)Affidavit of the maternal grandfather Mr Exton filed in Court on 1/12/2016;

   The father

   (h)Response filed 7/08/2015;

   (i)Notice of Child Abuse, Family Violence or Risk of Family Violence filed 26/10/2015;

   (j)Affidavit of the father Mr Fahey filed in Court on  28/11/2016;

   (k)Affidavit of the father’s partner Ms S  filed 29/11/2016;

   Reports

   (l)Family Report dated 1/04/2016;

   (m)The Child Dispute Conference Memorandum dated 14/05/2015;

   (n)Family Report dated 27/03/2014;

   (o)Children and Parents Issues Assessment dated 1/11/2013.

Oral Evidence

The Applicant Mother

1. The mother had given serious thought to her position before the Court. She had struggled with relinquishing her proposal for the older child to return to live with her.

2. She had discussed with her psychologist whether to press for both boys living with her and listened to advice.

3. My overall impression is that the mother accepted that the older child is very well settled with his father and in his current school.

4. I am satisfied that if she thought otherwise the mother would have maintained her application for residence of both boys.

5. The mother has also had the benefit, for the first time since the older child was born and the younger child started school, of having regular time to herself.

6. The mother has found part-time work and engaged in cognitive therapy. She is hoping to do further study.

7. My impression is that whilst she misses the older child, the mother has enjoyed the change to care of one child only. She is also bitterly frustrated by not being sufficiently acknowledged, in her view, by the father for having provided all of the care for their two children until September 2015 when the children were split between them.

8. She has been a single parent for most of the children’s lives.

9. She feels controlled and criticised by the father. She is infuriated by his claim that he is simply a better parent for the children than she is; that he can manage their challenging behaviour whereas she cannot.

10. There is some substance in the mother’s position. The father has not had the full time care of the children together growing up. He now has the full time care of the older child who is undoubtedly thriving and flourishing. However, the father has the invaluable support of both his partner and her mother; stable accommodation and satisfying employment with parent friendly working conditions.

11. However, the mother does not acknowledge her own contribution to the hostility between herself and the father. She blames the father for the breakdown of the relationship, for the 2014 Consent Orders breaking down and for the older child’s behaviour with her.

12. To the extent she acknowledged that her impulsive aggressive conduct at times was unhelpful, the mother was quick to excuse herself “it’s difficult for me with a child with a disability” and “there are moments of slipping up and speaking in a way I instantly regret … [pause] … I believed him that he would help. I want his help even though my family warned me he’s dangerous, stay away from him”.

13. The mother has a fiery temperament. There were glimpses of it during her oral evidence despite her best efforts at self-control.

14. On balance, I consider that allegations of the father that the mother screamed and swore at the children at times are likely true. She certainly referred to the older child as “your bastard child” in a text to the father although the insult was probably intended to hurt the father rather than the child.

15. She physically restrained, if not intentionally punished the older child, in ways that inflicted bruises and scratches on his body. On one occasion [the mother concedes] she kicked the child in the stomach.

16. The mother has had an imperious attitude to the father, seeing herself as the active parent and the father as the disappointing inactive parent.

17. In September 2011 the mother directed the father to pay $350 into her account and to email the receipt as a condition of him seeing the children for the weekend.[2]

    [2] Exhibit 8

18. There is evidence of the father being, and staying in arrears of child support in the early years of separation. That fact represent some explanation of the mother’s demand. However, her method of communicating could not do other than antagonise.

The Mother’s Partner – Mr H

1. Mr H is 35. He is in full time employment as a tradesman in specialised work specific to the Newcastle area.

2. My impression of his evidence is that he sees a future together for himself and the mother but has been willing to maintain the relationship “on a support level” until the conclusion of these Court proceedings.

3. He has recently sold his home in Town G and will stay with his parents after settlement.

4. His life is on hold. He dismissed living in Town N as a definite plan. He did go so far as to say that “If the mother was fortunate enough to keep [the younger child] in her care, we’ll get a lease in [Town G].”  In the event that the younger child joined his brother in the household of the father, then Mr H was definite “Can’t answer that. We would discuss it at the time.”

5. Mr H clearly knows that the mother is committed to maintaining her relationship with both her children and supports her in that. Decisions about where to live will put his relationship with the mother under pressure and could end it.

6. His comments on the children suggest that Mr H is quite knowledgeable about them. He has also spent his own money on various therapeutic services for them.

7. He has probably not spent sufficient time with either child to have a strong bond with them, certainly not with the older child. However, he has a loving and committed bond with their mother and supports her wishes about parenting arrangements.

8. He presented as quite frustrated about events reflecting the open hostility between the mother and father with a perception that the mother has had to defend herself in this Court and State Courts.

9. However, I did not form the impression that he has enflamed the dispute or attempted to influence the children against their father.

10. His solid support for their mother would be a benefit to the children.

The Maternal Grandmother – Ms L

1. The maternal grandmother lives in Town T on the North Coast of New South Wales. That is approximately 300 kilometres north of where the mother presently lives, a journey by car of about three and a quarter hours.

2. The maternal grandmother stated that she suffers from Fibromyalgia with consequent adverse impact on her memory.

3. I have no reason to doubt that assertion but she presented as a reliable witness, essentially truthful but trying not to say the “wrong thing” in terms of her daughter’s position at Court.

4. I was impressed by her quick contradiction of the proposition by Counsel for the ICL that the statement in her affidavit,[3] “I am in no doubt that they are safe in her [the mother’s] care” was meant to convey that the children were not safe in their father’s care. Her Response was “Not at all. If thought that I would have said so”.

   [3] Affidavit of the maternal grandmother filed 21/10/2016, par 13

5. In relation to the mother retaining the older child in January 2016 the maternal grandmother said she knew the mother was doing that, withholding the child. When asked whether she knew that would be contrary to Court orders her response was “Not definitely knowing, but I knew he was living with his father and had to go back.”

6. My impression is that the maternal grandmother is committed to being supportive of her daughter but does not attempt to advise, and certainly not to tell, her what to do.

7. I also have the impression that there is quite a lot that the maternal grandmother does not know about her daughter and these legal proceedings. That is not a criticism. The mother is an adult with her own life.

8. The maternal grandmother stated that she had not seen her daughter hit either child. That may well be true. The mother has conceded otherwise, particularly in relation to the older child.

9. However, I have no doubt that the maternal grandmother is a loving presence in the lives of the children. They were observed with her in November 2013 (aged six and three). “They seemed comfortable with one another and were demonstrably affectionate towards one another and towards their mother and maternal grandmother (who minded them while the mother was being interviewed)”.[4]

   [4] Children and Parents Issues Assessment dated 4/011/2013, page 8

10. The children see their maternal grandmother every few months either when she visits or they travel to her home.

11. The relationship of the children with the maternal grandmother is important and should be preserved in their best interests.

The Maternal Grandfather – Mr Exton

1. The maternal grandfather is 67. He lives in a south western suburb of Sydney. He has a severe chronic asbestos related illness for which there is management, not cure.

2. The mother did not put her father forward as a witness until the matter was raised by the Court. The maternal grandfather was interviewed for the Family Report and identified by the Family Consultant as a person with a good relationship with the children who could supervise time between the older child and his mother. Orders to that effect were subsequently made after the last interim hearing.

3. Leave was granted for an affidavit to be prepared and filed in Court during the course of the trial. The affidavit included this statement “I have facilitated supervision as per Court orders a couple of times with [the mother] and the children in my home.”[5]

   [5] Affidavit of maternal grandfather Mr Exton filed in Court on 1/12/2016, par 17

4. The maternal grandfather attended Court and was cross-examined.

5. It became clear, and was subsequently acknowledged by the mother, that she had not provided a copy of the relevant orders to her father. The maternal grandfather was unaware of the obligation to supervise and had not done so despite his assertion otherwise in his affidavit.

6. I am satisfied that the mother chose not to tell her father and did not forget or overlook providing the orders and information.

7. It is apparent that the maternal grandfather is a loyal and loving father to the mother. He also spoke affectionately of the two subject children with particular enthusiasm about the younger child, “he’s a wonderful little boy”.

8. The maternal grandfather is willing to have his home used for changeovers subject to his health. He is a sick man. He uses an oxygen concentrator and suspects that his level of medication affects his memory.

9. The maternal grandfather is not in a position to supervise, however willing he might be to do all he could to help his daughter, and did not suggest otherwise.

The Respondent Father

1. The father presented as a straight forward witness who made concessions appropriately. He conceded that the relationship between the parties had been extremely emotional and that he, himself, after separation in 2011, damaged property of the mother’s out of jealousy.

2. The father in the 2014 Consent Orders agreed for the children to live with their mother and spend time with him and was committed to a future of shared care on the Mid North Coast. What had been agreed on did not materialise and for a significant period of time the father did not re-engage with litigation when the mother applied to the Court to vary those failed orders. However after the older child came into his full time care the father has been steadily committed to having both children live with him and to facilitating time with the mother consistent with their safety.

3. There had been another relationship between separation of the parties and the father commencing his relationship with his current partner, Ms S. He was asked about the breakdown of that relatively short relationship. The father said that his then partner had found the older child’s behaviour a problem and had said to him in so many words, “choose the children or choose me” and he chose the children. I am satisfied the father is committed to the care of the children.

4. Both the parties love their children, that is apparent. However, where the mother regards both children, but more particularly the older one, as “disabled, difficult, exhausting”, the father chooses to be observant of the children to promote their strengths and to help them overcome their weaknesses. Importantly, whereas the mother was embarrassed by the behaviour of the children, especially the older one, which she saw as reflecting badly on her as a parent, particularly in public, the father is not and is content for events to play out in public as they need to without feeling judged.

5. The father spoke enthusiastically about the special class at the child’s new school where he has a specialist teacher who also has her own autistic child.

6. The father has undertaken a Parenting After Separation course, although not the PPP parenting course.

7. The father was asked by the ICL about the impact on his relationship of having four children in the household; two autistic children, two children not affected. The father was thoughtful in response “If we thought the children could not cope with being together, we [referring to himself and his partner] would move into separate houses, live close and maintain the bond.

8. The father regards the mother as emotionally unstable, referring to her hitting, scratching and screaming. His view was that the parties could not be together in close proximity without the potential for conflict. The evidence tends to support that conclusion.

9. The father does not trust the mother. He was extremely disappointed when the 2014 Consent Orders failed. He had expected the mother to move to the Mid North Coast. He also considered it likely that the older child would come into his care in 2015, an appropriate school had been chosen. The father was extremely concerned when he found out that the older child had simply been taken out of school for the final part of 2014.

10. The father also spoke thoughtfully about the younger child, who he said had sometimes asked him why he was not living with his brother and himself.

11. The father was taken to the oral evidence of the mother to the effect that she had told the younger child that the older child lived with his father because he had been naughty for her. The father’s response was “It’s like watching crime on TV, you do become a little bit used to it.”  The father was clearly upset at that point.

12. The father conceded that each child might benefit from having the undivided attention of one parent however his overriding concern was the separation of the two brothers, “every child academically will do better if one parent focuses on them but to divide them, there is a fight for love”.

13. The father’s method of discipline with the older child is to speak calmly and reassure him. At times the child has sworn at him abusively and the father’s method has been to reassure the child, “I know you love me”, the child then settled down and invariably apologised and hugged his father.

14. The father conceded that there would be some tension and competition for his attention if the younger child came into the household.

15. The father was cross examined by the mother, a difficult situation managed well by both of them.

16. The mother asked whether the father agreed that she “met [the younger child’s] needs”. His response was “some of his needs but I don’t believe he is reaching his full potential in your care.” The mother also challenged the father with the proposition that he did not believe that “the younger child was on the autistic spectrum.” The father responded “Once his speech gets amended he needs to be reassessed to see if his speech problems created an autistic effect.”  The response suggested to me that the father has been both observing the child and formulating a plan for assessment once a certain point of progress has been reached in terms of speech therapy.

17. There was a moment in the cross-examination where the mother said thoughtfully and politely to the father, “You do have more authority than me, you are doing a good job” and the father simply and sincerely replied “Thank you.”

18. On the topic of the relationship between the children, the father agreed that there was a strong bond between them and expressed his fear that “if separated that will not ever get stronger”.

19. The mother’s question in the form of a plea that they could maintain their strong bond whilst living separately was met with the father’s response, “I honestly think they will grow up resentful of how it happened.”

20. The tenor of the mother’s cross-examination appeared to me to reveal the mother’s acceptance that the children’s underlying belief was that they should be together and a certain inevitability that if they were to be together that would be in the father’s care given her concession about the older child doing so well in that setting.

21. The questioning also revealed that the mother had developed the habit of labelling each of the children’s toys “A” and “B” and doing the best she could to keep them entirely separate.

22. The mother put the proposition to the father that he had not facilitated telephone calls. He readily agreed “that’s correct” and he then explained that the children should not be exposed to her behaviour on the telephone, raising her voice and swearing. The mother appeared to concede the conduct by saying she promised to make the telephone calls positive.

23. The father listened carefully to each question and did his best to respond in a genuine way. The mother also showed genuine interest in aspects of the father’s household. Forced by the circumstances to be polite, it was perhaps the longest conversation the parties have had about the children for at least five years.

The Father’s Partner – Ms S

1. The father’s partner is aged 30. She has two children, a boy and a girl aged approximately the same as the subject children.

1. The father did not put his partner forward as a witness until the matter was raised by the ICL and the Court at the commencement of proceedings.

2. An affidavit was prepared and leave granted for filing and reliance. Ms S attended and was cross-examined.

3. The father’s partner was an impressive witness. She is a health professional by occupation in permanent part-time employment, 40 hours a fortnight. Her living together with the father started by the father and the older child moving in with her when the child came into his father’s care. I accept her evidence that she treats the father’s two children as if they were her own and has come to love them. She reflected on the different nature of the children. She said about the older child, “He does get frustrated at times, usually he then removes himself. I go into his bedroom and if he asks to be left alone, I do.”  She described the younger child as completely different from his brother, “He doesn’t get frustrated and angry, he’s quiet and withdrawn, no eye contact.”

4. The father’s partner revealed herself to be intimidated by the mother since the incident at her home in October 2015.

5. At the conclusion of her cross-examination by the mother, she said this to her, “I am extremely intimidated by you. I feel anxious, sick to the stomach and I can’t eat when you ring, I can’t see a relationship between us.”

6. The father’s partner conceded that the younger child would miss his mother and may feel overwhelmed in a household of four children. She agreed that the older child used to fight with her daughter but they had discovered common interest and had “bonded over soccer”.

7. The mother was keen to explore again the incident of October 2015 with an apparent wish to vindicate herself despite the matter having been resolved in the way described in the State Court.

8. Overall, I formed the impression that the father’s partner is strongly and realistically supportive of him as a partner and as a step-parent to her own children. She is a calm person and is likely to be a strong source of warmth and support for the subject children.

The Family Consultant

1. The Family Consultant was strongly supportive of the children being reunited in their father’s care. She described the two boys as having been an absolute pleasure to meet and that it had been a mutually enjoyable interview. She explained that she had not seen the different side of either child described by the parents.

2. The Family Consultant was very firm to say that the boys should be together, that they were physically affectionate with each other and showed a really good connection on each occasion she saw them. Significantly she said that in her view each child felt a burden of guilt about their separation and that there could be long lasting repercussions if they were separated.

3. The Family Consultant stressed the significance of the sibling relationship, “They won’t have shared experience; they will grow apart. If one parent can meet their needs, then they should be together”.

4. The mother cross-examined Ms R. The Family Consultant stood firm about the level of time with the mother she considered appropriate in the event that the younger child went to live with his father. She challenged the mother on her proposition that it would not be fair for the child if he spent as little as one weekend per term with her.

5. The Family Consultant explained that none of what had happened to the children had been fair for them but they had a great need to lead a settled and predictable life. She also explained to the mother that in her professional opinion the mother’s behaviour provoked the older child to behave in a certain way; that his father’s behaviour did not provoke the same response.

6. The Family Consultant also explained that she had heard of evidence given in the trial that concerned the mother, that the mother struggled physically with the older child. In the view of the Family Consultant there needs to be someone present during all periods of time for the time to be a benefit.

7. Having read the report of the speech therapist for the younger child the Family Consultant agreed with the mother that the child was doing very well. She went on to say that if he was doing well then he would be likely to continue to do well in the care of his father.

8. The Family Consultant also identified that the mother treated the two children very differently and that the boys were aware of the differential treatment and that posed difficulties for their relationship. That evidence resonated with the evidence of the mother and the maternal grandfather that the younger child was a good child with no behavioural problems and that the older child was a naughty and difficult child.

9. Finally, the Family Consultant explained to the mother that it was her inability to regulate her own emotions that was the issue, “You are responsible for your behaviour and controlling your emotions. If you can’t control yourself and help them regulate their emotions then it’s a problem”. At that time the mother appeared to understand that the Family Consultant was not directing her recommendations to fairness between adults but the fundamental needs of the children and which of the parents could meet those needs.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the children in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between the children and parents as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Parental Responsibility

1. Each parent concedes that they have communicated poorly, in particular the mother has impulsively sent rude and aggressive texts, the parties do not trust each other and the prospect of consultation and compromise is nil at this time.

2. There is an AVO in place for the protection of the father and his partner from the mother and I accept the evidence of the father’s partner that she is fearful of the mother and made sick and anxious at the thought of encounters with her.

3. Accordingly, only one of the parents should have parental responsibility for the children with provision of information to the other parent.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. The children have had significantly disrupted childhoods, neither would remember their parents living together, both have been exposed to violent verbal and, also in relation to the incident in October 2015, physical confrontations between their parents.

2. The mother was their primary carer. The father was at all times willing to be involved in the lives of the children but the parties related so poorly to each other and separated so badly from each other, that shared care or anything close to it was unworkable.

3. The children do have meaningful relationships with each of their parents. The older child A has been abused both verbally and physically by his mother and has been told that he no longer lives with her because of his behaviour. There is an element of rejection in the relationship between the older child and the mother.

4. The Family Consultant reports that both children had good attachments to their father and seemed very comfortable with him. The older child’s attachment to the mother was of much concern to the Family Consultant and appeared to suggest the existence of significant attachment problems, “The violent power struggles between [the older child] and the mother are of much concern.”[6]

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

[6] Family Report dated 1/04/2016, par 141

1. The children have been exposed to family violence as described. There are other considerations. The mother has always found the younger child an easier child to manage. She has felt embarrassed by the behaviour of the older child and burdened by the care of both of them. The children need to be protected from differential treatment; the older child needs to be protected from his mother’s tendency to physically restrain him when he becomes frustrated.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The children were last observed by the Family Consultant in March 2016. At that time the Family Consultant reports that the boys’ behaviour and manners were faultless and they presented as being on track with regard to attention and following directions, as well as in regard to other developmental skills such as fine and gross motor skills. She described them as creative, both demonstrating a good sense of humour and playing exceptionally well together.[7]

   [7] Family Report dated 1/04/2016, par 137

2. When the Family Consultant asked the older child why he had come to see her again he said, “He had to remember to tell her that he wants to live with his mum and with his brother. He said that his mum had told him to say that.”[8] The child then went on to say that he missed his brother a lot and also his dog Y. When he was asked if he enjoyed living with his father (at that point the child had been living with his father for about six months), he was quick to say “That he does like living there and that he loves his new school. He also liked his father’s partner and her kids and her mother. He said that it is fun in that house.”[9]

   [8] Family Report dated 1/04/2016, par 139

   [9] Family Report dated 1/04/2016, pars 139-140

3. The children were interviewed together and there was no attempt to elicit the younger child’s views. The younger child was described as happy to answer questions about school and about who lived in each home but they were both reticent in answering questions about how their parents were getting along, or whether they were worried about anything happening to them in their lives.

4. I take into account the views expressed by the older child as to his happiness and enjoyment of all members of the father’s household. It is apparent that he was dutifully reporting what his mother had told him to say, that is, that he wanted to live with her. However his own freely expressed views are consistent with the Family Consultant’s overall observations of his progress since she first met him in 2013 and the objective evidence from his school.

5. The younger child at five, and with no experience of doing anything other than staying with his father very occasionally, could not be expected to express a view about where he should live.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. Each of the children have their most secure relationship with their father, although the younger child has lived in the primary care of his mother all of his life.

2. Each of the children have important relationships with extended family. The older child has developed a close, warm relationship with his father’s partner, her children and their maternal grandmother of those children. It is apparent that he feels part of the family there.

3. Both children have relationships with their maternal grandparents although they do not see the maternal grandmother very often due to the distance. The younger child probably has a good relationship with the mother’s partner, improved by there no longer being a high level of conflict in the household as a result of the mother’s relationship with the older child.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. The mother was responsible for the children’s care in their early life. She expresses a great bitterness that the father did not do more to help her but probably underestimates the impact of her own inability to compromise.

2. Each of the parents has moved around. The mother failed to comply with Court orders almost as soon as they were made and chose to live with her new partner. Once the mother had made that decision, the father moved away and chose to distance himself from the children, not through lack of interest but through bitterness at the failure of the consent orders being properly implemented.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. It is apparent that the mother struggled financially to care for the children. The father did pay child support but for whatever reason that child support was received erratically by the mother with fluctuating levels, a result of changes in the father’s employment and periods of unemployment.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. If the younger child goes to live with his father he will be re-united with his brother which is a matter of great importance. He will then be separated from his mother which will be a shock for him and he is likely to be distressed and to miss her.

The practical difficulty and expense of a child spending time with and communicating with a parent

1. The parents’ households are between three and four hours drive by car apart. It is expensive, time consuming and tiring, inconsistent with regular weekends.

2. Both parties are working and each has an improved capacity to meet the cost of travel.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. Capacity is a significant consideration.

2. My impression of the mother is that she has been unable to step back from her older son’s reactions and behaviour and understand those patterns as arising from autism. She has interpreted his behaviour both as a personal affront to her and as naughtiness to be confronted. She reacts to his behaviour and seems unable to anticipate events in order to help him manage himself.

3. Early in 2016 the mother kicked the older child in the stomach when she was unable to restrain him. In response to a question from the father about what the child had told him about this incident her response by text was instructive:

   I’ve never intentionally hurt him. It was in self-defence.[10]

   [10] Family Report dated 1/04/2016, par 50

4. The child was seven at the time. There is an ongoing risk of injury for the child, and the mother herself in future, if the child returned to live with her or spent long periods in her full time care.

5. The father does have the ability to stay calm when the children, particularly the older child, are upset and misbehaving. His approach is to talk quietly and allow the child to calm down.

6. There is a difference too in how the parents occupy the children. The mother seeing that the children enjoy using a computer and tablets allows extensive use. They are then quiet and occupied.

7. The father takes the view that games and use of iPads should be limited for both children. For the older child because he had an addictive attachment which led to him being angry and fretful if he was separated from an electronic device. For the younger child because his language was severely delayed and the thing he needed to do was to talk to people and engage in conversation.

8. The father is also strongly committed to regular daily outdoor activity.

9. The approach of the father is a more child focused one in the particular circumstances of these two boys.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The older child is nine and has now found an appropriate school. The level of attention at school and support at home is allowing him to progress well. The younger child at six is now improving his language. It has to be said that speech therapy took a long time for the mother to implement although it had been recommended from the child’s infancy. There is some uncertainty, at least in the mind of the father, as to what effect his impaired language has had on an assessment of him as autistic.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. Prior to final separation the parents had a pattern of engaging in verbal argument and accusation, usually escalating to physical attack, followed by reconciliation. The children were exposed to this pattern as infants.

2. The mother did not ensure the older child’s attendance at school and his absences in 2013 were extensive. In 2014 she removed him from his school in Town T for the final term to meet her own convenience in relocating to live with her current partner. She described the older child as “happy as” about not being at school. The mother’s oral evidence was that if her current partner chose to move to Town N she would go with him. She did not appear to have given any thought to the impact on the younger child of the inevitable change of school.

3. The father has demonstrated a commitment to the children’s education. He was particularly worried in 2014 that the older child had lost his place at an Aspect school on the Mid North Coast which is where the parties had intended to establish residences. He made inquiries and found a place in an Aspect school in his region in the Macarthur area willing to take on the care of the child if required. Since the older child has come into his care, the father and his partner have focused on his learning to good effect.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. In March 2013 the mother assaulted the father and was given a s 10 Bond for twelve months.[11]

   [11] Exhibit 5

2. There is a current AVO for the protection of the father and his partner Ms S from the mother. This order[12] expires in May 2017. It arises from the confronting physically violent incident between the three adults in October 2015 with the children present.

   [12] Exhibit 7

3. There is also an Apprehended Domestic Violence Order for the protection of the mother from the father which expires in February 2017.[13] Standard orders were made. The father was not present in Court at the time.

   [13] Exhibit 6

4. So poor is the relationship between the parties that each one records the other at changeovers. Tendered into evidence was a recording of one such event in November 2013.[14]  It was played in Court. The mother was distressed and embarrassed. I accept that being filmed and recorded was upsetting. The significant fact was that the mother was unable to step away from the conflict in front of the children and remained intent on grabbing the father’s telephone. She struck the father. The children’s questions and cries reflect the intensity of the scene.

   [14] Exhibit 9

1. In November 2015 Police were called after an allegation by the mother, denied by the father, that she was assaulted by the father at changeover.[15]  No charges arose.

   [15] Exhibit 4

2. Both parents and the mother’s partner continue to record changeovers. The evidence of the mother was that the children are unaware of it. It could not be so. It is likely the children have become resigned to this practice.

3. There was evidence spontaneously given by the father’s partner, during cross-examination of her by the mother, of an alleged threat made by the mother to the father’s partner outside the courtroom. Leave was granted to the Counsel for the ICL to cross-examine the mother. The mother denied the allegation.

4. Given the evidence that unfolded, without proceeding to a finding, I cannot exclude the possibility that an abusive incident occurred.

5. The significance of the allegation and denial is that they represent more evidence of the hostile, poisonous and fearful relationships between the parties and their partners.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

1. For the past 15 months the children have been separated from each other. The orders providing for the children to spend time with each other and the parent with whom they were not living have required the children to do extensive travel, more importantly they have not been complied with by the mother in more than one respect. The mother failed to return the older child after the 2015/2016 school holiday period. The mother did not comply with the orders for her time with the older child to be supervised by her father. The mother has not ensured that the father spends time with the younger child.

2. The change for the children which will most stabilise their situation is for them to be re-united with each other. The evidence strongly supports a finding that the father at this stage of their lives is better equipped to meet their needs and on that basis an order will be made that the younger child B moves to live in the father’s household.

3. Although the younger child has made good progress especially with his speech and has enjoyed the greater calm of the mother’s household, he has asked his father about living with him and his brother. To maintain the status quo, of separation of the children, would inevitably lead to further applications, most particularly if the mother chose to move to a new location with her partner.

Conclusion - Orders to be made

1. I concluded for the reasons stated above that the best outcome for the children is to live together in their father’s household and for the father to have parental responsibility for both children. Provision is made for the father to authorise the principal of the schools which the children attend to provide information directly to the mother about their progress and welfare at school, and after a period of 12 months, to enable the mother to attend all those events at the children’s school to which parents are invited, subject of course, to the authority of the principal in that regard.

2. There are also orders for the father to keep the mother advised in relation to the children’s health.

3. This is a matter where family violence has played a considerable role. The current AVO for the protection of the father and his partner expires in May 2017. The stability of the children in the father’s household is the primary consideration given the event in October 2015 where the older child was involved in physical conflict between the parties (he was fallen on by his father) and the fact the father’s partner feels intimidated and fearful in relation to the mother. A protective order is appropriate to ensure that the mother is restrained from attending at the father’s household.

4. For that reason, changeovers will take place either in the home of the maternal grandfather in Suburb E or if he is unavailable at any particular time, or becomes unavailable through ill health, then at the home of the paternal aunt. Both parties acknowledge that the paternal grandmother is likely to be present at that home for changeovers to ensure a smooth transition for the children.

5. There is also provision for the father to advise the mother by email, no less than monthly, of relevant events in the lives of the children, their social activities and any current photographs.

6. Time for the children has been designed to be practicable given the distance between the households; one weekend per school term being realistic for a six to eight hour return journey. Term holidays of one week and two weeks over Christmas school holiday periods will meet the need of the children for regular time with the mother and also minimise the chance of physical conflict developing between the mother and the older child. The longer holiday will provide the opportunity for time with the maternal grandmother and extended maternal family.

7. Orders are made accordingly.

I certify that the preceding two hundred and thirty seven (237) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 19 January 2017.

Associate: 

Date:  17 January 2017