Faella and Wallock - [2010] FMCAfam 1261

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAELLA & WALLOCK

[2010] FMCAfam 1261

FAMILY LAW – Parenting – siblings currently separated – in best interests of siblings to spend more time together – mother’s inability to meet child’s emotional needs necessitates change of residence – notwithstanding parents’ poor communication order for equal shared parental responsibility.

Family Law Act 1975

H v W (1995) FLC 92-598
R v R (Children’s Wishes) (2002) FLC 93-108

Applicant:

MR FAELLA

Respondent:

MS WALLOCK

File Number:

PAC 3336 of 2009

Judgment of:

Dunkley FM

Hearing dates:

2 & 3 September 2010

Date of Last Submission:

3 September 2010

Delivered at:

Parramatta

Delivered on:

7 December 2010

REPRESENTATION

Applicant appearing in person

Counsel for the Respondent:

Mr Schroder

Solicitors for the Respondent:

Goldrick Farrell Mullan Solicitors

Counsel for the Independent Children’s Lawyer:

Mr Berry

Solicitors for the Independent Children’s Lawyer:

Matthews Folbigg

ORDERS

All prior parenting orders are discharged.
That the parents shall have equal shared parental responsibility for the children [X], born [in] 1998 and [Y], born [in] 2001.
That the children shall live with the father, [X] commencing immediately and [Y] commencing at 9am on 18 December 2010.
The children shall spend time with the mother as follows:
(a)During school term time, from after school Thursday to before school Monday each alternate week commencing the first weekend of each school term;
(b)During school holidays at the end of Term 1, 2 and 3, from 9am on the middle Saturday to 9am on the last Sunday;
(c)During school holidays at the end of Term 4, from 9am on Christmas Eve to 4pm Christmas Day in 2010 and each alternate year thereafter;
(d)During school holidays at the end of Term 4, from 4pm Christmas Day to 6pm Boxing Day in 2011 and each alternate year thereafter;
(e)
During school holidays at the end of Term 4 from 9am on

7 January until 6pm on 26 January in each year;
(f)On Mother’s Day from 9am to 6pm;
(g)For 3 hours on each of [X] and [Y]’s and the mother’s birthday by agreement and failing agreement from after school until 6:30pm;
The mother’s time with the children shall be suspended from 9am on Father’s Day for the remainder of the period and for 3 hours on the father’s birthday from 4:30pm to 7:30pm.
The father shall authorise any school that the children attend to provide information to the mother about the children’s school attendance and education and cause the school to forward to the mother, if she requests the school to do so, a copy of any school notices.
The father shall provide to the mother a copy of each child’s school report, and shall annually order, pay for and provide to the mother, a copy of each year of the child’s class photograph or year group photograph.
The father shall notify the mother of the name and address and telephone number of any school attended by the children and the mother shall be entitled to be in attendance at any school function or activity at which parents are invited to be in attendance.
The father shall notify the mother of the name, address, and telephone number of any hospital, doctor or allied health care worker attended on or consulted by the children and he shall authorise the release to the mother of information about any treatment or service provided to the children.
Any period the children spend with the mother during school term time shall start and end at the children’s school unless otherwise agreed by the parents.
Any period the children spend with the mother during school holidays shall start by the father or his nominee delivering the children to the mother’s residence and shall end by the mother or her nominee returning the children to the father’s home.
For the purposes of Order 11, when delivering the children, the father shall wait in his car, which it to be parked in front of the mother’s residence until the children go inside the mother’s residence whereupon he shall immediately drive away from the area.
For the purposes Order 11 when returning the child, the mother shall wait in her car, which it to be parked in front of the father’s residence until the children go inside the father’s residence whereupon she shall immediately drive away from the area.
Both parties shall enrol in and complete within 6 months of the date hereof a post separation parenting course to which they are referred by the Parramatta Family Relationships Centre.
The father shall cause [Y] to consult the Independent Children’s Lawyer and Ms N so these Orders can be explained to her.
The Independent Children’s Lawyer shall provide to Ms N a copy of the Orders and the reasons for judgment.
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 Attachment A and these particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 3336 of 2009

MR FAELLA

Applicant

And

MS WALLOCK

Respondent

REASONS FOR JUDGMENT

This is an application for final parenting orders relating to the children [X], aged 12 and [Y], aged 9. [X] and [Y] are the children of Mr Faella and Ms Wallock.
[X] and [Y] are currently separated, [X] living with his father and [Y] living with her mother.
[X] and the father live in a two bedroom home, rented by the paternal grandmother, Ms R. Also living in that household is Ms W. Ms W is the mother’s child from a prior relationship. Ms W is aged 19. Ms W is estranged from her mother.
Ms Wallock and [Y] live in rented accommodation with Ms Wallock’s youngest child, [Z], aged 22 months, and from time to time, with Mr D with whom she has a current relationship.
On [date omitted] 2010, [B], another child of the relationship between Ms Wallock and Mr D, died at 4 days of age, during surgery for a congenital heart defect.
Unsurprisingly and understandably Ms Wallock has been significantly affected by [B]’s death.
Both Mr Faella and Ms Wallock live in [M].
[X] and [Y] spend each weekend together in one or other of their parents households.
To minimise dispute between Mr Faella and Ms Wallock, handovers for [X] and [Y]’s weekend periods occur at the local police station, a location which neither [X] nor [Y] enjoy.

Proceedings

By Initiating Application filed 20 July 2009 Mr Faella seeks orders for:
a)Equal shared parental responsibility;
b)The children to live with the father;
c)The children to spend time with their mother:
i)Each weekend from after school Friday to 5pm Sunday;
ii)For half of each school holiday period;
iii)On Mother’s Day;
iv)On the children’s birthday;
v)During the Christmas period;
d)Handovers to take place at each parents homes;
e)There to be a non denigration order.
By Response filed 16 October 2009, Ms Wallock seeks orders for:
a)The children to live with the mother;
b)The children to spend time with the father:
i)Each alternate weekend from 5pm Friday to 5pm Sunday;
ii)For half of the school holidays;
iii)On Father’s Day;
iv)On the children’s birthday;
v)At Christmas time;
c)That handovers continue to take place at [M] Police Station;
In closing submissions, the Independent Children’s Lawyer submitted for orders as recommended in the Family Report prepared by Ms S and dated 10 July 2010.
Those recommendations are set out in paragraphs 28 to 33 inclusive of the Family Report and are as follows:
a)It is recommended that Ms Wallock and Mr Faella have equal shared parental responsibility for [X] and [Y]. Although bearing in mind the hostility between them any communication should, where possible, be by email, text or in writing.
b)It is recommended that [Y] move to live with her father during term time and see her mother for every second weekend and for half the school holidays along with her brother. The children should also see their mother for one night in the intervening week. Their mother could collect them from school in the afternoon and take them to back school the following morning.
c)It is recommend that as many of the handovers as possible not occur at the police station but are replaced by pick up and drop off from the children’s schools.
d)It is recommended that that on the weekend the children spends with their mother in term time, they are picked up from school by someone from their mother’s family on Friday and dropped off there on Monday morning. [X] is approaching an age where he may, if necessary, be able to begin making this trip by himself.
e)It is recommend that both parents provide their contact details to [Y] and [X]’s schools and receive copies of reports, newsletters and school photographs.
f)It is recommended that Mr Faella and Ms Wallock attend a post separation parenting course. These courses are run by a number of agencies throughout the Sydney area.
The father was self represented throughout the hearing. He relied on his two Affidavits sworn 11 July 2009 and 30 July 2010 and the two Affidavits of his mother, Ms R sworn 11 July 2009 and 30 July 2010.
The mother was represented by Counsel, and relied on her two Affidavits filed 16 October 2009 and 11 August 2010.
Ms S was required for cross examination and adopted on oath, the contents of the Family Report that she authored, dated 10 July 2010.
The parties, Ms R and Ms W were each cross examined. Ms W was cross examined, by consent, even though she had not sworn an affidavit.
Mr D did not provide an Affidavit, did not attend Court during the hearing, and did not attend on Ms S during her preparation of the Family Report.

Issues

·Is there to be an order for equal shared parental responsibility or for sole parental responsibility?
·With whom are the children to live?
·What time should the children spend with the parent with whom they do not live?

Background

1947 - Ms R born.
1970 - Father born.
1974 - Mother born.
1991 - Ms W born.
April 1997 - Parties commence relationship.
1998 - [X] born.
2001 - [Y] born.
February 2005 - Ms W commences to live with Ms R.
6 March 2006 - Incident between the parties, after which they separate and the children remain in the care of the father.
June 2006- [Y] returns to live with the mother.
6 October 2007 - The mother and Mr D commence a relationship.
2008 - [Z] born.
22 May 2009 - [Y] stops spending time with the father.
June 2009 - [Y] commences counselling with Ms N of [omitted] Counselling Services through [omitted] Anglican Church.
24 August 2009 - Pursuant to Interim Parenting Orders, [Y] commences spending time with father.
13 December 2009 - [Y] refuses to return to the mother after spending time with the father.
16 December 2009 - The mother collects [Y] from school.
31 January 2010 - The father refuses to return [Y] to the mother after she has spent time with him.
2 February 2010 - The mother collects [Y] from her school and she resumes living with the mother and spending time with the father.
[date omitted] 2010 - [B] born.
[date omitted] 2010 - [B] dies.

Evidence

Father

The father alleges Ms W has a significant level of antipathy for her mother.
[X] is in year 6 at [M] Public School and will commence high school in 2011 at [M] High School.
Mr Faella works at [omitted] six days a week. His core hours of work are Monday to Friday from 7am to 3:30pm and Saturday from 7am to 12 noon. Mr Faella does regular overtime. The factory at which he works has a Christmas shutdown from 23 December to the second week of January.
Mr Faella is dependant on his mother and / or Ms W to supervise [X] in the morning before school and on Saturdays, and if he works overtime.
Mr Faella is aware of the recommendations in the Family Report and agreed to the making of orders in the terms of those recommendations.
Mr Faella uses marijuana, more so in the past than at present. The last time he smoked marijuana was about six months ago.
Mr Faella agreed under cross examination that he had a number of driving offences for driving under the influence of alcohol. His last offence with respect to driving under the influence of alcohol was in 2007, there had been seven previous offences in his twenty year driving history.
Mr Faella agreed under cross examination he had not been full and frank with the Family Report Writer about his driving record, nor about his marijuana consumption.
Mr Faella says that he continues to drink alcohol daily, as a minimum, one to two long necks of full strength beer after work or if he has had a hard day at work, three to four long necks of full strength beer. On the weekend or on Friday evenings, he will drink spirits, mainly Bourbon and Coke or Jack Daniels and Coke.
He is now focussed on not drinking and driving and uses the courtesy transport service if he attends the [omitted], which are two establishments he regularly attends.
It is clear from his evidence that he defers most of the issues of parental responsibility for [X] to his mother. Ms R primarily liaises with [X]’s school and is primarily responsible for his care. Mr Faella conceded under cross examination that [X] had been suspended from school in September 2009 following an incident of violence.
The father agreed, he and Ms Wallock have argued about most things and do not communicate.
Following an adjournment on the morning of the first day of evidence, there was a voir dire involving Ms W. It became apparent as a result of the cross examination of Ms W that she had been present during

Mr Faella’s evidence, and during the adjournment, had gone and spoken to Mr Faella’s mother Ms R outside the Court about the evidence that Mr Faella had been giving.
Ms W was thereafter not allowed to sit in the Court. Counsel for the mother was given the opportunity to apply for disqualification, and rehearing, but was satisfied with Ms W being excluded from the Court.
Under cross examination Mr Faella agreed that when the parties separated on 6 March 2006, there had been a heated argument involving pushing and shoving in which he had pushed the mother over. There had been a lot of screaming and the children had heard this. Mr Faella agreed he had been drinking prior to the incident.

On 7 March 2006 he attended at the children’s school and collected [X] before the end of the school day. Mr Faella said that he did this because “I wanted to get in first, I thought the mother would do it”. [Y] was at home with his mother at this time.
Mr Faella agreed that thereafter Ms Wallock had sought to speak with the children but he had for some period of time he refused her permission to do so. He agreed that about three months later [Y] had begun to fret for her mother and was asking repeatedly to spend time with her mother and he thereafter agreed that [Y] could go and live with her mother.
Mr Faella agreed with the proposition that Ms R and Ms Wallock did not get along.
Mr Faella agreed with the proposition that Ms W and her mother did not get on.
Mr Faella, when cross-examined by the Independent Children’s Lawyer, agreed that his mother and Ms W are the primary carers for [X] and will be for [Y] if she comes to live with him.
Mr Faella was of the view that he would leave [Y] at the school that she currently attends, which is [M] East Public School despite the fact that [Y] was experiencing bullying at that school and had a wish to return to [M] Public School. Mr Faella said he was of the belief that if [Y] changed school again, her education would be disrupted.
Mr Faella stated that [Y] has told him “I don’t like Mr D”. He said that [Y] has also told him that she argues with her mother and Mr D.
He agreed that [Y] has changed her mind several times about where she wants to live, acknowledging that [Y] has recently said that she wants to live with him, but also wants to stay with her mother.
He acknowledged Ms W, from time to time, speaks negatively to [X] and [Y] about Ms Wallock, despite his request that she not do so.

Ms W

Despite not having sworn an Affidavit, the Independent Children’s Lawyer called Ms W.
Neither Counsel for the mother or the father opposed this.
Ms W consented to being cross examined.
Ms W confirmed she was aged 19 and had recently secured a position as a [omitted] where she has worked for some time. In her new position she will work an eight hour shift for at least five days a week, but the days will vary from week to week.
She agreed that her relationship with her mother was not good, that they do not communicate and that they had not spoken for a couple of years.
Ms W agreed that she spoke negatively about her mother in the presence of [X] and [Y]. She agreed she has nothing good to say about her mother’s parenting of her.
She has a social life with friends, but no current boyfriend. She intends to continue, for the foreseeable future living with Ms R and Mr Faella. She and Mr Faella might pool their resources to buy a house.

Ms R

Ms R retired from work to help her son care for [X].
Ms R does voluntary work a couple of days a week during school term. Ms R agreed she plays a significant parenting role in caring for [X] and the house in which they live. She supervises [X] in the morning and when he gets home before Mr Faella. Ms R supervises [X]’s homework and then allows [X] to go outside to play or to visit friends. She gives him a curfew which depends on the time of the year as to when he has to get home.
In the summer months, when Mr Faella plays cricket, she prepares a picnic and Mr Faella takes the children to cricket with him.
In the winter months, she said Mr Faella sometimes takes the children to the football to watch either the Parramatta Eels or the West Tigers. She though that Ms W had the role of the big sister with [X] and [Y].
Ms R agreed that she did not have a high regard for Ms Wallock and had nothing good to say about Ms Wallock’s parenting. Ms R said she does not talk to children about their mother unless they ask her a question.
Ms R stated that she does not discourage their relationship, but acknowledges that she does nothing to actively encourage the children’s relationship with their mother. She acknowledges having said to [Y] on a couple of occasions “It is up to you where you live”.

Mother

Ms Wallock stated that she is a fulltime mother, in receipt of Centrelink payments. Her mother, the maternal grandmother, has lived with her, [Y] and [Z]. That since [B]’s death, Mr D has been spending most nights at her home.
It was the maternal grandmother that organised [Y]’s counselling in June 2009 with Ms N.
Ms Wallock did not attend the first counselling session, although she has agreed to the continuation of the counselling.
Ms Wallock acknowledged that at that time [Y]’s counselling started it was her mother’s view that she was suffering from post natal depression. She agreed that at that time [Z] had a reflux condition and she was not getting much sleep and that [Y] was not coping with all the extra attention that the baby needed. She did not realise that [Y] was feeling neglected.
She was unaware of most of the complaints that [Y] had made to the counsellor.
Ms Wallock agreed that [Y] had, since about May, been saying that she wanted to live with her father but had changed her mind from time to time about this.
Ms Wallock was not aware that Ms N had made a report to the Department of Human Services that she considered [Y] to be a child at risk.
Ms Wallock acknowledged there are times that [Y] does not get on with Mr D. She agreed that she had heard Mr D “badmouth Mr Faella” in the presence of [Y]. Ms Wallock thought that [Y] would like to live with her for one week and with her father for the other week. She thought that eventually she and Mr D will live together fulltime.

Ms S

Ms S formed the view from a brief interview with Ms R that Ms R was of the view that Ms Wallock was not meeting [Y]’s emotional needs.
She said that Ms W did not have much positive to say about her mother.
Ms S was aware from her interviews that there was high conflict between all of the adults. She took this into account in coming to her recommendations.
Having interviewed the children and the parties and having conducted an interview with Ms N, she did not have great confidence that the mother could meet [Y]’s emotional needs.
She thought it was highly likely that [Y] and [X] picked up on the “toxicity” between the adults. She thought that denigrating discussions took place in the mother and the father’s households.
In paragraph 50 of Ms S’s Report she noted:
Both children were easy to establish rapport with and they played well together. [Y] and [X] appeared happy to see each other and were spontaneously affectionate towards each other. [Y] sat on Ms W’s lap and there appeared to be an affectionate relationship between them. [Y] appeared more affectionate towards her siblings than towards either of her parents.
In paragraph 52 of Ms S’s Report she records:
Both [Y] and [X] are very aware that their parents do not get on.
Later in the same paragraph:
Both [Y] and [X] stated that they do not like having to go to a police station for handover.
In paragraph 54 of the Report, Ms S noted:
They [the children] both appear a little wary of their parents’ potential anger.
In paragraph 56, Ms S recorded:
The assessment did raise some concerns about the extent to which Ms Wallock is able to meet [Y]’s emotional needs.
In paragraph 59, Ms S said:
On balance I am of the opinion that Mr Faella, with the assistance of Ms W and his mother is more able to appropriately meet the social and emotional needs of both [X] and [Y] than their mother can. The two children appear to have a strong bond and it would be in their best interest to be able to spend more time together.
Ms S confirmed her views, opinions and recommendations as a result of her cross examination she was subjected to.

Ms N’s Counselling Notes

These notes became Exhibit F in the proceedings.
Ms N has been providing counselling services to [Y] since 10 June 2009. The sessions were weekly, except for a break during the January 2010 school holidays, until early April 2010 when the visits became fortnightly.
[Y] was initially taken to the counsellor by her maternal grandmother. [Y] was thereafter taken to her sessions by either her maternal grandmother or her mother or occasionally both.
From time to time, the maternal grandmother and mother were also involved in the sessions with [Y].
Neither party sought an Affidavit nor a report from Ms N. Neither party sought to cross examine her. Ms S conducted a telephone interview with Ms N on 25 June 2010 during the preparation of her report. Ms S did not read Ms N’s notes.
Mr Faella had only occasional input into the counselling sessions.
Ms Wallock was cross examined about a few of the counsellor’s notes.
Paragraphs 47, 48 and 49 of Ms S’s Report deal with Ms N’s counselling. It is reported in those paragraphs:
47. [Y] has been seeing Ms N, Child and Family Counsellor, for the past year. Ms N said that [Y] was initially presented to the service by her maternal grandmother, who requested help for [Y] and expressed concerns about her emotional wellbeing and the impact of the relationship between her parents on [Y]. [Y] was seeing Ms N once a week initially and then moved to fortnightly appointments a few months ago as she was doing well emotionally.
48. Ms Wallock stated that [Y] was going to counselling as she had found it difficult to adjust with having a baby brother. Ms Wallock also said that [Y] had some conflicts with Mr D and did not listen to him. Ms N expressed concerns about the extent to which Ms Wallock was able to meet [Y]’s emotional needs. She said that the situation had improved somewhat but she still had some concerns about [Y]’s welfare. She said [Y] had stated to her on several occasions that she wanted to go and live with her father. She stated that she has had some dealings with Mr Faella and he always presented as a reasonable man who appeared to be appropriately concerned about [Y]’s welfare.
49. Neither Mr Faella nor Ms Wallock expressed any concerns about [Y]’s health or development.

Determination

The information in paragraph 49 of the Family Report is extremely worrying in light of Ms N’s clinical notes. It indicates neither Mr Faella nor Ms Wallock have any real understanding of the psychological health of [Y] and the anger and anguish she is feeling. It was surprising that Ms N was not cross examined given how crucial her notes are to the determination of this case.
Annexed as a schedule to these reasons of Judgment are a summary of the clinical notes entries of Ms N. The clinical notes confirm that [Y] has a troubles relationship with her mother, that her mother is unable to consistently meet [Y]’s needs, and often, cannot prioritise [Y]’s needs above her own. [Y] is clearly frustrated and angered by this.
The notes confirm [Y]’s way of dealing with her frustration is to act out angrily, or to seek more time in her father’s household. [Y]’s emotional/psychological needs are not being met in her mother’s household.
Having considered the notes, such is the deficit in the mother meeting [Y]’s emotional needs that this is sufficient enough reason on it’s own to have [Y] spend most of her time with her father.
Clearly [Y] has been conflicted about her wishes as to where she wishes to live after the parties separated in 2006. During the three month period her father would not let her see the mother after separation she yearned for her mother to the extent she thereafter went and lived with her mother. More recently she has been equivocating about living with her father or her mother.
For a number of years the parties seemed to be able to manage their children’s separate living arrangements without too much difficulty. Although far from harmonious.
In May 2009, the mother prevented [Y] from spending time with her father. During this time, [Y] commenced counselling and was expressing fearful thoughts about her father. Those thoughts dissipated once Consent Orders were made on 24 August 2009 such that she would spend time with her father.
Since then [Y]’s wishes seem to have vacillated between wanting to spend one week with her mother and one week with her father and living with her father. I conclude from the Counsellor’s notes that [Y] has felt incredibly burdened about having to make a decision about whom she should live. She misses her brother. She likes spending time with her paternal grandmother and her sister Ms W.
She has experience of her mother and Mr D speaking negatively about her father. She has experienced her father, paternal grandmother and Ms W speaking negatively about her mother.
Having regard to the above, whilst [Y]’s views are relevant, a very cautious approach has to be taken in applying those wishes.
The Counselling notes of Ms N confirm that since 25 August 2009, [Y] has had an increasingly negative view with respect to her mother and Mr D. That she is yearning to spend more time with her brother [X] and has a good relationship with each of her father, paternal grandmother and Ms W, although she is upset when they are negative about her mother.
Each of the mother and the father have vacillated about facilitating and encouraging a close relationship between [Y] and her other parent. Each on occasion have removed [Y] from school early so as to prevent the other parent having [Y] in their care. Each have withheld [Y] from spending time with the other parent.
If [Y] were to live with each parent on a week about basis she would continue to feel the burden of having to please each. [Y] will benefit psychologically from the parenting orders, which relate to her, being defined so that she spends longer periods in her fathers household. By spending more time with her father and less time with her mother, [Y]’s circumstances will change but not significantly. The likely effect is that there will be a reduction in the anxiousness and uncertainty that [Y] feels. It is also likely to result in [Y] feeling less angry about her mother. She will be happy spending more time with [X] and Ms W.
Given the proximity of the parents’ households, there is no practical difficulty or expense with respect to [Y] spending time with or communicating with either parent. It would be reasonably practicable for [Y] to live equal time with each of her parents. Such an equal time arrangement would not be in her best interests, for the reasons previously referred to. Also, Ms N’s clinical notes lead to a conclusion that the mother is not able to provide for [Y]’s emotional needs. She withholds [Y] from attending school without valid reason, which means she is not maximising [Y]’s intellectual opportunities.
It will be important for [Y] that the orders be explained to her so that she becomes aware that it is not a decision that she makes but that it is a decision imposed by a Court. It is hoped that this will relieve [Y] from the anxious burden that she experiences. There will be an order that the Independent Children’s Lawyer initially undertake this explanation. There will also be an order that a further appointment be made for [Y] to attend on Ms N who is to be provided, by the Independent Children’s Lawyer, a copy of the Reasons for Judgment so that she can also explain to [Y] that it is a decision made by the Court.
Although Mr Faella abrogates his parental responsibility it is not sufficient reason not to order equal shared parental responsibility, nor that [Y] not live with him. His household will be crowded but manageable.
[X] has for a long time, that is since his parents separation in March 2006, lived with his father. A continuation of that arrangement accords with [X]’s wishes. As Ms S notes in paragraph 44 of the Family Report:
“[X] said that he was happy with the arrangements as they stood and did not want to make any changes. He said he liked living with his father and spending time with his mother during the school holidays and on every second weekend. He was able to identify a number of good things about living with his father but less able to identify positive aspects of spending time with his mother.
[X] is of an age where he has a significant appreciation of the effect of his wishes and significant weight has to be attached to those wishes. Although his father has abandoned the responsibilities of parenthood, [X] nevertheless has a close and significant relationship with his father. He also has close and significant relationships with his paternal grandmother and Ms W. Visits with his mother during school holidays and on weekends will maintain the good relationship that he has with her.
[X] has been less affected by his parents being unable to willingly cooperate. He has been able to maintain a close and continuing relationship with his mother.
To change [X]’s living arrangements would be a significant change in his circumstances. A change he would not welcome. It would inhibit the independent play opportunities that he has with his friends, which are facilitated by his father and paternal grandmother. These opportunities are important to him.
Given [X]’s age, there is no reason why he would not be able to manage changeovers from his father’s household to his mother’s household or to and from his school. Indeed, his capacity to be independent in the community suggests that this will be best for him. The proximity of the parents households enable it to occur without any difficulty.
[X] seems less affected by the parental dispute than does his sister [Y], although both he and [Y] are noted by Ms S in paragraph 54 of the Family Report to be a little wary of their parents’ potential anger.
Both children have expressed to Ms S that they do not like changeovers at the police station. It is not beneficial for the children for such changeovers to occur at that location. Indeed, both children are old enough to move from their parents motor vehicle’s to the other parent’s home without assistance. Such arrangements are to be implemented during school holidays whilst changeovers to and from school can occur during school terms. If circumstances require, [X] can manage his own changeovers if the parents remain in their current homes.
The parents have, for a long time, had very little communication with each other. This factor and their heightened conflict would in normal circumstances mitigate against an order for equal shared parental responsibility. If a sole parental responsibility order is made for the father, there might be a further reduction in conflict between the parents. Such a reduction would benefit the children. However, if an order for sole parental responsibility was made, the father would abrogate his parental responsibility to the paternal grandmother. She is not a party and would not be subject to orders. She would not consult the mother. There will be a requirement that schools and doctors be authorised to provide to the mother information about the educational needs and medical needs of the children.
For the above reasons, an order will be made that the children shall live with the father, notwithstanding that the accommodation at his household will be cramped.
Even though an order for equal shared parental responsibility is both reasonably practicable and in the best interests of the children despite the parties entrenched communication difficulties, an equal time order with respect to [X] and [Y]’s time with their mother is not made. For [X], it is contrary to his wishes and experience. For [Y], it would perpetuate her emotional / psychological difficulties.
It is in the best interests of the children that they spend significant and substantial time with their mother. This is something both children want. They have a good relationship with her. It is not opposed by the father. That time can best be implemented for them by a block period in each alternate week during school term and for half of each school holiday period. There will not be an order for the children to spend overnight time with their mother in the other week during school term as that simply increases the potential for conflict.
There will be an order the children spend time with their father during the December/January shut down period at his workplace. The balance of that school holiday period can be spent with their mother, even though that will mean they will spend slightly more than half of that school holiday period with her.
In making these orders it is recognised that it will limit the opportunity for the children to spend time with [Z] and increase the time that they spend with their sister Ms W whilst ever she lives in the paternal grandmother’s household. The children have a closer existing relationship with Ms W then they do with [Z] by virtue of the length of time they have known her as compared with [Z].
The time that they do spend with their mother will enable them to maintain a relationship with [Z].
[Y] has a problematic relationship with Mr D. A reduction in the time that she spends with her mother will mean that the time that she spends with Mr D will also be reduced, which will be a benefit to her.

Conclusion

The making of orders as set out above will be in the best interests of the children, that is the paramount consideration. It ensures the children have the benefit of both of their parents having a meaningful involvement in their lives, consistent with the children’s best interests. It reduces the possibility of psychological harm for the children, particularly [Y]. It will ensure that they will receive adequate and proper parenting, even though the father is likely to abrogate his parental responsibility to his mother.
The orders made for equal shared parental responsibility accord with the recommendations of the Family Report Writer, despite the parents long term lack of communication.
Each of the parents would do well to reflect on the impact that their negative comments about the other parent has on the children. They should cease such behaviour. The father should also be vigilant so that Ms W and his mother cease such behaviour. He should encourage each of his mother and Ms W to seek professional assistance or education as to the effects on children of denigrating behaviour.

I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of Dunkley FM

Date: 19 November 2010

Schedule – Ms N’s Clinical Notes – Sessions with [Y]

Session 17 June 2009

[Y] concerned that:
“Dad knows that she’s changed schools”, “living with Nan”.
“Dad can get me and won’t let me see mum ever again…choose to live with Mum. Mum’s better than Dad”.
[Y]: “Someone might be able to fix it, wants some time with Mum + Dad

Session 24 June 2009

[Y] “worried that Dad will come and steal her from school. Extreme fear of this”

Session 1 July 2009

[Y] reports:
“Mum spends time with [X] when he comes over. Never spends time with me – only the baby and [X]”
“Mum said “do you want to live with your father”. I said “Yes – [X] told Dad and Dad wants to take me – I caused the big problem. It’s all my fault, no-one can fix the problem””.

Session 8 July 2009

[Y] told the counsellor:
“I hate her [Mum] when I am mad. I am sick of her yelling and screaming at me ‘Get my smokes’”.
The maternal grandmother was also present at the session and told the Counsellor that she was “very distressed because she has to move- [Y] will have to go home to her mother tomorrow”.
The maternal grandmother reported to the Counsellor being “worried and scared of her being with her mother”. [Nowhere is it noted in the Mother’s Affidavit material that [Y] spent a period of time living with the maternal grandmother].

Session 5 August 2009

[Y] noted that she:
“Miss [X] very much”
In her play and discussion was noted to be angry with her mother and angry with her father.

Session 19 August 2009

[Y] said “We don’t need to be protected because we’re going to QLD. Dad won’t know. He won’t be able to find us there”.

Session 25 August 2009

[Y] told the Counsellor:
“Court last week said she is to go to Dad’s next weekend. Scared he will take her” [on 24 August 2009 Interim Parenting Orders were made by consent that the parties shall have equal shared parental responsibility for [X] and [Y]. That [X] live with his father and [Y] live with her mother and that the children spend alternate weekends with the parent with whom they do not live from 5pm Friday to 5pm Sunday. The father last spent time with [Y], prior to the making of these orders, on 9 May 2009. In this context, it is unsurprising that [Y] was apprehensive and fearful about spending time with her father.]

Session 2 September 2009

At the end of the notes regarding that session Counsellor records:
“I think she’s [[Y]] is confused about feelings about Dad because visit was good. Mum has told her Dad was bad but he was nice to her and had a good time with him.”

Session 16 September 2009

[Y] attended the counselling with her mother. The notes were indicative of [Y] being very closed during the session and not wanting to talk.

Session 23 September 2009

[Y] attended that session with her maternal grandmother. The notes are indicative of [Y] being much more open with “lots of conversations”. [Y] says “Nanny [first name omitted] [paternal grandmother] nice”. [Y] says “likes seeing big sister”.
Session 30 September 2009
[Y] is being noted as being angry. She says “I wanna live with Dad- he’s nicer than Mum.”
It is further recorded that [Y] says “When I said I wanted to go live with Dad Mum said “Go live with your father. I’ll pack your clothes today and you can go”.
The Counsellor recorded that [Y] was being very angry with Mum.
Sessions on 2, 16 and 23 September 2010 confirm the emotional disengagement between the mother and [Y]. The mother is unable to focus on [Y]’s needs.

Session 21 October 2009

[Y] said “she ‘loved’ being at Dad’s for holidays”.

Session 28 October 2009

[Y] is recorded telling the Counsellor “want 1 week with Mum and I want 1 week with Dad. I have already told them. They said “you know that can’t happen”. It would be a good way to solve [the] problem”.
The Counsellor asked “Would you (sic) really like that?”. [Y] said “Yes”.

Session 4 November 2009

[Y] was accompanied on this session by her mother and her younger brother, [Z]. The Counsellor observed the mother and the two children playing together and noted that it was a positive playtime with healthy interaction but noted there was no encouragement given by the mother to [Y].

Session 11 November 2009

Again [Y] was accompanied by her mother. The Counsellor observed the mother and [Y] playing in a sand tray activity. At the end of the session when debriefing, [Y] said to the Counsellor “It made her angry when Mum didn’t like what she did and told her to change it”.
The Counsellor noted “Mum really didn’t get it”. They “were like 2 little girls vying for space”.
Again this is confirmatory of the mother being unable to meet [Y]’s emotional needs.

Session 18 November 2009

[Y] again attends with her mother and they are again observed in play in the sand tray. The counsellor notes [Y] is “a very bossy little girl who like to have her own way & be in control”. It is “hard for Mum to negotiate” with [Y] who is “strong willed”.

Session 25 November 2009

[Y] was again accompanied by her mother and they were both again observed in play. The Counsellor notes they are “learning to share and listen to each other”. The Counsellor described it as “a good session”.

Session 9 December 2009

[Y] tells the Counsellor “Mum says mean stuff about Dad” and “[X] listening at night to Dad (sic) and Nan talking. Dad says mean things about Mum”.
[Y] is recorded as telling the Counsellor she “feels she needs to make a decision to live with Mum or Dad – thought Dad but Nan [maternal grandmother] said if she went 2 Dad’s Nan [maternal grandmother] would go away and she’d never see her again”
The Counsellor then observed [Y] playing in the sand tray. One side of the sand tray was Dad’s side and one side of the tray was Mum’s side. [Y] set up the sand tray so that Dad’s side was better than Mum’s side. [Y] then asked the Counsellor to bring her mother in from the waiting room. As the Counsellor brought the mother in from the waiting room [Y] cried. The Counsellor then explained the sand tray to the mother. [Y] was distressed. The Counsellor tried to help the mother sooth [Y]. After the session, later that day, the Counsellor rang the mother to talk to her about how to soothe [Y], the Counsellor noted the mother “seemed more interested in her own needs & didn’t understand what I was talking about”.
It is clear the mother cannot focus on [Y]’s needs.

Session 15 December 2010

The Counsellor notes [Y] arrived at the session “very upset”. [Y] told the Counsellor “[Mr D] had said to her “You should live with no one”...”No one loves you”… No one wants you”.” [Y] then relayed to the Counsellor that “[Mr D] said these things when [Y] told him she wanted to live with her Dad”. The Counsellor then notes that [Y] said she “wants everyone to talk to each other in [the] family and Mum and Dad not to fight. She wants to live one week about which both parents”.
It would seem from the above [Y] is feeling burdened in deciding whether to live with her mother or her father.

Session 20 January 2010

[Y] attends the session with her mother and [X]. [X] is noted to be “a nice young man, friendly and interacting”. The Counsellor notes [Y] is extremely bossy with him and he seems to be very tolerant. [Y] tells the Counsellor she “needs to decide whether to live at Mum or Dad’s and she wants to live at both…can’t make a decision”.

Session 29 January 2010

[Y] confides a secret with the Counsellor, “she’d been telling lies to both Mum and Dad about the other”.
The Counsellor notes that [Y] is going to “tell mum and dad that she’s been telling lies and then run away” and drew a picture of herself between her mum and her dad and [Y] had a broken heart.

Session 31 January 2010

This is a Sunday and is a record of multiple phone conversations between the Counsellor, the mother, the father and [Y]. “[Y]’s mother called me Sunday afternoon because when she went to the police station to pick up [Y] from her father [Y] told her that she wanted to stay with him”.
The Counsellor explained to the mother that if [Y] was forced to come and live with her mother she would run away because she wants to live with her father.

Session 1 February 2010

The mother telephoned the Counsellor and said she’s [[Y]] not at school today. If she’s at school tomorrow she will take her from school at 3pm.
At 3pm, the Counsellor had a telephone conversation with the father, he told her “when [Y] told her mother she was staying with Dad, [Ms Wallock] grabbed her and tried to drag her down the street”.
The Counsellor telephoned the Principal of [M] East Public School “he said father was wanting to come and see him this afternoon. Mum and Dad had been trying to use him and school as go between for last year and he said school is not the place for that, to use the court system”.
The Principal told the Counsellor that “[Y] came to [M] East because of non-attendance at [M] and Truant Officer gave ultimatum”. The Counsellor later telephoned the father who told her that [Y] told him “she didn’t go to school last week because she didn’t have shoes and a lunch box”. The Counsellor spoke to [Y] on the telephone and noted she was “very distressed and angry, doesn’t want to go to Mum’s”. [Y] said to the Counsellor “Tell the Court I don’t want to live with Mum, I want to live with Dad”.
The notes indicate the Counsellor considers the child is very much at risk and that a notification was made to the Department of Human Services.
There was a phone conversation between the Counsellor and the mother, in which the mother said [Y] was not going to school last week “because all they do is make [the] kids clean”.
There is a note the Counsellor considers the mother is using counselling as an excuse for [Y] not attending school. It is noted she offered the mother an afterschool appointment but the mother says 2:30pm suits her and [Y] is taken out of school lunch time each Wednesday for the counselling.

Session 3 February 2010

The Counsellor notes that at the beginning of the session [Y] had many questions about the Counsellor talking to her parents. [Y] said her mother had said she had come to see her and the Counsellor told [Y] this was not the case. [Y] said “Mum lied”.
The Counsellor asked [Y] about what happened at school yesterday, [Y] said “Mum came at 2:30pm and took her”. [Y] “cried at school” because “she didn’t want to go”.
The Counsellor noted [Y] was a resilient little girl. [Y] confirmed to the Counsellor that she was not going to run away. The Counsellor notes she again offered the mother a later counselling time to [Y] would not have to miss school. The mother did not want this.

Session 10 February 2010

During a play session with [Y], [Y] for ten minutes engaged in a violent outburst with a blow up punching bag doll “punched, kicked, yelled at, jumped on and threw on head constantly”. [Y] said “This is what I want to with Mum and [Mr D]”. [Y] told the Counsellor she had been bullied at school because she had been wearing to date the uniform from her old school.

Session 17 February 2010

During this session said to the Counsellor “I make life hard for [Mr D] so he’ll leave”.

Session 24 February 2010

Most of this counselling session was taken up by the Counsellor helping the mother tell the maternal grandmother about her pregnancy and the difficulties with the child.

Session 3 March 2010

[Y] engaged in imaginative school play with the Counsellor, [Y] the teacher, the Counsellor the student. [Y] yelling constantly at the student who was always in trouble using an angry voice. At the end of the session [Y] told the Counsellor that the maternal grandmother hired a violent video which [Y] watched with her. [Y] said she “hugged teddy because she was so scared”.

Session 10 March 2010

[Y] was happy and excited throughout the session because she said she’ll “get to see Dad this weekend”.

Session 16 March 2010

Session with the mother and [Y], in which the mother tells [Y] there is a problem with her baby who is sick.
The Counsellor noted “very few questions or interest from [Y] but lovely intimate caring moments with mum”.

Session 24 March 2010

[Y] talked to the Counsellor about all the bad things that [Mr D] says about Dad. [Y] was worried about her mother’s baby.

Session 7 April 2010

[Y] told the Counsellor she was going to Dad’s next week and indicated she was excited at the prospect.

Session 21 April 2010

[Y] came with her maternal grandmother. The Counsellor records the maternal grandmother “came into the counselling room with her [[Y]] and dumped all of her [the maternal grandmother] anger with [Y] – took up 25 mins of session which [Y] was upset about”. The maternal grandmother told the Counsellor that [Y] had said to her that she didn’t have to obey her and that [Y] had been told that by her paternal grandmother and her father. The maternal grandmother challenged [Y] as to why she should have to obey one Nan and not the other one. The Counsellor noted “it was difficult to settle [name omitted] [the maternal grandmother] and stop her from continuing to talk about [Y] in front of her”.
The Counsellor noted that when the maternal grandmother left the room [Y] jumped into the Counsellor’s arms, that there were no tears but she was visibly shaken.
The Counsellor then notes [Y] got angry with the Counsellor and said the Counsellor was not helping her. The Counsellor asked [Y] what she meant and [Y] said that the Counsellor was “supposed to be helping her [[Y]] so that she could live with Mum and Dad a week about”.
[Y] advised the Counsellor that her baby brother, [B] had died and she was sad about that.

Session 28 April 2010

The Counsellor noted [Y] was a lot happier and said “I didn’t say I was sorry and neither did Nan say she was sorry…but you get over it”.

Session 12 May 2010

[Y] played imaginative school with the Counsellor, [Y] was the teacher, and the Counsellor was the student. The Counsellor noted that [Y] speaks in an angry demanding voice, in a very confronting way. [Y] corrected everything that the Counsellor did in acting out the student. The student could not get anything right. The Counsellor felt like she did not want to play because [Y] “changed the rules and instructions constantly so I couldn’t get it right”. The Counsellor asked [Y] whether her teach spoke to her class like that, [Y] said “Oh No”. The Counsellor then asked if [Y]’s mother spoke like that and [Y] said “Yes”.

Session 26 May 2010

The Counsellor advised the maternal grandmother that [Y] could commence fortnightly visits. The maternal grandmother said she had not seen [Y] this happy.

Session 28 July 2010

[Y] told the Counsellor she was being bullied at school. [Y] said her mother tried to help her. [Y] said “that’s why I can’t wait to go back to Dad’s to go to my school where kids treat me properly”.
[Y] told the Counsellor that when her mother and [Mr D] fight that she gets scared and goes to her bedroom or to her maternal grandmother. [Y] said “no one fights at Dad’s”. [Y] also said “Ms W never wants to talk to Mum again”. [Y] said she “can’t wait to live at Dad’s”. [Y] told the Counsellor “I’m so angry with [Mr D] and Mum, I’ll just do this with the anger”. [Y] then demonstrated squeezing a ball and dropping it to the floor.