Farrell and Farrell (No 2)

FAMILY COURT OF AUSTRALIA

FARRELL & FARRELL (NO 2)

[2011] FamCA 508

FAMILY LAW – CHILDREN - Child related proceedings – best interests of the children non-compliance with current orders – variation of current orders – the children live with the father – mother seeks that the children live with her – high level of conflict and hostility between the parents

Family Law Act 1975 (Cth)

APPLICANT:

Ms Farrell

RESPONDENT:

Mr Farrell

INDEPENDENT CHILDREN’S LAWYER:

Newnhams Solicitors

FILE NUMBER:

SYC

1996

2010

DATE DELIVERED:

1 August 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

26 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton

SOLICITORS FOR THE APPLICANT:

Watts McCray

COUNSEL FOR THE RESPONDENT:

Mr Kearney

SOLICITORS FOR THE RESPONDENT:

Barkus Doolan Kelly

INDEPENDENT CHILDREN’S LAWYER:

Mr Thompson

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER:

Newnhams Solicitors

Orders

Pending further Order:

Orders 1, 3, 4 and 5 of the Orders of 11 July 2011 shall continue.
The children B born … 2001, C born … 2003 and D born … 2005 spend time with the mother as follows:
(a)each Saturday from 8.00 am to 6.00 pm
(b)from 12.00 pm until 4.00 pm on 25 December 2011 and
(c)on Mother’s Day from 12.00 pm until 4.00 pm.
In the event that the mother fails to comply with these Orders and/or Order 12 of the final Orders made on 6 May 2011, the mother’s time with the children pursuant to these Orders shall be suspended on the following occasion the mother is scheduled to spend time with the children pursuant to these Orders.
Pursuant to Division 15.5.2 of the Family Law Rules 2004, Dr F, Psychologist, is appointed as a Single Expert to enquire into and report upon matters relating to the care, welfare and development of the children E born … 1988, B born … 2001, C born … 2003, and D born … 2005, and that in preparing his report to the Court, Dr F be requested to consider the following matters:
(a)The benefit to the children of having a meaningful relationship with both parents.
(b)The need to protect the children from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(c)Other considerations, including:
(i)Any views expressed by the children and the weight that should be given to those views.
(ii)The nature of the children’s relationship with each parent and other relevant persons.
(iii)The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the children and the other parent.
(iv)The likely effects of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living.
(v)Any practical difficulties and expense of proposed parenting arrangements.
(vi)The capacity of the parents or relevant others to provide for the needs of the children, including emotional and intellectual needs.
(vii)The maturity, sex, lifestyle, background (including lifestyle, culture and traditions) of the parents.
(viii)The attitude to the children, and to the responsibilities of parenthood demonstrated by each of the children’s parents or any other relevant person.
(ix)Any family violence involving the children or a member of the children’s family.
(x)The extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent, including participating in long-term decisions about the children, spending time and communicating with the children.
(xi)The extent to which each of the parents has facilitated, or failed to facilitate, the other parent participating in long-term decisions about the children, spending time and communicating with the children.
(xii)The extent to which each parent has fulfilled, or failed to fulfil, the parent’s obligation to maintain the children.
(d)The health and mental states of each of the children and of each of the parents.
(e)Any other matters that relate to the care, welfare and development of the children.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1996 of 2010

Ms Farrell

Applicant

And

Mr Farrell

Respondent

And

Newnhams Solicitors
Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court are interim proceedings between the parties to a marriage concerning the parenting of their children E (“E”), born in 1988 and now 12 years of age, B (“B”), born in 2001 and now 10 years of age, C (“C”), born in 2003 and now 8 years of age, and D (“D”), born in 2005 and now 5 years of age.
The parties to these proceedings consented to Orders made on 6 May 2011 in which the children of the marriage were to live with the father and have defined and increasing time with the mother in a staged process. The proceedings settled by the consent orders were ones in which the Court and the parties had the benefit of two reports prepared by Dr F as an independent expert.
Following the making of those Orders it is asserted by the father, and not denied by the mother, that there were a number of incidents of non-compliance with the Orders. It was also asserted by the father that the mother had encouraged the children not to return to him and otherwise misbehave.
Arising out of an application made by the father for a recovery order on 11 July 2011, Orders were made to the effect that:
·the mother was prohibited from contacting the children at school or attending their school, and the provisions of the original Order made on 6 May 2011 were suspended
·the mother was restrained from removing the children from the residence of the father
·the mother no longer had contact with the children on Wednesday afternoons and Saturdays, and otherwise the operation of the Orders extending time were suspended.
The children were, following those Orders, returned to the father who then took them on holiday.
The mother filed a Response seeking that the Orders of 11 July 2011 be discharged. Additionally, the mother made an application for an order varying the Orders of 6 May 2011 and sought in effect that E live with the father, and B, C and D reside with her and spend time with the father on a defined basis. She sought interim orders in the following terms:
1)That the Orders made 11 July 2011 be discharged.
2)That Orders 4 to 12 inclusive of the Parenting Orders made
6 May 2011 be stayed.
3)That the child, [E] born … 1998 live with the father.
4)That [E] spend time with the mother in accordance with his wishes.
5)That the children [B], [C] and [D] live with the mother.
6)That the children spend time with the father as follows:
i)Each alternate weekend from 9.00 am on Saturday to
6.00 pm on Sunday; and
ii)Each alternate week from after school on Tuesday to before school on Wednesday; and
iii)Half of each school holiday period, to be the first half in odd numbered years and the second half in even numbered years; and
iv)If the father is not otherwise spending time with the child, from 9.00 am to 5.00 pm on Father’s Day with the father to collect and return the child;
v)If the father is not otherwise spending time with the child, on each child’s birthday from after school until 6.00 pm if the birthday falls on a school day; or from 1.00 pm to 6.00 pm if the birthday falls on a non-school day;
vi)From 9.00 am on Good Friday to 5.00 pm on Easter Monday in odd numbered years;
vii)From 3.00 pm on Christmas Eve to 3.00 pm on Christmas Day in each odd-numbered year and from 3.00 pm on Christmas Day to 3.00 pm on Boxing Day in each
even-numbered year; and
viii)That the father’s time pursuant to Orders 3.1 and 3.2 be suspended during the operation of Order 3.3.
7)The father’s time pursuant to these Orders is to be suspended as follows:
i)On Mother’s Day between 9.00 am and 5.00 pm;
ii)From 9.00 am on Good Friday to 5.00 pm on Easter Monday in even numbered years;
iii)If the mother is not otherwise spending time with the child, on the child’s birthday from after school until 6.00 pm if the birthday falls on a school day; or from 1.00 pm to
6.00 pm if the birthday falls on a non-school day;
iv)From 3.00 pm on Christmas Eve to 3.00 pm on Christmas Day in each even-numbered year and from 3.00 pm on Christmas Day to 3.00 pm on Boxing Day in each
odd-numbered year.
8)That for the purposes of school holidays the following will apply:
i)School holiday periods are defined to commence at
5.00 pm on the last day of the relevant school term for [G School] and to conclude at 5.00 pm on the Sunday immediately preceding the commencement of the next school term gazetted for New South Wales.
ii)Changeover is to occur at 12 noon on the mid-point day between the first and last day of the defined school holiday period.
iii)In the event that there are two consecutive “mid-point days”, then changeover is to occur at 12 noon on the first of those two “mid-point days”.
9)That the father collect the children from [G School] or the mother’s residence, as applicable, at the commencement of the children’s time with the father and return the children to [G School] or the mother’s residence, as applicable, at the conclusion of their time with the father.
10)That the father be restrained from permitting the children to use or handle firearms.
11)That the father deliver to the mother the children’s passports to enable her to travel overseas with the children no less than one month prior to the intended date of departure provided that the mother notify the father of the children’s travel itinerary including flight numbers and contact telephone numbers 40 days prior to the intended date of departure.

To that application the father filed a Response seeking an order that some of the Orders of 11 July 2011 be discharged and a variation of the Orders previously made on 6 May 2011. He sought interim orders in the following terms:
1)That Orders 1, 3, 4 and 5 of the Orders made by His Honour Justice Fowler on 11 July 2011 shall continue.
2)That Order 21 of the Orders made by His Honour Justice Fowler on 6 May 2011 be and is hereby suspended.
3)That subject to Order 4 herein, the children [B] born ... 2001, [C] born … 2003, and [D] born … 2005 (“the children”) spend time with the mother as follows:
i)Each Saturday from 12.00 pm until 4.00 pm, save that time shall not occur in accordance with this paragraph on the third Saturday of each month;
ii)From 12.00 pm until 4.00 pm on 25 December 2011; and
iii)On Mother’s Day from 12.00 pm until 4.00 pm.
4)That in the event that the mother fails to comply with these Orders and/or Order 12 of the final Orders made on 6 May 2011, the mother’s time with the children pursuant to Order 3 herein shall be suspended on the following occasion the mother is scheduled to spend time with the children pursuant to these Orders.
5)That Order 24.3 of the final Orders made on 6 May 2011 be varied so as to provide for both parties to pay equally as and when they fall due all costs incurred by Glenn Thompson arising from his appointment as the Independent Children’s Lawyer in these proceedings.
6)That the mother’s application filed on 20 July 2011 be and is hereby dismissed.
7)That the mother pay the father’s costs of and incidental to these proceedings.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
In 1964 the mother was born. She is now 47 years of age.
In 1970 the father was born. He is now 41 years of age.
The mother asserts that the parties commenced cohabitation in 1996. The father asserts that this occurred in March 1997.
In 1997 the parties were married.
In 1998 E was born. He is now 12 years of age.
In 2001 B was born. He is now 10 years of age.
In 2003 C was born. He is now 8 year of age.
In 2005 D was born. She is now 5 years of age.
On 16 February 2010 the mother and father separated.
On 1 April 2010 the father commenced parenting proceedings in the Court.
On 8 April 2010 interim orders were made, in particular with regard to parenting.
On 10 May 2010 interim orders, particularly as to financial issues, were made.
On 14 February 2011 the Apprehended Domestic Violence Order proceedings which were instigated by the mother against the father were dismissed in the Local Court.
On 6 May 2011 final parenting and financial orders were made.
On Wednesday, 8 May 2011 the children spent time with the mother. The mother returned the children to the father at 7.30 pm, rather than at 7.00 pm as per the Orders.
On 25 May 2011, the mother returned the children to the father at 7.45 pm in contravention of the Orders.
On Saturday, 28 May 2011 the children spent time with the mother. Rather than returning the children to the father at 6.00 pm as per the Orders, the children were returned at 8.15 pm.
On Tuesday, 31 May 2011 the children were to reside with the father in accordance with the Orders. The mother yelled at Ms H, the Father’s Help, and removed the children from her care at school. The mother told

Ms H to collect the children at 4.45 pm, at which time Ms H went to collect the children. The children were not provided and the mother returned them at 7.43 pm. It is deposed by the mother that she found the children by chance playing on a street corner in Suburb I and collected the children. She asserts that she took the children to the nanny at ballet and that the nanny allowed her to take D with her. Ms H deposes that she encountered the mother at D’s ballet and that an argument ensued in relation to supervision of the boys. The mother removed the children from Ms H’s care without permission.
On Wednesday, 1 June 2011 the mother removed C and D from school at 10.15 am and did not return them to school. Ms H informed the father that the mother returned E to his residence at 8.15 pm that night but did not return the other three children. The mother deposes that she was contacted by the school who advised that the children were sick and the father had told the school to contact the mother. The mother asserts that she contacted the father’s home at 6.00 pm and the paternal grandmother told her to keep the children overnight.
On 2 June 2011 the mother kept the children with her in contravention of the Orders. The children did not attend school and the NSW police confirmed that the children were at the mother’s residence. The father’s legal representatives wrote a letter to the mother’s legal representatives seeking return of the children to school and advising that an application will be made for a recovery order if they were not returned. The children were returned to the father’s care at 11.30 am. The mother asserts that the father was intoxicated and kicked her car window upon return of the children.
On 3 June 2011 the mother’s legal representatives advised the father’s legal representatives that they no longer acted on behalf of the mother in relation to the parenting proceedings.
On 4 June 2011 the mother returned the children to the father at 7.45 pm rather than 6.00 pm as required by the Orders.
On 7 June 2011 the mother removed D from ballet and retained her overnight in contravention of the Orders. The mother asserts that Ms H suggested and permitted her to remove D. Ms H deposes that she was told by the teachers that the mother was distracting and upsetting D, and that the mother removed D from her care without permission.
On 8 June 2011 the mother retained C overnight and returned him to the father at 8.00 am the next day in contravention of the Orders. The other children were also not returned to the father’s residence until after 8.00 pm following police intervention.
On 10 June 2011 the father had a meeting with Ms J from G School, the children’s school. Ms J described the situation as very difficult. It is asserted by the mother that she was contacted by Ms J who reported that the children want more time with the mother.
On 11 June 2011 the mother returned the children to the father at 7.45 pm rather than 6.00 pm. The mother asserts that the father did not deliver E, stating he was unwell.
On 15 June 2011 the father was notified by the children’s school that the mother had attended to remove the children from school to visit their sick grandmother. The father consented on the basis that the children were to be returned to school. By prior arrangement the father and Ms H attended to collect the children from the mother’s residence in order to take the three boys to the State of Origin. E and the mother’s nanny told the father that the other children were not coming down and the door was shut in Ms H’s face. The mother asserts that there was a dispute with the father about contents and the father drove away with E leaving the other three children with her. The father denied consenting to the mother’s retention of the other children.
On 16 June 2011 the mother retained the three children from the prior evening and the children did not attend school after the mother advised the school that the children were sick. The father’s legal representatives caused a letter and a copy of the Orders of 6 May 2011 to be personally served upon the mother. The mother attended the father’s residence with the children at about 8.00 am. In light of the children’s distress the father agreed to let the mother deliver the children to school. The children did not attend school that day.
On 18 June 2011 the mother asserts that the father did not deliver E, stating he was unwell.
On 19 June 2011 the mother asserts that she received a telephone call from C who was distressed. The mother was concerned that the children would run away and drove towards the father’s house. The mother deposes that she found C and B about one kilometre from the father’s house and returned them to the father’s house. The father denies that the children ran away, and asserts that if the mother collected the children it was without his knowledge.
On 20 June 2011 the children were to reside with the father. The mother removed C and D from ballet. Ms H arranged with the mother to collect the children from soccer and the mother refused to provide the children to Ms H. The mother then attended the father’s residence and the children hid from Ms H in the house. The children then ran out of the house to the mother’s waiting car which was parked up the road. The mother took the children to her house and did not return them that evening.
On 21 June 2011 the mother arrived at the father’s house with the children at 8.00 am. It is deposed by Ms H that the mother abused the father in front of the children. The mother did not take any steps to encourage the children to get out of the car. The mother drove off with the children and did not take them to school until 2.30 pm.
On 22 June 2011 the mother asserts that the father dragged the children from her car, and that B called her shortly thereafter reporting that he and the others were upset.
On 23 June 2011 Ms H deposes that she went to collect the children from school. The mother attended the school and placed the children in her car despite the presence of Ms H, the junior school principal and the deputy senior school principal. The mother sat in the car with the children for about 25 minutes before exiting the vehicle, leaving the children distressed and crying. The children were then removed from the vehicle by the mother, with the help of the deputy senior school principal, and returned to Ms H.

On 25 June 2011 E did not attend to spend time with his mother as he was ill. The mother returned B and C to the father at 9.00 pm and kept D overnight in contravention of the Orders.
On 29 June 2011 the mother returned E to the father at 7.30 pm and did not return the other children in contravention of the Orders. The NSW police confirmed that the children were at the mother’s residence. The father sent a text message to the mother seeking return of the children and did not receive a response from the mother.
On 30 June 2011 the father sent a text message to the mother seeking the return of the children and put the mother on notice of an application for a recovery order. No communication was received from the mother until 7.28 pm when the mother responded asserting she had attended the father’s residence on four occasions and that the children were asleep. The father asserts that he was home all day.
On 1 July 2011 the mother’s legal representatives wrote to the father’s legal representatives stating that the children would be returned to the father at

1.00 pm. The father’s legal representatives responded confirming that the father would be at his residence to collect the children. The mother returned the children to the father at 4.45 pm.
On 2 July 2011 the mother attended the father’s residence to return the children. E went into the father’s home without issue. The mother locked the car with the other children inside for approximately 15 to 20 minutes before opening the door and allowing the father to get the children out of the car. Whilst the father was getting D out of the car the mother abused the father.
On 3 July 2011 an incident occurred at the farm where E and B were handling firearms to practise skeet shooting under the supervision of the father. B accidentally discharged the father’s firearm onto the ground, causing a piece of rock to fly up and hit B on the cheek.
On 6 July 2011 the mother returned E to the father’s residence at 7.00 pm in accordance with the Orders. The mother did not return the other three children and no communication was received by the father. The mother asserts that she attempted to return the other children to the father at 8.00 pm. The father denies this.
On 7 July 2011 the father sent text messages to the mother seeking the return of the children. No communication is received from the mother. The father was home all day and asserts that the mother did not attend his residence that day.
On 8 July 2011 the father sent a text message to the mother seeking the return of the children. The mother responded indicating that she would return the children at 2.00 pm. The children were not returned. The mother sent another text message indicating that the children would be returned at 5.00 pm, but the children were not returned. The mother attended the father’s residence at

5.30 pm, and after ringing the door bell drove off with the children without waiting for the father to answer the door. The father sent another text message to the mother seeking return of the children.
On 9 July 2011 the father sent a text message to the mother seeking return of the children. The father delivered E to the mother at 8.00 am in accordance with the Orders. The mother returned E to the father at

6.30 pm that day but did not return the other three children.
On 10 July 2011 the father sent text messages to the mother seeking return of the children and reminding the mother that the children were being taken to the rugby. The mother responded indicating that she attended the father’s residence at 11.30 am but no-one was home. The mother attended the father’s residence at 5.45 pm. The children exited the car and ran up and down the road. The mother made no attempt to encourage the children to go into the father’s care. The NSW police attended the premises and had conversations with the children. The father removed the children from the car in the presence of the police. B and C then ran up the road and the mother collected them and drove off.
On 11 July 2011 the mother returned B, C and D to the father at about 9.00 am. At 11.00 am the father left the children at home with Ms H to attend an appointment with his solicitors. At 12.50 pm Ms H called the father advising that the children were gone from the house. At 1.16 pm Ms H informed the father that she had called the mother who said that she didn’t have the children. She also informed the father that a builder working on the site next door had advised her that he saw three children get into a black Lexus and speed off. The father contacted the mother through text message and the mother denied that she had the children and that she would look for them. The mother then told the father that she found the children walking up R Street, and advised that she would organise a third party to return the children.
At 4.00 pm on 11 July 2011 the children had still not been returned to the father. He subsequently commenced further parenting proceedings.
On 11 July 2011 ex parte interim parenting and recovery orders were made. The Orders and associated documents were served on the mother and her legal representatives.
At 5.40 pm on 11 July 2011 the mother attended the father’s residence and returned the children to the father. D then returned to the mother’s car and the mother drove off retaining her overnight.
On 12 July 2011 the mother returned D to the father’s residence at 9.05 am.
On 20 July 2011 the mother commenced further parenting proceedings.

The Issues

Whether the arrangements for the parenting of the children made by consent in May should continue. This was the position argued for by the Independent Children’s Lawyer. In the alternative, as suggested by the father, the time spent by the children with the mother should be reduced by not permitting the expansion of the existing Order and by reducing the time spent by the children with their mother at the present time.
It was agreed between the parties that an Order should be made seeking that

Dr F, at the parties’ joint expense, prepare a report on issues arising in the case. The Court was informed that he could do so in early August and he had prepared prior reports. The wife said that she opposed Dr F doing so but the Court took the view that, having regard to the history which was available to Dr F and the fact that he had previously assessed the children and parents, he was the appropriate person to carry out the investigation and report.
Whether the expressed desire of the children to spend more time with their mother was a desire that the Court should in the interests of the children presently facilitate, or whether the provision of more time to the children for that purpose might exacerbate the present conflict and give rise to further occasions of disobedience and bad behaviour on the part of the children and not be in their interests for that reason. Was there an appropriate balance which could be struck between giving effect to some stated desires, and protecting them from a situation which was concerning and in which Orders of the Court continually were not complied with?
Pending the hearing of this matter, what was in the best interests of these children.

The Evidence

The mother filed affidavits of herself and tendered documents produced on subpoena from the police department, the children’s school G School and from that, source notes of the School Counsellor.
The father filed affidavits of himself and the following witnesses: Ms H, Ms K, Ms L and Mr M. He also filed affidavits of service of Ms N and Mr O.
The father tendered documents produced by the police and referred to other documents produced by the school, as did the Independent Children’s Lawyer.
Reference was made by all parties to Dr F’s report made in the prior proceedings and dated 30 April 2011.
The proceedings being of an interim nature, none of the evidence was tested by cross-examination.

Affidavit Evidence of the Mother

The mother filed an affidavit on 20 July 2011.
Therein, the mother deposes that since the Orders of 6 May 2011 B, C and D have shown great distress at the limited time they get to spend with their mother, and have expressed their desire to live with the mother and spend more time with her.
The mother states that on every occasion she has returned the children to the father, the three younger children have been extremely resistant and distressed when told to get in the car to leave the mother’s house. She further deposes that upon arriving at the father’s house the children refuse to get out of the car, and that either her, one of the nannies or the father have to physically remove them from the car while they kick and scream. She also states that the children often run off down the street away from the father’s home.
The mother asserts that the father has breached the Orders of 6 May 2011 by leaving the children in the care of nannies for periods exceeding three days. She also contends that the father delivers the children on Saturday mornings at 9.00 am rather than 8.00 am. It is also her evidence that the father and nannies do not allow her to speak to the children when she calls the house.
It is the mother’s evidence that the school counsellor at G School, Ms J, contacted her on 10 June 2011 and said:
I’ve noticed that B, C and D are distressed and seem anxious. They are constantly complaining about headaches. I don’t think they are coping well with the current arrangements. I will be contacting [Mr Farrell] about the possibility of the children spending more time with you.
The mother deposes that Ms J contacted her again on 11 June 2011 and the following conversation occurred:
[Ms J]: I’ve spoken to [Mr Farrell] about the unhappiness of the children.
Mother: Yes?
[Ms J]: He’s not interested in hearing about the children’s wellbeing. He knows that they are unhappy and distressed but refuses to allow the children to see you more regularly. It’s very upsetting to see a father so consumed by anger and disregarding the children’s emotional state.
Mother: Yes, I know.
[Ms J]: The children told me that they want to live with you. [B] especially had a lot to say. He told me that his father drinks a lot and is rarely home. [B] is so sad and missed you so very much. It’s heartbreaking to watch. I’m so upset with [Mr Farrell].
The mother contends that after returning the children to the father on 22 June 2011 B called her stating that C and D were crying. She deposes that the following conversation occurred with Ms H:
Mother: Where is [Mr Farrell]?
[Ms H]: He can’t stand listening to them crying so he went out.
Mother: What? He dragged them out of the car into his house, and then leaves them with the nanny? He should be consoling them!
[Ms H]: I know, it’s terrible. I spoke to him about trying to get him to let them see you more, but he won’t. They beg him to see you, he just says no.
Mother: No offense [Ms J], but they need to be comforted by a parent, not a nanny.
[Ms H]: I know. [Mr Farrell] told me to give them some panadol and put them to bed.
Ms H denies this conversation happened as the mother deposes.
It is the mother’s evidence that upon returning the children to the father on

25 June 2011 the father said to the children, “get out you little brats” and that, from her observations, he had been drinking and his speech was slurred. The father denies this. The mother also asserts that B called the police and the Department of Human Services saying that he did not want to go to his dad’s house. She states that the father dragged B, C and D out of the car by their clothes.
The mother states that on 29 June 2011 the children refused to leave her house and be returned to the father; they were crying and running away from her. It is her evidence that given their extreme distress she allowed the children to remain with her overnight. She deposes that she went to the father’s house to return the children on the morning of 30 June 2011 but that nobody answered the door or the telephone, and so she took the children to the movies and returned them to the father later that day.
The mother alleges that on 10 July 2011 while the children were in her care the children made the following comments about the father:
[B]: Dad is a bad man. He locks [D] and [C] in his bedroom so they won’t run away.
[D]: Yeah Mum, Dad dragged me down the stairs and threw me on the floor in his bedroom. Then he locked the bedroom door with his key. I feel like a prisoner mum. I’m not going into the evil house.
[C]: Yes and the laundry, we have to sleep in the laundry with [P] [the dog].
The mother asserts that when she returned the children to the father on 10 July 2011 the children were hysterical. She claims that when the children saw the father they got out of the car and ran away from him, and that the father dragged D out of the car, and hit C and dragged him by his collar towards the house. The father denies the mother’s account of events.
It is the mother’s evidence that when the police attended at the father’s residence on the evening of 10 July 2011 that B told the police officer, “Dad and [E] bash us up, and Dad locks us in the laundry and our bedrooms!”, and that D said, “I was dragged down the stairs and locked up in dad’s bedroom. I bit dad.” She also asserts that the father said to her, in the presence of the police, “I’m not happy about you guys staying with mum, but if that’s what you want you can go with mum” and the children responded, “Yes, we want to go with mum.” This is contrary to the police notes of the incident.
The mother deposes that she returned B and C to the father at

8.00 am on 11 July 2011 and returned D to the father at 7.00 pm on 11 July 2011.
It is the mother’s evidence that upon receiving a call from Ms H on 11 July 2011 advising that the children were missing, she drove towards Q Street to search for the children. The mother found the children walking down R Street, Suburb S and advised the father and Ms H via text message that she found the children and they were with her. She says that she returned the children to the father’s residence at 4.00 pm.
The mother says that on numerous occasions she has told the father that she did not believe the arrangements were working and that they needed to discuss the situation, however the father has avoided eye contact with her and has never responded to her on these occasions.

Affidavit Evidence of the Father

The Father’s Affidavit filed 25 July 2011

Therein, the father deposes that the mother has retained the children on days and nights that she was not permitted to pursuant to the Orders. He also asserts that she has consistently breached the Orders by returning the children to him personally and not through a third party, and also outside the times stipulated.
The father provides a number of examples where the mother has consistently returned the children to his residence outside the times stipulated:
a)On Wednesday, 18 May 2011, the children were returned at 7.30 pm rather than 7.00 pm.
b)On Wednesday, 25 May 2011, the children were returned at 7.45 pm rather than at 7.00 pm.
c)On Saturday, 28 May 2011, the children were returned at 8.15 pm rather than 6.00 pm.
d)On Saturday, 4 June 2011, the children were returned at 7.45 pm rather than at 6.00 pm.
e)On Saturday, 11 June 2011, the children were returned at 7.45 pm rather than at 6.00 pm.
The father also describes occasions where the mother has retained the children on days she wasn’t permitted to in accordance with the Orders:
a)On Tuesday, 31 May 2011, the mother collected the children from school and did not return them to the father until 7.43 pm that evening.
b)On Wednesday, 1 June 2011, the mother did not return B, C and D to the father’s residence and retained them overnight. The mother did not take the children to school the following day, and returned them to the father’s residence at 11.36 am.
c)On Tuesday, 7 June 2011, the mother attended upon D’s ballet lesson and retained her overnight.
d)On Wednesday, 8 June 2011, after scheduled contact with the children the mother retained C overnight and returned him to the father’s residence at 8.00 am the following morning.
e)On Wednesday, 15 June 2011, the father consented to the mother taking the children out of school to see their sick grandmother. The father had arranged to collect the children from the mother’s residence at 7.00 pm to attend the State of Origin; only E left with the father that evening. The other children were retained overnight by the mother and not taken to school the next day. The mother arrived at the father’s residence at 8.00 am on 16 June 2011, and due to their distress the father allowed the mother to drive the children to school. It is the father’s evidence that the children did not attend school that day.
f)On Monday, 20 June 2011, the mother took the children from D’s ballet lesson, and retained them overnight. The mother returned the children to the father’s residence at 8.00 am, however she made no attempt to get them out of the car and shortly after drove off with the children. The father was informed by the school that the mother took the children to school at 2.30 pm that day.
g)On Wednesday, 29 June 2011, the children were to spend time with their mother. E was returned to the father at 7.30 pm but the other three children were not returned. The father notes that a number of text messages were exchanged with the mother and she asserts that she attended at the father’s house four times on Thursday, 30 June 2011. He states that he was home all day. The mother retained the children overnight on 30 June 2011. The children were returned to the father’s residence at 4.45 pm on 1 July 2011.
h)On Saturday, 2 July 2011, the father asserts that when the mother returned the children to the father, she sat in her car with the three younger children for 15 to 20 minutes with the car doors locked. The father asserts that the mother yelled abuse at him in the presence of D, saying “You are a bad father”, “Your children hate you” and “You are a fucking prick”.
It is the father’s evidence that the mother retained the children in her care from 6 July 2011 until 10 July 2011 in contravention of the Orders. He asserts that he sent her numerous text messages for the return of the children on 7 and

8 July 2011. It is his evidence that she attended his house on 8 July 2011 at 5.20 pm with the children in the car, rang the doorbell and then drove away with the children. Again the father sent her numerous text messages on 8, 9 and 10 July 2011 seeking the return of the children.
The father provides his version of events that occurred on 10 July 2011 when the mother returned the children to the father. He deposes that when he went to collect the children from the car they were running up the road, and the mother did not say anything to the children about their behaviour, but rather sat in the car smiling at him. He asserts that the mother made no attempt to cause the children to be removed from her car and delivered to the front door of his residence.
It is asserted by the father that on 11 July 2011 he received a call from

Ms H at approximately 12.50 pm advising that the children were missing. Ms H later advised the father that she had contacted the mother who claimed she did not have the children; but that a builder from next door had seen the children get into a black Lexus matching the description of the mother’s car.
Text messages were exchanged between the mother and father, with the mother advising that she would get a third party to return the children. As the children had not been returned by 4.00 pm the father attended the Family Court of Australia to commence further parenting proceedings.
It is the father’s evidence that when the mother returned the children at 5.40 pm on 11 July 2011, D returned to the mother’s care after having been sent inside the father’s house and that the mother made no attempts to remove her from the car. He asserts that the mother retained D overnight despite the existence of the Recovery Order.

The father states that the mother has denigrated the father within the hearing or presence of the children. He says that the children have made the following comments to him: “Mummy says your evil Daddy”, “Mummy wants to lock you up Daddy”, “You’re a liar”, “You’re a bad Daddy we don’t want to see you anymore”, “Let’s see how you like it not seeing us” and “You’re a liar and you’ll never see us again”. He denies making any comments to the children about the mother of a derogatory nature.
The father denies that he has used any physical discipline on any of the children since 6 May 2011, that he has locked up any of the children in his bedroom or laundry, or that he has dragged D down the stairs. The father also denies that the children have run away from his home in May or July.
The father denies that he is frequently absent from the home and has four nannies working on a rotating basis, and that he leaves the children in the sole care of the nannies for extended periods of time.
The father describes how he has adopted a number of parenting strategies after completing a number of Positive Parenting courses. An example of this is using reward charts for the children, where they receive stars for good behaviour.

Affidavit Evidence of Ms H

Ms H (“Ms H”) filed an affidavit on 25 July 2011.
Ms H is employed by the father as a Father’s Help since May 2011 and she assists him with the care of the four children.
Ms H assists the father five days per week between 7.00 am and 8.00 pm, usually with time off during the hours of 9.00 am and 1.00 pm.
In her affidavit, Ms H provides descriptions of various incidents of the mother contravening the Orders by attending the children’s school on days she was not meant to, and not returning the children at the times stipulated.
Ms H deposes that on 31 May 2011 the mother attended at D’s ballet lesson after school, and Ms H and the mother had an exchange about

Ms H allowing C and B to cross T Street without her. The mother insisted on taking the children home with her and Ms H reluctantly agreed to allow the children to go home with their mother and it was arranged that she would pick up the boys at 4.45 pm for their band lesson. It is

Ms H’s evidence that upon arrival at the mother’s house the mother told her that the children did not want to leave and that she would return them to the father’s house at 7.00 pm.
On 1 June 2011, it is Ms H’s evidence that the children were returned to the father’s house at approximately 8.00 pm. The mother demanded that

Ms H give her various belongings that the father was ordered by the Court to return to her. After giving these belongings to the mother, the mother told Ms H that she saw all the children go inside and she left. Ms H then discovered that B, C and D were missing, and believed they were taken by the mother. The mother returned the children the following day at 11.30 am.
On 7 June 2011 the mother attended on D’s ballet lesson again in contravention of the Orders. The mother told Ms H that she was taking the children home for afternoon tea and not to tell the father. Ms H advised that she could not let her do that and that B had tutoring at 4.15 pm. The mother left with D, and B and C were taken home with Ms H.
Ms H asserts that on 8 June 2011 the mother did not return the children to the father’s house until 8.35 pm. Ms H later realised that C had not been returned and asserts that the mother advised her that she did not realise he had fallen asleep in the car. The mother did not return C to the father’s house until the following day at 8.00 am.
On 15 June 2011 the children were to be collected from the mother’s house at 7.00 pm to attend the State of Origin with the father. Ms H attended the mother’s house with the father and states that E told them that the other children wouldn’t come, and that after some attempts to get the children, someone closed the door in her face. The father, E and Ms H then left the mother’s residence without the other children.
Ms H deposes that on 20 June 2011 when she arrived to pick the children up from school the mother was there with B, C and D, and told Ms H to come to her house for coffee and said to the children, “… you have to promise to me and promise [Ms J] not to tell Daddy. You have to lie to Daddy”. Ms H agreed to pick up the children, however the children were hiding and running away from her and the mother insisted that she would return the children to the father’s house. The mother returned the children to the father’s house, however the children ran away from Ms H back to the mother’s car. Ms H states that the mother drove off with C and D and retained them overnight.
It is alleged by Ms H that on 22 June 2011 the mother said to her, “I’m going to come to the school tomorrow. What can [Mr Farrell] do if I turn up and give the children afternoon tea at the school each day. I’m not breaking any Orders if I do that am I?” Ms H had then arranged with the school secretary to collect the children on 23 June 2011 from the underground staff parking.

Ms H states that the mother was also in the staff car park and took the three children, in the presence of the junior school principal and the deputy senior school principal, and stayed in her car with the children for about 25 minutes before removing them and returning the children to Ms H.
It is Ms H’s evidence that at 7.00 am on 11 July 2011 the only children at home were E and D, and that upon her return from some errands at 9.00 am she observed that B and C were also at home. At about 12.50 pm Ms H noticed that the children were not in the house and had appeared to run away.
Ms H states that she enquired with a tradesman working next door whether he had seen three children to which he responded, “No but I saw a black … four-wheel drive speeding off down the street”. Ms H then called the mother who said that she did not have the children. After approximately 20 minutes Ms H says that she received a text message from the mother saying she had found the children on R Street.
Ms H states that B and C were returned to the father’s residence at 5.40 pm on 11 July 2011, and that D was returned at 9.05 am on 12 July 2011.
It is Ms H’s evidence that she has never observed the father verbally abuse or physically discipline the children, nor has she seen him lock the children in the laundry or any other room.
Ms H states that she has never observed the father to be intoxicated by alcohol while she has been present, and that she has never heard him make any derogatory comments about the mother in the presence of the children.
Ms H asserts that the children’s behaviour can be erratic and difficult upon being returned from spending time with their mother, and appear to go through an extended unsettled period.
According to Ms H, the father is always calm during changeovers, whereas the mother’s conduct towards him is abusive and aggressive. She has never observed the father abuse the mother or speak to her in an aggressive tone during changeover. She asserts that she has heard the mother make the following comments towards the father during changeovers: “You’re a fucking asshole. The children are going to hate you they already hate you” and “Everyone hates you”.

Affidavit Evidence of Ms K

Ms K (“Ms K”) filed an affidavit on 25 July 2011.
Ms K is a qualified child care worker and has been working for the father as an afterhours babysitter generally once per week.
Ms K deposes that in the time she has worked for the father she has observed him to be a caring, attentive and child-focused parent. She states that she has never witnessed the father raise his voice at the children, do anything towards them that would amount to abuse, nor lock them away in any rooms of the house.
Ms K deposes that she has been present on a number of occasions when the mother has returned the children to the father’s premises and states that she has observed the mother taking little or no action to encourage the children to get out of the car. She has also observed the mother to lock the doors of her car, and has also allowed the children to run up and down the street without returning them securely to the front door of the house.
It is Ms K’s evidence that the mother has failed to return the children home at the required time as per the Orders. By way of example she says that the mother returned the children at 7.57 pm on 1 June 2011 and 8.00 pm on

8 June 2011.
Ms K has observed that the children are sometimes distressed and unsettled when they arrive home from being with their mother, and asserts that E has said to her that just before the mother returns them home she makes them watch horror movies.

Affidavit Evidence of Ms L

Ms L (“Ms L”) filed an affidavit on 25 July 2011.
Ms L has worked for the father as a home organiser since May 2011 three days per week between 10.00 am and 2.00 pm.
Ms L deposes that she has observed the father to be a caring parent and that he has a close relationship with his children. She has never observed the father to verbally abuse the children, physically discipline them or lock them in the laundry or any other room.

Affidavit Evidence of Mr M

Mr M (“Mr M”) filed an affidavit on 25 July 2011.
Mr M is a licensed plumber who has been working on a building site next door to the father’s residence since late May 2011.
Mr M’s evidence is that at 12.50 pm, after finishing his lunch, on 11 July 2011 he was driving down Q Street when he observed a black four-wheel drive speeding up the hill towards him. He pulled up outside the building site when he was approached by a female who identified herself as a nanny and asked him, “Have you seen three children get into a black Lexus four wheel drive?” to which he responded, “I just saw a black Lexus four wheel drive speed up the road. Is that what you are looking for? I can’t say who was in the car”.

Report of Dr F dated 30 April 2011

The single expert in this matter, Dr F, prepared two reports for the previous parenting proceedings. The final report is dated 30 April 2011. For the purposes of completing the report Dr F undertook interviews with the parents and the children and observed the children interact with the parents.
Dr F’s observations of the children in April 2011 were that they were more settled and less wild in their behaviour since he saw them the year before. However, he did state that they, in particular C and D, are still having behavioural problems.
Dr F reports that he only observed contact between the children and the father for just over 15 minutes. E spent some time on his own playing a game on his phone, however soon joined the others with the father to play a game, nevertheless he still remained peripheral. The other children were energetically engaged with the father. Dr F also stated that the father was able to work in well with all four children, and remained consistent in organising the children.
In relation to the contact between the children and the mother, E did not want to see his mother and had to be persuaded to do so by Dr F and the father. E remained uninvolved and sulky throughout the contact period. Dr F states that the children were much more feisty and restless with the mother than they were with the father.
The mother brought in a board game to play with the children. D, C and B were positively engaged with the mother in playing the game and the mother continually tried to engage E. Whilst E did not engage fully, he did respond verbally to questions from his mother when she talked to him.
Dr F said that the level of energy in the children’s relationships, and also the competitiveness in their relationships was stronger than it had been with the father.
Dr F said the observation of the mother with the children showed an absence of the parental sub system; that is, there was little distinction between the mother’s engagement with the children as a child and as her as an authoritative parent.
Dr F reported that despite the mother’s views to the contrary, there remains a significant problem in the mother’s relationship with E, in part because the mother has been unable to address the issues that took place when she abused him when she was in her psychotic rage.
Dr F found that the parents remain locked into a competition with each other, and neither seems able to genuinely cooperate with each other.
It is stated by Dr F that it seems that the mother has damaged the children by encouraging rude and hostile behaviours, and that they appear more fractious and difficult to manage with the mother. This, he says, “reflects terribly on her ability to parent … and suggests an absence of insight by the mother into her responsibilities as a parent and her ability to place her needs behind those of her children”. However he notes that it would not be in the children’s best interests to stop contact with the mother, and believes that all the children have a strong desire to see their mother.
Dr F recommends that the children are best cared for by their father, but that they still need to have contact with their mother. He identifies three dimensions that need to be considered, being frequency, length and supervision.
With regard to frequency, Dr F states that frequent contact is destabilising and prevents the establishment of a routine for the children, especially given the different parenting styles of the mother and father. He advised that frequency should be no more than one weekly and one weekend contact.
Dr F concluded that supervision was unlikely to produce any more benefits and therefore should cease.
Dr F proposed that a staged process over 12 months take place with regard to length. He recommended that if there was minimum disruption and conflict in the first three months of the recommended contact then there should be a move towards overnight contact every alternate weekend with the mother.

Material Produced under Subpoena by NSW Police

It is the evidence of NSW Police that police attended the father’s residence at 6.50 pm on 10 July 2011 in response to a “domestic”.
The mother reported to the police that the father had dragged C against his will and locked him in the laundry, and also stated that D was dragged by the father and she had bitten him to get away.
The Event Report details that the police spoke to the children separately. E told police that his dad had not touched any of the children and it was him that dragged C into the house. B said that E had tried to grab him but B ran away. C told police that E had dragged him into the house. The police asked C if his father locked him in the laundry to which he said ,“What?” Police also spoke to D who said she had bitten her brother E and denied biting her father.
The police reported that D approached police, after speaking to her mother, and said she had bitten the father to try and get away from him
The police reported that the children were in good spirits and had no visible injuries.
The police are of the opinion that the mother influenced the children to provide a negative story against the father to police. The children were said to be cooperative when speaking to the police, and they contradicted what the mother had told police but corroborated what the father told them.
The police reported that D, B and C returned to the mother’s car and the mother drove off with them.

Material Produced under Subpoena by G School

School Counsellor notes were produced under subpoena from G School, the children’s school.
The school counsellor notes that a meeting was held with the father on 17 June 2011 to discuss the welfare of C. The school counsellor explains in her notes that she advised the father that she was concerned about C and that he had told her he was always feeling sad, worried, frustrated and angry and he wanted to see more of his mother. The father’s response was that “it’s all their mother’s fault that the children are playing up because she’s breaking all the rules”.
The school counsellor indicated to the father that C told her that he wants to see someone and that E sees a counsellor on Saturdays. The father said that C could see the same person as E, and that this could only be done on Saturdays.
On 23 June 2011 the school counsellor had a meeting with B, C and D. It is noted that B did most of the talking and said they all wanted to see more of their mother. D said that she missed her mum and she cries a lot and just wants to be with her mum. C also agreed and said he can’t sleep and has nightmares. B also said that he is frustrated and angry because whenever he says anything to his father, he either changes the topic or says it’s not him speaking, it’s his mother.
B also reported to the school counsellor that when he is with his mother he feels complete and when he’s not with her he feels empty.
All the children reported that they hoped the mother would bring them afternoon tea before their nanny took them home.
On 20 July 2011 B went to see the school counsellor and said he was feeling sad and missed his mum. B reported to the counsellor the events of when the children ran away from the father’s house and the mother found them on R Street. He said C and D wanted to run away and he thought he should go with them to make sure they were okay.
B reported that after the above incident the father took them all away to U Town and that his nanny told him he was not allowed to call his mother. B repeated to the counsellor, “I just want to see mum”, and told her that C and D cry all the time saying also that they want to see their mother.
B said that he tried telling his father that they are all sad, but he just ignores him or tells him, “your mother’s put you up to this” or “that’s your mother speaking”. B also said that the father is not with them a lot of the time and that they are looked after by the nanny.
On 21 July 2011 the school counsellor had a meeting with C and D and her notes indicate that the children were missing the mother; they missed seeing her and talking to her. They talked about when they were walking down R Street and the mother found them walking and told them to get in the car. C and D also both told the counsellor that they try to run away all the time, and that when the mother returns them to their father they try to hide in the car so they don’t have to get out.
C and D also said that the father locks them in the laundry or in his room when the mother returns them to the father, and he waits until the mother has left before letting them out. D said that she would like to live with her mother.
Counsel for the father suggested that the school counsellor notes should be taken with care as the propositions made by the school counsellor showed that she does not have the full story, was not aware of the terms of the final orders, and was urged by the mother to take notes.

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the children as the paramount consideration (see s 60CA). In determining what is in the children’s best interests, I must consider certain matters under s 60CC. Those matters are the “primary considerations” and the “additional considerations” (see ss 60CC(2) and (3) respectively).
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the children’s best interests being treated as paramount (see s 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under s 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Subsection (4) provides as follows:
… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

Where the court is proposing to make an order that the children’s parents are to have equal shared parental responsibility for the children, s 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent.

Section 60CC Considerations

Primary considerations

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

It is axiomatic ordinarily that children have a meaningful relationship with each of their parents providing that such a relationship does not lose meaning by being harmful to them. There is little doubt on the material available to the Court that each of these children love their parents and that the parents love the children. The problem for them has been the abiding conflict which has built to a deafening crescendo. In order to provide a Coda of resolution a way has to be found where the meaning of the relationship between the children and their parents is not founded on a perception of continuing conflict between them and about them. The Court is not comfortable that such a path can be easily found.

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

In his report, Dr F noted that contact provides a fertile ground for the parents to continue their conflict with each other. He states that a pattern of week on/week off cannot work given the hostility between the parents. He also states that the probability of such severe routine disruption to the children and the clash of parenting styles would be so great that the children would be greatly disadvantaged.
It is also recommended by Dr F that it is unwise for the parents to effect the changeovers themselves, and that an independent person agreeable to both should be used to transport the children from the mother’s to the father’s so as not to expose the children to any conflict between the parents.
With regard to E, it is recommended that he has the option of attending time with his mother but that there is no requirement that he does. This is based on Dr F’s view that E has a genuine legacy of fear towards his mother, and he should not be forced to undergo the apprehension of staying with his mother until a counselling process has taken place for him.

Additional considerations

(a)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

The evidence is that the children have expressed a desire to spend more time with their mother. In this case the Court at this time will take that into account. It seemed to the Court that a balance had to be struck between not frustrating a desire for the children to have a relationship with their mother, and preventing the continuing tempest of conflict with which they had been surrounded, it seemed, by the mother’s lack of parenting skills in the control of the children and the insouciance of the mother about obedience to the Orders of the Court, which is asserted by the husband as a deliberate attempt to frustrate them.
Dr F notes in his report that the children, with the possible exception of E, are keen to see their mother, enjoy the time they have with their mother, and wish to have meaningful contact with her.

(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)

There remains a significant problem in the relationship between E and the mother. This stems from the abuse that the mother perpetrated upon him, and E’s belief that the mother tells him to “forget about it”. He prefers to only see his mother one day a week and to keep his weekends free to see his friends. In contrast, he says his father is kind, generous and never lies to him, and has never done anything bad to him. Dr F believes that E feels a loyalty to his father, and that because of this it is hard for him to adopt forgiveness and love for his mother.
Presently there appears to be a close relationship between B, C and D with each of their parents. The three children expressed that they would prefer for equal time to be spent with each of their parents.
Dr F reports that in general the children appear more fractious and difficult to manage with the mother, which “reflects terribly on her ability to parent”.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

Dr F reported that each of the parents remain locked in a competition with each other. He believes that the mother has damaged the children by encouraging rude and hostile behaviours, but that the father has also done the same by priming the children to express negative views of the mother. He also believes that the father continues to make it easy for the children to find fault with their mother.
The father expressed that he only wanted the children to see the mother once a week for four hours. Despite his preferred position, he is aware that the children need to see their mother and is prepared to foster a relationship between the children and the mother. The father reported to Dr F that so long as the mother remains off drugs he has hope of the children developing a strong solid relationship with her.
The father’s evidence, together with the police reports, demonstrates an inability of the mother to facilitate and encourage a close relationship between the children and their father, by making allegations that the father has physically abused the children. It is also stated by Dr F that the mother has demonstrated a lack of insight into her responsibilities and her ability to place her needs behind those of her children.

(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

Dr F stated that the children are best cared for by their father and should remain living with him. He stated that in order to maintain the children’s stability and routine that the children should spend time with the mother one day during the week and one day on the weekend. He stated that frequent contact with the mother is quite destabilising and prevents the establishment of a routine for the children, especially given the different parenting styles.

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

There are, in the Court’s view, no practical difficulties or expenses referred to in the evidence which would prevent the children from spending time with and communicating with either parent, such that they will be able to maintain a personal relationship and direct contact with both parents on a regular basis.

(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

The mother has consulted with Dr V since March 2010 in particular about issues relating to drugs and alcohol. She sees him for 45 minutes once a week, and reports that her health is good and she has made a lot of progress.
Dr F said the observation of the mother with the children showed an absence of the parental sub system. That is, there was little distinction between the mother’s engagement with the children as a child and as her as an authoritative parent. It is also Dr F’s evidence that he remains unconvinced about the long-term stability of the mother.
Dr F forms the view that it is possible that the children were encouraged to be rude and objectionable towards the supervisors when the mother’s contact with the children was under supervision. He states that there appears to have been no attempt by the mother to establish manners or restraint in the children’s behaviour when there were supervisors she did not like, and that she only made few attempts for the placement of boundaries on the children’s behaviour.
The mother reports that she has made lots of changes, and reports experiencing shame, guilt and remorse for putting the children into difficult circumstances as a result of her addiction problems.
It is the father’s evidence in his affidavit filed 25 July 2011 that the mother has placed the children’s physical and emotional safety at risk as demonstrated by her lack of control over the children at changeovers.
The father claims he has made the adjustment to being a hands-on and committed father. He reports that he has disengaged from much of his economic activity to put into place appropriate behavioural rules, and to be attentive and responsive to the children.
It is Dr F’s evidence that the father has more insight into the need to try and disengage the children from the parental conflict, despite the supercharged litigation environment this family finds itself in. He also states that, from what the children say, there is a solid relationship between the children and the father, and “he has seemingly adjusted well to his need to assume more responsibility and remains the safer parent for the children”.
Dr F reports that each of the parents has shown an ability to refrain from drug abuse when being comprehensively monitored. Nevertheless, he notes that it is probably that each parent will at some point in the future relapse. It is Dr F’s evidence that the risk to the children is probably higher in the event of the mother relapsing on stimulant drugs. For this reason, Dr F recommends that the mother should continue her contact with Dr V, as a way of monitoring her progress.

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

E attends to counselling every Saturday and the other three children attend on the school counsellor.
The school counsellor notes indicate that B, C and D all express a desire to spend time with their mother. C in particular reported that he wanted to attend some counselling like E does on Saturdays.
The father asserts that the mother’s breaches of the Orders caused the children to become disruptive, and their routine and emotional stability were compromised by the events from 6 to 11 July 2011. It is the father’s evidence in his affidavit filed 25 July 2011 that the children’s behaviour has improved since 11 July 2011, in particular the children have become more compliant in getting organised the night before school for the following day; the children have started to listen to their father again and respond well to positive parenting strategies; the children have been doing their chores when asked; and the children have been controllable and respectful.

(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right

These children are not Aboriginal or Torres Strait Islander children.

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

Dr F reports that the father appears to have developed a strong structure on the days that he has the children with him. The father says that he is mostly looking after the children full-time. He said he may go to work for an hour or so a day but he has sold 60 per cent of his horses, half of his development properties plus nearly all of his shares. He says that he has a man taking care of his investments so he is not distracted.
Dr F notes that the father is able to work in well with all four children and was able to organise them quite well. He also puts limits on the children in appropriate ways, and the children respond well without any sulking.
It appears to Dr F that the mother has taken a cavalier approach to what happened in the past with E. He notes that the mother had been abusive to her children and especially E and that this has to be recognised and dealt with. The mother does not see any problem in her care of E, however

Dr F notes that there remains a significant problem in the mother’s relationship with E. It is asserted by E that the mother has not addressed the issues that took place when she abused him in her drug-induced psychotic rage.
The father’s evidence in his affidavit dated 25 July 2011 is that the mother has failed on a number of occasions to return the children to him at the time stipulated in the Orders, and that she has attended at his residence as well as the children’s school in contravention of the Orders. He asserts that this has had an emotional toll on the children.
Dr F observed that the children were more disciplined when with their father, and much more feisty and restless with their mother.

(j)any family violence involving the child or a member of the child’s family

Although the mother has made allegations that the father has locked up the children, and dragged them by their collars or down the stairs, there is no acceptable evidence of violence at the hands of the father.

(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person

There were ADVO proceedings against the father at the instigation of the wife which were dismissed in the Local Court in February 2011.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

The Orders that are proposed to be made in these proceedings are, in the Court’s view, the best that it can do to avoid further proceedings consistent with the need to protect the welfare of these children. The Court has serious concerns, particularly until the mother has shown that she can comply with Orders of this Court, that it can be sanguine that there will be no further litigation between these parents.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in s 60CC and considering all the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of these children for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence. In this case there has been no family violence as has been set out earlier.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case the parties did not seek for the presumption not to apply. It is the Court’s view that if the parents’ conflict and inability to communicate continues it may be necessary for an order to be made.

Section 65DAA

This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.
I do not propose an order for equal shared time as it is not in the children’s best interests.

The Orders to be made

I therefore propose to make the orders in relation to parenting as set forth above.

I certify that the preceding two hundred and seven (207) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on

1 August 2011.

Associate:

Date: 1 August 2011

[2011] FamCA 508

1 August 2011

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Expert Evidence

Natural Justice

Procedural Fairness

Remedies

Jurisdiction