Farrow and Hamilton

[2010] FMCAfam 21

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FARROW & HAMILTON [2010] FMCAfam 21

FAMILY LAW – Parenting – mother wishes to relocate 100km from former home with the children – risks to children from exposure to father’s business.

Family Law Act 1975, s.60CC

Applicant: MR FARROW

Respondent: MS HAMILTON

File Number: MLC 10819 of 2008

Judgment of: Hughes FM

Hearing dates: 20 & 21 August 2009

Date of Last Submission: 21 August 2009

Delivered at: Melbourne

Delivered on: 15 January 2010

REPRESENTATION

Counsel for the Applicant: Mr Pavone

Solicitors for the Applicant: Vicki Sweet Family Law

Counsel for the Respondent: Mr Combes

Solicitors for the Respondent: Victoria Legal Aid

ORDERS

1. The parents of the children [X] born [in] 1999 and [Y] born [in] 2003 shall have equal shared parental responsibility for them.

2. The mother is permitted to relocate with the children to [R] in Victoria from 26 January 2010.

3. From 26 January 2010 the children shall live with their mother and shall spend time with their father as follows:

   (a)Every second weekend from after-school Friday until 5.00pm Sunday (or Monday if a long weekend), commencing on the first weekend of each school term. The weekend time may, at the election of the father, be extended until the commencement of school on Monday (or Tuesday if a long weekend) provided that, by 5.00pm on the day before the time commences, the father advises the mother of his intention to extend the time;

   (b)During school holidays at the end of terms 1, 2 and 3 each year from the conclusion of school on the last day of term until 5.00pm on Sunday of the middle weekend of the holidays;

   (c)For the first half of the Christmas school holidays commencing in even numbered years and the second half commencing in odd numbered years;

   (d)Additional time on each of the children’s birthdays at times to be agreed or, failing agreement, from 3.30pm to 6.00pm on school days and from 10.00am to 2.00pm on non-school days;

   (e)Additional time on the father’s birthday at times to be agreed or, failing agreement, from 3.30pm to 6.00pm on school days and from 10.00am to 2.00pm on non school days; and

   (f)Such additional or alternative times as agreed between the parties.

4. In the event the mother’s birthday or the children’s birthdays fall on a weekend or during a holiday period when the children are due to spend time with their father, the children shall spend time with their mother at times to be agreed or, failing agreement, from 10.00am to 2.00pm on the relevant day.

5. Unless otherwise agreed, the children shall spend the Mother's Day weekend with their mother and the Father's Day weekend with their father, regardless of where they would otherwise be in accordance with these orders.  In the event the children are due to be with the other parent on the relevant weekend and no alternative agreement is reached, the arrangements for the relevant weekend and the weekend immediately following it shall be swapped.

6. For the purpose of handover, unless otherwise agreed, the father shall collect the children at the commencement of each period of time the children are due to spend with him and the mother shall collect the children at the end of each period. In the event the father elects to spend extended time with the children in accordance with order 3(a) above, he shall return the children to the mother or to school at the end of that time.

7. Each party is free to be fully involved in the school life of the children, to receive copies of school reports, school newsletters and the like and to attend all events and functions to which parents are normally invited.

8. Each party shall keep the other informed of their residential address,

   
   

   e-mail address, landline and mobile telephone numbers and shall advise of any changes to those details within 48 hours of any such change.

9. Each party shall advise the other of any serious illness or injury suffered by the children as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.

10. Each party is hereby restrained from denigrating or criticising the other party in the presence or hearing of the children or allowing any other person to do so. 

11. The father is hereby restrained from exposing the children or either of them to any activities involving or related to his stripping business.  For the purpose of this order, the father:

    (a)shall not discuss any of his business activities with or in the presence or hearing of the children;

    (b)shall not socialise with people associated with his business while the children are in his care;

    (c)shall not access any websites related to his business while the children are in his care unless and until the children are asleep at night; and

    (d)shall not allow any other person to expose the children to any  aspect of his business.

12. The mother is hereby restrained from exposing the children or either of them to knowledge of any activities involving or related to the father’s stripping business. In particular, the mother is restrained from discussing any of the business activities with or in the presence or hearing of the children or allowing anyone else to do so.

13. The parties shall arrange for and attend mediation at least once every six months for a period of two years from the date of these orders for the purpose of:

    (a)discussing issues pertaining to the care and wellbeing of the children including choice of high school, extracurricular activities and the parties’ hopes and aspirations for the children; and

    (b)improving parental communication and the co-parenting relationship.

14. Pursuant to section 65DA(2) and section 62B 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 Farrow & Hamilton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 10819 of 2008

MR FARROW

Applicant

And

MS HAMILTON

Respondent

REASONS FOR JUDGMENT

1. These proceedings involve the parenting arrangements for the two children:

   ·[X] born [in] 1999; and

   ·[Y] [in] 2003. 

2. The children currently live on a week-about basis with both parents.

3. The mother would like to relocate with the children from [H] in western Victoria to [R], a distance of approximately 105 km. She proposes the children spend time with their father every second weekend and during school holidays.

4. The father opposes the move, fearing it would undermine his close relationship with his daughters. He seeks a continuation of the current parenting arrangements but, in the event the mother relocates permanently to [R], he seeks orders for the children to live with him in [H] and spend regular time with their mother.

5. The mother alleged that if the children live with their father, they would be at risk of exposure to the father’s “anger management issues”.  She also alleged the children's moral development would be at risk as a result of exposure to the father's business activities in which the father acts as an agent for strippers. 

6. The father denied having problems with anger management and said he is able to shield the children from exposure to any of his business activities which might potentially be harmful to them.   

Background

1. The parties commenced their relationship in 1993.  The mother alleges several separations prior to the final separation in September 2008.  The father concedes at least one previous separation.  The dates are not agreed and vary even within each party's own documents.  It is common ground, however, that there was a separation from September 2004 to a date between April and August 2005.

2. The parties reconciled in 2005 and remained together until the final separation in September 2008.

3. Throughout their relationship the parties lived in [H]. During the separation in September 2004, the mother made an application to relocate with the children to [D] in South Australia.  Interim orders were made by consent in the Victorian Magistrates Court at [H] on

   
   

   22 December 2004 which permitted the mother to relocate to a place within 140 km of the [H] post office.  The mother moved with the children to [R], 105 km North of [H]. The orders provided for the children to spend time with their father every second weekend, half of school holidays and on special days.

4. When the parties reconciled in 2005, the mother and children returned to live with the father in [H]. The parties discontinued the proceedings on foot at that time. However, the mother maintained her rental property in [R] and continued to spend time there.  The evidence is not clear about precisely how much time the children spent in [R] after the parties reconciled but it appears to be at least once each month.

5. Following the final separation in September 2008 the mother unilaterally relocated back to [R] with the children.

6. The father commenced these proceedings on 10 November 2008 in the Magistrates Court at Ballarat.  On 18 November 2008 interim consent orders were made transferring the proceedings to the Federal Magistrates Court at Melbourne.  By consent, interim orders were also made providing for the children to live with their mother and spend time with their father every second weekend and during school holidays.

7. On 20 January 2009 the matter was listed in the Federal Magistrates Court at Melbourne.  Some initial comments were made by me suggesting that, unless there were good reasons to order otherwise, it was likely the mother would be required to return the children to [H] pending a final determination.  The mother became upset and left the Court room, failing to return when the matter was later dealt with.  The mother's counsel apologised for the mother’s continued absence. 

8. In the absence of the mother, interim orders were made which required the mother to return the children to [H] and for the children to live on a week about basis with each parent.  Those arrangements have remained in place since then.

9. The father continues to live about 10 km out of [H] in the house in which the parties and the children lived during the relationship and which is owned by the paternal grandmother.

10. During the week the children are with their father, the mother lives in her rental property in [R].

11. During the week the children spend with their mother, they live in a rented one bedroom unit in [H]. The time the children spend with their mother during weekends and holidays is generally spent in [R].

Family violence

1. Each of the two affidavits filed by the mother on 16 January 2009 and 30 July 2009 respectively, has a heading of "Family Violence".  The evidence under that heading in each affidavit is virtually identical.  The mother sets out evidence of verbal abuse and offensive language directed at her by the father.  In each affidavit she said about the father:

   He has anger management problems and I was often scared of what he might do to me.

2. In each affidavit the mother said that she and the father had many arguments throughout their relationship; the arguments occurred almost daily; the arguments were often started by the father; and the children often became upset and stressed as a result of witnessing the behaviour.

3. Under cross examination the mother agreed that all of this behaviour occurred from at least 1998 or 1999 and certainly well before the separation of the parties in 2004. For the purpose of the proceedings commenced in 2004, the mother filed two affidavits; one on

   
   

   25 November 2004 and the other on 20 December 2004.  Neither of those affidavits referred to the denigration and verbal abuse.  When asked why, the mother said that she did not realise at the time that such behaviour would be characterised as domestic violence.  I found this response, initially, quite plausible.

4. The mother was then directed to do a specific question in the pro forma affidavit sworn by her on 25 November 2004 which specifically asks whether there are any factors which might affect either party's ability to provide a safe physical or emotional environment for the children. The mother had answered “yes” to that question but, in response to the prompt for details, she referred only to the father’s business activities which she described as running strip shows and an escort agency.  She was asked again and why the abusive behaviour she described was not detailed in the affidavit.  She responded:

   The fear of looking like I was the idiot by putting up with the - with this.  I was brought up to the belief that when you were in a relationship, you put up with whatever you got.

5. When asked why she was not too embarrassed to include information about the strip shows and escort agency, the mother responded that a lot of people already knew about the father's involvement in that industry but were not aware of his poor treatment of her. I did not find this explanation persuasive.

6. The mother filed two affidavits for the purpose of the current proceedings. There was a significant change in the evidence between the first and the second in relation to two particular aspects. The first relates to the fears the mother said she held prior to separation about what the father might do if she left him.  In the first affidavit mother said as follows:

   20.  On a few occasions [Mr Farrow] told me that if I decided to leave he would never allow me to take the children with me.  I was scared that he would do something to me and the children if he found out that I was going to leave him.

7. In the second affidavit the mother said as follows:

   37.  On numerous occasions in the past [Mr Farrow] told me that I could leave him for [R] but the children would have to stay with him in [H].  He also told me in the past that he knows people (associated with Melbourne crime figures) who could do “things” for him.

8. In her oral evidence the mother reiterated that the father told her she could live wherever she wanted as long as the children didn't go. She said he told her “it would be over my dead body” that the children left.  Although contrary to the usual expression, she said that the “my” referred to was her dead body, not the father’s.

9. In cross examination, the mother said that she failed to refer to the conversations about crime figures and the indirect threat to kill her in her earlier affidavit because of time constraints in preparing that affidavit.  She agreed, however, that she was served with the father's application in November 2008 and that she prepared notes for her solicitor during December and January before signing her affidavit on 16 January 2009.  She said that it was an extremely stressful period and some things simply got missed.

10. The second example of a change in the evidence is more striking. It relates to an incident which occurred on 18 October 2008 when the mother collected [X] from the father after [X] had spent the night with him.  The mother said the father told [X] that she had to leave the clothes she was wearing at his home and needed, therefore, to change back into her school uniform before leaving with her mother.  The evidence in both of the mother’s affidavits is identical up to this point.  In the first affidavit filed on 16 January 2009 the mother then said:

    [X] was stressed and crying.  She took her clothes off and ran to my car in her underwear.  I took her uniform and calmed her down and helped her change in the car.  [X] and I returned home shortly after.

11. In the second affidavit filed on 30 July 2009 the mother said as follows:

    [X] was stressed and crying.  In the course of an argument she saw [Mr Farrow] pushing me against the wall.  [X] took her clothes off and ran to my car in her underwear.  I took her uniform and calmed her down and helped her change in the car.  [X] and I returned home shortly after.

12. This is the very first time an allegation was made by the mother of any physical violence by the father.  When cross examined about why the incident was not included in her first affidavit, the mother said that it was an oversight.  There is nothing to indicate the mother mentioned the incident to the family report writer, Ms Buckley, during the interviews in May 2009, even though there is reference in that report to a history of family violence.  According to the report, the only family violence alleged by the mother relates to verbal abuse, denigration and name-calling.

13. The father denied all of the allegations about his violence or aggression. He said the parties argued only occasionally and that the only physical altercation occurred on one occasion when the mother assaulted him.  He denied threatening to get anyone else to do the mother harm. He said the only threat of that sort was made in jest when the mother told him after they reconciled in 2005 that it was lucky they did, as a neighbour of hers in [R] had recently been released from prison and had offered to “fix [him] up”.

14. I did not find the mother's evidence about family violence during the relationship persuasive.  I do not accept her characterisation of the relationship in which she was the victim of the father's verbal aggression and that she was afraid of him.  I specifically reject the allegation by the mother that the father pushed her against a wall on

    
    

    18 October 2008.  This appears to be a blatant embellishment of the incident which she had earlier described in detail.

15. The mother alleged that since separation the father's denigration of her had increased.  She said that at changeovers he often calls her a “fucking whore” or a “fucking slut”.  In her affidavit filed on 30 July 2009 the mother said that an incident occurred when she attended a parent teacher interview at school on 17 June 2009. She said that, as she passed the father in a corridor, the father quietly called her a “fucking slut”. In her oral evidence she said the abuse occurred outside in a courtyard. She was cross examined about the inconsistency.  She confirmed the incident occurred in the courtyard and that the reference in her affidavit to it occurring in the corridor was incorrect.

16. The father denied all the allegations of denigration, pointing out that most handovers occur at the children’s school and that, during other handovers, he rarely even gets out of his car.  He said he did not speak to the mother at all when both attended the school for the parent teacher interview.

17. On the evidence before me, I am unable to make a finding that the denigration alleged by the mother has occurred.  The mother's evidence about it was undermined by her failure to correct the inaccurate account in her affidavit about the school incident and by her lack of credibility in relation to other allegations of family violence. Nevertheless, in case there is some truth in the mother’s complaints about recent behaviour, I intend to make orders about non-denigration in an attempt to prevent or reduce any such behaviour and the children’s exposure to it.

The father's business

1. The father operates two businesses.  The first is a [trade] business which the father says provides him with sufficient flexibility to be able to care for the children and take them to and from school each day.

2. The father's second business is one in which he is a booking agent for strippers.  He operates three websites relating to this business.

3. The mother said the father operates the stripping business both during normal business hours and significantly after hours.  She said he receives phone calls relating to the business at all hours of the day and night, with weekends being the busiest time.  The home telephone line is diverted to the father's mobile telephone so he can receive calls at any time.  The mother said the father always puts his mobile phone on speakerphone when he is driving and openly discusses matters concerning his stripping business, even when the children are travelling with him in the car.

1. The father said that, although most of the actual stripping work is performed on weekends, most of the bookings for that work are made during the week.  He said that most of the telephone discussions involving the stripping business occur between 11:30 a.m. and 2 p.m.  This was not persuasive and seemed contrived to persuade the Court that the children were unlikely to be exposed to the discussions.

2. The mother said that, during the relationship, the father travelled to Melbourne during the week to collect cash fees owed to him by strippers.  The father agreed that he travelled to Melbourne to collect money but said he did so, on average, only once each month.

3. The mother expressed strong concerns about the children being exposed to the father’s business activities.  She said this included the children hearing discussions relating to the business, viewing sexually explicit material on the father's laptop computer, seeing dildos and other devices used in sexual activity, socialising with strippers with whom the father is friends and seeing a television programme about stripping agencies in Melbourne in which their father featured and was referred to as a “pimp daddy”. She said that, since separation, the father has also had a dance pole installed in his home. 

4. The father said the children have never been exposed to any sexually explicit material while in his care.  He said that [X] did walk into the room at the end of the television program about stripping agents but has no knowledge of what the program was about.  He says any information acquired by [X] has come from the mother and not as a result of anything that has occurred while in his care.

5. The father said he is the agent for approximate 100 performers. He agreed in cross examination that he is very well acquainted with their individual performances and knows what props they use. The fact that he feels very involved with their routines was evident when he said “I don't use dance poles in any of my shows”.

6. The father agreed in cross examination that potential clients ring him at home to discuss what women are available and what sort of performances they can provide.  It seems reasonably likely in those circumstances that the children will have overheard some of the father’s descriptions of the strip shows.

7. The father said that he has two laptop computers at his home.  One is a large computer which he previously used for business purposes but which he “wiped” and gave to the children to use.  He said it is activated by his fingerprint and used by the children under his supervision.  He said the children can access the Internet using that computer but have never accessed any of his websites.

8. The father's other laptop is one used by him in relation to the business.  It sits on the coffee table which is where he works at home.  That computer is also fingerprint activated.  The father says that he has checked his e-mails in the presence of the children but does not access any of his websites unless the children are in bed.  He said he is very careful and does not ever leave the computer without closing it down, even when the children are in bed.  Given the totality of the father’s evidence I simply do not believe that he would shut down his computer every time he leaves it while working at home.

9. During his oral evidence, in answers to questions by the Court, the father agreed that he told the family report writer that the children may have seen him accessing his websites. He said this might occur if the children got up in the night to go to the bathroom and walked past him. He told the family report writer that the content of the websites is “not porn… (only)… semi- nakedness”. 

10. The family report writer, Ms Buckley, said that it was difficult for her to ascertain from the father precisely what the children had seen.  She said that, because the father was distressed at the time of her discussion with him, his description of what the children have had access to was not very cohesive. 

11. The oral evidence by the father about his websites and what the children might be exposed to was similarly unsatisfactory.  He could have given a very clear and precise description of what pictures are on his websites but instead he was very evasive.  He gave vague, imprecise answers, creating different impressions at different times. 

12. In cross examination, the father said that he could not recall there being any naked women on his websites.  He said most of the women are scantily clad but not naked.  When further pressed, the father conceded that there are, in fact, pictures of women who are not wearing any clothes but said they are covered, for instance, with tape across the breasts.  In his affidavit the father had said that some of the pictures were of “topless” women.

13. In relation to the dance pole in his home, the father said in his affidavit filed on 18 August 2009 the following:

    I admit that some months after separation I purchased a fitness pole which stands in my lounge room.  I believe that pole fitness is one of the fastest growing fitness activities in the country, with lessons offered to both genders.  The pole is for fitness and for fun for the children.  The only females that have ever used the pole are the children and grandchildren who have a wonderful time climbing the pole.  It is no different to a Fireman's pole.  It is used as a climbing apparatus for the children and if they are aware of other uses for it that information has not come from me.

14. This statement by is simply ridiculous.  It would be laughable if the issues involved in this case were not so serious. I reject it completely and find the only reason the dance pole is in the father's home is because of its connection to the father's business.

15. The father agreed that he is friends with some of the women he manages.  He said the children have met some of them.  One of those women, Ms M, gave evidence for the father.  Ms M said she has met the children on no more than 10 occasions.  She said they have visited her at her house with their father. She said they have stayed “for a couple of hours at the most”.

16. Ms M said that the father collects his management fees from her personally.

17. Ms M confirmed that in 2007 she and her sister had participated in a stripping competition in Adelaide entitled “Miss Nude Australia”.  She confirmed that the father came to Adelaide as a friend to support her and her sister. She said the two children stayed with them for several days during the competition.  She said they all shared the same hotel suite, although they had separate bedrooms. 

18. The father said the mother was well aware that he was going to Adelaide for the competition and that it was the mother who insisted the children go with him because she was working.  The mother agreed she was working and that she knew the children were going with their father to Adelaide. She said, however, that the father told her the children would be staying with his adult son and his family in Adelaide at the time of the competition.

19. I accept the mother’s evidence about this as the father’s son, Mr F, gave evidence that the children stayed with him during the competition. Of course, this is not true. The children did not stay with him but, given he was prepared to tell the Court they did; I accept the mother was told the same thing. It is reasonable to assume Mr F was lying to protect his father. If so, it reflects badly not only on him but also his father. I do not make a positive finding about that, however, because Mr F qualified his evidence to some extent by saying he could not clearly recall how long the children stayed as it was more than two years ago. Although I am sceptical, this might mean he was mistaken, rather than deliberately lying.

20. Although the father and Ms M both said the children were not exposed to any of the activities involved in the “Miss Nude Australia” competition, it is clear from Ms M's evidence that the children were there for several days while she and her sister were participating and it is likely they would have been caught up in the excitement of the competition.  It is also reasonably likely that the children were aware of the nature of the competition.

21. There was a readily available alternative for the children to be cared for by Mr F and his partner during the competition. The father gave evidence that the children enjoy spending time with their older half sibling, Mr F, and his children. The fact that the father told the mother the children would be staying with his son indicates he knew that was the right thing to do. The fact that the father chose instead to have the children stay with him in the same hotel suite as the competitors indicates a profound lack of judgement on his part and speaks volumes about his real commitment to shielding the children from such activities. It significantly undermines his evidence about the steps he takes to avoid exposing the children to knowledge about his business.

22. The family report was prepared by a psychologist, Ms Susan Buckley.  Ms Buckley said in oral evidence that she formed the impression the children had been aware of their father's business over a long period of time. 

23. It was put to Ms Buckley by counsel for the father that if, as the father says, some of the material alleged to have been seen by the children on their father's computer simply does not exist on the computer, the children's descriptions must have come from another source, most likely their mother.  Ms Buckley said that she thought it unlikely the children would be able to describe what they had seen with the level of detail they used without actually having been exposed to it.  She said they spoke about seeing pictures of girls dancing either naked or in G-strings and doing pole dancing with a pole similar to the one in their father's home.  They also spoke of seeing their father watching such material on his computer.

24. She said the children spoke of seeing “live strip shows”.  She said by “live” the children meant “real” strip shows rather than people acting or pretending to strip. 

25. Ms Buckley said that she was so concerned about what the children told her that she invited the father in for a follow-up conversation in which she told him she was considering making a notification to the Department of Human Services.  She said the father became quite distressed and stated that he believed the Court was always on the side of women.  She said “he moved between denying that the children had ever observed any of this material and saying that he's done everything he can to protect them from it”.

26. The father said that the mother never raised any objection to the business while they were in a relationship and that she is now simply using the business to gain a tactical advantage in relation to the proceedings.  In general, I agree with his assessment.  In the affidavit she swore on 25 November 2004 for the purpose of previous proceedings, the mother referred to the risks to the children arising from the father's business activities.  She reconciled with the father in 2005 fully aware of those risks.

27. In addition, the mother agreed in cross examination that, sometime during 2008, the father went to Flinders Island for a week for a holiday and she took his business calls for him.  The mother said that there was no mobile phone reception on Flinders Island and the father had nobody else to answer the phone.  She said she did so under duress.

28. The issue was further explored in re-examination.  The mother was asked by her own counsel why she felt she did not have a choice in whether or not to assist with the business while the father was away.  She replied as follows:

    If Mr Farrow - it wasn't worth the argument, because he had shows previously booked in.  If people couldn't contact him, then he would lose business, lose money he was investing in his website.  I felt obligated, I suppose.

29. I reject the mother's evidence that she assisted with the business only under duress.  She clearly did not want the father to suffer any economic loss while he was away for the week.  At the time she was benefiting financially from the business as well as the father.  There is no credible evidence that the mother ever attempted to persuade the father to cease his involvement in the stripping business prior to the reconciliation in 2005 or between that reconciliation and the final separation in September 2008.

30. The mother asserted during cross examination that, since separation, she has requested the father to refrain from business activities while the children are in his care.  When she was asked why that was not in her affidavit material or set out in the orders sought by her, she said she could not explain it as she had discussed the issue at length with her solicitor. 

31. After the final separation in September 2008, the mother sent to the father a two-page document which she described as “a proposed custody and access plan” which set out her proposals for the arrangements for the children.  Nowhere in that document is there any suggestion that the father restrict his business activities while the children are in his care.

32. The father says that the mother is so ruthless in her desire to achieve her desired relocation that she has informed the children of his activities in an attempt to demonstrate the children have been exposed to material which they have not, in fact, seen. This may be true. I have no doubt that the children's mother has made her own views very clear to the children and that this has given the children confidence in expressing their own disapproval.  Ms Buckley said that [X], in particular, was forthright in expressing her displeasure at her father's activities, describing them “with an element of distaste and annoyance with her father”.

33. Ms Buckley said that, regardless of who was to blame for the children's exposure, there were risks to the children of continued exposure.  She said the nature of the risk was greater if the father's involvement was voyeuristic rather than purely for financial gain as a business.  It appears to be common ground, however, that the father's interest is economic only.

34. Ms Buckley said the particular risks which flow to the children from exposure to father's business are as follows:

    a)the children would learn that sexual behaviour is acceptable and condoned by their parents;

    b)the children would learn that they can use sexual behaviour to have their other needs met;

    c)the pace of the children's natural curiosity about sexual matters may be quickened, resulting in the children forming intimate relationships from a very young age; and

    d)alternatively, the children may have trouble forming intimate relationships in the future.

35. The fact that the father and the children socialise with some of the strippers is likely to increase these risks. The children are likely to view stripping as a normal and appropriate activity condoned by their father and his friends.

36. In answers to questions from the Court, the father was adamant that he would not want his own daughters to become strippers.  He was unable to coherently state why, other than to say “I just don't want it to happen” and “it's not a good lifestyle for them”.

37. The father agreed that, even if the children are not yet fully aware of the details of the business, if they are normal, intelligent and inquisitive children it is probably only a matter of time before they find out all about it.  He said he had planned to get out of the business in the next few years, before [X] commenced secondary school.  He said that he and the mother had also spoken several times prior to separation about selling the web sites.

38. When pressed, the father said he still planned to get rid of the business before [X] starts high school but was very vague about it.  When asked what concrete plans he has to do so, he said he would put the business on the market “probably next year”. This was not remotely convincing.  The father had made no mention of selling his business in any of his affidavit material.

39. The impression I gained from all of the evidence is that, during the relationship, both parties were content to enjoy the economic benefits which flowed from the father's business. Both parties instinctively understood the business posed some risks to the children but were prepared to accept those risks because, perhaps naively, they believed they could shield the children from it and because they had some general notion of getting out of the business before the children were old enough to understand what it involved.  

40. I accept the mother’s evidence that she was more concerned than the father about the children’s exposure to the activities associated with the business. The fact that the father reassured her that the children would be staying with his son in Adelaide in 2007 supports this.

41. I also accept that the mother has become more concerned about the children’s exposure to the business since separation because she is not able to monitor what is happening in the father’s house.

42. Counsel for the father described the mother’s concerns about the business as a “red herring”. I do not agree. It is a substantial issue in these proceedings. However, I agree the mother is retrospectively overstating her concern in an effort to claim the high moral ground. She reconciled with the father in 2005, without insisting that he end the business and was not sufficiently concerned during the relationship to do anything about it. Since separation, however, she has focused on the father’s business in an effort to gain whatever tactical advantage she can from it.

43. Nevertheless, it does appear the mother is now determined that the children should have nothing to do with the father's business.  There is no evidence which persuades me the father is similarly determined or even currently motivated to promote the needs of the children above the benefits which flow to him from the business.  The risks to the children are increasing as the children age and as they become more aware of the details of the business. The risks are also greater the more time they spend with their father because the chance of exposure is greater. By the time the father comes to the view the business really is a problem for the children it may be too late to avoid potentially damaging consequences for them.

Risk of self harm by [X]

1. In the proceedings the mother alleged that, on a date in January 2009, the child [X] told the maternal grandmother that she wanted to kill herself.  She said she took the child to her general practitioner that day. The doctor referred the child to the Child and Adolescent Mental Health Service.

2. The mother said that, on the same day, she rang the father and told him about the incident.  She said her solicitors then wrote to the father’s solicitors about organising counselling for the child.

3. The mother did not mention this matter in either of her affidavits filed on 16 January 2009 and 30 July 2009 respectively. In cross examination the mother said this was because she had told both the father and the family report writer about it. 

4. The father denied that he was ever told about the incident.

5. Various letters were exchanged between the parties’ solicitors dealing with the issue of counselling.  Nowhere in any of that communication is the specific incident referred to.

6. On 30 January 2009 the mother's solicitors wrote to the father's solicitors setting out the details of when the children would spend time with each party until the week about arrangement was to begin on

   
   

   20 February 2009.  There is no reference to the self harming incident earlier in the month.  The only related information is the following sentence:

   My client further instructed me that the children will have a medical appointment on 6 February 2009 after school.

7. In response, the father’s solicitors wrote to the mother’s solicitors on

   
   

   2 February 2009.  The substantive paragraph of that letter is as follows:

   My client is aware of the arrangements set out in your correspondence, however, I note that there are no details regarding the children's medical appointment on 6 February 2009.  Kindly provide details.

1. The appointment on 6 February 2009 was not, in fact, a medical appointment but rather an appointment for counselling for [X]. The mother said that her solicitor was mistaken in referring to it as a medical appointment.  Another letter was sent on 3 February 2009 to the father’s solicitors dealing with various matters and correcting the information to say that the appointment for [X] was a counselling appointment with CASA.

2. In cross examination the mother said the reference to CASA was another mistake by her solicitor. The appointment was not in fact with CASA (which is the Centre Against Sexual Assault) but rather with CAMHS (which is the Child and Adolescent Mental Health Service).  The mother conceded it was reasonable for the father to be concerned when advised that [X] would be seeing a sexual assault counsellor.

3. The father’s solicitors wrote two letters to the mother’s solicitors on

   
   

   10 February 2009 dealing with various issues, including the proposed counselling.  The second paragraph of the first letter reads as follows:

   I confirm my telephone advice of today that your client is not at liberty to arrange counselling appointments without consulting my client.  Please advise the name, address and telephone number of the counsellor, the date of any appointments which have taken place and the purpose of the counselling.  I will then put this information to my client and respond in due course.

4. The second letter from the father's solicitors on 10 February 2009 noted that the mother attended at the school that day intending to take [X] to a counselling appointment. The letter confirmed the father was not in a position to consent to the counselling appointment because he had insufficient details about it.

5. I agree with the submission of counsel for the father that, had the mother advised the father of the alleged threat of self harming, it is unlikely the father would query the counselling appointments.  The correspondence supports the father's evidence that he was not told about the incident at all.

6. After a two-week delay, on 25 February 2009, the mother’s solicitors wrote to the father’s solicitors and advised that they were waiting for the mother to provide instructions about the name and contact details of the counsellor.

7. On 26 February 2009 the father’s solicitors wrote to say that the father had been telephoned by a counsellor who claimed to be the counsellor [X] was seeing.  The father’s solicitors said:

   When my client enquired as to the purpose of the counselling, the counsellor replied to sort out where [X] wants to live.

8. The family report writer was asked whether this indicated a lack of frankness on the part of the mother because where [X] wants to live has nothing to do with threats of self harm.  Ms Buckley said that, at [X]’s age, all of these issues are interrelated and she would not form a view that the mother was being dishonest about the reason for the counselling.

9. In his affidavit filed on 18 August 2009 the father said that he believed the mother was being deliberately evasive in relation to the counselling.  He said he felt the counselling was a ploy by the mother in relation to the proceedings and not genuinely child focused counselling to assist [X] with any emotional issues she had. I agree with him. Had the mother been genuinely concerned about the child she would have made sure the father and both solicitors knew all about the issue. It is clear from the correspondence that even the mother’s solicitors were unaware of why counselling had been organised. In the circumstances, the suspicion on the part of father was reasonable.

10. The maternal grandmother to whom the child was alleged to have made the initial statement was not called to give evidence and did not file an affidavit in the proceedings.  When asked about this, the mother said that her mother did not swear an affidavit because she was informed she would have to attend Court and was going to be away on holidays during the hearing.

11. On the evidence before me, I have serious doubts about whether the incident occurred at all.  If it did occur, the mother's failure to properly advise the father and seek his assistance in dealing with it reflects poorly on her.  I draw no adverse inference in relation to the father related to the incident or his failure to agree to the counselling. I accept the father's evidence that he received no information about the original incident until he read the family report which was released on 11 June 2009.

Credit Issues

1. Neither party was an impressive witness.

2. During the trial the mother tried hard to paint a picture of herself as a victim of the father’s aggression and of having been overborne in relation to the father’s business activities. Neither was convincing. The mother is a forceful personality who gave the impression she does not deal well with not getting her way. One example is her dramatic exit from the Court room on the day of the interim hearing when it became apparent to her that the children were likely to be required to live in [H] pending the final hearing.

3. The mother maintained an overtly hostile attitude towards the father throughout the proceedings and was combative under cross examination.

4. There were several instances in which I was persuaded the mother was not being truthful in her evidence and which undermined her general credibility. They were as follows:

   a)The mother had filed affidavits in previous proceedings in which she was represented by an experienced family lawyer. She alleged no family violence even in response to a specific question about it in a pro-forma affidavit. In the current proceedings she alleged extensive family violence in the form of verbal abuse and denigration which predated the earlier proceedings.

   b)In her second affidavit filed in the current proceedings in July 2009 the mother alleged the father had specifically threatened to get crime figures to do her harm. She had failed to mention this in her first affidavit filed in January 2009 although the threat occurred prior to that affidavit.

   c)

   In her second affidavit the mother alleged the father had physically assaulted her by pushing her against a wall on

   
   

   18 October 2009. She had failed to mention this in her first affidavit.

   d)Throughout the proceedings the mother asserted she had always been opposed to the father’s business when in fact she helped run the business in the absence of the father and sought no formal restrictions in relation to it in her application to the Court.

   e)In her July 2009 affidavit the mother said about her leaving Court on the day of the interim hearing that she was stressed and upset at the indication given by the Court and determined to participate no further. In her oral evidence she said she was quietly waiting in the park across the road from the Court, expecting her counsel to let her know when the proceedings were about to begin.

5. The father appeared to be a more straightforward and truthful witness until he was asked questions, firstly, about the way he managed the business when the children were present and, secondly, about the content of his websites. On each occasion his evidence became vague, imprecise, ambiguous and at times contradictory. The overall impression was that he was not being truthful. This undermined his credibility generally.

The mother's proposals

1. The mother proposes that the children live with her in [R] and spend time with the father every second weekend, during school holidays and on special days.  She said there are a number of advantages to the proposed relocation.  She set them out in her trial affidavit as follows:

   a)The risk of the children being exposed to inappropriate sexual material will be minimised;

   b)The children will be able to spend more time with their maternal grandparents;

   c)[X] and [Y] will be able to attend school in [R] with their friends;

   d)[X] will be able to attend netball training with her friends;

   e)[Y] will be able to participate in tennis classes with her friends;

   f)There will be less stress to the children caused by the parental dispute; and

   g)The mother will be able to better financially provide for the children.

2. The mother argued the children will be able to maintain a meaningful relationship with the father by spending time with him every second weekend and during school holidays.

3. Most of the arguments put forward by the mother and listed above are not persuasive.  The children will be closer to one set of grandparents than the other depending on whether they live in [H] or [R].  In either case, however, they will be able to maintain a relationship with both sets of grandparents and both parents expect this to occur.

4. The children already have friends in both [H] and [R].  They will attend school with friends in either place.

5. The children will be able to participate in netball and tennis and various other extracurricular activities they may choose, regardless of whether they live in [H] or [R]. 

6. The mother's argument that the children would be less exposed to parental disputes if they live in [R] is also not persuasive.  If the children and the mother remained living in [H], the current week about arrangement would continue.  During school term the hand over of the children would occur at school once each week and the parents would not come into contact with each other.  Under the mother's proposals there would be a handover every second Friday and Sunday during school terms which would involve a greater level of parental contact, even if the Friday handover occurs at school.

7. Of the factors relied upon by the mother, there are two which support a relocation of the children to [H]. The first is the mother's employment in [R].

8. The mother is a trained [healthcare professional].  At the time of the trial she was working part-time at [omitted].  In [H] she is employed as a Grade 2 [healthcare professional] at $24.00 per hour.  In [R] she is employed as a Grade 5 [healthcare professional] with extra responsibilities and earns close to $38.00 per hour. 

9. It was put to mother in cross examination that, if she stays in [H], her expenses will fall because she will no longer need to rent her home in [R].  The mother made it very clear that she intends to maintain her rental property in [R], regardless of the outcome of the proceedings.  I accept her evidence in light of the fact that she continued to rent her [R] property for more than three years between reconciling with the father in October 2005 and the final separation in 2008.

10. The mother said staying in [H] will be more expensive for her because, if she lives there on a more permanent basis, she would need to rent a bigger property than the one-bedroom unit she is currently renting. The rent on her one-bedroom unit in [H] is already greater than the three-bedroom house she rents in [R].

11. The second and most persuasive argument in favour of relocation is the reduction in the exposure of the children to the father's business activities. The reasons this is desirable have been discussed earlier.

12. I accept that the mother has a genuine desire to relocate to [R]. She grew up there and has maintained a connection to the town and the people who live there.

13. During interviews for the family report, the mother told Ms Buckley that, if orders were made for the children to continue living in [H], she would also remain in [H].  By the time of the trial, however, the mother had changed her position.

14. In cross examination the mother said that she intends to move to [R], regardless of the outcome of these proceedings.  She was repeatedly pressed about this issue but did not change her stance.  She said the mental anguish of staying in [H] is too much, that she has employment, friends and family in [R] and that, notwithstanding her great concern about the father’s care of the children, she feels she has no option but to move.

15. Counsel for the father put to the mother that this position means that she could not really have major concerns about the father's capacity to care for the children.  The mother did not agree with proposition, simply reiterating that she felt she had no choice but that her concerns for the welfare of the children remained. 

16. In re-examination the mother's counsel, over the objection of counsel for the father, explored the issue further.  He pointed out that if the Court did not allow a relocation of the children and the mother chose to live in [R], it would mean that the children would live primarily with the father.  He then asked whether that was an option the mother would accept.  She replied unambiguously:

    Reluctantly, but I've would have to accept that.

17. The mother was criticised by counsel for the father for adopting such an attitude. He submitted that the mother was attempting to force the Court’s hand by adopting that position. I agree the mother was trying to force the issue. However, the mother also struggled to engage in a theoretical discussion about the various options and what she might do if an order were made for the children to remain in [H].  It seemed to me that she could not bring herself to say that she would stay in [H] in those circumstances because of her intense desire to move. 

18. The mother is entitled to have her primary application decided on its merits. The competing applications are for the children to live with the mother in [R] or with their father in [H].

19. At the end of the day, I do not believe the mother would, in fact, move to [R] without the children.  If the Court ordered the children were to remain living in [H], it is likely that the mother would also stay in [H] and the week about arrangement could continue.  The mother would, however, be extremely unhappy with that situation.

The father's proposals

1. The father proposes that the children continue to live in a week about arrangement with both parents in [H].  A major benefit of this proposal is that the children would be able to continue a meaningful relationship with both parents who would each remain fully involved in their everyday lives. It also offers significant stability as the children would continue to attend their current school and would continue to attend their current extra curricular activities.  

2. The father argues that the mother will be more financially secure in [H] as, in a bigger town, work as a [healthcare professional] is more likely to be readily available. This is not a strong argument in light of the mother’s evidence of work available to her in [R] at a significantly higher hourly rate.

3. In relation to the children spending more time with the maternal grandparents, the father argues the children can maintain a relationship with the grandparents while living in [H] given it is a distance of only 105 km.  The mother conceded that she would ensure the children maintain their relationship with their grandparents, regardless of where they live.

4. In relation to the issue of the children being exposed to activities related to the father's business, it is argued on behalf of the father that, regardless of how the children came by the information, they are now well aware of the father's business activities.  He agreed they need to be protected from exposure to inappropriate sexual material which, he says, can be achieved by specific restraining orders. This argument is not compelling given the father’s lax attitude to date.

The law

1. The law in relation to parenting orders is set out in Part VII of the Family Law Act 1975.  The objects of Part VII and the principles underlying the objects are set out in s.60B of the Act. 

2. When making any parenting order the Court must regard the best interests of the child as the paramount consideration.  In relocation cases, the child’s best interests remain the paramount consideration although other matters such as a parent’s desire to relocate and their right to freedom of movement are also important considerations. 

3. In determining what is in the best interests of the children the Court must have regard to the factors set out in ss.60CC(2) and (3) of the Act. Each of those factors must be assessed in light of each party’s proposals and a determination made about which of the proposals best satisfies the children’s best interests.

4. Section.60CC(2) sets out the primary considerations which are as follows:

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

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

5. The parties agree the children will benefit from a meaningful relationship with both parents.  The father argues that a meaningful relationship between the children and him will only be maintained if the children continue to live in [H].

6. There is no evidence that either party would subject or expose the children to abuse, neglect or family violence. However, the mother argues strongly that the children are at risk of psychological harm and moral danger as a result of exposure to inappropriate sexual material associated with the father's stripping business.

7. The additional considerations are set out in section 60CC(3). I will deal with each in turn.

(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.

1. Both children expressed to the family report writer, Ms Buckley, a preference for living in [R] with their mother.  There is no doubt that their wishes have been actively fostered by the mother.  Ms Buckley said in her oral evidence that there was a clear alignment of the children with their mother and that the children have been exposed to a framing of the current dispute as being a choice of living in [R] with their mother or staying in [H] without her. 

2. In her report, Ms Buckley said [X] blamed her father “for not being able to relocate to [R] and enjoy a new start”.  I have no doubt that the mother has made it abundantly clear to the children that their father stands in the way of a new, happier life with her in [R].

3. Ms Buckley reported that [X] told her she felt lost and alone and had no friends in [H].  Ms Buckley said that, given [X]'s age and the degree of embroilment she has in the parental dispute, it is possible she was not presenting in a way which would endear her to her friends.  She also said, however, that [X] was trying to convince her that, because she had no friends at [H], she should be able to go to [R].  She said that [X] was a friendly girl and her difficulties with friends were likely to be resolved with the resolution of the parental dispute.

4. In her report Ms Buckley said that the children's “reasoning seems to be influenced by their awareness of [their mother’s] desire to live in [R] in combination with their current disregard for their father”.

5. At paragraph 101 of the mother's affidavit filed 31 July 2009, the mother said as follows:

   [Y] and [X] call [H] hell and [R] home.

6. This is an extraordinary statement.  I do not accept that the children would have used those descriptors without significant influence by their mother.  There is no evidence the children were unhappy living in [H] prior to their mother’s decision to relocate. The only impact this particular statement has on my decision is to reduce the weight which might otherwise have been accorded to the children's views.  Given the degree of influence exercised by the mother, I accord very little weight to the children's views.

(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).

1. Ms Buckley said she formed the impression that, during the relationship, the children were used to being cared for by both parents and that they had a good relationship with both.  Since the separation the children were more clearly aligned with their mother than their father.  She said that, at the moment, the children were more attached to their mother and perceived their emotional needs as being met more readily by their mother than their father.

1. Both parties agree the children have a good relationship with the maternal grandparents and the paternal grandmother. The paternal grandfather is deceased.  The children also have a good relationship with members of the extended family of both parents.

(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.

1. The parties separated in September 2008.  From then until the father commenced proceedings in November 2008 the mother did almost nothing to facilitate the children spending time with him.

2. The mother took the children to [R] during the holidays at the end of the third school term in 2008. She told the father immediately before the commencement of the fourth school term that she and the children would not be returning to [H] to live.  The father drove to [R] several times over the following weeks in an attempt to see the children.  On the first occasion the father went to the mother’s home shortly before the end of a school day and asked to see the children. The father said the mother agreed he could see them and went to collect the children from school. The father waited at the mother’s home. The mother did not return. She had collected the children from school and gone to a friend's home, thus preventing the father from seeing them.  She said she did so because she was afraid of what the father would do to her and the children.  I do not accept this. Her fear was of losing control of the situation she had unilaterally imposed.

3. On a subsequent occasion the mother allowed the children to speak to their father at the home of the maternal grandparents, but not alone.

4. On 17 October 2008 the father arrived at mother's home unannounced.  The father says the children were delighted to see him and insisted on spending time with him.  He said the mother began to cry and tell the children that she would be by herself if they went with their father.  He said [Y] sympathised with her mother and offered to stay home.  He said [X] was not prepared to yield and insisted on spending time with him. [X] spent the night with her father in [H] and the mother collected her the next day.  This should have reassured the mother that the father was not going to over-hold the children.  She should have agreed at that stage to a regular arrangement for the children to spend time with the father.  The fact that she would not agree to an arrangement unless the father conceded her request for relocation reflects very poorly on her willingness and ability to facilitate the relationship.

5. As a result of the interim orders made on 20 January 2009 the children were due to spend their first week with the father commencing on 1 February 2009.  It is common ground that the handover that day was very problematic.

6. The mother said that [X] refused to go with her father, that the father made threats to call the police and that eventually a female police officer convinced [X] to go with him.

7. The father said the mother was very dramatic and refused to facilitate the handover.  He said that [Y] was ready to go and came outside to him.  He said he and [Y] sat on the nature strip waiting for [X] who remained inside the mother's house.  The father said the mother sat on the veranda visibly crying and insisting that she would not help with the changeover.  He said the mother eventually called the police who were able to explain to [X] that she would see her mother again if she went with him that day.

8. The father said [X] later told him that her mother had said that, if the father wins the Court proceedings, the children would never see her again.  [X] also said her mother told her the father had stopped his older children seeing their mother, which was not true. 

9. This evidence, which I accept, indicates the mother is prepared to be ruthless in achieving her ends, including actively undermining the relationship between the children and their father if it suits her.

10. On the other hand, the father conceded that he had no difficulty in maintaining his relationship with the children for the eight or nine months during which they lived with their mother in [R] during the separation between 2004 and 2005.

11. In my view it is likely that, once orders are made, the mother will comply with them. Whether she will actively facilitate the relationship between the children and their father is likely to depend to a significant degree on whether she is successful in her application to relocate with the children.  If she is not able to relocate she is likely to remain hostile and angry towards the father which will affect the children’s relationship with him.  If she is able to relocate to [R], she is likely to be more settled and less focused on what she would otherwise see as a terrible grievance.

12. The father relied on a further incident which, he says, demonstrates the mother's lack of willingness to support the relationship between the children and him.  This occurred after the interviews for the family report.  The children were due to start a week with their father that afternoon.  The father wanted to take the children directly from the family report writer's office in Melbourne but the mother insisted on the usual changeover in [H].  The mother said that she did so because she was certain that the father would collect monies owed to him by strippers while he was in Melbourne, to save himself a separate trip.  Given the evidence of Ms M, this concern by the mother was reasonable and I do not regard that incident as an example of her lack of preparedness to facilitate the relationship.

(d) The likely effect of any changes in the child’s circumstance including the likely effect of separation from either parent or other person which whom he or she has been living.

1. During the relationship, the children were cared for by both parents but, on the evidence, the mother was a more significant caregiver to the children as the father operated two businesses which occupied a lot of his time. 

2. The mother worked as a [healthcare professional] and the father cared for the children when the mother worked evening and night shifts or on the weekends.  The mother gave the father very little credit for his care of the children during this period.

3. After separation in September 2008 the children lived with their mother and saw very little of their father until interim orders were made on 20 January 2009.

4. Since 1 February 2009 the children have lived on a week about basis with both parents.  They are now well used to being cared for, in a substantial sense, by both parents.

5. If orders are made for the children to remain in [H], the existing week about arrangement could continue, provided the mother is prepared to cooperate with the arrangement.  She has said that she intends to move to [R] regardless of what orders are made by the Court.  In those circumstances the father seeks an order for the children to live with him for the majority of the time.

6. The family report writer, Ms Buckley, said that, if the children lived for the majority of time with their father, they would pine for their mother.  She said that there is a risk that [X] would act out behaviourally.  She said that, given [X] is due to start high school in two years, she needs some stability in her living arrangements in order to make that transition. 

7. Ms Buckley said that [X] is also at risk of aligning more strongly against her father if she is required to live with him against her wishes.  She said that would affect [X]’s social networks and her capacity to focus at school.  She said that she believed [X] was going through early puberty and was more vulnerable because of it.

8. On the other hand, Ms Buckley said relocation of the children to [R] with their mother presents risks for the children's connectedness to their father.  She said the current arrangements have supported the development and consolidation of loving relationships between the children and both parents.  However, she also said that the children have sufficient developmental and intellectual maturity and are sufficiently connected to the father that the relationship with him will thrive, even in the case of reduced accessibility.

(e) The practical difficulty and expense of the child spending time with or communicating with a parent.

1. If the children live in a different town to one of their parents there will be an obvious practical impediment to the children living in a substantially shared arrangement.  Other than that, given both parents are working and their preferred towns are just over 100 km apart, the practical difficulty and expense of the children spending time with both parents is not a major hurdle.

(f) The capacity of each of the child’s parents and any other person to provide for the needs of the child including emotional and intellectual needs.

1. Both parties have the capacity to provide for the children's physical, emotional and intellectual needs. Both have also demonstrated the capacity to promote their own desires and interests above the needs of the children.

2. The mother's sudden and unilateral relocation to [R] demonstrates a lack of capacity to provide for the emotional needs of the children.  She did not prepare the children in any way for the relocation.  There was no chance for the children to prepare for a separation from their father or to say goodbye to their friends in [H]. The mother then compounded what must have been a difficult and confusing situation for the children by refusing to allow the children to spend time with their father following the relocation, except for one visit by [X] on 17 October 2008.  The mother said that [X] only went with her father on that occasion so she could see her cat. This statement demonstrates a profound lack of insight by the mother into the needs of [X]. 

3. The mother paid no heed to the emotional needs of the children in her behaviour on 1 February 2009 when the children were due to be handed over to the father for their first week with him in accordance with the interim orders made in her absence.  The mother was prepared to let [X] believe that she would not see her again if she went with her father in accordance with the orders.  This was cruel and potentially damaging for the child.

4. The mother has demonstrated a lack of capacity in her blatant attempt to manipulate the views of the children about where they should live. However, it appears from the family report that the father has also done this. At paragraph 25 of the report Ms Buckley reported a conversation she had with [X] about the father's attitude to [X]'s expressed desire to live in [R].  The report reads as follows:

   [X] indicated that Mr Farrow was aware that they sought to live in [R] with their mother.  She said “I tell him all the time I want to live in [R] and he yells and cracks it”.  In a frustrated manner, [X] reported, rather than accept their views “he yells and that and he says no you don't (and) your mums pissing in your ear and telling us you want to live there”.  According to [X] “it’s dad pissing in our ear and telling us that [R] is a shit hole and all that”.

5. In oral evidence in chief the father agreed that he told the children “your mum is pissing in your ear and telling you you don't want to live [in [H]]” but denied yelling, getting angry about it or denigrating [R] to the children.

6. Both parties have demonstrated significant incapacity to cater for the children's emotional needs by failing to shield the children from the parental dispute.  Ms Buckley said in her report that the children told her their parents “fight all the time” and “when they meet each other they carry on and yell”. When she gave oral evidence Ms Buckley said her impression was the children were describing what had happened in the past and that, by the time of the interviews for the family report, the parents had really stopped speaking to each other.  She said, however, that the children were still very aware of the ongoing dispute.

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

1. This is not a relevant consideration in these proceedings.

(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;

1. This is not a relevant consideration in these proceedings.

(i) The attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents.

1. Much of the evidence relevant to this consideration has been addressed in relation to parental capacity above.

2. The mother has an inconsistent attitude to her responsibilities as a parent.  On the one hand she says that the children are the most important people in her life but, on the other, says to the Court that she is prepared to move to [R] without them notwithstanding the risks she believes the children would face in their father's care.

3. The children attend tap dancing and singing in the weeks they live with their father. The mother is not prepared to take the children to those activities during “her” week even though she lives with the children in [H] and is able to take them. She said she does not do so because she was not informed by the father that they were attending those activities, and even though the children attended tap dancing prior to separation.

4. The mother complained that the father failed to take [Y] to a birthday party during “his” time with the children.  The father denied this and said that the child was not fussed one way or the other about going to the party.

5. The mother complained that, if both parties are at the changeover five minutes before the time specified in the orders, the father will insist on keeping the children in his care until the precise hand over time.  The father denied this and said that he is simply “having a chat” with the children after he arrives at the handover point. This was not convincing.  I accept the mother's evidence that the father is simply demanding that he have every minute allocated to him under the orders which, no doubt, increases the tension for the children and demonstrates an inflexible and inappropriate attitude to his responsibilities.

6. The mother made a point of saying the father does not pay child support to her.  Curiously, when this issue was explored in cross examination, the mother made it very clear that she does not seek any child support from the father and that she was not suggesting that it demonstrated an inappropriate attitude on his part.

7. Although the mother initially sought an order for equal shared parental responsibility, by the time of the hearing she sought an order that she have sole parental responsibility. The father alleges this demonstrates an inappropriate attitude on her part. The mother says that, because of the hostile relationship between the parties and their virtually non-existent communication, equal shared parental responsibility is unworkable.

8. Although the parties’ relationship is currently very poor they were able to facilitate appropriate arrangements for the children during their previous separation. My concern about sole parental responsibility is that it will give more power to the mother and she cannot be trusted not to exploit it. There is a risk that the mother would use that responsibility to undermine the role of the father in the lives of the children. This would not be in their best interests.

9. In my view the parties should have equal shared parental responsibility. This will help to ensure both parties remain involved in the lives of the children and the decisions affecting them. I will make orders that require the parties to use a mediation service for the first two years following these proceedings to assist in improving their communication about important issues.

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

1. For the reasons set out earlier, I am not persuaded that family violence is a major issue in these proceedings.  The mother is a strong personality and, on the basis of the reports of the children I am persuaded that there was mutual yelling and screaming by the parties during the relationship.  I reject the mother’s evidence that the father physically assaulted her on 18 October 2008. I am not persuaded that either party is at risk of family violence from the other.  Neither party suggest that the children are at risk of violence from the other.

(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.

1. This is not a relevant consideration.

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

1. In my view the order that is least likely to lead to the institution of further proceedings is one which allows the mother to relocate with the children to [R].  In the event the mother is not able to relocate with the children and remains in [H] she is likely to be very resentful of the father and to continue to undermine the relationship between the children and their father.  She has already done so to such an extent that the children, and especially [X], are convinced that they will be miserable living in [H].  There is a small chance that the mother will follow through on her threat to move to [R] without the children if the Court does not allow them to relocate.  This is likely to lead to a situation in which the children refuse to return to their father, necessitating further proceedings. 

2. If the children are able to relocate to [R], it is likely that the arrangements will settle down and the children will enjoy regular time with their father with few hiccups, notwithstanding the hostile attitude of each party towards the other and particularly of the mother towards the father.

Conclusion

1. In this case the benefits to the children of a meaningful relationship with both parents must be balanced against the risks to them posed by exposure to the father's business and the risks to them arising from the mother's hostile attitude to their father.

2. Counsel for the father submits that the best interests of the children would be met by the children remaining in [H] and living on a week about basis with each parent.  He says that this would maximise the benefit to the children of a meaningful relationship with each parent.  He argues that the risks to the children arising from the father's business can be addressed by putting in place various protections to ensure the children are not exposed to inappropriate sexual material. 

3. I am not persuaded by the argument.  On the father's own evidence he is aware of the risks to the children of exposure to inappropriate sexual material.  Although he did not articulate the risks with any particularity, he had an instinctive desire to protect the children from a detailed knowledge of his business.  He was adamant he never wanted his daughters to work in the industry.  He had also decided that he should get out of the business before the children are old enough to understand what is involved in it. He thought that might be when [X] starts high school which in two more years.  However, the children are already well aware of the details of their father’s business. 

4. The father says mother made the children aware of the details of his business post-separation.  I do not accept that. I accept the evidence of Ms Buckley that the descriptions given to her by the children are likely to mean that the children have viewed material themselves and have seen their father viewing the material.  Even if I am wrong about that and the children’s exposure has come purely from the mother, the fact is the children are now aware of their father's involvement in the industry. Although this was something the father said he was determined to avoid, the children’s current state of knowledge is still not enough to persuade the father to immediately cease his involvement.  He spoke about selling the business but, clearly, there is no current intention to do so in the short term.

1. The risk to the children and their psychosexual development is clear on the unchallenged evidence of Ms Buckley. This is an immediate risk and needs to be addressed now. Had the father stated a clear intention to cease his involvement in the industry in the short term and had he taken some concrete steps towards fulfilling that intention, I might have been persuaded that the benefits to the children of a meaningful relationship with him outweighed the short-term risks arising from the business, especially if safeguards in the form of restraining orders were in place. On the evidence, however, there is no basis for any confidence that the father is prepared to put the needs of his children above his desire to maximise his income from the business for as long as possible.

2. I do not mean to suggest that the father does not genuinely desire to do what is best for his children but, rather, that he does not really believe the business currently poses any substantial risk to them. He does not even keep his business and family lives separate. On the contrary, he takes the children with him when he socialises with strippers and he took them to Adelaide when he was supporting Ms M and her sister in a stripping competition. As stated earlier, by the time the father gets to the point where he believes the business does pose a real risk to his daughters, it may be too late and the damage may have been done.

3. The risks to the children as result of exposure to the father’s business will be minimised if the children live with their mother in [R] as the father is likely to be able to restrict his business dealings to a greater extent every second weekend than what he would be able to manage for a full week every fortnight.

4. This is the most important factor influencing my determination.

5. The second most important factor is the emotional attachment of the children to their mother. I am mindful of the evidence of Ms Buckley that the children and [X] in particular, are likely to suffer emotionally if they live predominantly with their father.

6. By moving to [R] the children will benefit from an improvement in the mother's financial position. The mother will be able to work to a greater extent than currently at [omitted] and will no longer have to pay rent on her current premises in [H]. 

7. The mother is likely to feel happier and more settled in [R] with which she has maintained a connection for most of her life.  Hopefully this will also blunt the edge of the mother's hostility to the father which would otherwise be sharpened by resentment arising from an order requiring the children remain in [H]. 

8. The strongest argument against relocation is the risk of a diminution in the quality of the relationship between the children and their father as a result of seeing less of him in circumstances in which the mother has been undermining the relationship. In my view, however, the greater risk is that posed by the father’s business. I am reassured in this view by the following:

   a)It is common ground that the children maintained a meaningful relationship with their father while living in [R] during the previous separation;

   b)The evidence of Ms Buckley is that the children are already sufficiently connected to their father that their relationship with him is likely to thrive despite reduced time with him; and

   c)The mother’s hostility is more likely to abate if she achieves her desired relocation than if she feels forced to either live in [H] against her will or live in [R] without the children.

9. I am satisfied the children will be able to enjoy a meaningful relationship with their father while living in [R]. 

10. In my view, in circumstances of competing risks, the mother’s proposals best satisfy the needs of the children. For these reasons I intend to make orders which will allow the mother to relocate with the children to [R].

11. The formal order for relocation shall operate from 26 January 2010 which is the beginning of the week the children are due to recommence school. However, the children are likely to be spending time in [R] with their mother during the holidays in any event and the orders I make are not meant to prevent that.

I certify that the preceding one-hundred and ninety-eight (198) paragraphs are a true copy of the reasons for judgment of Hughes FM

Associate:  Dale Gerner

Date:  15 January 2010