Fenton and Fenton

FAMILY COURT OF AUSTRALIA

FENTON & FENTON

[2013] FamCA 857

FAMILY LAW – CHILDREN – With whom children live and spend time – existing orders on an interim basis split siblings and mother subsequently hands the children in her care to the father – mother then moves to Queensland – mother seeks final orders for all three children and for them to live in Queensland – children settled in Tasmania and expert supports status quo – orders for children to reside with father and time with mother – high conflict family.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Fenton

RESPONDENT:

Mr Fenton

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER:

HBC

249

2010

DATE DELIVERED:

1 November 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Hobart

JUDGMENT OF:

Cronin J

HEARING DATE:

21 and 22 October 2013

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Bearman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Kate Mooney

Orders

That all extant parenting orders are discharged.
That the father have sole parental responsibility for the children Y born … 2002, J born … 2005 and M born … 2007.
That the children live with the father.
That the children spend time with the mother as follows:
(a) If the mother lives in Hobart;
(i)During school terms, for each alternate weekend from the conclusion of school on Friday to the commencement of school on the following Monday morning;
(ii)For one half of all school term holidays by agreement and in default of agreement, the first half; and
(iii)For one half of all long summer holidays by agreement and in default of agreement, the second half.
(b)If the mother has, as her usual address, a residence outside of Tasmania:
(i)For a period of ten consecutive days commencing from the last day of each Tasmanian gazetted school term period (and the first of the ten consecutive days shall be the day after the children’s school has concluded and the 10^th day shall be the day upon which the children return to the father);
(ii)For a period of three consecutive weeks in the Tasmanian gazetted summer school holiday period by agreement and in default of agreement, the first three weeks in every odd-numbered year and the last three weeks in every even-numbered year;
(iii)Such time as may be agreed during school terms in Tasmania, provided that it does not interrupt the children’s schooling, if the mother gives the father four weeks’ notice of her intention to visit and sets out where the children will live with her during that time.
For the purposes of paragraph 4(b)(i) and (ii):
(a)The cost of the children unaccompanied minor flights for the commencing flight shall be borne by the mother and the cost of the return flight shall be borne by the father;
(b)The mother shall advise the father by email not less than 21 days before the day of the children’s proposed flight, the details of:
(i)Whether the children are to spend time with the mother;
(ii)The booked flight details;
(iii)The time and point at which the children are to be delivered into the airline’s care (and for that purpose, the father sign all such documents as may be necessary to authorise the airline to provide unaccompanied minor’s travel).
(c)The father shall advise the mother by email not less than 14 days before the day of the children’s proposed flight to the mother:
(i)Confirming he will have the children prepared to so travel;
(ii)The booked flight details of the return trip; and
(iii)The time and point at which the children are to be delivered into the airline’s care (and for that purpose, the father sign all such documents as may be necessary to authorise the airline to provide unaccompanied minor’s travel).
(d)The father shall send a text message to the mother when the children have left to fly to her.
(e)The mother shall send a text message to the father when the children have left to fly to the father.
The mother be at liberty to communicate with the children by telephone and/or Skype every Tuesday and Thursday between the hours of 6.30pm and 7.00pm and:
(a) The mother shall initiate the calls; and
(b) The father shall facilitate it;
and all such calls shall be on speaker phone at the father’s end of the conversation but the children shall have as much privacy as is practicable; and
The father and his partner shall not be present in the same room as the conversation is taking place.
That the mother be at liberty to communicate with the children by email, letters, cards and photos and the father facilitate the delivery of those forms of communication along with any similar communications that the children wish to send to their mother.
That neither party physically discipline the children.
That if changeover of the children is to occur for the purposes of paragraph 4(a) or paragraph 4(b)(iii), it shall commence and finish outside of the father’s residence.
That the parties keep one another advised of their current residential address, and email address along with all telephone numbers at all times.
That the appointment of the Independent Children’s Lawyer in the proceedings is forthwith discharged.
That all proceedings are otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: HBC 249 of 2010

Ms Fenton

Applicant

And

Mr Fenton

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The residential arrangements for Y (aged 11 years), J (aged eight years) and M (aged six years) have been in place with their father, Mr Fenton (“the father”) for just over a year. Those arrangements were embodied in an order of the Court to which the father had consented. So too had the mother, Ms Fenton (“the mother”). The orders were also promoted by the Independent Children’s Lawyer. The mother, who now resides in Queensland, wishes to change all of that so that the children should live permanently with her and her partner Mr W, along with a child of their relationship T (who is three years of age).
After hearing all of the evidence, I am satisfied that it is in the best interest of the children that they remain in Tasmania with their father and his partner Ms C.
In these proceedings, the mother was the applicant and the father was the respondent. Both parties represented themselves and pursuant to an order of the Court, the interests of the children were represented by an Independent Children’s Lawyer who appeared by counsel, Mr Bearman.
Each of the parents and the Independent Children’s Lawyer filed an outline of case document which set out with specificity, the orders they were seeking. The positions at the commencement of the hearing had not altered by its conclusion.

Orders sought by the mother

The mother sought the following orders:
·That she have sole parental responsibility;
·That the children live with her;
·That the children reside with her in Queensland;
·That the father have contact for three weeks of the long summer holidays and two out of every three school term holidays.
In final address, there was some variation on the drafting of the proposed orders but in essence, the mother conceded that the father could have a period of each of the term holidays and she would pay all of the airfares involved.
The mother also sought some ancillary orders in relation to communication.

Orders sought by the father

The father sought the following orders:
·That he have sole parental responsibility for the children;
·That the children live with him;
·That the mother’s contact be during “school holidays and alternate Christmas and Easter”; and
·A variety of ancillary orders about which there was little or no evidence.
The father’s proposal in relation to the travel if the children lived with him was that each party pay one half.
In discussion however it became clear that both parties thought it preferable that the person who was seeking the time with the children pay the first costs and the return flight be at the expense of the party who wanted the children back.

Independent children’s lawyer

The Independent Children’s Lawyer supported the father’s case albeit with some minor variations in respect of orders. The orders were comprehensively set out in the case summary.
The Independent Children’s Lawyer sought that the father have sole parental responsibility but that there be communication between the parties about decision making.
The Independent Children’s Lawyer also sought orders that neither party physically discipline the children or suffer or permit any third party to do so. There is not sufficient evidence of control in this case such that I could make an order relating to the parties being restrained from allowing any other person to be involved in discipline.
Further orders were sought in relation to denigration of the other or the other party’s family, exposure to cannabis and alcohol and the use of illicit drugs. For reasons I indicated at the time, I think those orders in this case in particular, are probably pointless.

The material relied upon

The mother relied upon her own trial affidavit and two witnesses. Her partner Mr W was the first of the witnesses who subjected himself to cross-examination. The mother also relied on an affidavit by her own mother. Because of a bereavement in the family, the maternal grandmother was unavailable for cross-examination but having regard to what she said in her evidence, there was little to which I would give any weight. The maternal grandmother had initially been required for cross-examination because there were a number of matters in the parties’ evidence about which she might have had some views. Her absence meant that the affidavit could be relied upon but it was of little probative value.
The father relied upon his own trial affidavit and one witness who was his partner Ms C. Each of those was required for cross-examination.
The Independent Children’s Lawyer called psychologist Dr O as the expert. She was required for cross-examination. All parties relied upon reports of Drs D and P along with some printed material about airline flight details and also school reports. All of those were admitted into evidence without challenge.

The parties as witnesses

Each party endeavoured to be truthful but each so disliked the other that it showed. Whilst the father said that there was no dislike of the mother on his part, there is equally no discussion between them. Not only is there no love lost between the mother and father but similarly between their partners.
The mother was at times vague and it was hard to get a sense of what had actually occurred. She has had an alcohol problem in the past and whilst she said it was currently under control, the evidence of the expert psychologist expressed caution. The mother’s partner made clear that consumption was not a problem now but the mother resorted to alcohol out of stress. That is exactly what the forensic psychologist was worried about. Indeed, as I shall refer to in her evidence, the psychologist thought that the mother was vulnerable. In her view, the mother should abstain from alcohol completely.
The mother’s partner gave evidence and made his disdain of the father obvious. He used language which I found perplexing. He reverted to the use of expressions which really did not convey his meaning. For example, he used the expression “dwelling address” for where the children lived and the expression “biological donor” for the father. In the latter case, it was a pejorative use and in the former, just grandiosity. I have viewed his evidence cautiously particularly in relation to an implausible explanation of an assault on him by the mother at least as perceived by the Tasmanian Police. I shall return to that below.
The father is a large and intimidating man who was more comfortable outdoors than in the confines of the courtroom where he had to face extensive questioning particularly by his former partner. His distrust of the mother and, more importantly, his dislike of her partner was palpable. During cross-examination by the Independent Children’s Lawyer’s counsel, the father asked me to remove the mother and her partner because they were sniggering. Obviously, I declined.
Despite all of that, I found the father disarmingly honest particularly in relation to his own shortcomings. Those shortcomings relate primarily to his marijuana use. He conceded it was a problem and he was endeavouring to do something about it.
The father’s partner, Ms C, was the most helpful witness of all. Her honesty was above reproach. She had a large brood of children of her own to care for and nothing I heard suggested she was anything other than well-intentioned and a secure foundation for the three children of the union of the mother and the father.
There are a number of contentious factual issues in this case. All parties had ample preparation time and came armed with their affidavits.
The onus of proving a particular issue lies with the person making the assertion and the standard of proof is the balance of probabilities. That is, weighing up the respective versions, can the Court say what probably happened?

Simple background

The father is 30 years of age. He is a tradesman. He works standard hours of about 6.00am to just after 2.00pm. There are occasional times where he is required to work earlier than 6.00am and occasionally later than that, although it did not seem to be often. He works occasional weekends where he is generally home by 10.00am after an early start.
The mother is 28 years of age. She began this relationship very early in her life and is now in a new relationship. She is engaged largely in home duties but also seems to manage a business which was begun when she moved to Queensland in 2012. She has one child, T, to her new relationship.
The father and mother married in 2006 after living together for five years. Their ages will indicate just how young they were when their relationship began. They ultimately separated in September 2009. There was considerable complaint by the mother about the father’s conduct after separation until the children came into his care but because of a sequence of events to which I shall now turn, I find none of it is of helpful significance in the determination save for some matters which I shall specifically mention.

The proceedings

Proceedings began in the Federal Magistrates Court in about March 2010. These were ultimately transferred to this Court on 23 August 2012. By a stroke of luck, the proceedings came before Benjamin J the following day. His Honour heard the case over two days, made orders and gave reasons. With respect to his Honour, the longer term intention of the orders he made remained somewhat in dispute. On their face, the parenting orders appeared to be final but there is also an indication that they were interim just to see how things went. Thus, on 24 August 2012, his Honour made the following orders:
1.All previous parenting orders in respect of these children are discharged.
2.[Ms Fenton] (“the mother”) have sole parental responsibility for [J Fenton] born … 2005 and [M Fenton] born … 2007.
3.[Mr Fenton] (“the father”) have sole parental responsibility for [Y Fenton] born … 2002.
…
6. UNTIL FURTHER ORDER during school term:
(a)The children live with the Father from Friday after school until Monday before school each alternate week, commencing 31 August 2012 for school term two and for subsequent school terms commencing the first week if the children were primarily with the mother in the last week of the preceding school holiday and commencing the second week if the children were primarily with the father the last week of the preceding school holiday;
(b)The children live with the Mother from Friday after school until Monday before school each alternate week, commencing Friday 24 August 2012 and in respect of subsequent school terms to commence the alternate week to that set out in order 6(a) above;
(c)That otherwise during school term [Y] live with the Father, and otherwise during the school term [J] and [M] with the Mother.
7.The children spend the first half of the mid term holidays and Easter with the Father in even numbered years and the second half with the Mother, and then the second half of such holidays and Easter with the Father in odd numbered years and the first half with the Mother.
…
18.The appointment of the Independent Children’s Lawyer is extended for a period of eight (8) months from the date of this order or such longer or shorter period as is otherwise ordered.
Then this order appeared:
20.Leave is granted to the Independent Children’s Lawyer to have this matter re-listed for an expedited fresh hearing in respect of the residence arrangements for the children, such leave to operate for a period of eight (8) months from the date of this order.
That order was followed by:
23.All outstanding applications be dismissed except any costs applications.
In his anonymised reasons for judgment, his Honour said:
3.Mr Fenton (“the father”) have sole parental responsibility for Y born … May 2002.
4.Each parent keep the other parent informed of any significant circumstance in respect of the health, welfare, development and education of the children and each parent is to follow and, in the case of J and M, the father to follow all reasonable written instructions given to him by the mother as to diet, routine and medication and in the case of Y the mother is to follow the father’s reasonable written directions as to diet, routine and medication.
I interrupt here to say that nothing much has changed. His Honour then said:
11.The significant issues in these proceedings reflect on the violence asserted in both households, particularly the violence inflicted by the father on the mother and consequently, exposing the children to that violence during the time that he was in the relationship and for some time thereafter.
12.There is also the issue of the mother’s abuse of alcohol and her reaction to violence. The father has asserted that he was attacked on many occasions by the mother. I have some accuracy of that evidence. There are also questions about the father’s use of cannabis and his reaction to it.
I have some concerns about the third sentence of paragraph 12 because the whole tenor of the reasons suggested his Honour doubted the accuracy of the father’s evidence. These reasons were given extempore. In any event, his Honour’s findings only serve to show that if the father was of questionable skill and truth in August 2012, he has come a long way since.
In circumstances where one curious and disputed fact before me concerned the mother having been charged by police with what sounded like a stabbing assault on her partner Mr W in February 2012 and which both the mother and Mr W said had not occurred as an assault at all, his Honour said the following:
17.The mother was not an impressive witness, she dissembled, obfuscated, and avoided some questions, and at times was untruthful (such as her evidence about her continuing use of alcohol) as a consequence her credibility suffered. An example of this was when her sister, Ms S, inadvertently disclosed to the Court that there had been a violent incident between the mother and her partner, Mr W, in February 2012. The mother did not inform the father or the Independent Children’s Lawyer of that incident, nor did she inform the Court or the father that she has been charged with a criminal offence.

The mother gave evidence before his Honour consistently with what she told me. That is, Mr W “nicked” himself by accident while cutting meat and she was at the time, “incoherent”.
His Honour said:
19.I am not convinced that the mother was frank to the Court in terms of that evidence, and I am not convinced that Mr W has been frank to the Court in relation to that incident which occurred earlier in 2012. The mother has been charged with an offence in respect of that wounding.
That said, both the mother and Mr W said that the State Prosecution Authority had now withdrawn the proceedings. His Honour had viewed the mother’s evidence with great care. I too have some doubts. It was not just the mother who caused his Honour some concern. Of the father, his Honour said:
29.I was troubled by his evidence, from time to time, as to whether he was trying to persuade the Court about what he was and what he was not. However, I think he was endeavouring to tell the truth, but he was also being cautious not to cast himself in too bad a light. He had been untruthful in affidavits in earlier proceedings and had been untruthful to Dr O in terms of earlier parts of the proceedings, but he now appears to be acknowledging his violent and controlling behaviour.
…
31.I believe that the father endeavoured to be frank, and as I said, I accept his evidence, but cautiously.
In weighing up the evidence, his Honour decided not to “make final orders at this time”. His Honour then said:
57.…By doing this I am not inviting the parties to come back to the Court. In fact, the proceedings will be brought to an end. But if parents again expose these children to violence it will be open for the Independent Children's Lawyer to bring the matter back before the Court. In addition I will request that an updated family report be provided in about eight months or so, so that I will know whether these children are safe. If there are any signs of violence or other antisocial behaviour for these children, those various things may offer these children protection from violence.
His Honour then split the children, leaving J and M with the mother.
Even taking into account the words his Honour used, it was not intended that, absent violence, the proceedings would be continued. Thus, this sibling group were to live in that arrangement permanently.
It was the mother’s evidence, supported by Mr W, that she could not contemplate such a long term splitting of the siblings and as she had determined at that time to go to Queensland and as the father would not agree to allow the children to go with her, presumably without a litigious fight, she handed the two youngest children back to the father in October 2012. This was just five weeks after the orders of Benjamin J.
Not only did the mother hand the children back to the father but she also consented to orders initiated by the Independent Children’s Lawyer before Benjamin J to cement that arrangement.
On 3 October 2012, his Honour made the following orders:
1.Leave be given to make an oral application for variation of the orders made by me on 24 August 2012.
2.Such orders dated 24 August 2012 be varied in accordance with the minute of consent order signed by the parties and the Independent Children’s Lawyer, initialled by me and dated today’s date, an engrossed copy attached hereto and marked Exhibit “1”.
The minutes signed by the parties sought orders for the father to have sole parental responsibility until further order and for the children to live with the father “until further order”.
A similar interim position about the mother’s contact with the children was then provided in the orders. These orders must be treated as interim because the orders noted:
A.It is the Mother’s stated intention to relocate her family interstate commencing 4 October 2012.
B.It is the Mother’s intention to seek to have the children live with her interstate on a final basis.
C.The parties agree to review care arrangements for the children in or about February 2013 with the assistance of any updated assessment by Dr [O] as contemplated by paragraph 19(b) of the Order dated 24 August 2012 (as amended).
Thus, the mother went to Queensland. Her partner Mr W waited for some eight weeks before joining her and then these proceedings began in earnest. No-one raised the question of whether or not these proceedings should be permitted to be reopened because of the finality of the 2012 arrangements. I did not treat the matter as a requirement that the mother prove a change of circumstances.
When asked in cross-examination why she chose to go to Queensland at that particular time in 2012 when she already had possession of two out of the three children, the mother said that she had, at that time, a lot of hate for the father and his family. She added that she could not live in Tasmania with the rumours that the father was spreading about her and that he stalked her. She said that there was talk behind her back about her brother’s death and her children’s removal and people giggled and whispered behind her back. She said the decision to move to Queensland for her own health took off the weight from her shoulders.
Mr W said the whole move to Queensland was to be family-oriented whereas in Tasmania, he had had two jobs and the mother was working and the ideal of their relationship could not be met. He thought the mother had made the right decision in going to Queensland.
Over a period of eight weeks after the mother left, Mr W was involved in some counselling in Tasmania for his own “issues”. He then joined the mother.
I asked the expert psychologist about her discussions with the mother for the purposes of the preparation of the final report as to why the move to Queensland had occurred as it did. The psychologist, Dr O, was in no doubt that it was not just the mother escaping from the father and his family but a whole series of issues that went back a number of years. I find therefore that the mother’s move to Queensland was well considered but at a time that her health was not good.
Before looking at the various proposals of the parties, it is important to focus on two main concerns that were in issue before Benjamin J and which continued to perplex the Independent Children’s Lawyer and remained live issues before this Court. They were the mother’s alcohol issue and the “nicking” incident involving Mr W.
In respect of alcohol, the mother acknowledged that she had had problems in the past caused, as she described it, by wanting to escape the reality. The mother’s evidence was that alcohol was no longer a problem and indeed, if she had alcohol, she was physically ill. She said she had sought the support in Queensland of an Alcoholics Anonymous sponsor and had begun listening to her and her story. She said that had now turned into a friendship. She still spoke to that counsellor. In terms of alcohol now, the mother agreed that she was drinking about once a month. When asked whether she was producing any evidence or even a report from that counsellor, she said that she had not.
Mr W was somewhat different in approach to the mother. He made no mention of the Alcoholics Anonymous nor the fact that the mother was now undertaking meditation to cover some of her problems. He said when asked about whether the mother had reduced her alcohol intake, he did not see any evidence about her drinking. When asked whether he thought that alcohol was a problem, he said that he did not drink other than on special occasions. When asked about whether it was a problem for the mother in Tasmania, he said that it was not. He said he had no doubt that in relation to what he described as traumatic events the mother was drinking to relax. He said that she had been drinking with him and there had been arguments but there were arguments whether they had been drinking or not.
In trying to get a sense of just how much alcohol was being consumed or had been consumed by the mother, I inquired of Mr W as to the mother’s consumption. He thought that six Jim Beam cans would be the amount and his explanation for why she needed to drink at all was entirely associated with the “traumatic” events. When I asked whether he thought that the mother needed to drink at all when he had been there to support her, he said whilst he wanted to talk, she wanted to drink. When asked whether the mother used alcohol to excess in Queensland, Mr W denied that that was the case. He recalled that she had been drinking at some stage this year but it was limited to celebrations but he was quick to point out that she could drink if she wanted to.
All of this evidence indicated that the mother had an alcohol problem in the past. That was supported by the fact that there is evidence before the Court that one of the children is suffering the effects of the mother being a consistent abuser of alcohol during pregnancy. As pointed out earlier, Dr O thought that the mother should not be drinking at all because she was otherwise vulnerable in circumstances where she was under some pressure.
In her evidence, the mother referred to an event where she had come back to Tasmania and she had had three alcoholic drinks at a function and “arrived back completely sober”. Dr O thought that drinking in those circumstances of having a problem was not a good idea. What I am left with is the only conclusion I think that is open which is that in the event that the mother is under significant pressure, she may very well resort to alcohol and that can only be damaging having regard to a number of events in her life.
There is evidence of an assertion by the father that the mother has telephoned to speak to the children in an intoxicated state. The mother emphatically denied that was the case but it was the only evidence of such an event reported by the father. I tend to think that the father would recognise such a problem notwithstanding the protestations of the mother that she had not been drinking at all.
Even if the mother has abstained from alcohol, the last serious event on her evidence was only in February 2012. There, she said she had mixed alcohol and medication and had become “incoherent”. This absence of control was sufficient to lead to charges being laid against the mother over what I have described as the Mr W “nicking” incident.
Little attention was paid in the affidavit material to this “nicking” incident. The mother’s evidence was that she did end up in the hands of the police and there had been criminal proceedings begun in the Supreme Court of Tasmania. She said that at all times, Mr W said that he had cut himself by accident. She said he told the police that and his position had not waivered. The difficulty that I have is that the mother acknowledges that she was incoherent. In her words, there was no possible way she could have done what was alleged because of the angle in which the injury was caused to Mr W. There was sufficient blood to cause the calling of an ambulance and he had to be given stitching.
Mr W presented himself as very sensitive about the subject. In an innocuous question by counsel for the Independent Children’s Lawyer, he was asked whether he was wounded by the mother in February 2012. He said it was simply an allegation. He denied indicating that the mother had cut him with a knife and that he confirmed that he had told the police that was the case. When asked then why the police had charged the mother, he simply brushed it aside saying that it was “protocol”. I have no idea what he meant.
In addition to the protocol, Mr W indicated that this was simply a case of the police ticking off the boxes where the mother was affected by alcohol and he was injured and they had obviously concluded that she had had something to do with it. Ultimately, the Crown must have decided that it could not prove its case. The implausibility however of the police “ticking off boxes” where Mr W was cut, bloodied and required an ambulance with the mother affected by alcohol and drugs and incoherent, ought be obvious. No evidence was called to show why the police withdrew the proceedings. Taking into account the implausibility of the version of Mr W, I have some concerns. More significantly, I refer back to the evidence that was given before Benjamin J and his Honour’s reasoning particularly in relation to the evidence of the mother’s sister. I strongly doubt the version of the mother and Mr W. The significance of that doubt is not that it relates to violence between the mother and Mr W as was later alleged by one of the children but rather that alcohol was a problem in 2012 and may very well still be such a problem under pressured circumstances.
The question of violence in the relationship between Mr W and the mother was also not new. Both denied that there was any such problem. Each acknowledged that there were arguments but that they were not difficult to resolve. All of that did not sit comfortably with a volunteered statement by Y that on New Year’s Eve in 2012, Mr W and the mother took he and the children camping. Y volunteered to the expert psychologist that he had heard an argument and what sounded like a slap. It frightened him. Dr O was clear in saying that she believed what the child was telling her and that it was plausible.
All of that causes me some doubt as to whether or not the mother was a truthful witness and whether she was simply embellishing her story to try and convince the Court that things had sufficiently changed to justify her being reunited with her children after what had happened in September and October 2012.
It was clearly the mother’s case that she had had problems but had now removed herself from them and was healthy and more than capable of caring for all of the children. Dr O conceded that there had been significant improvement in the mother during the period of time that she had been away in Queensland. All of that however leaves me with doubts as to whether or not the relationship with Mr W is sound and whether her problems with stress and alcohol have completely abated. In addition, I have evidence that the children are settled.

The mother’s evidence about the past

As indicated earlier, the mother’s evidence was vague about why she ultimately decided after August 2012 and before October 2012 to move to Queensland and in particular, to leave the children behind. I accept her evidence that the separation of the siblings was difficult for her but so too would have been her decision to separate T from her siblings. It must also be said that at that time, the mother was leaving Mr W behind albeit on a temporary basis. In her description of the present household situation in Queensland, she said it was “amazing” and “perfect”. For the reasons earlier mentioned, there are sufficient doubts in my mind to find that the relationship with Mr W might be pleasant at the moment but under pressure, this may not be a good environment for all the children to be permanently. I have the evidence of Dr O about accepting what Y said occurred on New Year’s Eve and I have the serious issue of the alcohol consumption that placed the mother in the position where she was “incoherent”.
At its highest, the rhetoric of the mother about innuendo, whispers and stalking all apparently perpetrated by the father’s family ignored the fact that on any view, her own mental health at that time was not good. She was therefore content for the father to care for the children full well knowing what his personal circumstances were and placing the children in a family with Ms C in which there were already five children.
Thus, notwithstanding the notations on the orders made by the Court on 3 October 2012, I find that any suggestion by the mother that this arrangement of handing the children over was to be temporary has little weight. On her evidence, in October 2012, she was not in any emotional state to be looking after these children. The question remains as to whether or not things have changed such that I should alter the children’s relationship with the father now.

The mother’s relationship with the children post-October 2012

In her evidence, the mother said that she had attempted to call the children by telephone and on three occasions in August 2013, those calls were ignored. The father was emphatic, as was his partner Ms C, in indicating that his mobile telephone was on at all times because it was a work telephone and they had a voice messaging service and nothing had been received. For reasons which I shall set out below, I accept the evidence of Ms C. Accordingly I do not accept that the mother made the calls she did.
In one telephone call that the mother did make, she said that Ms C threatened her and said that something would be said in the court papers. None of that was challenged of Ms C and as indicated earlier, I accept her evidence. I doubt very much whether the relationship as described by the mother with Ms C is as bad as was painted.
The mother also complained that she had never received a single email in relation to calling the children but then she conceded she did not call as often as she would like to because it upset her child T who was confused about the absence of her siblings. The evidence of the father and Ms C and ultimately conceded by the mother was that she is calling only every three weeks. On any view, that is not sufficient and I do not accept that the mother was seriously trying to keep in touch with the children.
The mother’s evidence was that the children had holidays in Queensland over the Christmas period and that they had “an absolute ball” and that they did not want to go back to Tasmania. They said they were never doing anything when they were with their father and they were always hungry. Having regard to what I heard from the father and in particular, Ms C, I reject that evidence as truthful. Whilst it might have been what the children were saying, it sounds more to me like what the mother wanted to hear and that it emanated from something that she asked of the children.
One such example of that problem arose in a visit to the children by the mother in July 2013. She collected the children on 10 July and within minutes of being in the car, Y apologised for having said what he was said to have told the consultant psychologist about Mr w and accused his father of having coerced him into making the complaint.
The mother said that this was not the subject of interrogation by her and it was entirely volunteered. Her own mother, who was not present to give evidence in cross-examination, corroborated it.
I have grave doubts about the context in which the statement was made, but even if it was so made, what I can take out of it.
Dr O was cross-examined at some length about whether the children had been coached or coerced and she indicated that she had not seen any sign of it at all.
The significance of this particular piece of evidence was that the conversation with the mother occurred some six weeks after the children had been interviewed by Dr O. During that six week period, the children had not said anything to the father or to Ms C about what had been said to Dr O. At no stage from July 2013 until the affidavit of the mother was sworn in September 2013 did she contact Dr O, the Independent Children’s Lawyer or indeed the father or Ms C about this coercion or manipulation. Accordingly, I find on the balance of probabilities that whilst the child might have said something along those lines, it can hardly be given much weight as a complaint against the father. Importantly, I do not accept that Dr O would not have picked up that the child in some way was being manipulated to give the answers so given.

The mother’s Queensland life-style

In her affidavit as an indication of the fact that things had substantially changed, the mother pointed to the fact that the children would attend a local primary school which was only four minutes away from where she lived and that she would create a healthy routine of exercise. She said that there was a family doctor close by as well and a shopping complex. She observed that there was also a dentist for government funded patients in the area and an optometry clinic which was necessary for J’s vision requirements. She said that there were ample opportunities for entertainment on the Gold Coast including weekly children’s movies under the stars, family fun days and workshops not to mention all of the various recreational facilities for which the Gold Coast is well-known. It must be said that all of these things are readily available in Tasmania but perhaps not quite on the same grand scale as they are on the Gold Coast. As I observed with the mother, a lot of these things were just part of materialism and a commercial society. She observed that they were all part of entertainment. She said in evidence that she could provide a much healthier lifestyle in living accommodation circumstances than the father. I doubt that.

There is little doubt that the evidence shows that the father’s accommodation was cramped. That was hardly surprising having regard to the fact that there are eight children in the household. Dr O visited the household and in her evidence, it was neat and tidy and the place was functional. She certainly saw no signs of chaos, dysfunction or inappropriateness. In his evidence, the father, supported by Ms C, indicated that a bus had been acquired to be converted into two bedrooms which will be outside the home.
Whilst Dr O conceded that all of that sort of environment was not entirely ideal, there were more important things in life than just the material aspects.
Part of the problem in this particular case is that the mother complained that the clothing she had provided from Queensland had ended up being used by Ms C’s children. That was emphatically denied. I find that the amount of things that the mother has sent and the child support she has paid has been relatively insignificant. Indeed, it is the taxpayers of Australia who have been predominantly supporting these children.
Both families have been entirely reliant upon Centrelink benefits although the father has worked consistently earning an income as a tradesman.
I have some concerns about the mother’s truthfulness in relation to her financial position. In her affidavit, she said that she was no longer working and had no intention of so doing. She said she would be playing an extremely active role in parenting and involved in the extra-curricular activities associated with it. That was not entirely the evidence that she gave in cross-examination. She confirmed that the business that she was conducting was under the name of Mr W. He worked full-time as a carer and she trained the staff although she did not receive much money from the business. It was hard to get a sense of just exactly what this business was in terms of its productivity. I am not at all comfortable that I understand what her disclosure has been to the relevant government authorities to enable her to continue to receive Centrelink benefits. Be that as it may, the mother was emphatic in saying that she was winding down the business so that she could take on the role of caring for the children.
In the father’s household, I heard from both him and Ms C about the very structured day which was necessary for the fact that there were eight children in the household. Nothing I heard indicated that any of the children had been prejudiced by that structured lifestyle. Indeed, it sounded very functional.
It was also the mother’s view that the children had expressed a dislike for living in their current lifestyle whereas that she could provide for them such that they would thrive in all aspects of life and happiness. One wonders therefore why, if the financial position of the mother was so good, she was not providing more benefits for the children so that the father could provide them in Tasmania.
It is important to point out that children benefit from family relationships of all types depending upon whether they are loved, feel secure and are provided with basic needs. Material differences do not amount to much when those attributes are found in a family. Having heard the evidence of both the father and Ms C, I have no reason to doubt that these children are part of a loving and secure family where their needs are indeed being met.

The role of the father in his household

It was the mother’s case that the father was rarely involved in the children’s lives. That was emphatically denied by Ms C. Indeed, having regard to the number of the children in the household, I would not have any doubt that she was truthful. The mother said that she had called at 4.15pm on a school day and was told that the children were grounded and asleep. She was told that they had had their meal and that she was to call back the following day. I do not know what that was about but it was clear that the father and Ms C have a discipline policy which seems to be very successful. While some people might have some doubts about the discipline methods of the father which included having the children stand in the corner with their hands above their head for two minutes or indeed threatening to produce a black belt for discipline purposes, those matters did not seem to have occurred with any frequency.
It was the mother’s view that the children were describing “torment” that they were suffering. Much of this must have come from an interrogation style of discussion with the children. Ms C provided evidence of the antithesis of that arrangement.
In an interesting piece of evidence, the mother said that Y told her that when the forensic psychologist’s report came in the mail, the father and Ms C “jumped up and down in the lounge room and said ‘Yes, we got them, it worked’.” Even if that was an accurate description through the eyes of the child, it is perplexing that such a discussion took place between the mother and the child in the first place. That tended to suggest to me and I so find, the mother does interrogate the children. That led to an interesting piece of evidence in which the father said that Y had requested that when the mother spoke to him on the telephone, it was on loudspeaker because he wanted to avoid questioning. The mother said in evidence that she only spoke to the children about the things that they had done that day but all of the evidence points to the fact that she does interrogate the children in an endeavour to have them say that they want to live with her again. There is little doubt that the children love their mother and do in fact say that they want to be with her but having regard to the facts of this particular case, it is my view that the father provides a much more stable household than does the mother.
The mother asserted that J told her that he could not sleep at night without having a light on and that that had never been an issue for her when the child lived with her for the month in Queensland. Dr O was not at all perplexed about that indicating that it was part of the child’s emotional difficulties in adjusting to a new way of life.
The mother also said that Y told her that the father and Ms C took his pillows off him and that he had to sleep on a squashed up blanket and that he had also had his football memorabilia removed from him. Whilst that was emphatically denied by the father other than for the purposes of an occasional removal for discipline purposes, Dr O was not at all troubled about any of that sort of evidence. She pointed to the fact that these children had been through a lot and it was a case of them having to adjust to a new way of life.
The mother also gave evidence that when she had approached the father to say that Y told her that his throat was sore, the reaction she got was one involving considerable invective. Dr O thought having regard to the nature of the relationship between the parties that was hardly surprising.
Finally, the mother said that it was her observation that the children had lost their spark and that they had begged her to be allowed to stay with her. I find that it is most likely that the mother instigated that discussion and put the children in a difficult position. She made the decision to allow the children to live with their father in October 2012. She should have been clear in indicating to the children that she supported the father and that the issues between them were being sorted out by the Court. Rather than do that, I find that she has enticed the children with such elusive concepts as all of the wonderful things that can occur for them in Queensland.

The mother’s relationship with Mr W

For a period of eight weeks after the mother moved to Queensland, Mr W remained in Tasmania. The mother described this as his attendance for weekly appointments with a psychologist. Mr W indicated that what he was endeavouring to do was to find himself and to understand what was important in life. It also had something to do with working out his relationship with his own childhood. The mother was clear in saying that these attendances on the psychologist had helped Mr W greatly. Since then, their relationship was nothing short of idyllic. Whether it would remain that way if the children were to live with her is in my view, doubtful. The mother said that she came away from Tasmania after a “decade of heartache, rumours and torment” and she now felt like a different person. She said the only thing she was missing were her beautiful babies. That sounds very much like a parent who is, as would be expected, missing her children having made the decision she did. My function is to determine what is good for the children rather than what is good for the parent.

Mr W’s evidence

Mr W as I have earlier indicated left me with many questions. He was abrasive and blunt. He gave an air of authoritative expertise in relation to children and what was good for them. I have some doubts as to how much experience he really has had. Mr W has no respect for the father and I suspect would be quite happy for a confrontation to occur. When asked for the reasons why he used the expressions I earlier mentioned such as “biological donor” he said he thought it was appropriate at the time. He made clear he had no respect for the father because respect had to be “earned” and the father had not done so. He said that he saw no reason to correct the children as to what they called their father because he thought they had been through enough confusion.
Whilst the mother’s intentions therefore may very well be child-focussed, I doubt very much whether Mr W would have the patience with three children, all of whom have significant difficulties. As to how Mr W would sort out future parenting arrangements with the father, he said that the difference he had with the father had nothing to do with the children. I beg to differ. He thought that some agreement might be arranged in time but he had little idea as to how the problem could be resolved.
I have more concerns about the children in the care of Mr W than I do in the care of the father.

Ms C

I have already referred to Ms C. In a case involving the father with a background of violence, a mother whose parenting was handicapped by alcohol abuse and three children with a variety of problems, Ms C was a breath of fresh air. With five children of her own, she took on not only a relationship with the father but also his three children. Whilst the father candidly described Ms C as his “rock”, she said he had changed significantly and they worked together to care for what has become a household, indeed a family of eight children. That said, Ms C maintained that if the father returned to violent or aggressive behaviour, he would be “out the door”.
I asked Dr O whether or not she had looked at the relationship between the father and Ms C and she confirmed that she had and she thought that Ms C was a very strong-minded woman who had control of the situation. Dr O was very impressed with Ms C and so was I.

The evidence of Dr O

Dr O completed four reports for the Court. She is a consultant forensic and clinical psychologist. I explained to each of the unrepresented parties about the role of expert evidence and neither party challenged her qualifications or her expertise.
Dr O did reports for the Federal Circuit Court in January 2011, June 2011, July 2012 and ultimately 3 June 2013.
It is fair to say that in respect of the first three reports, Dr O was supportive of the mother’s continuing role in the care for the children. That however changed significantly in respect of the fourth and final report. In the first report, Dr O described the relationship between the parents as negative and conflictual and that the feelings appeared to be extending to the respective partners. However, Dr O thought that the father was being alienated from his children because of the mother’s attitude.
In 2011, Dr O recommended that the children remain with the mother but that the father spend fortnightly supervised access visits at a contact centre for the foreseeable future. That indeed occurred.
Various visits occurred under supervision in 2011.
Dr O’s second report was not much different from the first. By this stage, the father was residing with Ms C and that the major problem seemed to be that a third party needed to be present to ensure that there was no problem between the adults. Dr O thought that unsupervised time weighed against the children’s best interests because of the mother’s anxiety and the father’s propensity to act impulsively. Dr O was hopeful that the mother could gain some confidence that the children would have a continuing relationship with the father.
When a third report was prepared in 2012, the child Y was interviewed. Dr O described him as clearly troubled and he had a conflict of loyalty. He was terribly worried that he would say something that would upset someone. It was Y who complained about the time that he was then spending with his father and he wanted more.
The children J and M were both interviewed as well.
Dr O interviewed the parents and found the mother struggling emotionally, juggling commitments not only in working, but also caring for the children. She noted that the mother presented in a tearful state expressing that she was in a “mess”. It must be remembered that at this particular time there were lots of behavioural problems with the children all of which were being assisted by the medical profession. The mother was significantly involved in those roles.
The child M had considerable assessment and testing done which was ongoing and there were questions about autism. The mother made clear to Dr O that there had been no problems for a period of time when the father had no contact with the children and she was worried about upsetting those routines.
The mother told Dr O that Y had been coerced by his father to change households because that it is what the father wanted. Dr O thought that that was not her impression at all. She noted that the father’s emphasis was on the importance of the “equality” for the children with him rather than specifically one child such as Y.
Dr O had a careful examination of Mr W and his observations about the children. Mr W expressed the view that Y was traumatised and that he had an “Alpha-male” attitude because he wanted to live with his father and that Mr W thought that that had something to do with the fact that Y could do what he liked whilst in the father’s care.
It was Dr O’s view that the situation between Mr W and the mother was unsustainable. The problems in the relationship with the father were creating enormous stresses for their own relationship and it was in jeopardy. Ironically, it was Mr W who expressed the point that things were getting to the stage where the children either had to spend all of the time with their mother or alternatively go with their father. He thought that transitions between the two households were destabilising for everyone and not just the children. He said that he and the mother were in a better position to offer children the lifestyle and better care and it was his view that it was not possible for the father and Ms C to manage with eight children. Despite all of that, Dr O did not see a reason to change the care arrangements other than to increase the father’s time. That altered dramatically in 2013.
Dr O went to the father’s home and as I have already indicated, found it functional. She spoke to all of the children. The child M said that she wanted to live with her mother in Queensland and that she missed her mother. The child expressed confusion as to why her mother did not ring her. Importantly, the observations by teachers of M show that she was a happy, friendly and lively child who prospered with feedback from adults.
The child Y was again very nervous about being interviewed and he too indicated that he was shocked when his mother had left. Importantly, as Dr O pointed out, Y had felt guilty about having said in the previous report about spending more time with his father and that ultimately led to the splitting of siblings. Dr O was now more concerned, however, that Y was worried about his mother’s protection and he cited the New Year’s Eve camping trip.
The child J told Dr O that things at school were great; he was happy with everything. J is a child whose diagnosis from Dr D was that he suffered from foetal alcohol syndrome. Despite that, J was not being prescribed medication, was sleeping well and his behaviour had settled. There was an indication of improvement in his school reports. The teacher said that he responded well to praise and positive reinforcement. Much of that must be due to the settled environment in the father’s household even if it is cramped and crowded.
Dr O’ observed that the children appeared well cared for and that Ms C had taken an active role not only in respect of school but also the medical needs of the children. She said:
They present as being raised in an organised, nurturing home environment where the adults are sensitive to their individual needs. The children miss their mother, but there remains an ongoing fear of Mr [W] and concern about ongoing violence between Mr [W] and their mother. The children appear to be progressing very well in the care of their father and Ms [C].
Dr O examined what she described as the psychological status and views of the mother. There was clearly a transformation from what Dr O had seen in 2012 as a result of the mother now living in Queensland. She canvassed with the mother about the decision to leave and thought that the mother was leaving not just because of the father but a number of issues associated with her own mental health.
Ultimately, Dr O indicated that it was difficult for the children to maintain meaningful relationships with both parents when they were so far apart geographically. She could find nothing wrong with the care in the father’s home. She found the children progressing well. She commended Ms C. She thought that Ms C was encouraging of the children’s relationship with their mother. That is evidence that not only I accept but also from my observations of Ms C, it is correct.
Dr O thought that not only was Ms C encouraging of the children having a relationship with their mother but was not seeking to replace her. Those are the sorts of sentiments that I heard from Ms C and none of them were challenged by the mother.
Dr O therefore recommended that there was no reason to change the existing arrangements with the children.

The father’s evidence

There is little point in me setting out in detail what the father said. The affidavit which he drew himself was very much concentrating on the difficulties of the relationship after he took over care of the children rather than the more recent questions. Much of the picture that was important for the Court was conveyed as a result of cross-examination by counsel for the Independent Children’s Lawyer and indeed, by the Court.
Leaving aside the question of the mother having determined to give the children to the father in October 2012, nothing I heard indicated that the father was not a capable and competent parent. Ms C’s evidence supported his physical and psychological support for the children. Dr O’s evidence supported his emotional and psychological support of the children. The school reports indicate that he has been a participant in the school activities. The medical report showed that the father had participated in an appointment. Nothing would seem to suggest that the father is not capable of providing all of the necessary care for these children.

Are the children settled?

Indicative of the progress of the children, and the fact that each is settled in the environment with the father, the Independent Children’s Lawyer relied upon evidence of Dr P who is a developmental paediatrician.

In August 2013, Dr P wrote about M whom she had seen in 2012 accompanied by the mother. In January 2012, there were trials of medication for some of M’s problems and they had been unsuccessful. After that time, the mother took M off the medication because the child’s routine was as she described it, good. Dr P noted M’s difficulty in processing information and her mother had described challenging behaviour to the point of violence with the other children.
Dr P noted dietary attempts of the mother and complimented her on her approach to instructions to M.
On a visit in February 2012, Dr P thought M to be an unusual child warranting investigation. Reports showed Dr P was questioning a number of explanations. Nothing in Dr P’s report to this point indicated any concern about the mother’s parenting.
In November 2012, Dr P saw M with Ms C. At this time, a changeover to the father had taken place. M told Dr P that she missed her mother but otherwise the diagnosis was still not apparent.
In February 2013, the father attended Dr P with M. The father reported M had settled into home and school. It was noticeable that M’s social engagement was improving. I am unsure whether I could conclude that observation had anything to do with the changed parenting because M had not been long returned from a significant holiday period with her mother in Queensland.
In August 2013, Dr P said M would have need for support at school and most importantly for these proceedings, stability in her home environment.
It is the last observation that convinces me with the certainty I now have about the father’s household and in particular, the secure and stable parenting of Ms C, an alteration to the home life of M is not justified. Whatever similar service to Dr P might be available in Queensland, even if it was promoted to the mother by Dr P, I remain convinced that the father’s household is currently providing the security at least that M needs.

Dr D

The Independent Children’s Lawyer also relied upon a report of Dr D. Dr D is a paediatrician and adolescent physician. He had significant involvement in J’s life. By April 2013, he described things as “going really well for [J]” and his achievement was “pretty good”. It seems at that stage that the difficulties for J were minimal. Medication was not required to manage his behaviour.
Like the situation with M, I see no reason to uproot that progress.

Schooling reports

In 2012, Y was described as having a challenging year but by the end of that year, he was described as more settled and focussed. The general comment was that there was evidence of some quality work being done. By middle of the year 2013, Y was described as hardworking even though he could wander off tasks. It was noted that he had settled.
In 2012, J demonstrated a “growing maturity”. He had a positive attitude in 2013 to learning. Importantly, there were regular conversations between family and the teacher that were noted in the records. Encouragingly, it was said that J strove to do his best.
In 2012, M was in kindergarten. She was described as engaged and enthusiastic. By 2013, in her first main year at school, M was learning to listen and participate but worked best with an adult close by. She was described as progressing steadily behaviourally and academically.
Whilst all of this could have happened whilst in the mother’s care had that not changed in late 2012, the reality is that it happened to all three children in the father’s care or more particularly, in the father’s family’s care.

Legal Aspects: Parenting

In s 60B of the Act, the objects and principles guiding any parenting determination are clearly set out. Overriding considerations however affect those objects and principles. The overriding consideration is always the best interests of the children.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court must regard the best interests of the children as the paramount consideration. To determine what is in those best interests, the Court must consider the matters set out in s 60CC.

Decision-making and parental responsibility

An important issue in addition to where these children should live is who should make decisions about their long term futures. Neither party really addressed the question in detail because their focus was on Queensland versus Tasmania. The tyranny of distance in this case effectively means that there will be difficulties with communication about the major decisions for the children. Electronic communication between the parties is limited by choice and writing letters is not their strength. Oral communication is at best, problematic. Outside of the parties themselves, the opportunity for discussion between the two significant men in the lives of the children might be seen as potentially likely to descend into argument. Discussion between the two significant women is not happening at the moment and whilst the courtroom is not an ideal place for discussion, there was little sign of respect or willingness to compromise between them.
The Court has to deal with the question of parental responsibility. The concept of major long term issues is defined in s 4 of the Act. It refers to issues about the care, welfare and development of children of a long-term nature and the definition gives examples such as education, religious and cultural upbringing, health and living arrangements that make it significantly difficult for contact to occur with a parent. All of those issues arise in this case. To date, there has been no discussion about them. To her credit, the mother just went ahead and dealt with medical issues for J and M. The mother organised the schools. It was said in the expert’s report that the father is of Aboriginal heritage but that issue was not canvassed by anyone. As a general rule in a functional family, parents sit together and work out the issues that will affect their children. In a family fractured by the problems that have occurred here, the geographic tyranny of distance makes it harder but not impossible. Counsel for the Independent Children’s Lawyer proposed that the Court order a series of steps be taken which would amount to an exchange of information leading to a consensus and failing that, a decision being made by one parent. On the evidence, and bearing in mind the nature of the decisions that have to be made for these children, I find that course would not work.
The Act sets out a mandatory pathway for the Court to follow about how to first approach the question of parental responsibility.

The presumption and family violence

Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility for them. That presumption however is rebutted if the Court is satisfied on reasonable grounds that a parent has engaged in abuse of the children or family violence. I was not urged by the Independent Children’s Lawyer to make a finding about family violence. As this case was initiated after the commencement of the amendments in 2012 to the Act, it is worth contemplating whether there has been family violence. S 4AB provides:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
In this case, the mother alleged that she left Tasmania for Queensland because of the father’s controlling behaviour and his stalking. As I have indicated, the mother was so vague in her evidence about exactly what that meant that I could not make a finding that the father did any of the things in the time period that she was referring to. I also refer to the evidence of Dr O about her view as to why the mother left Tasmania which suggests that the father’s behaviour was not the only reason, as the mother saw it, for her departure. Another example of the evidentiary problem here was the mother’s reference to the language of the father towards her. The difficulty I have is that it seems on all of what I heard, all parties seem to be coarse in their expressions about the others. I doubt that any of that language could be seen to be intended to be repeated derogatory taunts. The mother also alleged the father’s conduct and that of his family members was “stalking”. If that was found to be the case factually, the father would be seen to have been caught in the definition. The mother’s evidence was more about whispers and giggles by the father’s extended family than by his own conduct. My very strong impression is that the father would be unlikely to be involved in covert activities; he is a man who is loud and “up front” with his behaviour.
The father did not allege anything like family violence in the definition above and it is not appropriate that the Court trawl through and look for things that might justify a finding that family violence has occurred when it is not specifically alleged. Accordingly, I agree with the submission of counsel for the Independent Children’s Lawyer that I can ignore the issue.

Discretion to rebut the presumption

If there is no specific finding of family violence, the Court has a discretion to rebut the presumption of equal shared parental responsibility on the basis that it is not in the interests of the children for their parents to have equal shared parental responsibility.
A guide to how that should be approached can be found in s 65DAC which provides that if an order is made by the Court for equal shared parental responsibility, the exercise of that parental responsibility involves making a decision about major long term issues concerning the children. The attention is drawn to the matters mentioned above about what those decisions cover. The provision means that the order is taken to require that decision or those decisions be made jointly by those persons. It is taken to require each of the persons to consult with the other about the decision and make a genuine effort to come to a joint decision about the issue. There is no prospect of that occurring even between the two significant women in the lives of these children at least at this stage. Thus, equal shared parental responsibility would not work and therefore it could not be in the best interests of the children for the parents to have that responsibility. The presumption is accordingly rebutted.

The application of the best interests principles, Section 60CC

In relation to the best interests principles generally, s 60CC sets out how they are to be determined. That section divides the considerations into primary and additional ones.
One primary consideration is the benefit to these children of having a meaningful relationship with both parents. There is no doubt from the evidence of Dr O and also Ms C that the children already have a meaningful relationship with both parents. The focus must however be on the benefit that they receive from that relationship. The mother has chosen to move to Queensland and removed the benefits that the children could obtain from her on a day to day basis. Whilst the 2012 anticipated move to Queensland was in the shadow of making an application to ultimately have the children also go to Queensland, the mother knew that her school summer holiday time was going to be largely leisure time. She knew that she was leaving the daily care and development tasks to the father and his partner. I accept the evidence of Dr O that the mother thought the arrangement would fail; it has not and all of the evidence shows that the children now have benefits from their meaningful relationship with their father. They will also continue to benefit from their interaction with the mother through holiday time and a regular telephone arrangement where they could be encouraged to talk about their lives and their activities.
A second primary consideration is the need to protect the children from physical or psychological harm arising from family violence. There is no reason to expect that these children will be put in that position in the future if the parties stay their reasonable distance from one another. The mother alleged a variety of complaints raised by the children such as the threats of the belt, arms being raised in the air and various threats. None of those were matters about which I could express any concern. Dr O expressed criticism of any of those forms of punishment but Ms C has convinced me that no such incidents are a problem in the father’s household. In the mother’s household, there are concerns. Y raised the issue of the New Year’s Eve camping argument between his mother and Mr W. I am not in a position to make a positive finding that it occurred but Dr O said that Y put it to her in such a way that she accepted that it was a reality for him. That, and the “nicking” incident, cause me concern about how safe these children would be in the mother’s care if they were so far away from the father’s family.
In this case, it is not necessary for me to distinguish between the two primary considerations save to say that I have given much greater weight to the safety of these children than to any desire by the parents or the children to be with one another.
In respect of the additional considerations, I have weighed up the fact that the views expressed by two of the children were to stay with their mother. Taking into account the evidence of Dr O on how those statements were made, I would give these children’s views very little weight in deciding where they should live. In saying that, I have taken into account the father’s very strong statement that if the children lived with their mother in Queensland, he would move there. Whilst he and presumably Ms C could do that economically, that is just one factor. These children have friends and family in Tasmania including the maternal grandmother. Uprooting them to Queensland even where the father could keep an eye on the things that concern me about the mother’s household, would hardly be good for them. They have settled in schools and they have regular medical specialists in Tasmania. They do not need or deserve to start all over again even if the material things offered by the mother would seem attractive at face value.
The children have loving and close relationships with both parents and certainly with Ms C. I am unsure how I could describe their relationship with Mr W. He had done a lot of work with them during the time before the mother moved to Queensland but all of the evidence points to the fact that they were not always comfortable with him. The mother’s evidence and that of Mr W about the children being coerced or manipulated to say what they did to Dr O does not have a ring of reality about it. These children were well-known to Dr O and she dismissed the fact that there was anything she could see to suggest the children had been manipulated. There is sufficient evidence to make me find that the statements of the children to the mother about these things were not spontaneous.
I am satisfied that Ms C is a very important figure in the lives of the children. Separation from her would be another disruption.
It is also important to recognise that it has only been a recent involvement of the father in decision-making about the children. I could not find that he did not want to be involved but rather that his relationship with the mother was so bad that any confrontation would have ended up being unproductive. Despite the mother’s assertion to the contrary, I do not find any suggestion that Ms C would not involve the mother in the information about the children. Whilst the mother now wants the children to participate in a settled life in Queensland, I agree with Dr O that it is still early days. The mother’s alcohol problems may not be immediately apparent but they have not gone away sufficient to convince me that there will never be a resorting to alcohol under stress. The same must be said about her relationship with Mr W. Whilst she effused happiness and love as did he, there is still much to see whether that relationship can withstand all of the pressures of business and raising a child.
I also do not accept the mother’s view about communicating with the children in the past months. She has telephoned them irregularly and came to Tasmania for a wedding without seeing them. Her explanation for the latter was that it was for a short time but why it was so remains unsaid. She was not integral to the business on her evidence because it belonged to her partner so I found it odd that she had to rush back to Queensland.
These children already miss their mother and she has to take some responsibility for that problem. If she maintains regular contact with them, the evidence shows that they can fit into normal family life without problems. I have great concerns if they were to be moved to Queensland that they would miss the settled life with their father and his partner.
There are clearly practical difficulties and expense if the mother remains in Queensland. Each party indicated that they could budget for the trips that they anticipated. The father’s partner manages their household well so I am comforted that what the father proposed would be difficult but possible. I propose to include a provision for the mother to spend time in Tasmania if she moves back there because I have some hesitation about her relationship.
The capacity of the father to care for these children seemed to be challenged by the mother by saying that he left all of the hard work to Ms C. I reject that. I was impressed by his candour about his role. He does spend significant time in a managerial role with these children as he does with Ms C’s children. That said, I cannot ignore the fact that regardless of how bad things were for the mother in late 2012, she chose to give the children to the father. She must have had sufficient confidence in his capacity as a parent even if it was assisted by Ms C. No-one suggested that the mother could have left the children with Mr W and gone to get her health in order. She took T with her rather than leaving her with Mr W. That is not a criticism but rather a fact that indicates that she thought the father had the capacity to care for the three children. In my view, he has proved she was right about his capacity.

That capacity focuses on the ability of a parent to provide for the needs of the children including their emotional and intellectual needs. Whilst the father may not be the most educated man in the world, he certainly expressed pride in the fact that he did homework with the children. He also made his views about telling lies clear so that I can conclude he has standards he lives by and wants his children to do the same. When the issue of his marijuana use was raised, he did not shirk it. He acknowledged he had tried to remove himself and had failed so he was reducing his intake knowing that it was still an illegal drug. Whilst any illicit drug use places the children at risk, I accept that the father here is endeavouring to put his children first. His ambition is to be drug free by Christmas. I hope for his sake that can occur.
I have expressed my concerns about what the mother did in 2012 and that is not a criticism. I intend it to be an indication that having taken that step, the father stepped into the role and did the task well. There is no good reason in the children’s interests for me to alter that and destabilise the children again. I think the father has demonstrated his level of capacity and responsibility but I am unsure about the mother.
I have already mentioned family violence and will not repeat my remarks. It is important that these children be removed from that environment. Ms C made clear that she will not tolerate it and the father has shown an intention to grow up.
These children have had a very unsettled childhood. One child seems to have Foetal Alcohol Syndrome and all children have either behavioural or learning problems. They deserve better than that. It is never too late to change parenting styles and roles and with Ms C at the forefront, I find that the father has shown he can and will raise these children so that they have security, love, care and encouragement whilst at the same time, have their mother in their lives. As such, it is important to make orders here that are least likely to lead to the institution of further court action. These children deserve to get on with being children.
I have mentioned telephone call problems. I think that these children deserve to have their privacy respected and should be able to speak with their mother but if they choose to use a speaker system so be it in another room. It is important in that regard to factor in that these are final orders. Destabilising the children by manipulation or interrogation will become evident easily in the future.
Accordingly, the orders set out at the start of these reasons are in the child’s best interests.

I certify that the preceding One Hundred and Fifty Eight (158) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 November 2013.

Associate:

Date: 1 November 2013

[2013] FamCA 857

1 November 2013

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