FERN & LUMSDEN

FAMILY COURT OF AUSTRALIA

FERN & LUMSDEN

[2014] FamCA 7

FAMILY LAW – CHILDREN – with whom the children live – parental responsibility – where father seeks final orders for the children to be removed from the mother’s care and to live with him – where mother seeks final orders for the children to remain in her care – where both parties seek orders for equal shared parental responsibility – where there is a high degree of conflict and animosity between the parents – where it is necessary to determine which parent is the most likely to facilitate contact between the children and the other parent to give effect to the objects of the Act – where the father has a past history of intravenous drug use and alcohol addiction – where the father’s criminal history is significant but largely historical – where the mother has a past history of intravenous drug use – where the mother’s perceptions of the father’s actions are of great concern – s 60CC factors – MRR v GR – finding of family violence – finding that the father is the more likely parent to facilitate and encourage the relationship between the children and the other parent – finding that the father has a greater capacity than the mother to provide for the emotional and intellectual needs of the children – finding that the father’s partner has had a significant and positive impact on the father’s attitude towards the responsibilities of parenthood – finding that if the children are to live in the primary care of the mother, that there would be a real risk of alienation from the father – presumption of equal shared parental responsibility does not apply – father to have the primary care of the children – children to spend time on alternate weekends and half of school holidays with the mother.

Family Law Act 1975 (Cth)

MRR v GR (2010) 240 CLR 461

APPLICANT:

Ms Fern

RESPONDENT:

Mr Lumsden

INDEPENDENT CHILDREN’S LAWYER:

Ms Catherine Bint, Solicitor

FILE NUMBER:

BRC

7047

2012

DATE DELIVERED:

15 January 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

11,12 and 13 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sara

SOLICITOR FOR THE APPLICANT:

Journey Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Curran

SOLICITOR FOR THE RESPONDENT:

Richard Gray & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Linklater-Steele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

CM Bint Family Lawyers

Orders

IT IS ORDERED THAT:

The children, S born … February 2006, M born … July 2007, H born … August 2008 and O born … June 2010 (“the children”), live with the Father.
The Father have sole parental responsibility for the children.
The children spend time with the Mother, as agreed in writing by the parents and failing agreement as follows:
a.on each alternate weekend from the conclusion of school Friday until the commencement of school on Monday (and when Monday is a public holiday or pupil free day then from the commencement of school on Tuesday);
b. for one half of each gazetted school holiday period as follows:
i.with the Father for the first half of the school holiday periods commencing in even numbered years and the second half in odd numbered years, with such period to include Christmas Day in even numbered years; and
ii.with the Mother for the first half of the school holiday periods commencing in odd numbered years and the second half in even numbered years with such period to include Christmas Day in odd numbered years; and
c.on the Mother’s birthday, and if the day is a school day, then from the conclusion of school until 6.00 pm, and in the event that the day is not a school day, then the children will spend time with the Mother between 9.00 am and 6.00 pm on that day; and
d.on the weekend which includes Mother’s Day pursuant to Order 3(a) herein, in addition to any other time as ordered herein.
On each of the children’s birthdays, and if the day is a school day, then the parent with whom the children are not living, will spend time with the children from the conclusion of school until 6.00 pm, and in the event that the day is not a school day, then such parent will spend time with the children between

9.00 am and 3.00 pm that day.
The children shall spend time with the Father on special occasions as follows:
a.on the weekend which includes Father’s Day pursuant to Order 3(a) herein, and the Mother’s time with the children will be suspended for that period; and
b.on the Father’s birthday, and if the day is a school day, from the conclusion of school until 6.00 pm, and in the event that the day is not a school day, then between 9.00 am and 6.00 pm that day.
The children shall communicate by telephone with the parent with whom they are not spending time as follows:
a. each Tuesday and Thursday between 6.30 pm and 7.00 pm; and
b.at any other time the children request with the parent with whom the children are wishing to speak to initiate the telephone call and the other parent to facilitate the children’s availability and inform the other parent by SMS of same.
For the purposes of organising the care arrangements for the children during school holiday periods:
a.school holiday periods are calculated as commencing from the conclusion of the last day of the school term and concluding on the morning of the first day of the following term;
b.the number of nights in each school holiday period is to be used to calculate one half of the school holiday period, and if there is an uneven number of nights the parent who has the care of the children in the first half of the school holiday period, will retain the children for the one additional night; and
c.the changeover times are to occur during school holidays at 12.00 pm mid-day on the day for changeover pursuant to these Orders.
During each school holiday period, the operation of the school term arrangements for the children will be suspended.
The Mother’s weekend time pursuant to Order 3(a) herein recommence on the first weekend of each school term.
Subject to these Orders and failing changeovers occurring at school, then all changeovers will take place at W Park, with only the parents to attend such changeovers and be restrained from having other family members or friends at or in the vicinity of the changeover.
Neither parent consume alcohol to above 0.05 per cent BAC at any time that the children are in their care.
Neither parent consume illicit drugs or be under the influence of illicit drugs at any time.
Neither parent physically discipline the children and each parent shall use their best endeavours to ensure that no third party physically disciplines the children.
Neither parent will verbally abuse the children and each parent will use their best endeavours to ensure that no third party verbally abuses the children.
Both parents and their respective partners shall be entitled to attend any public or school social, sporting or educational event involving the children, including but not limited to theatre performances, sporting events, school activities and functions, Christmas parties and other special occasions and that both parents:
a.inform the other parent of such events in a timely manner; and
b. communicate to the other if arrangements are made for the children to attend such an event whilst the children are not in that parent’s care.
Each parent will authorise and direct any school or other educational facility at which the children are enrolled, to nominate the other parent as an emergency contact person in the event of any emergency.
Each parent shall keep the other informed as to their residential address, telephone number, email address and advise the other of any change to these details within forty-eighty (48) hours of the change.
This Order irrevocably authorises any person or institution including but not limited to any doctor, carer, teacher, hospital, childcare institution, school and any social, sporting or recreational organisation to release to the parents all and any information (verbal or in writing) reasonably requested by the parents in relation to the children.
In the event that the children require medical or hospital treatment, the parent caring for the children will immediately inform the other parent via telephone, email or SMS.
In the event an urgent decision must be made by either parent and the other parent is not able to be contacted after all reasonable attempts having being made, or fails to respond to respond to reasonable requests for information, the parent then caring for the children will make that decision and inform the other parent by the most immediate means possible.
All decisions concerning any non-urgent medical procedures and treatment and non-urgent medication will be made jointly by the Mother and the Father.
Each of the parents be restrained from enrolling the children in any educational facility or extra-curricular activity which will impede or requires any commitment or attendance during the other parent’s time with the children, without the consent in writing from the other parent.
The parents encourage and not undermine the children’s relationship with the other and/or the other’s family members and/or the other’s partner and/or the other’s friends.
The parents not discuss these proceedings or any issues surrounding the parents’ dispute in the presence of or within the hearing of the children or permit any other person to do so.
Each of the parents will take all steps necessary to ensure that the children are not in the presence of persons including themselves:
a.engaging in harassing or intimidating conduct towards the other parent or members of their family or household; and
b.denigrating the other parent or members of their family or household to on in the presence of the children.
Each parent be restrained from using any recording devices and from recording the other parent or their interactions with the children.
Each of the parents be restrained from using a speaker telephone when the children are communicating with the other parent by telephone and are to provide the children with privacy during the calls.
The parents be of good behaviour to one another and not to commit an act of family violence as defined in the Family Law Act1975 (Cth) or which could be construed as an act of domestic violence as defined in the Domestic Violence and Family Protection Act 1989 (Qld)
Each parent will advise the other in writing within forty-eight (48) hours of the termination of their current relationship and/or a change to the relationship which results in the parent and their current partner ceasing to live in the same residence as each other.

IT IS FURTHER ORDERED THAT:

The Independent Children’s Lawyer explain these Orders to the children within seven (7) days of the date of this Order.
The Mother and Father undergo drug testing as and when required by the Independent Children’s Lawyer, for a period of six (6) months from the date of this Order.
The Independent Children’s Lawyer be discharged six (6) months from the date of this Order.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

AND IT IS RECOMMENDED:

The Mother and Father seek ongoing support for their drug and alcohol issues.

The Mother seek ongoing support for any personal or psychological issues from which she may suffer.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fern & Lumsden 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 BRISBANE

FILE NUMBER: BRC 7047 of 2012

Ms Fern

Applicant

And

Mr Lumsden

Respondent

REASONS FOR JUDGMENT

These proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”) concern the children S born in February 2006 (aged 7), M born in July 2007 (aged 6), H born in August 2008 (aged 5) and O born in June 2010 (aged 3) (collectively, “the children”).
The applicant, Ms Fern (“the mother”), commenced proceedings by way of her initiating application filed 6 August 2012. The respondent, Mr Lumsden (“the father”), filed a response to the mother’s initiating application on 24 August 2012.
Pursuant to the order of Federal Magistrate Purdon-Sully (as her Honour then was) made 8 August 2012, the children were independently represented in these proceedings.
The trial with regard to final parenting matters was heard before me over the course of three days in November 2013.The parties to these proceedings were represented by experienced counsel: Sara of counsel appeared on behalf of the mother; Curran of counsel appeared on behalf of the father; and Linklater-Steele of counsel appeared on behalf of the Independent Children’s Lawyer.
As the evidence below demonstrates, the central issues in these proceedings have been: with whom parental responsibility should lie; the future living arrangements for the children, specifically, whether there is sufficient evidence to demonstrate that a change of the children’s residence (from the mother’s to the father’s care), on a final basis, would be in the children’s best interests; and what time should be spent between the children and the non-resident parent.
The essence of these proceedings was succinctly captured in the written submissions of the Independent Children’s Lawyer handed up at the end of the trial, wherein it was stated:
[w]ithout doubt the greatest risk to the children and their future development is the detrimental effect on their emotional welfare posed by the high level of dispute between the parents.
At the outset of these reasons I wish to make it abundantly clear that neither the mother nor the father is without significant fault due to their actions and attitudes both during and before these proceedings. In short, the conflict between them has been appalling and has significantly affected the lives of their children. That has left me with the unfortunate task of determining which is the “least detrimental” of the two alternatives for the children’s care arrangements.
Central to my deliberation has been my consideration of which parent appears to be the most likely to facilitate contact between the children and the other parent to give effect to the objects of the Act – to ensure that the children are amply afforded their right to know and be cared for by both parents and to ensure that the children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.
Having extensively considered the evidence before me, the exercise of my discretion shall lead me to the conclusion that the best interests of the children shall be best served by ordering that the children live in the primary care of the father. The Independent Children’s Lawyer also supported such a view, as evidence by the concluding paragraph of the written submissions of Linklater-Steele wherein it was stated:
[i]n a difficult, finely balanced case where both cases and both parents have significant shortcomings, the ICL proposes that the Father on balance presents as the best option to advance the children’s welfare.
The mother relies upon the following material:
·    initiating application filed 6 August 2012;
·    notice of risk of abuse and family violence filed 6 August 2012;
·    affidavit of the mother filed 26 February 2013;
·    affidavit of Mr B filed 26 February 2013; and
·    affidavit of Ms C filed 8 March 2013.
The father relies upon the following material:
·    response to initiating application filed 24 August 2012;
·    affidavit of the father filed 30 April 2013;
·    affidavit of Mr D filed 26 April 2013;
·    affidavit of Ms E filed 29 April 2013;
·    affidavit of Ms F filed 29 April 2013; and
·    affidavit of Ms G filed 29 April 2013.
The Independent Children’s Lawyer relies upon the following material:
·    case summary document of the Independent Children’s Lawyer filed 28 October 2013;
·    family report of Mr J dated 17 December 2012 and filed 18 March 2013;
·    the transcript of the evidence of Ms K at the hearing of the matter before Federal Magistrate Purdon-Sully on 28 August 2012;
·    a number of documents produced under subpoenaed and tendered at trial;
·    the initiating application and case summary document of the mother;
·    the response and case summary document of the father; and
·    various orders of the Court.
The mother is 28 years of age having been born in 1985. At the date of trial she was unemployed. The father is 36 years of age having been born in 1977. At the date of trial he was employed as a casual unskilled worker.
The parties commenced cohabitation in 2002 and were married in September 2005. They separated under the same roof in November 2011, following the mother having commenced a new relationship with Mr B, and separation on a final basis occurred on 7 March 2012. There are four children of their relationship, S (aged 7), M (aged 6), H (aged 5) and O (aged 3). The mother has lived with her partner, Mr B, since March 2012. The father has re-partnered with Ms E, with whom he has recently begun living.
Upon separation on a final basis, the father and children left the former matrimonial home and went to live with the paternal grandparents. On the father’s evidence, he took the children with him in circumstances where he believed that he was more able to provide a “safe, loving and hygienic environment” for the children than the mother was. He also alleged that the mother was using drugs with her new partner, Mr B, at the time. It was the father’s evidence that the mother was aware that he was leaving with the children and did not attempt to stop this; the mother, however, contested this, stating that she opposed the father taking the children with him.
After the children left the family home with the father on 7 March 2012, the mother did not see the children again until May 2012 when an agreement was reached that the children would spend time supervised with the mother. In mid-July 2012, contact between the children and mother ceased again, resulting in the mother initiating proceedings in the Federal Magistrates Court (as the Federal Circuit Court was then known).
On 8 August 2012, interim parenting proceedings were heard on an urgent basis before Federal Magistrate Purdon-Sully. That same day, her Honour issued a recovery order pursuant to s 67Q of the Act for the children to be returned to the mother’s care. I note that her Honour did not provide written reasons for this decision. Interim parenting orders were also made for the children to live with the mother, and for the father to spend no time with the children until 28 August 2012, when the matter was to return before her Honour. In addition to those orders, her Honour ordered that the parties were not to consume illicit substances, physically discipline the children or verbally abuse the children, and that a Family Consultant interview the parties and the children.
On 8 August 2013, an incident occurred during the handing over of the children from the father’s to the mother’s care, pursuant to the orders of Federal Magistrate Purdon-Sully made that same day. Though I shall deal with this incident in further detail later on in these reasons, I shall briefly refer to the evidence of Ms K, Family Consultant, given at the hearing before Federal Magistrate Purdon-Sully on 28 August 2012, the transcript of which is relied upon by the Independent Children’s Lawyer.

Ms K gave evidence that there was an incident of violence involving the parties and also an “entourage” of each of the party’s relatives during the handover, which occurred outside of the Suburb I Police Station. The incident, to which the children were exposed, resulted in the attendance of five police cars. Apparently, two adults “were playing tug-of-war over one particular child” and one child witnessed the mother punch the father. It was also a matter of dispute between the parties as to whether the father had punched a police officer during the incident.
At the hearing of 28 August 2012, Ms K also gave evidence of other matters that had arisen during the course of her interviews with the family. Some of those matters included the cross-allegations of intravenous methamphetamine use by the mother and father, the issue of whether the father had continued to or ceased drinking alcohol, the matters raised by each of the parties with respect to the other’s parenting capacity, cross-allegations made of inappropriate physical discipline of the children, and inferences made by both of the parties about inappropriate sexualised behaviour of family members towards the children. The mother also raised her concerns that the father was a “sex addict”.
Ms K expressed her concern that one of the children had also been unnecessarily involved in the conflict as a result of the mother telling the child negative things about the father, which were then expressed by that child to Ms K.
As a result of the hearing before Federal Magistrate Purdon-Sully on 28 August 2012, interim orders were made by consent for the children to remain living in the mother’s care, and for the children to spend time with the father at the home of the paternal grandparents on two out of every three weekends. Changeovers were ordered to occur at the L Contact Centre.
Orders were also made by consent in respect of both parties in relation to alcohol, illicit drug use and physical discipline of the children. The father, in particular, was ordered to enrol in an ATODS program to address his substance abuse issues. A number of other orders were also put in place in an attempt to decrease the level of conflict between the parties in front of the children, and ensure the parties did not involve the children in their conflict or discuss “adult issues” with them.
Since the making of those orders, the relationship between the parties has remained one of high conflict and animosity. Each party is critical of the parenting capacity of the other, and this has had a severe effect on the children’s lives and development.
The children have remained living in the primary care of the mother, and have been spending two out of every three weekends at the home of the father.
The mother lives with her partner, Mr B. On the evidence before me it appears that Mr B has encountered some difficulties adjusting to the responsibilities of co-parenting four young children, especially in circumstances where the children are aware of the conflict between their parents. The mother and Mr B currently live in a three bedroom home in Suburb N.
The father lives at Town P with his partner, Ms E, who has two children of her own for whom she is the primary care giver. Ms E is a child care worker who demonstrated an overwhelmingly mature attitude towards the parenting of children during her evidence at trial. Indeed, she was the stand out witness in these proceedings and I was highly impressed by her manner and approach to the responsibilities of parenthood. The father and Ms E currently live in Ms E’s home, which has four bedrooms and a study.
The parties have been using a communication book, three volumes of which were tendered and marked “Exhibit 3”, which has proved of some utility, but has also been the cause of further dispute between the parties. As was detailed by Ms E at the trial, though Ms E made entries in the communication book, the mother was opposed to these entries and took the view that only the father ought make entries in the book. The book itself, at times, appears to be nothing but another means by which the parties are able to argue – it details various ongoing disputes in which each parent criticizes the parenting style of the other, and ultimately leads nowhere.
Issues were raised throughout the trial about the mother’s attitude towards actively supporting the time that the father spends with the children and the children’s relationship with the father generally. The mother has also raised allegations about the father’s domestic violence towards her and his failure to aptly care for the children and also that he has drugged the children, evidenced, as she claims, by the children returning to her care with bloated and swollen bodies.
The father has also raised his own concerns about the environment in which the children have been living while in the primary care of the mother. In his affidavit filed on 29 April 2013, the father annexed a number of photographs of the state of the former matrimonial home taken following final separation. Clearer, colour copies of those photographs were tendered and marked “A” for identification purposes at the trial and depicted the house in an unhygienic state of disarray. There were also photographs of what appeared to be hypodermic needles in the home.
As regards the competing proposals of the parties, the mother seeks orders for the parties to have equal shared parental responsibility for the major, long term issues concerning the children, for the children to live with her, and for the father to spend time with the children on alternate weekends from the conclusion of school on Friday until 3.00pm on Sunday and half of school holidays. As regards changeovers, the mother seeks that, where changeovers do not occur by way of the children being picked up from school or day care, the changeovers occur at W Park.
The father seeks orders for the parties to have equal shared parental responsibility for the major, long term issues concerning the children, for the children to live with him, and for the mother to spend time with the children on alternate weekends from the conclusion of school on Friday until the commencement of school on Monday and half of school holidays. As regards changeovers, the father also seeks similar orders to the mother. The father’s proposal also includes a change of school for M and S.
Curran for the father also submitted that ongoing orders should include a time of continued drug testing for both parents. I believe that this is necessary for a period of six months and that the Independent Children’s Lawyer organise the drug testing for the parents. Regrettably, the Independent Children’s Lawyer will be required to remain in the proceedings for a further period of six months.
The father and Ms E presently live in a home with four bedrooms and a study with Ms E’s two children, Q and R. The father states that, if the subject children are to live with him, M and R would share a bedroom, S and Q would share a room, and H and O would either share a room, or the study would be converted into another bedroom and they would each have their own room. The father also stated at the trial that though Ms E’s home, which she owns jointly with her former partner, is presently on the market, if it is sold he and Ms E intend to purchase a block of land and build another home.
The father also told the court that while he presently works up to thirty hours per week, his job is flexible, as is Ms E’s and so they would be able to organise the care arrangements for the children such that there would always be someone available to care for the children when they are not at school.
The Independent Children’s Lawyer sought orders substantially similar to those of the father. It was recommended that changeovers occur at T Shopping Centre.
I turn now to some specific issues which were raised in the trial. Those issues are: first, the allegations of alcohol and substance abuse; second, the conflict between the parties and the impact that has had on the children; third, the mother’s concerns about the father; and, finally, the father’s criminal history.
Cross-allegations have been made by both parties about the other’s past history of drug and/or alcohol abuse. Notably, both parties took steps in their evidence to ensure that any admissions they made relating to their past history of drug use also included the other party.
The mother raises concerns, as did the Independent Children’s Lawyer, that the father is not receiving any ongoing assistance or rehabilitation for his drug and alcohol issues. Further, the mother accepts that the father’s recent drug and alcohol (CDT) tests “…have been negative for the presence of drugs/alcohol”. However, despite that she notes that “…they are hardly determinative of whether the father continues to have a drinking problem as the tests requested and subsequently completed by the father…” (see the mother’s summary argument filed 7 November 2013).
During his family report interview, the father admitted to a past history of drug abuse that commenced with the use of amphetamines when he was aged 16. By 20 years of age, the father had progressed to taking amphetamines intravenously but stated that he ceased using at 22 years of age, save for two occasions early last year when he took the drug with the mother. On those two occasions, the father states that the drugs were supplied by Mr B. The father also admits to having smoked marijuana in the past, but says he never used it regularly and ceased doing so some years ago. As regards alcohol, in his family report interview, the father denied the mother’s allegations that he had engaged in periods of heavy drinking and said that at the time of the report, he had not consumed alcohol for three months.
Mr B raised his concerns about the father’s mental health issues, and issues with alcohol and substance abuse in his evidence at trial.
The Independent Children’s Lawyer also made submissions that the Court ought have significant reservations as to the father’s recovery from alcohol addiction because in the past, even while undergoing interactive intervention, the father relapsed into further alcohol abuse. It was submitted that the father is not presently engaging in any care for his alcoholism, nor is he undertaking any care with respect to his past history of drug use, and in particular, intravenous drug use.
The Independent Children’s Lawyer also emphasised the father’s
…attempts to deflect responsibility for drug use and acts of domestic violence as being entirely the fault of the mother [demonstrating] the shortcomings in the father’s ability to process the facts and accept responsibility for his own actions…
in addition to the father’s “failure to make accurate admissions about his past level of drug use, pornography addiction, and his own personal history to Mr [J]” (see the written submissions of the Independent Children’s Lawyer handed up to the court on 13 November 2013).
At trial the father submitted that he no longer has issues with drug and alcohol abuse. His partner, Ms E, also made it abundantly clear during her evidence that she would not tolerate the father using drugs of any kind. I am not satisfied on the evidence before me that the father is presently taking drugs of any kind. However, in light of the father’s past issues with drug addiction and alcoholism, although I will be ordering that the children are to be placed in the primary care of the father, I will be recommending that the father seek ongoing support for his drug and alcohol addictions.
The father has raised his own concerns about the mother’s past history of drug use. In his affidavit of 29 April 2013 he deposed that during the relationship the mother “…[s]pent her money on herself and drugs. She pawned our wedding rings to obtain money for her drug addiction.” I note that the mother, at paragraph 18 of her affidavit of 26 February 2013, accused the father of doing the very same.
The father also submitted that Mr B also had a drug problem, evidenced by the fact that Mr B had supplied drugs to the mother and the father. As noted above, in support of these claims, the father provided photographs to the court which appear to depict there being hypodermic needles on shelves in the mother’s home. It must be noted, however, that those photographs which were taken by the father were taken on 7 March 2012, being the day that he moved out of the former matrimonial home. The mother denies that Mr B is a drug dealer and has ever used drugs (see the affidavit of the mother filed 26 February 2013 at paragraph 71).
I am not satisfied on the evidence before me that the mother or Mr B are presently using drugs. However, in light of the mother’s admissions that she did use drugs, including intravenous drugs, in the past, I think it is desirable that she be drug tested at the request of the Independent Children’s Lawyer for a period of six months.
Turning to the second specific issue identified above: the conflict between the parties and the impact that it has had on the children has been an ongoing issue for the mother and father. Early evidence of such conflict was provided by Ms K at the hearing before Federal Magistrate Purdon-Sully on 28 August 2012. Ms K referred to her interviews with the children, specifically, the comments they had made to her about the conflict between the mother and father. She stated that
“…[o]ne of [the children] said that they would hide in the laundry when their parents fought. Another said that they saw their parents yelling and hitting each other. Another said that they swore… [s]o the children have obviously been exposed to that. The children have all scared [sic] that they’re scared when that happens.
Ms K also said, in respect of her interview with M that, in response to her question about what he thought of the parents fighting, M “…rolled his eyes and he said, ‘I told them to stop, but they won’t stop – they wouldn’t stop.’” As detailed later in these reasons, the family report also demonstrates the children’s perceptions and understanding of the conflict.
The most troubling incident of conflict during the history of these proceedings was that which occurred on 8 August 2012 when, pursuant to the order of Federal Magistrate Purdon-Sully, the children were to be transferred from the father’s primary care into the mother’s primary care.
Following the making of the orders, the parties attended the Suburb I Police Station for the changeover. Each of the parties in their respective affidavit material deposes their own version of the events of that evening (see the affidavit of the mother filed 26 February 2013 at paragraphs 103 – 140 and the affidavit of the father filed 29 April 2013 at paragraphs 47 to 52).
In the mother’s affidavit material, she depicts the father and the members of his family as being the aggressors. She states that the father arrived at the police station with his step-brother, the paternal grandmother and the paternal step-grandfather. The mother states that when they arrived, she had her sister, who was attending as her own support person, telephone triple 0 as they became scared for their safety and that of the children.
According to the mother, the tensions began to build when the children were withheld from the mother by the paternal family until the time was exactly 9.00pm. The mother deposes that she was told by the paternal step-grandfather “[y]our [sic] dead you hear, your [sic] fucking dead.” As the mother and her sister headed for the police station, the mother’s sister allegedly overheard the father’s step-brother state that “…he had a knife and that he hoped that [the maternal grandfather and Mr B] were coming to kill him.”
Shortly after the mother and her sister alerted the police inside the police station of the situation, the maternal grandfather, the mother’s brother and Mr B arrived, and following further threats which the mother alleges were made by the father’s brother, the altercation began.
The mother deposes that following the instructions of the police officers, she proceeded to place the children in the car of the maternal grandfather. She deposes that she was approached by the father and his brother who attempted to pull the children out of the car. The mother alleges while this occurred, the father “…pushed [her] out of the way, [and] pinned [her] up against the car door bruising [her] back.” The mother also deposes that while this was happening, the father’s brother assaulted two of the police officers.
The mother deposes that she was then punched by the paternal grandmother and that her sister was also attacked by the paternal grandmother. The mother deposes that Mr B was also punched in the face by the paternal grandmother.
The mother deposes that the children bore witness to the altercation.
According to the father, “[n]either [he] nor the members of [his] family were responsible for the incident; the instigators were [the mother] and her family.”
The father deposes that at the changeover outside of the Suburb I Police Station, while he and his family were saying goodbye to the children he noticed the mother and her sister approaching two police officers who then came towards him. The father deposes that he was told by the police officer who approached him to “shut up” when the father attempted to explain the situation to the officer, and that the police officer then walked up to the paternal step-grandfather and told him “I’ve had enough of your fucking shit.”
The father deposes that a scuffle then took place between the paternal step-grandfather and the police officer, and then as both police officers were unwilling to listen to the father’s attempts at explaining the situation, the father telephoned the Suburb V Police Station.
The father deposes that the mother’s father and Mr B then arrived and that shortly thereafter, he noticed the mother attempting to put the children, S and M, into a car without allowing the children to say goodbye. The father alleges that he saw the mother and her sister “…restraining [S] by her pyjamas causing her to choke…” and that upon seeing this, he went to assist the child. The father alleges that the mother then struck him in the face and told him to “fuck off” and that the maternal grandfather then also struck him in the back of the head. The father deposes that he did not retaliate and that “…[M] ran out of [the maternal grandfather’s] car and was screaming for me whilst [S] was being held in the car screaming and watching me be assaulted.”
The father deposes that while several police officers attended the scene and the incident calmed down, none of the police officers took statements or details from any of the parties involved. He also deposes that, though the paternal step-grandfather was charged by police in respect of the incident, the charges were later dropped.
At the interim hearing of 28 August 2012 before Federal Magistrate Purdon-Sully (as her Honour then was), Ms K, family consultant, gave evidence in respect of an urgent family report that she had prepared. The Independent Children’s Lawyer relies on the transcript from that hearing which provides some background into the past history of conflict between the parties prior to the date of that hearing.
In particular, I refer to the following exchange between Federal Magistrate Purdon-Sully and Ms K:
THE WITNESS:…Now, the issues which are pertinent relate to allegations of family violence. Both parents make counter allegations about the other being violent. Police have attended the home numerous times with respect to family disputes and intervening in those. The mother has a one-year protection order which she applied for. That expires on 17 April 2013. The father had a temporary protection order which expired on 23 May 2012. He didn’t renew that. He withdrew. He’s stating that’s because the children were in his care at the time, and they attended mediation at that stage and, therefore, he didn’t feel it was necessary to continue that. From what I can gather from what the children tell me is they were exposed to the violence between their parents.
HER HONOUR: So the children have told you that?
THE WITNESS: Yes, the children have told me that. One – look, the children were very young and was very difficult to interview them. However, some of the – I got a little bit of information from them each. One of them said that they would hide in the laundry when their parents fought. Another said that they saw their parents yelling and hitting each other. Another said that they swore.

In addition to the conflict and animosity which continues to exist between the parties, both parents have demonstrated a degree of animosity towards each other’s current partner.
The mother has demonstrated a complete inability and lack of desire to co-operate with Ms E. During her oral evidence, the mother described her relationship with Ms E as being non-existent and that she has not sought to establish any relationship with Ms E. Such attitude is also evidenced by the mother strongly opposing Ms E making entries in the communication book, and also by the mother’s comments during her oral evidence that she should speak with the father instead of Ms E in relation to issues concerning the children. Such behaviour on the mother’s part demonstrates a complete lack of insight into how to co-parent the children with the father in a mature way and in a way which gives effect to the changing family structures. The mother’s attitude towards Ms E has only unnecessarily heightened the conflict between the parties.
Similarly, matters have been raised by the mother and Mr B about the children’s attitude towards Mr B and whether that has been negatively influenced by the father. Mr J, at paragraph 10.13 of his report explained that the mother and Mr B had informed him of the negative comments that were being made about and to Mr B by the children. In particular, there were comments such as “Daddy hates you” and “Daddy’s going to kill you”. Though Mr J acknowledged that no such comments were made by the children to him, he was open to the possibility of such comments having been made.
Turning to the third specific issue as identified above, concerns were raised during the trial about the mother’s views that many of the father’s actions are designed to, as was stated by the mother, “get at her”. He did so by attempting to “set [her] up” and “play mind games” with her.
The mother gave examples of this behaviour while under cross-examination at the trial. One such example, she stated, was the father attending M’s classroom to assist the child with his behavioural problems. Rather than viewing this as an ultimately positive thing, the mother was adamant in her view that the father sought to “stir up trouble”.
The mother also drew upon a recent incident in which the father bought a birthday present and card for the children to give the mother. Again, rather than seeing this as a positive gesture, the mother stated that this is the father’s attempt at playing “mind games” with her, and also an attempt to make himself look good for the court proceedings.
At trial, in her oral evidence, the mother also gave evidence that the father had been drugging the children. In support of this, the mother tendered a USB stick containing photographs of the children, downloaded from her mobile telephone, which had been taken following contact between the children and the father. Colour versions of those photographs were also tendered at the trial as an aide memoire. The mother alleged that the photographs depicted the children as being bloated, swollen and bruised.
Having reviewed those photographs, in light of their quality and the inability to compare the photographs of the children before and after contact, I am not satisfied that the children returned from the father’s care in the state which the mother has described. It is evident that there are some red marks on the children. However, absent any reports from treating medical practitioners following contact with the father, I am not prepared to make such a finding as the mother seeks.
I do note, however, two matters that concern me greatly as a result of these photographs. The first is that the mother did not take the children to a medical practitioner when she alleges that they repeatedly returned from the father’s care in such a state. My second concern is linked to the first; that is, instead of the mother taking the children to a doctor, she proceeded to take her own photographs of the children’s bodies, and in particular, in one photo, of their genitals. This raises great concern with me about the emotional effect this would have on the children, who are knowingly being photographed after contact with their father. Such concerns go to my consideration of the mother’s ability to facilitate contact between the father and the children and to encourage a relationship between them, and, importantly, the mother’s capacity to provide for the emotional needs of the children.
In respect of the abovementioned matter, the father is not without fault in having undertaken similar actions by taking photographs of the children (see the photographs annexed to the father’s affidavit of 29 April 2013). There is very little that distinguishes the inappropriateness of the parties’ actions, save for the fact that the mother, in light of the seriousness of her suspicions, should have taken the children to a doctor for it to be determined whether or not the children had been drugged.
Another example of the mother’s concerns about the father was detailed at paragraph 4.14 of the family report of Mr J filed 18 March 2013. The mother complained to the report writer in her interview that the father attempts to obtain information about her household by playing “I spy” with the child, S, while on the phone with her. In that same family report, Mr J also provided a further example of the mother referring to her suspicions that the father is attempting to manipulate the children. That example was that:
…[M] got off the phone to his father and told [the mother], “Mummy, I’m getting a big surprise from Daddy because I did good on the weekend” and then not answering [the mother] when she asked him what he had done that was good.
The mother’s abovementioned actions cause me great concern and only reinforces the submissions made by all parties that the animosity between the parties remains high, and that there are no signs, at the very least on the part of the mother, of this stopping in the near future.
Finally, as regards the father’s criminal history, submissions in respect of this were made by counsel for both the mother and the Independent Children’s Lawyer during the trial. Subpoenaed documents from the Queensland Police Service were tendered by the mother and marked “Exhibit 5”.
The father’s criminal history includes various offences including two charges of armed robbery committed in 1995 and 1996 for which he served time in prison. Other offences include: assaulting and obstructing a police officer in 2000 (for which the father was convicted and fined), behaving in a disorderly manner and again, obstructing a police officer in 2002 (for which the father was convicted and fined), drink driving in 2004, and dangerous operation of a motor vehicle and wilful damage in 2009 (for which the father was convicted, fined and was disqualified from driving for a period of 6 months). While I treat these offences with concern, and note the written submissions of the mother that “[t]he Father’s proclivity to violence is supported by his criminal record which substantiates a history of violent offending…”, I emphasise that, save for the final offence mentioned, the offences are historical in nature. Importantly, the most concerning of these offences, being the two charges of armed robbery, were committed almost twenty years ago when the father was not yet twenty years of age.
Further, I am confident that his relationship with Ms E has also had a positive effect on the father, who is well aware that Ms E would not tolerate domestic violence on any level, or allow illegal drugs in her home. Such attitudes were specifically expressed by Ms E during her oral evidence at trial. Such finding was also supported by the written submissions of the Independent Children’s Lawyer wherein it was stated:
Ms [E] is unlikely to put her own children at risk in allowing the father to consume alcohol in excess or being under the influence of drugs. The family resides in her house.
The court would find that it is unlikely that Ms [E] would tolerate domestic violence on any level.
On 19 November 2012, the parties attended upon Mr J, family consultant, for the purpose of family report interviews. Mr J prepared a family report, a summary of which was provided to the parties by way of letter on 8 December 2012, and the full report was prepared on 17 December 2012.
The report canvassed issues such as the conflict between the parties, the impact which that conflict has had on the children, the history of the parties and their relationship, the parties’ relationships with their new partners, specific incidents such as the incident of 8 August 2012, and any views expressed by the children.
Although an updated report was not prepared, the parties at trial consented to proceed without one. In light of that report having been prepared some twelve months ago, I appreciate that it may not necessarily reflect the present situation that exists now between the parties. As such, I shall attach such weight to the report as I deem appropriate in light of the evidence which was put before me at trial.
I note that, in his report, Mr J expressed his view that he did not feel that he could make final recommendations until he reviewed the family again. Despite that, Mr J did make the following evaluation and recommendations in respect of the parties:
10.20At this stage in the process, each parent is very keen to find fault with the other and externalize blame. There are matters of evidence that will need to be investigated further with respect to the parents’ various allegations about the other. However, given that at this stage, the father is the parent with the more dubious history (criminal history, drug and alcohol abuse, allegations of sexual abuse of the mother, alleged pornography addiction), I would recommend that the children live with the mother and spend weekend time with the father.
Notably, at trial, when these issues and allegations were tested before the court, the father presented as a more credible witness than the mother. The mother’s evidence raised significant concerns in my mind that she posed a real risk of alienating the children from their father, and indeed, Sara of counsel conceded at paragraph 18 of his written submissions “[p]erhaps the mother did not do herself any favours in the witness box.”
In the report, Mr J emphasised the high level of conflict between the parties. He concluded that the mother appeared to be the more stable of the two parents at the time of the interviews, however, he was also of the view that so long as the father was not abusing drugs or alcohol (the father’s past history of addiction caused Mr J concern), the children would be safe in his care. The report also demonstrated that the conflict between the parties feeds into every aspect of the communications between them. In support of this I refer to Mr J’s comment that the mother had been continuing to use the communication book to “criticise and made the occasional sniping remark”, and also his discussion about the parents’ attitudes to enabling phone contact between the children and the other parent. In respect of the incident of 8 August 2012, Mr J noted that the children “witnessed violence on that day and the event was appalling”.
Mr J also emphasised the difficulties that Mr B, who also participated in a family report interview, had been experiencing in adapting to living with four young children. Two of the children had made comments to Mr J that Mr B may have been physically disciplining the children, which raises some concerns.
Mr J raised concerns about the father’s past addictions to drugs and alcohol and acknowledged that the father would need to seek continuing support for those issues (see paragraph 10.25 of the family report).
As regarded the future parenting arrangements, Mr J recommended that this is a matter where the most suitable arrangement would be for the children to live with one parent and spend weekends with the other. He went on to say that “[e]qual time or significant and substantial time arrangements are in my view contraindicated because of the history of conflict between the parties.” I attach significant weight to this recommendation as it is the case that since the family report, in light of the evidence before me, the conflict between the parties does not appear to have sufficiently subsided.

The Law

The making of orders in respect of parenting proceedings is governed by the statutory framework detailed in Part VII of the Act which comprises ss 60A through to 70Q. As it is the case that these proceedings were initiated after the legislative amendments of 7 June 2012, my consideration and application of the law shall incorporate the Family Violence Provisions now in place.
Secondary to the legislation is the case law which provides guidance to the manner in which the legislation is to be approached. Particularly in respect of this approach, I refer to paragraphs [6], [7], [8], [9], and [13] of the decision of the High Court (comprising French CJ, Gummow, Hayne, Kiefel and Bell JJ) in MRR v GR (2010) 240 CLR 461.

Determination of “best interests”: the section 60CC considerations

I shall not deal with each of the section 60CC considerations seriatim and refer to my earlier discussion and findings in respect of this matter insofar as they relate to those considerations.

Section 60CC(2) “primary considerations”

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

On the evidence before me, it is without doubt that each of the children has a meaningful relationship with each of the parents. During their time spent with the children, the parties are engaged and interested in the children and their development.
I find that, if the children are to enjoy the benefit which they derive from their relationship with each parent, thereby giving effect to the objects of Part VII of the Act, then it is imperative that the children live in the care of the father.

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

Allegations of family violence have been raised throughout the proceedings by both parties. The mother alleges that the father was violent and abusive towards her during the relationship and that the children bore witness to this on occasion. The father alleges that Mr B physically disciplines the children, and such allegation appeared to be confirmed by the comments of both S and M at the family report interviews in late 2012.
The incident involving M having a black eye has also been raised by the father. M attended the L Contact Centre in late 2012 and had a noticeable black eye. The mother and Mr B state that this occurred as M was running in the dark and ran into the arm of a chair. The father alleges that M’s black eye was caused by Mr B. In the family report, Mr J was unable to come to any conclusion as to the cause of the injury, stating that further investigation was required. The evidence before me is insufficient to find that Mr B physically harmed M so as to cause the black eye.
The mother, at paragraphs 16 - 18 of her affidavit of 26 February 2013, deposes that during the relationship, the father was regularly violent towards her and was emotionally abusive. The mother claims that the father, on a number of occasions, forced sexual intercourse upon her, and also attempted to do so in front of the children. As regards the emotional abuse, the mother states that, inter alia, the father would regularly call her names such as “crack whore” and “whore” and would tell her that she was “not a good mother”.
I find that the incident which occurred outside the Suburb I Police Station, irrespective of whichever account is the more accurate, was a clear incident of family violence, as per the definition set out in section 4 of the Act, to which, as conceded by both parties, the children were exposed.
The father has raised concerns about the mother’s capacity to care for the children, which, in the circumstances, may place them at risk of neglect. The father annexed a number of photographs of the former matrimonial home in a terribly unhygienic state and also annexed text messages, sent from the mother to him, which are of great concern. I note that there is no date on which each message was received and it is unclear whether they were all received on the same day.
The first of the text messages was received at 7:04am and read “I cant do this no more, im a bad mum, i just feel angry n wanna die, i cant get motivated,,”. The second text message was received at 7:03am and read “I owe drug money cunt tnite….call”. The third text message was received at 7:08am and read “Im just cut myself n bleeding.. Happy now look wat u do to meee. Ambo n police on way , there gunna …”.
The mother, in her affidavit filed 26 February 2013 also raised her own concerns about the children being neglected while in the father’s care. At paragraphs 242 to 244 of her affidavit, the mother refers to the children presenting to the mother in a dishevelled and unclean state, and often hungry. At paragraph 162 of the morther’s affidavit, she also detailed how the children returned to her care in August 2012 she
…observed that their clothes were not clean and they came with one pair of clothes, a bag, shoes, one drink bottle, one pair of knickers and [M] had no jocks on and smelt strongly of urine. [O’s] skin was extremely dry all over his body and he had a black bruise on the side of his upper thigh. [O] told me that [the paternal grandmother] smacks him with a wooden spoon for going into their office. The children have told me multiple times that they feel safer at Mummies [sic] house than at [the paternal grandparent’s home].
In respect of the mother’s evidence on this point, I note that these observations were made prior to the father and Ms E commencing co-habitation. In light of both the evidence of Ms E, coupled with her commendable character and responsible attitude to parenting, I find that even if the mother’s evidence were to be accepted on this point, it is unlikely that such neglect would be occurring in the home of the father and Ms E at present.

Section 60CC(3) “additional considerations”

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

In the family report, Mr J detailed his interviews with S (6 years, 8 months of age at the time of the interview) and M (5 years and 4 months of age at the time of the interview) and to a lesser extent, H (4 years and 3 months at the time of the interview). Mr J did not interview O as he did not believe O was of a suitable age to be interviewed.
Despite her young age, S was acutely aware of the conflict between her parents and, specifically, the mother’s hostility toward the father. Mr J stated (at 7.9 of the report) that S had informed him that she liked visiting her father “…although she was sad when she lived with him and did not see her mother…” and that she was “happy to return to her mother’s home in October [2012].” However, despite those comments, Mr J stated at paragraph 7.13 of the report:
[S] was unable to express any wishes about her living arrangements but did express a preference for her parents to get back together. This was exemplified in her three wishes:
1. “Mummy and Daddy get back together”.
2. If that could not happen, “Live back to Dad’s … because
Daddy is much more funner because he takes us to the movies
sometimes.”
S gave positive accounts of the activities she engaged in while in the care of the father and also made reference to Ms E in those accounts. I note that at the time of the family report interviews, Ms E and the father were not living together.
I also refer to the following comments made by S as detailed by Mr J at paragraph 7.14:
When specifically asked if everyone is kind to her, [S] at first said, “Yes”, but to a follow up question, when asked if anyone was “not nice”, she said, “[Mr B] … he yells at me and [M]”. Responding to a specific question she said that her dad does not yell, but her Mum yells sometimes.

In respect of S’s comments, I note that although she was aware of the ongoing conflict between her parents, and appeared to have made her decision based on her first hand experiences with the parenting styles of both of the parties and also their respective partners, S was only six and a half years of age at the time, and so I attach limited weight to her views.
Neither M nor H expressed views about which of the parents they would like to reside with.
Each of the parties has also provided hearsay evidence that the children have informed them that they would prefer to live with them, and have also referred to behavioural issues which they have had before and after changeovers. In light of the hostility between the parties, I attach little weight to the parties’ comments in respect of this issue, but I note that as the father was the more credible witness of the two parties, if any account is to be preferred it ought be the father’s.

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

I have earlier discussed the relationships between the children and each of their parents. However, it is necessary also to consider the relationship between the children and respective partners of the parties.
I have previously raised the issues which have arisen for Mr B in adapting to parenthood in circumstances where the children have been deeply affected by the conflict between their parents, and this has certainly had an impact on their behaviour. I am confident that Mr B is interested in strengthening his relationships with the children and this will no doubt become a lot easier once final parenting orders are made.
As regards Ms E, I find that she has a good relationship with the children and that her mature attitude to parenting has been informed greatly by her occupation as a child care worker.

(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

In the circumstances of this case, particularly in light of the high level of conflict and animosity between the parents, considerable weight must be given to this consideration in order to ensure that the children are afforded their right, as set out in the Act, to have a meaningful relationship with each parent.
It is clear on the evidence before me, provided in the written material of the parties and the evidence given at trial, that the mother is unwilling to facilitate a close and continuing relationship between the children and the father. At the outset of this section, I note that the mother accepted at trial, when asked by Curran, that she did not “trust [the father] as far as she could throw him”. There are a number of matters which satisfy the making of such finding.
In support I refer to the evidence before the Court about an incident in October of 2013 when the mother would not allow the child, M, to spend time with the father on the father’s birthday. In defence of her actions, the mother stated that the weekend upon which the father’s birthday fell “was [her] weekend” despite Curran of counsel bringing to her attention that the weekend in question was a long weekend and she would have still spent time with the child for two whole days.
The mother’s evidence on this point at trial demonstrated that she was entirely lacking insight about the importance of the father and M spending time together on the father’s birthday. The mother stated in her evidence that it was “not a big deal” that the father did not spend time with the child on that day, and expressed her view that the best interests of M would not be advanced by seeing the father that day.
Similarly, such attitude of the mother was also demonstrated in July 2013 when, by way of a note given to the children’s school, the mother did not allow the child, S to be collected by the father (who attended to collect M from school) for the purposes of attending M’s birthday. When asked by Linklater-Steele why she did not allow this, the mother replied that she had assumed that this was “only for [M’s] special occasion” and that she had not taken the view that it would be either good or positive for S to attend M’s birthday party, organised by the father.
My finding in respect of the mother in relation to this consideration is also supported by the mother’s resistance of the father attending M’s classroom unannounced to assist the child with his school work in circumstances where the child’s school attendance has been reduced due to his current behavioural issues. Curran of counsel made reference to the comments of M’s teacher that she was happy to have the father present as he was “helpful” but also referred to the teacher’s comments that M would become distressed by the father attending school because he knew that his mother “wouldn’t be happy”.
It was the mother’s view, however, that M becomes very stressed when seeing his father at school and that the after effects are not good for him. She took the view that the father was only attending the child’s classroom to “stir up trouble” for the court case and did not accept the proposition of Linklater-Steele that the father’s reason for attending was to assist M with his behavioural issues.
As regards the reason for M being distressed by the father attending his classroom, I accept the evidence of M’s teacher and emphasise the mother’s lack of understanding about the need for M to maintain a relationship with his father, giving rise to both her unwillingness and inability to facilitate and encourage the relationship between M and the father.
Also in support of my finding in respect of this consideration, I refer to the mother’s view, as she expressed at trial, that the father spending time with M is not a good thing. The mother is of the view that M’s current behavioural issues, in particular his “hitting” and “lashing out” at other children, are as a result of spending time with his father with whom M will often “play fight”.
Mr J, in the family report of 17 December 2012 referred to the mother’s actions in not affording the children any privacy when speaking to the father. Instead, the mother and Mr B would place the telephone on loudspeaker and stand next to the telephone and listen in to the conversations between the father and the children. It was also alleged, and confirmed by the child, S, that the mother would hang up on the father when the children were having telephone contact with him.
Finally, in support of my finding, I refer to the mother’s general attitude towards the father, and specifically her concerns that he is trying to “get at her” and is playing “mind games” with her. Such attitude, in my view, is not conducive in the circumstances to the mother being able to support and facilitate a relationship between M and the father.
Conversely, I do not have concerns with respect to the father’s willingness and ability to facilitate and encourage the children’s relationship with the mother. This has been evidenced by the father taking active steps to encourage the children’s relationship with the mother while in his own care. In support of that finding I draw upon the incident mentioned above in which the father provided the children with a birthday gift and card to give to the mother for her birthday. As noted, this gesture was ill-received. I am also fortified in my above finding in light of the positive influence that Ms E has had, and continues to have, over the father’s approach to parenting.

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

I am conscious of the comments of Mr J in the family report, specifically where he stated at paragraph 10.24, “[i]t would be important not to destabilize the children’s schooling. [S] attends school and I believe [M] will be attending Prep in 2013.” While I accept that the children will no doubt be impacted by a change of residence and a change of schooling, as was proposed by the father, this impact will be outweighed by the benefit of being in the father’s care.
In support of such finding, I refer to the following matters:
a)Over twelve months have lapsed since Mr J prepared the report;
b)Mr J specifically stated at paragraph 10.22 of the family report that he did not feel he could make final recommendations and that he would “like to review the family’s functioning prior to any final hearing before making final recommendations”;
c)Mr J did not review the matter again; and
d)Since the release of the report, the father has proven to be the more stable parent, largely, I feel, due to the positive influence from Ms E and the support and guidance she has given him with his attitude towards parenting and his own personal issues generally.

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

I find that, owing to the mother’s lack of insight into the effect of the dispute between the parties on the children and also the mother’s attitudes towards the father and how this has impacted upon the children’s emotional wellbeing, the mother has a limited capacity to provide for the emotional needs of the children.
In support of this, I also refer to the mother’s omission of relevant information to Dr A, paediatrician, for the purpose of preparing a report in respect of M. As was raised by Linklater-Steele at the trial, the mother, in providing a background of the child, focussed on the negative points about the father’s behaviour, and did not include otherwise relevant matters in respect of herself. This is indicative of the mother losing sight of the object of the report – to address M’s behavioural issues.
As regards the mother’s partner, Mr B, in respect of this consideration, it is apparent on the evidence before me that he has struggled with his role as a parental figure for the children. It is apparent that the children, as described by Mr B in his oral evidence, have been “openly defiant as individuals and as a collective”.
By way of his attendance at M’s class and his endeavours to address the child’s behavioural problems, coupled with the insight he showed into the needs of each of the children in dealing with the separation of the parties, I find that the father has a greater capacity than the mother to provide for the emotional and intellectual needs of the children.
As regards Ms E, I found her to be of commendable character. During her oral evidence, Ms E came across as a person clearly apt to provide for the aforementioned needs of the children, especially in light of her qualifications as a child care worker. Ms E has a great deal of insight and understanding in respect of the issues with which the children are dealing. I particular, I note Ms E’s comments made in oral evidence regarding the children’s capacity to lie relative to their age and development, and how she therefore analyses and interprets any comments of concern that the children make to her with respect to those matters. Ms E presented as a confident, approachable and understanding individual and I have every confidence in her capacity to provide for the intellectual and emotional needs of the children.

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

In light of the high level of conflict in these proceedings and the impact it has had on the children, and their parents, I am without doubt that it is necessary that final orders be made in these proceedings.

FUTURE CARE ARRANGEMENTS

In light of my findings of family violence, the presumption of equal shared parental responsibility in section 61DA of the Act does not apply. Though I acknowledge that the mother, the father and the Independent Children’s Lawyer all sought orders for shared parental responsibility, I am inclined to make orders for the parental responsibility for the major long-term issues relating to the children to rest solely with one parent. I am fortified in that conclusion based on my above findings, and particularly, the high level of conflict that exists between the parties in every facet of their communication. As such, I am of the view that the best interests of the children would be best served in circumstances where the father, as the parent with the more mature attitude towards his responsibilities as a parent and the needs of the children, has sole parental responsibility in this regard.
I find that in light of my above findings, to order that the children live in the primary care of the mother would place the children at a very real risk of being alienated from the father and would jeopardize their right to a continued, meaningful relationship with the father. I find that the father is the parent with whom the children should live, and that the children ought continue to have a meaningful relationship with the mother. Such relationship shall be enabled by way of alternate weekend contact during the school terms, half of school holidays, as well as special occasions as detailed by the orders herein.
In light of the ongoing level of conflict between the parties, it is necessary that the parties have as little interaction as possible to ensure that the children are protected from becoming exposed to further incidents of family violence. As such, the orders herein seek to minimise that interaction as much as possible.
As regards the distance between the parties homes, specifically when changeovers are concerned, I note that the mother did not indicate at trial that she was opposed to driving the distance to pick the children up and drop them off to school for the purposes of alternate weekend contact in the event that I was to order that the children to live with the father. Where it is not practical for changeovers to occur by way of school pickups, then I shall make orders, as proposed by the mother, for changeovers to occur at the W Park.
Finally, I sincerely hope that the parties and their respective partners read and deeply consider the issues raised in these reasons and put aside their differences for the sake of the children who have been severely affected by the history of conflict between the parties.

I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 15 January 2014

Associate:

Date: 15 January 2014

[2014] FamCA 7

15 January 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness

Injunction

Remedies