FORD & FORD

[2015] FamCA 164

FAMILY COURT OF AUSTRALIA

FORD & FORD [2015] FamCA 164

FAMILY LAW – CHILDREN – with whom children should live – where the parents live approximately 200km apart

APPLICANT: Mr Ford

RESPONDENT: Ms Ford

INDEPENDENT CHILDREN’S LAWYER: Harrington Family Law

FILE NUMBER: BRC 1775 of 2013

DATE DELIVERED: 17 March 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 10-12 March 2015

REPRESENTATION

APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Fronis

SOLICITORS FOR THE RESPONDENT: A Ace Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Dr Brasch QC

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Harrington Family Law

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous parenting Orders are discharged.

2. The children B, born … 2002, C, born … 2003 and D, born … 2006 live with the father.

3. The father shall have sole parental responsibility for the major long term issues for the children with such issues to include but not be limited to:

   (a)       the children’s education;

   (b)       the children’s religious and cultural upbringing; and

   (c)       the children’s health.

4. Except in the event of an emergency involving the children, the father is to consult with the mother about decisions to be made in the exercise of his sole parental responsibility as follows:

   (a)the father shall inform the mother about the issue about which a decision needs to be made, the decision he would like to make in respect of such issue and the reasons for that proposed decision, in writing; and

   (b)       the father shall give the mother fourteen (14) days to respond; and

   (c)the father shall consider the mother’s views/response when coming to his decision; and

   (d)the father will inform the mother of the final decision he has made with respect to that issue as soon as practicable thereafter.

5. The children will spend time and communicate with the mother at all times as may be agreed between the parties in writing and, failing agreement:

   (a)commencing on Friday 20 March 2015 and until the commencement of the first school term in 2016: each alternate weekend from 3.00 pm or after school Friday until the start of school Monday (or the start of school Tuesday if Monday is a pupil free day or public holiday) with the mother or her agent to collect the children from school at the commencement of the time and return the children to their schools at the conclusion of such time;

   (b)from the commencement of the first school term in 2016: each alternate weekend from 3.00 pm or after school Friday until 5.00pm Sunday (or 5 PM Monday if that day is a pupil free day or public holiday) with the mother or her agent to collect the children from school at the commencement of the time and changeover at the end of such time to occur at the service station at E Town;

   (c)during the school holiday periods at the end of Terms 1, 2 and 3 of each year:

   (i)for the first half in even numbered years with time to commence at 10.00am on the Saturday immediately after school concludes for the Term and to conclude at 5.00pm on the second Saturday after school concludes for the Term with changeovers to occur at the service station at E Town;

   (ii)for the second half in odd numbered years with time to commence at 10 AM on the second Saturday after school concludes for the Term and to conclude at 5 PM on the Saturday before school resumes for the next Term, with changeovers to occur at the service station at E Town;

   (d)       during the school holiday period at the end of each school year:

   (i)for the first half in even numbered years with time to commence at 10.00 am on the Saturday immediately after school concludes for the Term and to conclude at 5.00pm on the fourth Saturday after school concludes for the Term with changeovers to occur at the service station at E Town;

   (ii)for the second half in odd numbered years with time to commence at 10.00am on the fourth Saturday immediately after school concludes for the Term and to conclude at 5.00 pm on the Saturday before school starts for the year with changeovers to occur at the service station at E Town.

6. The operation of Order(5)(a) or, when applicable, Order(5)(b), shall be suspended during any school holiday period and shall resume with weekend time commencing:

   (a)on the first weekend of school Term in even numbered years; and

   (b)on the second weekend of school Term in odd numbered years.

7. In the event the children would not otherwise be spending time with the mother on the weekend on which Mother’s Day falls, the children shall spend additional time with her from after school Friday to the commencement of school on Monday with the mother or her agent to collect the children from school at the start of this time and return the children to school at the conclusion of the time.

8. In the event the implementation of Order (5)(a) or, when applicable, Order(5)(b) of this Order would see the children spending time with the mother on the weekend during which Father’s Day occurs, the operation of Order (5)(a) or, when applicable, Order(5)(b) of this Order is suspended for that weekend, so the children remain in the father’s care on that weekend.

9. Unless otherwise provided for in this Order or agreed between the parents in writing, changeovers shall occur at the service station in E Town.

10. Each parent may organise for a person other than themselves to attend at any changeover on their behalf provided that such person is known to the children.

11. The children shall communicate with the mother by telephone in the period from 6.00 pm until 6.30 pm on each Wednesday and each alternate Friday and to facilitate this communication either:

    (a)the mother shall initiate the telephone call to the children and the father shall ensure the children are available to receive the telephone call; or

    (b)the mother shall initiate Skype communication to the children and the father shall ensure the children are available to receive this communication.

12. During any period when the children are spending time with the mother, the children shall communicate with the father by telephone in the period from 6.00 pm to 6.30 pm each Wednesday and to facilitate this communication either:

    (a)the mother shall arrange for the children to initiate the telephone call to the father and the father shall be available to receive the telephone call; or

    (b)the mother shall arrange for the children to initiate Skype communication to the father and the father shall be available to receive this communication.

13. The mother and father shall:

    (a)keep the other informed at all times of a contact telephone number and an email address at which they can be contacted and advise the other of any change to the same within 48 hours of such change; and

    (b)notify the other at least twenty-one (21) days prior to relocating the general location of their residence; and

    (c)inform the other as soon as is reasonably practicable of any medical emergency involving the children;

    (d)keep each other informed at all times of the names and addresses of any educational facility at which the children attend; and

    (e)keep each other informed at all times of the names and addresses of medical practitioners upon whom, or medical practices at which, the children regularly attend.

14. Within 28 days of receiving the same, the father shall provide the mother with a copy of any school report relating to the children.

15. In the event that a member of the mother’s family offers to pay for the children to receive educational support via tutoring provided by:

    (a)       a qualified tutor or person with teaching qualifications; or

    (b)       an organisation offering tutoring services,

    the father shall make the children available to attend the same at reasonable times as may be agreed between him and the person responsible for payment or, failing agreement, at such times as he determines – but no more frequently than one occasion per week.

16. By this Order, any medical practitioner, health care practitioner or hospital upon whom the children attend is hereby authorised to provide to each party, at that party’s request and cost, all such information that such medical practitioner, health care practitioner or hospital may lawfully provide about the children.

17. By this Order, any educational facility at which the children attend is hereby authorised to provide to each party, at that party’s request and cost, all information about the children’s education, progress and participation in school or childcare related activities.

18. The parties shall communicate about significant issues relating to the children via email and shall ensure that each has an operative email address, the details of which are to be provided to the other within seven (7) days of the making of this Order.

19. Neither parent denigrate the other or their family to, or in front of, or within the hearing of, the children and shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within the hearing of, the children and, failing the third parties’ compliance with such a direction, shall remove the children from that environment immediately.

20. Neither parent shall discuss these proceedings with the children save for as may occur during any counselling interaction.

21. During the time the children are with either parent, the parent shall:

    (a)respect the privacy of the other party and not question the children unduly about the personal life of the other party;

    (b)       speak of the other party respectfully;  and

    (c)not denigrate or insult the other party or the party’s family in the presence or hearing of the children and use his or her best endeavours to ensure that others do not denigrate or insult the other party or the party’s family in the hearing or presence of the children.

22. The Independent Children’s Lawyer is discharged.

23. All outstanding Applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ford & Ford 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 1775 of 2013

Mr Ford

Applicant

And

Ms Ford

Respondent

REASONS FOR JUDGMENT

1. The parties commenced cohabitation in late 2000, married in 2001 and separated on a final basis in late August 2008. They have three children:

   a)B, born in 2002; and

   b)C, born in 2003; and

   c)D, born in 2006.

2. The mother has two further children, born to a relationship in which she was involved after the parties’ separation:

   a)F, born 17 August 2011; and

   b)G, born 13 March 2013.

3. The father lives in Suburb H and intends to continue to live there indefinitely. Following her move from Suburb I near J Town in mid-2011[1], the mother and her two younger children live primarily at Suburb K in the Region L – some 200 kms from the father’s residence. The mother intends to live there indefinitely.

   [1]          The mother says April, the father says June.

4. The consequence of the parental decisions about where each will continue to live means that an order consistent with the clear views of each of the children – namely, that they spend equal time in the care of each parent - is not practicable. Neither is it sought by the mother.

5. The mother’s position is that she has been the parent primarily responsible for the children’s care since separation. The father disputes this. He asserts that both parents shared the children’s care and that each have involved members of their respective extended family at varying times.

6. The children’s perspective of their past care arrangements is outlined in the first Family Report, dated November 2013. They reported living primarily with the father during the week, with regular nights with the maternal grandmother, and spending weekends and holidays with their mother. The children could not remember spending time with their mother during the week or going to school from her home, apart from when the parents lived together.[2]

   [2]           paragraph 61, November 2013 Family Report.

7. At present, the children spend time with each parent as provided for by the March 2013 Order as varied by an Order made in July 2013 by Bell J.

8. This is made possible because the mother currently travels with her two younger children from her residence to the Suburb I area, staying either with her mother or at another residence – she also takes the children to her Suburb K residence on occasion.

9. The mother does not want the father to know her residential address or have a contact telephone number. The only email address she has provided to the children’s school is that associated with her mother’s business. She says these measures are necessary because she is fearful of the father, who she asserts has subjected her to significant domestic violence.

10. The father accepts there were verbal disagreements between the parties during their relationship and after they separated. He denies subjecting the mother to any physical violence.

11. On the evidence before the Court, a conclusion other than that the parents do not and cannot communicate about the children’s needs in any meaningful way would be perverse.

The parenting proposals

1. The father seeks that the children live primarily with him and spend each alternate weekend and half of each school holiday period with the mother.

2. The mother seeks orders[3] which would see the children live primarily with her and spend time with the father:

   a)each alternate weekend:  from 6.00 pm Friday until drop-off to school Monday; and

   b)for the second half of each school holiday period other than that which occurs at the end of each calendar year;

   c)during the end of year school holiday period: for three days (Monday, Tuesday and Wednesday) in the first week of the holidays and from 5 January until 19 January each year.

   [3]As outlined in her Amended Case Information/Trial Plan filed 6 March 2015.

3. The mother also proposes that the children spend time with the father on their birthday and his in the manner set out in her Amended Case Information/Trial Plan filed 6 March 2015.

4. One of the particular features of the mother’s proposal is that, if implemented, the children will never spend the “special days” associated with Christmas Day, Boxing Day, New Year’s Eve or New Year’s Day with the father. These celebratory days will, instead, be spent entirely in the mother’s care.

5. Whilst no submissions were made by Counsel for the mother to explain why  such a regime will be in the children’s best interests, I propose to proceed on the assumption that it is intended to ensure that all of the mother’s children spend those celebratory days together.

6. The mother further proposes that she be the parent to decide the school at which the children will attend and, if applicable, pay 50 per cent of any fees associated with their enrolment at such institution. Whilst neither cross examination nor submissions addressed this part of the mother’s proposal, it is implicit that the father be responsible for the remaining half of any fees.

7. The Amended Case Information/Trial Plan filed on behalf of the mother on 6 March 2015 also advances alternative orders - described as “Option B”. However, the mother frankly acknowledged these are not practicable in the circumstances of this case and they were not pursued.

8. As noted above, the distance between the parents’ respective homes means that, despite the children’s clear desire to spend equal amounts of time with their parents during both school term and school holiday periods, a decision must be made about the parent with whom they will live on a primary basis.

Post separation parenting arrangements

1. The consequence for the children of making orders in terms sought by each of their parents must, of course, be evaluated taking into account the reality of their past care arrangements. These I find to have been as follows.

2. I accept that the father was very involved in the children’s parenting after the parties’ separated in late August 2008. I further accept that, from about April 2011 until early 2012, the children lived with him from Sunday evening until school Thursday, during which time they often spent time after school with the maternal grandmother. I also accept the father arranged with the maternal grandmother for the children to spend some overnight time with her during the days they were in his care. During this period, the children spent time with the mother from after school Thursday until Sunday evening, during which time they continued to spend significant amounts of time with their maternal grandmother.

3. From January 2012 until mid–January 2013, the children spent non–holiday time with the father from Monday until Thursday morning and with the mother from Thursday afternoon until Monday morning. They also spent significant time in the care of the maternal grandmother. In about September 2012, they started to spend overnight time with their paternal grandmother – this continues to the present.

4. Toward the end of January 2013, the mother decided to change the children’s living and school arrangements. She did not return the children to the father’s care at the end of the January 2013 school holidays but, rather, retained them and enrolled them in a new school.

5. The father commenced proceedings seeking the return of the children. On 1 March 2013, an order was made in the J Town Magistrates Court directing the mother to return the children to the father’s care. An interim parenting order was also made to regulate the children’s non-school holiday time with each parent as follows:

   a)with the father: from 6.00pm Sunday until after school Thursday; and

   b)with the mother: from after school Thursday to 6.00pm Sunday; and

   c)with the father: from 6.00 pm Sunday until 3.00pm Friday; and

   d)with the mother: from 3.00pm Friday until 6.00pm Sunday.

6. Additionally, the court ordered that the children spend equal time with each parent during school holiday periods. The matter was transferred to the Federal Circuit Court and, later, to this Court.

7. The children were subsequently returned to the father. They spent time with each parent in accordance with the terms of the March 2013 order until July 2013, when Bell J varied that order to provide that the children’s non-school holiday time with each parent occur as follows: 

   a)with the father: from after school Monday until after school Thursday; and

   b)with the mother: from after school Thursday to 6.00pm Monday night (with the mother to live with her mother in J Town on the Sunday evening); and

   c)with the father: from after school Monday night to after school Friday; and

   d)with the mother: from after school Friday until after school Monday (with the mother to live with her mother in J Town on the Sunday evening).

8. Apart from occasion during school holidays, when, on the father’s case, the mother has failed to comply with orders for the return of the children and kept them for longer periods in her care, the children’s time with each of their parents has proceeded in compliance with the March 2013 Order (as varied by the July 2013 order).

9. In arriving at my conclusion that the children have spent, for all intents and purposes, close to equal time in the care of each of their parents since separation, I accept the evidence of Ms I – the Family Consultant who has prepared two Family Reports to assist the court – as outlined in the first Family Report (November 2013) that the information provided to her by the children was more suggestive and/or supportive of such a conclusion than it was of the mother’s proposition that she had retained them in her primary care since separation.

1. I further accept Ms I’s evidence to the effect that information provided to her by the children, the school and the maternal grandmother suggested that the children had been parented in a shared parenting arrangement where both parents used the maternal grandmother to supplement their personal care of the children such that, at least until late 2012, the children spent a couple of nights per week in her care.

2. The reality for the children, then, is that – contrary to their wishes – an order in terms sought by either parent will involve significant change for them: if orders are made as sought by the father, the children’s time with the mother will be significantly reduced or, if orders are made as sought by the mother, the children’s time with the father will be significantly reduced.

Principles

1. In these proceedings, being proceedings for a parenting order (s 64B of the Family Law Act 1975 (Cth) (the Act)) in relation to the children, I may, subject to s 61DA (presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Division 6 of Part VII of the Act, make such parenting order as I think proper: s 65D of the Act. I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects: s 60B of the Act. In deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration.[4]

   [4]          Family Law Act 1975 (Cth) ss60CA, 65AA.

The benefit to the children of a meaningful relationship with both parents

1. It is clear the children will benefit from the opportunity to have a meaningful relationship with both of their parents. So much is implicit from the proposals advanced by each parent – each clearly advances that the children should have the opportunity to spend holiday and weekend time with the other.

2. Even when the mother retained the children in her care in January 2013, it appears she proposed to take them to J Town each Friday afternoon and someone would drop them back to her on either Sunday afternoon or Monday morning.[5] She would not have proposed such a regime unless she thought the children would benefit from the opportunity to spend this time with the father and, in fact, one of the justifications contained in her correspondence dated 12 February 2013 was that spending more weekend or “quality” time with the father would benefit the children.

   [5]Exhibit 4 and the context of the 12 February 2013 correspondence suggests that the time was intended to occur on a weekly basis.

The need to protect the children from harm from being exposed to abuse, neglect or family violence

1. There is no evidence to suggest that the father has ever been violent and aggressive toward the children.

2. The mother advances that the father was domestically violent to her and has difficulties managing his expressions of anger and frustration. Counsel for the mother submitted that, in addition to the potential risks to the children from exposure to such behaviour, the father’s behaviours toward the mother and other adults demonstrate that he is a poor role model for the children.

   The mother’s allegations of domestic violence

3. Correspondence authored by the mother in February 2013[6] contains assertions that:

   a)during the parties’ eight year relationship, there were incidents of severe violence inflicted by the father on the mother, “including several witnesses, family members etc”: however, none of the witnesses called by the mother said they had observed the father inflict physical violence on her; and

   b)she has “several hospital records” relating to the violence alleged to have been perpetrated against her by the father: however, none of these records formed part of the evidence.

   [6]           Exhibits 8 and 8a.

4. The Application for a Protection Order against the father filed by the mother on 19 March 2013 recounts that, since separation, the parties had shared the care of the children (but that she had always been the primary carer). It contains the assertion “there have been numerous incidents throughout this time in front of the children of him being not only abusive but physically violent toward me.” No particulars or details of the asserted numerous incidents were provided.

5. Similarly, whilst the mother’s affidavit contains the broad assertion and/or conclusion that there were “many incidences of domestic violence” during her relationship with the father[7], her affidavit provides particulars of only :

   a)one occasion/event in 2008; and

   b)the events on 25 December 2012.

   [7]           Paragraph 12, mother's affidavit filed 9 March 2015.

   The 2008 event

6. The mother says that, in 2008, the father pushed her off the couch at a time she was nursing D, feeding her a bottle. She says she was taken to hospital for a head injury and that the parties’ eldest daughter (then six years old) saw this event and was very upset.[8]

   [8]          Paragraph 14, mother's affidavit filed 9 March 2015.

7. The father acknowledges that an event occurred in 2008. He says the mother was intoxicated and, when he pushed a chair on which she was standing, she fell and suffered a head injury. She was taken to hospital by ambulance and he remained at home to care for the children. He says the mother was brought home the following morning by two friends who had waited with her at the hospital. He denies that he pushed her off the couch or that she was holding and/ or nursing D at the time.

8. On 19 March 2013, the mother filed an application for a protection order against the father. This was the first such application she had ever filed. She outlined that the parties had separated in 2008 after he “put me in hospital with a suspected cracked skull in August 2008 from throwing me off the couch.” No mention is made of the allegation that she was nursing the parties’ youngest child at the time.

9. The significant difference in the accounts provided by the mother about this event and the matter referred to in paragraph 83 combine to persuade me to accept the father’s account in preference to that provided by the mother.

   Christmas Day 2012

10. The mother says that, on Christmas Day 2012, when she went to the father’s house to collect the children for Boxing Day, the father refused to give them to her; she said she was not going to leave and he grabbed her by her arm and hair and pushed her out – which caused her to fall and to suffer bruising.[9]

    [9]          Paragraph 13, mother's affidavit filed 9 March 2015.

11. The father says that, when the mother delivered the children to him on Christmas Day, she told him that she wanted to collect them on Boxing Day. As this was, according to him, a change to the arrangements previously agreed between the parties, he told her that she could not collect them the next day. He says the mother told him she was not leaving and he would have to physically remove her from the house. The father said he told her a number of times to leave the house and that she continued to refuse to do so; he says her verbal expressions were becoming louder and he grabbed her using two hands and moved her outside the home, before shutting the door behind her. He denies grabbing the mother by her hair or pushing her to the ground.

12. The mother attended on police later that day. I accept the contents of the documents produced by the police service and admitted into evidence. I consider them to establish the following:

    a)there had been no previous reported domestic violence incidents; and

    b)this event was the first instance of domestic violence between the parties; [10]

    c)the mother told Police the parties had been separated for four years, the children were spending equal time with each of them (with a changeover at school or the home of the maternal grandmother) and that the father on one past occasion had kicked her vehicle[11] – I do not accept the mother’s evidence that the police enquiry about whether there had been previous instances of domestic violence perpetrated by the father was limited to the 12 month period immediately prior to December 2012; and

    d)the mother told Police she was not in fear of the father because there was minimal contact between them and, in essence, such contact could be further minimised by making alternative arrangements for the changeover of the children;[12] and

    e)the mother had minor bruising to her arm, consistent with her being removed from the house against her will.

    [10]         At page 47.

    [11]         At page 49.

    [12]         At page 50.

13. Ms I spoke with the children about this event during her interview for the preparation of the November 2013 Family Report. B provided a description similar to that provided by the father, C felt that both parents had been aggressive and D remembered little, explaining that she covered her ears and saw the father grab the mother. All of the children said they did not see the father pushing the mother down the driveway or pulling her hair. All described it as the worst argument they could remember.[13]

    [13]         Paragraph 63, November 2013 Family Report.

14. The event on 25 December 2012 was completely unsatisfactory. On the mother’s account she told the father he would have to physically remove her from his house because she was not leaving. On the father’s account she expressed this opinion forcefully, using expletives. It is accepted that the father grabbed the mother by the arms. The father says he moved her outside the house and shut the door behind her before heading towards her parked vehicle to collect one of the children. He says that when he turned, he saw the mother had fallen to the ground, commenting to the effect “look what your father has done”. On the mother’s account, the father pushed her – causing her to fall – and grabbed her by the hair. The father denies grabbing the mother by the hair or pushing her such that she fell.

15. Neither account does either parent any credit. It is, I think, reasonably clear that the children were aware of this event and exposed to it. Both parents bear significant responsibility for their respective inability to manage this interaction in a mature and responsible way. It is, I think, completely unacceptable that a parent tell the other parent, whilst in that parent’s home, that he or she would have to physically remove them from the property. Such a comment unnecessarily invites an unnecessary physical response. The mother could so easily simply have left the children to enjoy the balance of Christmas Day with their father without engaging aggressively with him.

16. Whilst it is unacceptable for the children to be in a situation where their father grabs their mother by the arm with sufficient force to cause bruising – as happened here - I accept the father’s account that he asked the mother to leave his home on a number of occasions before grabbing her arm. I have no difficulty in concluding that she was resolute in her refusal to leave. I accept as likely that he could not think of any other way to remove her from the home at that time.

17. I have little hesitation in concluding that it is highly likely the parties engaged in verbal arguments both during their relationship and after separation. I think it more likely than not that, on occasions, both refused to compromise. I think it highly unlikely the mother could be persuaded to change her mind about matters once she decided her view of, and/or approach to, these was “right”.

18. I accept the father’s explanations for the 2008 and Christmas Day 2012 events. I am not persuaded the father engaged in physical violence toward the mother during the relationship or after separation or that he behaved toward her in a manner that caused her to be fearful of him.

    The mother’s assertion that she is fearful of the father and that this fear is the reason she will not move to live closer to J Town

19. It is accepted there has not been any significant physical interaction between the parents since 25 December 2012. In fact, despite the unedifying events of that day, the children returned to the mother during the December 2012/January 2013 school holiday period so they could spend further holiday time with her.

20. The mother then determined not to return the children to the father’s care. She decided they would not attend at J School for the first day of the 2013 school year. She wrote to the paternal grandmother on 29 January 2013.[14] This correspondence is, it seems to me, written in support of and/or justification for her unilateral decisions to:

    a)retain the children in her care contrary to the long-standing arrangement which had been implemented by the parties since at least early 2012; and

    b)enrol the children, without notice to the father or – until about a week before – the children, in a school situated closer to her home.

    [14]         Exhibit 4.

21. After referring to an upcoming swimming carnival and other school events, she said:

    I would love [the father] and all the family who want to come up to be there and so would the girls….

22. Even acknowledging that this invitation is to attend at events at which others are likely to be present, the sentiment expressed is, I think, inconsistent with the notion that the mother’s fear of the father was the reason she continued to live away from the J Town area.

23. On 1 February 2013, the mother contacted the principal of J School to tell her she was sending the children, for a trial, to the Suburb K School. She asked that nothing be said to anyone because no one knew where she lived or the school to which she was sending the children. The latter assertion is corroborated by the absence of details about the children’s attendance at Suburb K School in the mother’s correspondence dated 29 January 2013.

24. I think it telling that the reasons (namely: financial problems, she had lost everything, solicitors were chasing her for payment, she was pregnant and the shared arrangement with the father no longer suited) provided by the mother to the principal do not contain the assertion that the father was harassing or intimidating her or that she was fearful of him.[15]

    [15]         Exhibit 1, page 97.

25. On 12 February 2013, the mother wrote to the father’s then legal representatives.[16] This correspondence:

    a)refers to an interim parenting offer; and

    b)informs that the father should not attempt to contact her other than via the legal representatives or a mediator and should not turn up at the children’s school or her home “until the matter is resolved”; and

    c)asserts that, if the father is not willing to participate in another mediation before lodging a Court application, she will “lodge an urgent DVO application” and seek interim orders in her own right; and

    d)took issue with the lack of time within which the father’s then legal representatives required that she respond.

    [16]         Exhibit 8.

26. On 1 March 2013, the father’s Application for interim parenting orders came before the J Town Magistrates Court. The Magistrate, Mr Carroll, made a Recovery Order, a Commonwealth Information Order and various interim parenting Orders.

27. The March 2013 Order records, on its face, that the Court proceeded on an ex parte basis. However, it is accepted between the parties that the mother was aware of the hearing in the Magistrates Court. She in fact asked her mother to attend and seek an adjournment of the hearing. I accept that the maternal grandmother attended court that day but was unsuccessful in any attempt to have the Court adjourn the hearing of the application. It is also clear the mother deliberately turned her mobile phone off that day. I consider it more likely than not that she did so in order to prevent any attempt to contact her. I think it highly likely she thought the Court would not make an order in her absence.

28. On 9 March 2013, the mother wrote to the father, paternal grandmother and her mother.[17] She was indignant at the manner in which the father had proceeded to obtain the March 2013 order. She outlined that she:

    a)did not wish to speak with the father because he was abusive and violent - an assertion completely at odds with the comment referred to in paragraph 54; and

    b)did not want to have contact with the paternal grandmother because she was “too ignorant” and had lied; and

    c)would “reinstate minimal contact” with her mother (the children’s maternal grandmother) only until “clarity is sort over her role in this order the father had made in my absence.”

    [17]         Exhibit 6.

29. The last comment clearly suggests that the mother blamed her mother or was, at least, suspicious about her mother’s “role” on 1 March 2013. This attitude lends credence to the father’s assertion that, in the past, the mother had reacted violently toward her mother when the maternal grandmother was attempting to take action in relation to her (the mother’s) management of the children. Despite the maternal grandmother’s valiant attempts to downplay and/or excuse the mother’s actions on that occasion, I consider it highly likely that the mother in fact reacted aggressively toward her mother and, at least, knocked a mobile phone from her hand.

30. The correspondence dated 9 March 2013 also contains the following statement:

    ….Up until the 28^th of February I truly thought we were all getting along well, and it would work out for the benefit of the children.

31. This assertion is, again, inconsistent with the proposition that the mother was fearful of the father.

32. As noted above, the mother filed an Application for a Protection Order, naming the father as the Respondent, in Caloundra on 19 March 2013. It is highly relevant to note that the Application:

    a)relied upon the events which occurred on 25 December 2012 – after which the children had been returned by the father to the mother in accordance with their pre-existing agreement; and

    b)was made after the March 2013 Order was made effecting the return of the children to the father; and

    c)is the first application made by the mother for a Protection Order at all and, importantly, in the period since the parties separated in mid-2008; and

    d)contains no reference to the contents, as set out in paragraphs 54 and 63, of her correspondence to the father and his family;

    e)provides J Town addresses for both parties – in circumstances where the mother was living in Suburb K at an address unknown to the father.

33. Given that the mother had lived away from the J Town area since April 2011, it was, I think, misleading and/or disingenuous for her to provide this address to the Court from which she was seeking a Protection Order. Reading the contents of the Application in the context of the addresses provided by the mother, one could easily arrive – wrongly – at the conclusion that the parties were living in close proximity to each other.

34. The father did not contest the making of the Protection Orders and on 15 April 2013, the temporary Protection Order was amended to remove the children from it. On 21 October 2013, this Protection Order was made final.

35. The mother says that there have been no incidents of harassment or intimidation since the Protection Order was made. As such, even if I am wrong in accepting the father’s evidence in relation to his alleged behaviour in 2008 and on 25 December 2012, there is no evidence to suggest that whatever problems the father has had with anger management in the past have resulted in any physical confrontations between the parties since December 2012.

    Evidence about the father’s interactions with other adults

36. There is no dispute that the father previously punched Mr K (the father of F and G) and another man with whom the mother was sharing a spa. Whilst he and his brother (and another witness called by the mother) differ as to who was the instigator, he has also been involved in a physical altercation with his brother at a local hotel. Witnesses in the mother’s case gave evidence of him engaging a builder in a physical altercation although both did not actually see what happened on this occasion or who instigated such altercation.

1. All of these events happened before, at the latest, about 2012. None of them occurred in the presence of the children.

2. I accept Dr N’s evidence to the effect that, whilst in the past the father may have demonstrated capacity to resort to aggression to resolve conflict, the absence of incidents since this time suggests that his behaviour has changed in a more prosocial manner.

   Are the children at risk of exposure to family violence in the mother’s care?

3. Dr Brasch QC for the Independent Children’s Lawyer submitted that the mother has been involved in domestically violent relationships since her separation from the father, with a consequence that she presents as a poor role model to the children.

4. Police attended at the mother’s home at about 3.00am on 2 January 2011. The records of this attendance – which I accept – reveal that the mother told them Mr K (with whom she had a relationship) arrived at her address intoxicated and, after an argument, threatened to smash windows: he, in fact, smashed a chair and threw it into the pool. Having previously lived at the Region L,  Mr K had lived in the Suburb I area for about three months. The mother reported no physical violence.

5. It is clear from Queensland Police Service documents[18] that, in about August 2012, the mother applied for, and was granted, a Protection Order in relation to a Mr L. The basis upon which the Order was granted was that he had made threats to kill her and the children, had held a loaded gun to her head in about March 2012 and had told her that he had “bugged” her car, her home and the maternal grandmother’s home and workplace. The mother said, during cross examination, that Mr L’s serious threats of violence toward her and the children arose out of a dispute about money: namely, that he had lent her money which she was unable to repay. Despite the threats to harm the children – and her knowledge that Mr L said he had been watching them at school – the mother did not tell the father about these threats. This omission seems indefensible given the serious nature of the reported threats.

   [18]         Part of Exhibit 1.

6. On 16 March 2012, police spoke with the mother after receiving information that she had been yelling for help whilst a male – more likely than not, Mr K - was telling her to get into a motor vehicle or he would “break her fucking neck”. When police arrived the male was gone. The mother refused to provide police with information, other than saying she was only friends with the person. She did not wish to make a complaint and was not co-operative.

7. On 16 August 2012, a temporary protection order, naming Mr L as the respondent and the mother as the aggrieved, was made. On 16 August 2013, a two-year protection order naming Mr L as the respondent and the mother as the aggrieved was made.

8. On 4 February 2013, the principal of J School completed a mandatory report to the Department of Communities, Child Safety and Disability Services. This arose because the school became aware of information to the effect that the mother maintained a safe/hiding room for the children at her home in order to provide them with somewhere to go if scared by Mr K’s behaviour. The mother denies the existence of such a room.

9. It is, I think, relevant to note that the information provided to the school emanated from the father and was not provided until after the mother determined to retain the children in her care at the conclusion of the January 2013 school holiday period. In such a circumstance, I am not persuaded to place significant weight upon such assertions, noting as I do, that the children have not mentioned the existence of such a room to the author of the Family Reports.

10. However, I do accept the evidence given by the paternal grandmother to the effect that the children have told her that, on occasion, when Mr K has been present they have locked themselves in their room because they have been scared of his behaviour which has included throwing a chair through a glass door, throwing other things around, knocking the mother down and dragging her by her hair.

11. Police attended at the mother’s Suburb K residence on 16 April 2013. Mr K had assaulted the mother and the maternal grandmother. It appears this event started when he became upset after receiving information that the mother had registered his children’s surnames as “Ford”. It was reported that he punched the maternal grandmother in the face and the mother intervened to protect her mother, hitting him over the head with a mop handle. He retaliated by striking the mother with this implement, before getting a sword and threatening further harm.[19]

    [19]         Exhibit 1, pages 67 and 68.

12. Police records note that, when located at the maternal grandmother’s home, both the mother and maternal grandmother were visibly distressed and scared by Mr K’ actions - marks to their faces were seen. The mother told police  there had been previous domestic violence perpetrated by Mr K, generally whilst intoxicated. When police detained Mr K, he threatened to kill the mother.

13. Police applied for a Domestic Violence Order against Mr K. This Order expires in April 2015.

14. The mother said she had not seen Mr K for a significant period of time. She told Ms I, in late 2013, that she had no communication with him. She specifically denied the assertion, put to her by the father, that she attended at the Cabarlah Pub hotel in late June 2014 with him. However, Mr M Ford - the father’s brother and a witness in the mother’s case – was clear in saying that he saw the mother and Mr K at the hotel on that occasion. I accept the evidence of Mr M Ford in this respect.

15. That the mother spent time with Mr K on this occasion is of concern because Exhibit 1 establishes that, on 8 August 2014, while seemingly under the influence of an illicit substance, Mr K behaved so aggressively toward his mother that she left her home – where he was staying – to stay with another relative.

16. It is clear from the evidence outlined above that Mr K has struggled to moderate his behaviour. I accept Ms I’s evidence, as contained in the second Family Report, that the mother acknowledged the children were present for at least one of the domestic violence incidents involving Mr K.[20] I also accept the evidence given by the paternal grandmother to the effect that the children had raised their concerns about Mr K’s behaviour whilst they were present.

    [20]         paragraph 31, October 2014 Family Report.

17. The mother’s denial of interaction with Mr K causes me to reflect somewhat sceptically about her assertion to Ms I that she would not permit her younger children to spend time with him because of the domestic violence. Additionally, she has maintained an ongoing relationship with his mother, with whom he has lived until fairly recently.

    The children, their views about the parenting arrangements and what weight should be accorded to these?

18. When Ms I first interviewed the children, B was 11 years eight months of age, C was 10 ½ years of age and D was seven years and eight months of age.

19. B presented as well aware of the conflict and dispute between her parents and sought to portray each of them positively and equally. Ms I assessed that she had a good and positive relationship with both of her parents, albeit a slightly stronger relationship with the father. B wanted the mother to move back to the J Town area because this would make life easier.[21]

    [21]         paragraph 44, November 2013 Family Report.

20. C became teary when talking about the importance of time with each of her parents and family and portrayed each parent favourably. Ms I assessed she had equally strong and positive relationships with each of her parents. C wanted her mother to return to the J Town area because the distance meant too much travel for the younger children. She wanted time with both of her parents and was concerned she would spend less time with one of them because this would be significantly different to that which had occurred to date.

21. D concurred with her older sisters in her view that life would be better if the mother moved back to the J Town area. Ms I assessed her as having a positive and good relationship with both of her parents, albeit a slightly stronger relationship with her father.

22. I accept Ms I’s evidence, as outlined in the first Family Report, that the children were acutely aware of parental conflict but not influenced by either parent. I also accept that, at that time, the children did not appear to be acutely affected by the conflict between their parents. I agree it is likely that the support provided by the maternal grandmother and the children’s school was significant in buffering the children from this. I further accept her assessment that, such was the level of support provided to the children by their school, that they benefitted from continuing within its close and supportive community.

23. When Ms I interviewed the children for the second time, B was about 12 ½ years of age, C nearly 11 ½ years of age and D just over 8 ½ years of age.

24. B told Ms I that the current arrangements worked well because the children had an opportunity to spend time with each parent. She reported some problems associated with forgetting necessary items as the children moved between households. While she reported some conflict with her mother – which seemed to involve mutual yelling and name-calling – she did not appear overly worried about this. Ms I records B’s desire for regular and equal time – both during the week and on weekends – with each of her parents; accordingly, B did not agree with either parent’s proposal because each involved a decrease in the time the children would spend with the other parent.

25. C reported good relationships at school, with each of her parents and younger siblings. She thought things could improve by each parent having some week time and some weekend time. She reported having a good relationship with both parents and that she found long weekends and holidays difficult because she missed the parent she was not with. Her reports confirm that both of her grandmothers were actively involved in the children’s lives.

26. D told Ms I that she had good friendships at school and liked going there. She could not identify anything positive or negative about the current arrangement, saying that it was good with both parents and both of her grandmothers.

27. I accept Ms I’s opinion, as contained in the 2014 Family Report, that the children’s relationships with each of their parents did not appear to be negatively affected by the conflict that has characterised their parents’ post separation relationship. I accept that the time they have spent with each of their parents has provided them with the opportunity to develop individual relationships with them over time and has allowed them to form their own views and/or perceptions of each parent.

28. I accept that, despite the significant conflict between their parents, the children’s overall sense of relationship, connection and belonging with each parent is likely to have decreased the impact of each individual conflict event on them (the children). That the children have developed such resilience as a consequence of exposure to their parents’ conflict and inability to cooperate is a testament to them personally.

    The children’s relationships with their parents and grandmothers

29. I accept Ms I’s evidence, as contained in the November 2013 Family Report, that:

    a)the children enjoyed positive and consistent relationships and time with both parents; and

    b)the maternal grandmother had played a substantial role, had provided a stable influence for the children and was – at least then – a “buffer” between the parents.

30. I further accept that the children have good and strong relationships with each parent. At the time of the first Family Report interviews, the children did not display a significant preference for either of their parents other than that they expressed a desire that the mother would live in the J Town area – an expression of wish which I interpret as at least containing their hope that she would return to live closer to them.

31. In the first Family Report, Ms I considered that the children had very close and supportive relationships with the maternal grandmother who she regarded – to that time at least – as having been pivotal in supporting them in their relationships with both of their parents. Ms I thought it would not be beneficial for the children to decrease the children’s opportunity to spend time with the maternal grandmother or to limit their access to her.

32. Ms I also noted, in her first report, that the children appeared at ease and comfortable moving between the family groups (that is, those of their mother and father) and did not appear uncomfortable or distressed by their parents’ lack of communication or lack of acknowledgement. She also observed the children demonstrated a strong sense of familiarity, positive affection and engagement with their father, with the interactions between them displaying a sense of calmness. When the children were observed to engage with the mother, there was talking, laughing, affection and warmth.[22]

    [22]         paragraph 64, November 2013 Family Report.

33. At the time of the observations for the preparation of the 2014 Family Report, Ms I noticed that the children stayed close to the father and paternal grandmother and there was little or no communication between the two “groups”. She observed that the children were relaxed and calm with the father and that he engaged in some positive reframing in relation to some of their expressions; whilst with the mother there appeared to be less cohesion in the interaction, it is highly likely this was as a consequence of the presence of the children’s younger half siblings.

34. I accept Ms I’s evidence that, by the time of the 2014 Family Report, the maternal grandmother had become more aligned with the mother’s position and views. By that stage, she had very limited communication with the father. Having regard to the contents of the mother’s letter (dated 9 March 2013) to her mother after the March 2013 order was made, it seems to me to be more likely than not that, since then, the maternal grandmother has acted to demonstrate her allegiance to, and support of, her daughter.

35. Despite this, it is heartening to note that both the maternal grandmother and the father expressed a wish to re-open communication and for their relationship to improve. Given that they previously enjoyed a workable relationship, I am confident that both of them have the capacity to return to the same in the future.

    Likely effect on the children of any changes in their circumstances

36. In her correspondence dated 29 January 2013[23] the mother acknowledged that “most of all the family are in [J Town]”. She also acknowledged that the principal of the J School at which the children attend was a “wonderful woman”.

    [23]         Exhibit 4.

37. Orders made in terms sought by the mother would uproot the children from their connections to their schools, community, long-standing environs and their extended family, including both their grandmothers.

38. The 2013 Family Report contains Ms I’s conclusion – which I accept – that it would be unfamiliar for the children if their time with the father decreased significantly. She thought, at that time, that the children would experience emotional distress and/or confusion if they lived mainly with the mother at the Region L (or in that vicinity) because this would remove them from all that was familiar to them. I consider that this situation remains.

39. I accept Ms I’s evidence – as outlined in the 2014 Family Report – that the children have experienced both parents as actively involved and interested in their lives and that, despite the conflict between their parents, they are accustomed to this.

40. All of the children expressed a strong preference to Ms I for the continuation of a parenting regime in which their care is shared by their parents. Unfortunately, the distance between the households and the deficiencies in their parents’ communication mean that such a regime cannot continue into the future – even if the distance permitted it to be otherwise, I suspect that, as the children grow older and, perhaps, more opinionated and demanding to be heard about matters relevant to them, an equal time shared parenting regime involving these two parents would be highly likely to be afflicted by miscommunication, confusion and conflict.

41. I accept Ms I’s evidence that it is likely the children will struggle significantly with:

    a)the decrease in their time with the father; and

    b)the change of their schools; and

    c)the disruption to their friendships; and

    d)the loss of connection with people important to them; and

    e)the change to their community,

    which would attend orders made in terms sought by the mother.

42. I further accept that these losses are unlikely to be mitigated by the increased  relationship opportunities with the mother and half siblings which would be provided by orders in terms sought by the mother. I accept Ms I’s assessment that the mother lacks insight into the impact of such significant changes on and for the children and that, consequently, she is unlikely to be emotionally attuned to them so as to support them to deal with the effects of such changes if orders were made in terms sought by her.

43. I also accept Ms I’s evidence to the effect that the decrease in the time the children will be able to spend with the mother and their half siblings, if orders are made in terms sought by the father is a significant change and one that is highly likely to cause the children both distress and sadness. However, I also  accept that the continuity provided by an ongoing interaction with their schools and community, the opportunity to continue friendships arising from these interactions and their ongoing opportunities to spend time with their grandmothers are matters which are likely to buttress them and assist them to deal with the impacts of such a change.

    Parental capacity and attitude, involvement in the children’s lives, participation in decision-making about major long term issues relating to them, fulfilment of obligations to support them and attitude to them and the responsibilities of parenthood

    The mother’s attempt to unilaterally change the children’s school and living arrangements and her insight into the effect of this

44. It is clear that, in January 2013, the mother decided she would attempt to change, unilaterally, the children’s living arrangements and school attendance. She did so in circumstances where the father had not agreed with her when, in 2012, she proposed a change to the children’s schooling and living arrangements.

45. On her account, she raised the issue of changing schools with the children on 23 January 2013 – about a week before they were due to start school for that year. Having seen the mother give evidence and having regard to the contents of the reports prepared by Ms I and Dr N, I have no hesitation in concluding that it is highly unlikely any of the children – then aged 10, 9 and 7 years old respectively - would have felt empowered to raise any opposition to the mother’s suggestion.

46. As noted above, the mother wrote to the paternal grandmother on 29 January 2013.[24] This correspondence is, I consider, an attempt to justify her decision. The mother did not provide the paternal grandmother with any specific details about the school into which she intended to enrol the children other than saying that “the girls and I have gone to a new country school here at the Region L”. She attempted to explain her intention of preventing the children, for a period of time, from spending time with members of their paternal family on the basis that it would enable them to see whether they liked the school “without any negative interference”. Such a comment clearly demonstrates an awareness that, if consulted, the father would oppose any change to the children’s schools.

    [24]         Exhibit 4.

1. I accept the submission made by Queen’s Counsel for the Independent Children’s Lawyer about the irony of the comments contained within the mother’s March 2013 correspondence. I accept that its contents clearly demonstrate the mother’s incapacity to appreciate the effects of her unilateral decisions on the children and her inability to acknowledge that the 2013 order would return the children to their previous school and living arrangements.

2. The mother’s assertion that “no one thought about them” (the children) in circumstances where, knowing the father’s previous opposition to any change to the children’s arrangements, she unilaterally altered their schooling and living arrangements about a week before the 2013 school year was to commence reveals a breathtaking absence of insight.

   The mother’s use of alcohol

3. Exhibit 1 establishes that the mother has a history of conviction for driving under the influence of alcohol:

   a)on 30 January 2000 – for having a blood alcohol content of 0.165 per cent; and

   b)on 4 July 2008 – for having a blood alcohol content of 0.075 per cent; and

   c)on 8 June 2009 – for having an unreported blood alcohol content.[25]

   [25]         Page 69.

4. Whilst the father has raised concerns about the mother’s use of alcohol and its impact upon her capacity to care consistently for the children, his own proposal would have seen them live with her every alternate week if distance permitted it.

   The father’s general parenting capacity

5. I record that, by correspondence dated 12 February 2013,[26] the mother proposed that the children spend time with the father from Friday afternoon until Sunday evening each week. Such a proposal is, I consider, inconsistent with any suggestion that he is incapable of meeting their general needs.

   [26]         Exhibits 8 and 8a.

6. Additionally, when she spoke with Ms I for the first time, the mother did not outline any concerns about the father’s care of the children, other than his asserted literacy deficiencies.[27]

   [27]         Paragraph 39, November 2013 Family Report.

   Interaction with the school and payment of school fees

7. I accept that the father has borne the financial cost associated with the children’s attendance at J School since about 2010. It cannot be forgotten, however, that since this time the mother has also given birth to her two youngest children and has not been in paid employment.

8. Documents from the school establish that, as at April 2014, an amount of $1,460.00 was owing. The father was said to have recently paid a total of $3,970.00. The school confirmed it had no intention of cancelling the children’s enrolment, describing them as a “cherished” part of the school community.

9. I accept, as is outlined in the school documentation included in Exhibit 1, that J School has not had a contact address or telephone number for the mother since about May 2014. I also accept this is likely to place the school in a difficult situation if the two youngest children continue to attend there and an immediate response is required to a situation that may arise for the children at school.

10. In early 2013, the school also expressed the opinion – taken from teachers involved with the children – that, due to circumstances (such as where she lived and the birth of her two youngest children) the mother did not play an active role in the children’s education. The school considered that the children were well provided for, fed and happy and that, whilst “C” students, exhibited good effort and achieved relatively good results.

11. When taken overall, the evidence from the school persuades me that the mother has been less engaged with J School in recent times than the father. I accept that the children’s homework has been completed each week when they are with the father and that he signs off on the children’s weekly reading logs.[28]

    [28]         Exhibit 1, page 106.

    The father’s literacy difficulties

12. The mother’s affidavit raises concerns about deficiencies in the father’s literacy and numeracy skills. The father accepts that he struggles academically.

13. In essence, it was submitted on the mother’s behalf that the father’s educational limitations mean that he struggles, and/or is unable, to assist the children with home-work, that she is the parent better able to assist the children with their education and, consequently it is in their best interests that they live primarily with her.

14. The mother accepted during her cross examination that it appeared that the father had acted – at least to some extent – to remedy some of his difficulties with reading. I accept the submissions made by Queen’s Counsel for the Independent Children’s Lawyer to the effect that the father, who represented himself in these proceedings, appeared to deal reasonably well with the late receipt of the mother’s affidavit.

15. The father has an application for his phone which he uses to assist him in understanding communications he receives. I do not agree with the criticism levelled at the father in terms of his use of this. That he has acted to obtain assistance is a demonstration of his willingness to attempt to deal, in a positive manner, with a matter which is likely to have some impact on his day-to-day interaction with the world.

16. It is, I think, also relevant to note that the mother’s criticisms of the father’s literacy fall to be considered in circumstances where a perusal of correspondence authored by her reveals certain difficulties with spelling – for example: ‘surly’ to mean ‘surely’;[29] and ‘principle’ when referring to the principal of a school;[30] and ‘waist’ in the context of wasting money;[31] and “accept” rather than “except”;[32] and “sort” rather than “sought”.

    [29]         Exhibit 4.

    [30]         Exhibit 4.

    [31]         Exhibit 4.

    [32]         Exhibit 8.

17. I accept that, whilst the father himself struggles academically, he is committed to ensuring that the children receive the benefit of an education. I am not persuaded that he is dismissive of the importance of this for them and I accept his evidence to the effect that he will ensure the children receive additional assistance to support them in their educational pursuits. I also note and accept that, as at July 2014, D’s teacher reported that her homework was fully completed during her time with the father.

18. I also record my conclusion that it was disingenuous for the mother to fail to inform the father she had arranged with the school for additional reading for the children over the school holidays and then criticise him for failing to ensure that the children completed this reading. Her actions in this respect provide a very good example of the deficiency, identified by Ms I, in the parental  interaction: namely, a concentration on “winning” by highlighting asserted deficiencies in the other parent’s parenting rather than a focus on ensuring that the children’s needs – which exist during their time in each household – are addressed when they are in each household.

    Specific opinions from the Family Consultant and Dr N

19. I accept Ms I’s evidence, as expressed in the November 2013 Family Report, to the effect that:

    a)both parents were able to provide good quality care to the children and that, overall, both had a good understanding and awareness of the children’s needs;

    b)the mother’s focus on herself was likely to be heightened when she was stressed and attempting to negotiate with the father;

    c)apart from the fact of their inability to communicate – a matter which she saw as indicative of them being fairly immature and self-focused and looking to “win” rather than focusing upon meeting the children’s needs - both parents were attuned to the children’s needs; and

    d)whilst the father provided stability and consistency for the children with family and school interaction, she was concerned about his physical reactions when stressed; and

    e)the mother provided good quality care to the children but struggled to see the “big picture”.

20. I agree with her assessment that the mother’s determination to move to live at the Region L did not appear child focused or reflective of a consideration of the children’s needs. I also accept that the mother’s actions in withholding the children prior to the commencement of school term in January 2013 and attempting to impose her determination that it was in their best interests to change school (without notice and contrary to the father’s agreement) are further demonstrations of her inability to separate a consideration of matters that would best suit her from matters she thinks would best suit the children.

21. I accept Ms I’s opinion, as outlined in the 2014 Family Report, to the effect that the mother may well struggle to be emotionally attuned to the children as they grow older, especially when – as is almost inevitable – their views about particular matters do not align with hers. I am left with no doubt whatsoever, having seen the mother during cross-examination, that her idea of compromise is one in which the person with views other than hers compromises.

22. This conclusion is supported by the evidence of Dr N, a psychiatrist who assessed both parties. I accept Dr N’s evidence that, at times, the mother showed difficulty separating her needs from those of the children: for example, she perceived that the children had been happy at Suburb K State School whilst they reported a contrary experience to Ms I.

23. I further accept Dr N’s assessment of the mother as being very critical of the father and others she perceives have wronged her, made mistakes or failed. I join in Dr N’s assessment of the mother as a person who:

    a)presents with a strong belief that her point of view and solutions are correct; and

    b)has limited capacity to consider alternatives.

24. So much is established by her attempt to unilaterally change the children’s schooling and living arrangements and the outrage she expressed in correspondence written after the March 2013 Order was made.

25. I consider the mother demonstrated difficulty in dealing with the children when they – or at least one of them – exhibited oppositional and disrespectful behaviour toward her on Show Day 2014. This was an occasion on which they did not act in the manner she expected. That she returned them to the care of the father and paternal grandmother – for them to ‘deal with’ the children – when one or all of them (the children) swore at her does not bode well for her future management of the children as they mature. Additionally, her answer when asked how she would deal with such behaviour if the children were living with her in the future – namely, that it would not happen if they were living with her – is, I consider, both superficial and naive in the extreme.

26. My concerns about the reactive nature of the mother’s interaction with the children in the event that they express opinions contrary to her own views and/or behave in a manner that she does not think appropriate find additional sustenance in:

    a)her behaviour toward her mother in, at least, knocking a mobile telephone from her hand on an occasion the maternal grandmother did not agree with the manner in which she (the mother) was managing the children’s behaviour: I do not accept the mother’s denials of such an event. I accept the paternal grandmother’s evidence that the maternal grandmother telephoned her and told her about the interaction that night and that she had been to the police. I think it more likely than not that the maternal grandmother – the recipient of the implied threat in the mother’s 9 March 2013 correspondence to limit her interaction with her and, by association the children – has now deliberately downplayed the event in order to support the mother; and

    b)her behaviour toward the paternal grandmother – whose evidence about this interaction I accept – on Show Day 2014.

27. The evidence[33] suggests it is more likely that, in contrast to the mother’s approach, the father will deal with oppositional behaviour by the children as they age in a calmer and more considered and reflective manner.

    [33]namely, his observed interactions with the children during the interviews for the Family Reports.

    Parental attitude to the children having a relationship with the other parent

28. I accept the father’s view, as recounted to Ms I, that the children should spend regular and consistent time with the mother.[34] So much is apparent from his support of a regime which would see them live with her each alternate week if she lived in sufficiently close proximity to their schools.

    [34]         Paragraph 28, November 2013 Family Report.

29. I consider that the mother is supportive of the children having time and relationship with the father as long as this occurs in the manner she considers appropriate.

    Whether it is preferable to make the order least likely to lead to the institution of further proceedings in relation to the children

30. The parental dynamics, as discussed in greater detail below, compel a conclusion that it is more likely than not that the prospect of further proceedings in relation to the children will be increased in the absence of clear and simple orders regulating the children’s time with each of their parents. Regard need only be had to the evidence given by the mother about the manner in which she interpreted those provisions in the existing order – which clearly relate only to the manner by which half of each school holiday period is to be calculated – as meaning that the children were to transition between households at these times.

    Parental dynamics

31. Neither parent has the other’s residential address. Whilst the father provided his residential address during the course of his evidence, the mother refrained from doing so. Whilst the father provided the mother with a mobile telephone number on Court documents filed by him in August 2014, the mother has not provided the father with a contact telephone number for her since about late 2013.

32. I think it highly likely that both parties have conveyed information about the children to the other via their eldest daughter.

33. The mother has not provided the father with a contact email address other than one which is connected with a business operated by her mother (the maternal grandmother) in the J Town region.

34. When he spoke with Ms I during interview for the 2013 Family Report, the father thought communication and/or negotiation between the parties would continue to be problematic. He was unable then to suggest how this situation could improve.[35] At that time, the mother was unwilling to meet with and/or communicate with the father in any manner: she spoke of her desire to never have him near her again.[36]

    [35]         Paragraph 26, November 2013 Family Report.

    [36]         Paragraph 38, November 2013 Family Report.

35. The 2013 Family Report contains Ms I’s conclusions – which I accept – that there is, effectively, an inability for either parent to communicate with the other. I also accept her assessment, at that time, that each parent held such polarised and negative views about the other that they were unable to negotiate and/or reach agreement without significant third-party involvement. Ms I also thought it unlikely the situation between the parents would improve, given the entrenched views each held.

36. When he spoke with Ms I during interview for the preparation of the 2014 Family Report, the father reported that there had been no verbal communication with the mother, that neither had the other’s address or telephone number and that they exchanged information via communication between grandmothers and/or the children - the mother sent letters to him and he either texted a reply or spoke with maternal grandmother.[37]

    [37]         Paragraph 22, October 2014 Family Report.

37. When the mother spoke with Ms I during the interview for the 2014  Family Report, she confirmed that she had had no verbal communication with the father and that neither knew the other’s address or telephone number. She confirmed communicating with the father via letters delivered to his or the paternal grandmother’s home: she had written 20 letters without response from him. There is, I think, a certain irony in the fact that the mother chose to communicate with the father in writing in circumstances where she raised significant concerns about his literacy.

38. After seeing the parents for the second occasion, Ms I concluded that both demonstrated fairly entrenched positions and had lost sight of the impact of these on the children. I accept her opinion that, whilst each focused on proving the other wrong, the mother engaged in this more so than the father and that he appeared slightly more balanced in his approach.

39. I accept the dynamic between the parties is such that it is highly likely both become easily angered and/or frustrated by the actions, attitudes and approaches of the other. I also accept that this dynamic has the consequence of increased conflict and/or problems when the parties attempt to deviate from the terms of existing orders.

40. Whilst the father suggested to Ms I that using a professional mediator on four occasions per year may help the parties to resolve disputes, no submissions were directed by Counsel for the mother to this as a possibility for resolving likely decision-making impasses between the parties. No doubt this is because such a submission would have been inconsistent with the mother’s desire for an order for sole parental responsibility.

41. In any event, having observed both of the parties during cross examination, I am left in no doubt whatsoever that any attempts to reach decisions which require either to compromise are highly unlikely to be productive of a positive resolution.

42. I accept Ms I’s opinion that the parent’s capacity for communication, problem solving and negotiation with each other is, and has remained, extremely poor.[38] Both are unwilling and/or unable to talk to the other about the children’s needs: regard need only be had to the fact that each separately enrolled their eldest daughter at her current school.

    [38]         Paragraph 91, October 2014 Family Report.

43. I also accept Ms I’s assessment that the reduction in the overt conflict between the parties has arisen because of a corresponding reduction in the necessity for them to be in close proximity to each other, rather than as the consequence of any change in attitude or behaviour.[39]

    [39]         Paragraph 91, October 2014 Family Report.

44. I accept entirely that each parent views information provided by the other through a highly critical lens. Their interaction during the course of the trial – as manifested by the mother’s condescending tone to the father during his cross examination of her – leaves me with no doubt in concluding that there remains a simmering level of tension and/or animosity between them which, of itself, is highly likely to contribute to misunderstanding, misinterpretation and miscommunication: all matters which fan the embers of conflict.

    Parental responsibility

45. Neither party seeks an order for equal shared parental responsibility. Each seeks an order for sole parental responsibility. The Independent Children’s Lawyer opposes the making of an order for equal shared parental responsibility.

46. The presumption that it is the children’s best interests that their parents have equal shared parental responsibility for them must be applied unless the Court is satisfied of the matters prescribed in s 61DA(2) of the Act. Further, if the presumption applies, it may be rebutted by evidence that satisfies the Court it will not be in the children’s best interests for their parents to have equal shared parental responsibility for them. 

47. I am left with no doubt whatsoever that these parents are incapable of negotiating matters about long term issues relating to the children. They are incapable of making decisions about such issues jointly. Support for such  conclusions abounds in the contents of the two Family Reports, from a consideration of the evidence given by each parent and the maternal grandmother’s evidence – which I accept in this respect – that the parents will never communicate or co-operate or agree about anything to do with the children.

1. There is a clear evidentiary foundation for the conclusion I have reached that there is absolutely no prospect at all that the parents are likely to be able to communicate and co-operate sufficiently to make decisions jointly about major long terms issues relating to the children.

2. Thus, I have no hesitation in concluding that the relationship between these parents is such that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them.

What orders are in the children’s best interests?

With whom should the children live?

1. As would be apparent from the comments I have already made, I accept and have placed particular weight upon the contents of the Family Reports prepared by Ms I.

2. I accept Ms I’s opinion that, if the mother continues to live in the Region L area, the children will benefit from continuing to live with the father.

3. I am persuaded that living primarily with the father will provide the children with more of a sense of stability, security and continuity than is likely to occur if they move to live primarily with their mother. I accept the submissions made on behalf of the Independent Children’s Lawyer to the effect that there is a sense of chaos attendant upon the mother’s living and parenting arrangements.

4. I accept the opinion expressed in the 2014 Family Report that, as the children grow older, they need stability and for friendship opportunities to be made available to them. I consider that this is more likely to occur if their primary care is provided by the father because this will allow them to continue their involvement with their known school and other communities.

5. Orders as sought by the mother would have the obvious result that all of her children would live together primarily. This would not be a “reunification” of the children but would create a new situation for all of them. I accept that the bonds and relationships between the children and their half siblings are important to them. I consider that the children have been able to develop these bonds and relationships in the time they have previously spent in their mother’s care. I am confident that they will be able to continue to develop and maintain these relationships as long as they are afforded time on a regular and consistent basis: for example on weekends and during school holidays.

6. I accept Ms I’s evidence that the father has demonstrated a greater insight into the children’s needs and has evidenced the ability – less obvious in the mother – to see things from their perspectives.

7. It is clear that the mother sees her role and/or involvement with the children as more important and/or as having a greater priority for the children than the father’s involvement in their lives or parenting of them.[40] I consider that the mother does not truly appreciate the importance for the children of the father’s role in their lives – so much can be concluded after considering her proposed orders which would not allow the children any opportunity at any time into the future to spend any of the celebratory days at Christmas and New Year with the father. Such a proposal speaks volumes about how she views his role and relationship with the children.

   [40]         As expressed by Ms I in the 2014 Family Report.

8. I consider the mother is unlikely to be able to consider the father’s perspective or that of the children if this contradicts her own view – so much is immediately apparent from her actions in attempting to unilaterally impose a change of schooling at the start of 2013. It is clear from her evidence before me during cross-examination and the contents of the January 2013 correspondence – directed to the paternal grandmother – that, once she decided such a change was in the children’s best interests, nothing was going to stop her from attempting to implement that change.

9. I accept the father considers that the children should have the opportunity to continue to spend time with the mother and maintain and develop their relationships with her. I consider he is the parent who has demonstrated a greater capacity to support the children in their relationship with the mother than the mother has demonstrated in supporting them in their relationship with him.

10. I consider it highly likely that if the mother does not obtain orders she thinks are appropriate she is likely to keep seeking changes to suit her needs and to reflect what she thinks is best – I accept and consider this to be highly likely to continue to inflame conflict and fan those embers of animosity which have not dissipated between these parties despite their separation occurring nearly seven years ago.

11. I accept that it is much more likely than not that the children may well suffer a sense of grief and loss if there is a reduction in the time they spend with their mother into the future. As noted above, all of them want to spend the same amount of time with each parent and to have that time occur during both the school week and on weekends. As also noted earlier, such time is not practicable nor sought by the mother.

12. That it was not suggested to the father that he relocate his residence to live closer to the mother so as to facilitate the implementation of such a shared parenting regime is completely consistent with the mother’s attitude that she does not want him to live anywhere near her.

13. Even if it had been suggested that the father move closer to the mother so that the children could have the benefit of spending equal time with both parents, this option suffers from the following deficits for the children:

    a)they would still be removed from their schools, environs, community and those relationships which have sustained them to date;

    b)their time with, and their opportunity to spend time with, their grandmothers is likely to be reduced and/or curtailed; and

    c)the father would no longer be able to operate the seafood business which he has operated for a significant period of time and which provides him with the capacity to support them financially.

14. I have concluded that the impact on the children of the implementation of the mother’s proposal would see them removed from the stability and security that which has sustained and supported them through their parents’ acrimony. It would significantly reduce their opportunity to spend time with both of their grandmothers and would dislocate them entirely from all that has formed part of their lives to date. Such consequences may be acceptable and justified if the benefits to the children from such a change were thought to outweigh the imposts associated with such significant change. That is not the case here. Whilst changing the children’s primary living arrangements to living primarily with their mother would afford them the opportunity to spend more time with her and their siblings, it would come at a significant cost and one which is not, in my view, in their best interests.

15. For these reasons, I conclude that the children’s best interests will be met by an order which sees them living primarily with the father.

    How should orders relating to parental responsibility be framed?

16. I consider that an order which accords to the father sole parental responsibility for major long term issues relating to the children - accompanied by the requirement to ask the mother to provide input into the same and to take her responses into account - is an order which is in the children’s best interests.  In that way, the significant risk of impact on the children of a highly likely  impasse between the parents about decisions relating to major long term issues about them will be avoided and the significant possibility of future conflict between the parents arising out of any necessity to attempt to reach such decisions jointly will be eliminated.

17. It is in the children’s best interests for their mother to be afforded an opportunity to provide input into decisions about major long term issues relating to them. The orders I make will afford her that opportunity but will also provide that the father has the ultimate responsibility for making decisions about such issues. In that way, the mother’s opinion about such issues can be taken into account but there will be no prospect that likely disagreement between the parents will frustrate the decision-making process.

    The children’s non-holiday time with the mother

18. I have given consideration to the duration of the children’s weekend time with the mother. Ms I supports the time occurring each alternate weekend, commencing after school on Friday and concluding at school on Monday. This would have the obvious benefit of maximising the children’s time with their mother on those weekends.

19. There may, however, be some practical difficulties with this arrangement, particularly when the mother’s youngest children start to engage with formal education: F will be eligible for kindergarten in 2016 and will commence Prep in 2017 and G will be eligible to attend kindergarten in 2017 and will commence Prep in 2018.

20. If the mother remains living in the area in which she currently lives, the distance between that place and the children’s schools means that it is highly likely she will have difficulty collecting the oldest children from school on Fridays. An option is to require the father to transport the children to E Town each alternate Friday afternoon. However, this would increase the number of occasions on which these parents are required to come into contact with each other – thereby increasing the chance the children will be exposed to parental conflict – and would reduce the mother’s opportunity to interact with the children’s school/s and would impact on the father’s ability to operate his seafood business. A further option for the mother is that, in a similar manner to that which has occurred previously, she may invite her mother to undertake this collection.

21. In another case, orders could easily be crafted to provide the mother with the opportunity to elect whether to meet the father in E Town on a particular Friday afternoon or to have the children collected by her mother or to collect them herself. In this case, such an order would be a clear invitation for further misunderstanding, miscommunication and conflict.

22. Additionally, once F starts kindergarten in 2016, it is highly likely the mother will have significant difficulty in facilitating her three oldest children’s return to school on Monday mornings. She will, at that time, likely also be responsible for facilitating F’s attendance at kindergarten.

23. An order that the children live primarily with the father clearly involves a significant reduction in the time they will spend with the mother. They will go from spending each weekend with her to each alternate weekend with her. Given the strength of their attachment to her and their expressed wish to spend equal time with each of their parents, it seems to me that the better decision is one which will permit the children the opportunity to spend Sunday night with their mother for the remainder of this year, albeit that this will mean a continuation of the significant travel for them each alternate Monday morning.

24. Doing the best that I can to maximise the children’s opportunity to spend time with the mother each alternate weekend, balance the potential impact upon them of undertaking significant travel each alternate Monday morning before school and to take into account the practical reality of the matters outlined above, I have determined that it is in the children’s best interests for their alternate weekend time with the mother to occur each alternate weekend from after school Friday until school Monday until F starts kindergarten in 2016.

25. After F commences kindergarten in 2016, I consider the three oldest children’s best interests will be met by returning to the father’s care at 5 PM on Sundays. This will enable them to start the school week without the impact of travel – something that I consider likely to increase as they progress through the education system – and will enable the mother to facilitate F’s attendance at kindergarten.

26. Whilst I fully appreciate this is a further reduction in the time the children will be able to spend with their mother, such is the impact of the tyranny of the distance between her residence and their schools and home with the father.

    Allocation of holiday time

27. I consider that it is in the children’s best interests that they have an opportunity to spend equal amounts of holiday time in the care of each of their parents. Given:

    a)the difficulties the parties have experienced in the implementation of the existing orders; and

    b)the conflict that has arisen as a result of differing interpretations of the time the children should be spending in the care of each of their parents according to the orders; and

    c)the imperative of minimising opportunity for future conflict arising out of different interpretation of the orders; and

    d)the desirability of reducing the number of occasions on which the children are required to transition between their parents’ households,

    I am persuaded that an order which simply provides that the children spend half of each school holiday period in the care of each parent is one which is in their best interests. It is, I think, better for the children that they spend whatever “special days” fall during this time with the parent in whose care they are at that time rather than requiring them to endure transitions between households on those days which are meant to be enjoyable.

28. The father proposed that the children always spend the first half of the Christmas school holidays with the mother – and that, consequently, they always spend Christmas Day with her and their siblings. However, I consider that the children are likely to obtain greater benefit from the opportunity to spend Christmas Day with each parent on an alternate basis: in that way, they will be able to participate in the paternal family’s celebration of that special time of year every second year.

    How and when should the children transition between households?

29. Given my findings as to the difficulties in communication between the parties and the mother’s determination not to come into contact with the father it is readily apparent that, where possible, it is in the children’s best interests that, changeovers occur via school.

30. Of course, this is not possible during school holiday periods or on Sunday afternoons. There is a distance of about 200 km between the father’s home and Suburb K. An approximate midway point between the parents’ homes is found at E Town. Both parents have a valid driver’s licence. [41] It is clearly desirable that changeover occur in a public place. It seems that the service station in E Town is an appropriate venue in the circumstances. Whilst Ms I gave evidence that there is a moderate/high risk of verbal conflict and aggression if the parties are in close proximity, the ages of the children are such that transitions can occur with each parent remaining within their respective motor vehicles.

    [41]         Exhibit 3.

31. Whilst the father has previously had a number of speeding offences which have resulted in the cancellation of his driver’s licence on occasion, he has no traffic history after August 2012. Both parties have a valid driver’s licence.

32. It is, I think, always desirable when parties have to travel some distance for  change-over, to make provision for each party to nominate a person known to the children to attend on their behalf. This desirability is amplified where, as here, one of the parties is primarily responsible for the care of other children.

    Telephone/Skype communication

33. It is clearly in the children’s best interests that provision be made for them to have telephone communication with their parents. The benefit of this for them is made more significant by the reduction in their opportunity to spend time with their mother following the making of the orders that they live primarily with the father.

34. The manner in which the order is drafted will permit the mother to be responsible for initiating the telephone communication to and by the children. In that way, she will be able to ensure that she retains control of her telephone number.

    Tutoring

35. The mother said that, despite previously offering to organise a tutor for the children on the basis that the costs of the same would be met by members of her family, the father had declined this offer. The father denies knowledge of any proposal by the mother that she arrange and be indirectly responsible for paying for a tutor. The children may well benefit from access to a tutor to assist them. Thus, it is in the children’s best interests that an order also be made to the effect that, if members of the mother’s extended family offer to pay for such tutoring, the father take up such offer and implement it.

I certify that the preceding one hundred and ninety-nine (199) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 17 March 2015.

Associate:

Date:              17 March 2015