Gabriel and Gabriel - [2018] FCCA 2306

FEDERAL CIRCUIT COURT OF AUSTRALIA

GABRIEL & GABRIEL

[2018] FCCA 2306

Catchwords:
FAMILY LAW - Parenting – whether children aged 13 and 11 who are living with their father should relocate to live with the mother several hours away – finely balanced case - where the preponderance of the evidence suggests that the children strongly wish to live with their mother – where the 13 year old has been cutting herself and mentioning suicide since she was returned to the father’s care twelve months ago and has recently reported hearing voices telling her to cut herself and commit suicide – where there are concerns about the mother’s parenting capacity, her willingness to foster the children’s relationship with the father and her choice of partner – where the father has a keen desire for the children to do well in life and is better at setting boundaries and enforcing rules but where he has not dealt appropriately with his daughter’s self-harm issues and where the evidence suggests that both children are unhappy in the father’s blended household – where on balance it is in the children’s best interests to live with their mother.

Legislation:

Family Law Act 1975 (Cth) ss.60CC, 61DA, 65DAA

Cases cited:

Pitman & Bond [2014] FCCA 2126

Applicant:

MR GABRIEL

Respondent:

MS GABRIEL

File Number:

NCC 907 of 2017

Judgment of:

Judge Terry

Hearing dates:

10 and 11 July 2018

Date of Last Submission:

11 July 2018

Delivered at:

Newcastle

Delivered on:

29 August 2018

REPRESENTATION

Counsel for the Applicant:

Mr Bithrey

Solicitors for the Applicant:

Everingham Solomons Solicitors

Counsel for the Respondent:

Mr O’Brien

Solicitors for the Respondent:

Coffs Law Co

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Tamworth

ORDERS

The mother shall have sole parental responsibility for all issues concerning the residence and health of the children [X] born 2004 (“[X]”) and [Y] born 2006 (“[Y]”) (“the children”).
The mother and father shall have otherwise shared parental responsibility for the children.
The children shall live with the mother.
The children shall spend time with the father for the first half of New South Wales school holiday periods commencing in odd numbered years and in the second half of such school holiday periods commencing in even numbered years.
[Y] shall spend time with the father on the third and seventh weekend after the commencement of each school term from 9.00am on Saturday until 4.00pm on Sunday. [X] may attend on these occasions if she wishes to do so.
Both children shall spend time with the father in the Town A area on the first and fifth weekend after the commencement of school each term from 9.00am on Saturday until 3.00pm on Sunday. The father shall confirm to the mother by text message by 4.00pm on the Thursday before such time if it is to take place and in the absence of such confirmation, the weekend time for that weekend shall be suspended.
If any time which the father is to spend with either or both children falls on a weekend which includes Mother’s Day the father’s time is suspended on that weekend and shall occur on the following weekend at the time and in the same circumstances as it would have taken place on the Mother’s Day weekend.
The father’s time with the children pursuant to Order (5) shall include the weekend of Father’s Day and for that purpose if Father’s Day does not fall on the third or seventh week of Term 3 then the father shall forego time with the children on the third or seventh weekend and spend time with them on the Father’s Day weekend. The father must confirm to the mother by text message sent no later than 4.00pm on the third Thursday of Term 3 which weekend the he intends to forego.
The children shall spend such further or other time with their father as may be agreed between the parties.
To effect the time that the children spend with the father in school holiday periods commencing in odd numbered years, the mother shall deliver the children to the father at the McDonald’s Restaurant at Town B at 11.00am on the first Saturday of each such holiday period and the father shall return the children to the mother at the McDonald’s Restaurant at Town B at 2.00pm on the midpoint day of that holiday period.
To effect the time that the children spend with the father in school holiday periods commencing in even numbered years, the mother shall deliver the children to the father at the McDonald’s Restaurant at Town B at 11.00am on the midpoint day of each such holiday period and the father shall return the children to the mother at the McDonald’s Restaurant at Town B at 2.00pm on the final Saturday of that holiday period.
To effect the time that [Y] and if she wishes [X] spends with the father on the third and seventh weekend of each school term, the mother shall deliver the children to the father at the McDonalds Restaurant at Town B at the commencement of that time and the father shall return the children to the mother at the McDonalds Restaurant at Town B at the conclusion of that time.
To effect the time that the children are to spend with the father in the Town A area on the first and fifth weekend of each school term, the mother shall deliver the children to the father at the McDonalds Restaurant at Town A at the commencement of the time and the father shall return the children to the mother at the McDonalds Restaurant at Town A at the conclusion of that time.
To effect the time that the children are to spend with the father on Father’s Day weekend the mother shall deliver the children to the father at the McDonalds Restaurant at Town B at the commencement of the time and the father shall return the children to the mother at the McDonalds Restaurant at Town B at the conclusion of the time.
The children shall have telephone communication with the parent with whom they are not living or spending time with on that day between 7.00pm and 7.30pm:
(a)on each Thursday;
(b)on each of the children’s birthdays;
(c)on the birthday of the parent they are not otherwise with on that day;
(d)on Christmas Day; and
(e)on such further or other days or at such further or other times as may be agreed between the mother and the father.
Telephone communication shall be effected by the parent with whom the children are not living or spending time with on that day telephoning the children on a number provided by the other parent and the parent with whom the children are the living or spending time with ensuring that the children are available to speak on the telephone.
Each parent shall keep the other advised of the names and addresses of any medical practitioner, hospital or allied health professional consulted by either child.
Each parent shall advise the other of their residential address and contact telephone number and shall advise the other within 24 hours of any such change in those details.
Neither parent shall denigrate the other or any member of the other parent’s family nor shall either parent allow the children or either of them to remain in the presence or hearing of any other person denigrating the other parent or members of the other parent’s family.
Each parent shall notify the other in the event that either child becomes seriously ill, is seriously injured or is hospitalised whilst the child is living with or spending time with that parent.
Pursuant to s.62B of the Family Law Act 1975 information about the family counselling services, family dispute resolution services and other courses, programs and services available is set out in the Fact Sheet attached.
Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 907 of 2017

MR GABRIEL

Applicant

And

MS GABRIEL

Respondent

REASONS FOR JUDGMENT

Introduction

This matter involves a dispute about parenting arrangements for [X], almost 14 and [Y], 11 ½.
The children are living with their father in Town C pursuant to an interim order made in June 2017 following the mother unilaterally relocating with them from Town C to Town A.
The father proposed that the children continue to live with him and spend time with the mother (who has remained in Town A) on two weekends each school term, for half of the Term 1, 3 & 4 school holidays and for the whole of the Term 2 school holidays.
The father conceded that the children had told others that they would prefer to live with their mother but he said that their views were not consistent and even if they were they should not determine the matter because there were serious concerns about the mother’s parenting capacity and choice of partner.
The father said that the mother had historically had a problem with alcohol, had changed residences numerous times since separation, did not have the same capacity as him to ensure that the children received a good education and by unilaterally relocating and withholding the children from him for seven months had demonstrated that she did not support the children having a relationship with him.
The father said that the court should be deeply concerned about the fact that the mother was living with Mr S. Mr S has convictions for domestic violence offences committed against a former partner and it was the father’s case that the children were at risk of being exposed to or subjected to family violence perpetrated by Mr S.
The father acknowledged that in the twelve months since the interim orders were made, [X] had self-harmed on a number of occasions and that she had recently talked of hearing voices telling her to cut herself and commit suicide and he acknowledged that [Y] had spoken at school recently of wanting to harm himself, but he said that he was capable of dealing appropriately with those issues. He did not accept that the children’s situation would improve if they changed residence and he rejected any suggestion that the children were unhappy in his blended household and had a poor relationship with his partner or that [X] had the problem the mother suggested with attending the social gatherings of his motor cycle group.
The father said that he was the better parent when it came to responding to the children’s educational needs and that he and Ms N could offer the children structure and stability which would set them up for a stable and valuable adult life. In contrast one of [Y]’s repeated statements was that he wanted to live with the mother because she let him do what he wanted.
The father sought an order that he have sole parental responsibility for the children’s medical and educational needs and that the parties otherwise share parental responsibility.
The mother proposed that the children live with her in Town A and spend two weekends per term and half of the school holidays with the father in Town C.
It was the mother’s case that the children’s wish to live with her should be respected. She said that well before she relocated the children were unhappy about spending time with the father and this continued to be the case. She said that they did not enjoy living in the blended household, did not like the father’s partner and that [X] did not like the father’s habit of drinking heavily at the social gatherings of his motor cycle group. She said that [X]’s self-harming behaviour and talk of suicide, which began soon after the interim orders were made in June 2017, was escalating and that the father was incapable of dealing with these issues and [X] was at imminent risk of harm.
The mother said that Mr S had made admissions about his perpetration of family violence and expressed remorse and had done courses and counselling to help him overcome his issues and that he did not pose a risk of harm to either her or the children.
The mother sought an order for sole parental responsibility.
The family report writer did not make a recommendation about where the children should live. She concluded her report by setting out the pros and cons of each parties proposal as follows:
The impact of [the father’s] proposal on the children would mean that they had stability, access to services, consistency and a stable environment, however, they would be living in a household with a step mother who they dislike and would have to adhere to household rules. It is noted that [Y] said he ‘could do what he likes at Mum’s.’ Mr Gabriel has parenting capacity and parenting ability but finds it difficult to demonstrate empathy.
…………………………
The impact of [the mother’s] proposal on the children is that they will live with their mother and siblings. As stated elsewhere in this report Ms Gabriel lacks insight into educational and allied health issues. She is reactive, has made poor choices in the past and does not encourage the children to have a relationship with their father. She has the capacity to empathically respond to their needs but lacks parenting ability.[1]
[1] Family Report paragraphs 91 & 92
In closing submissions the Independent Children’s Lawyer supported the children living with the mother. For the reasons set out below, based on the totality of the evidence, including the evidence which emerged at trial about [X]’s self-harming behaviour and suicide ideation and the father’s response to it, I agree that this is the preferred outcome notwithstanding the potential risks and losses for the children associated with it.

The evidence

The father relied on his affidavit and the affidavit of his partner Ms N filed on 25 June 2018.
The mother relied on her affidavit filed on 21 June 2018 and the affidavit of her partner Mr S filed on 19 July 2017.
A family report was prepared by Ms A, a Regulation 7 Family Consultant.
All of the witnesses were cross-examined.

The father and mother as witnesses

There were problems with the evidence of both the father and the mother.
A major concern about the father’s evidence was his failure to give comprehensive evidence in his trial affidavit about the problems [X] had experienced since returning to his care.
He devoted fifteen paragraphs of the affidavit to the issue of [X] cutting herself and threatening self-harm but part of those fifteen paragraphs involved explaining why the mother was to blame for what was happening.
He failed to reveal that he was told by [X]’s school counsellor as early as August 2017 that [X] was cutting herself.
He failed to reveal that he did not tell the mother what was happening until December 2017 when he admitted [X] was cutting herself after the mother queried him about it after seeing cut marks on [X]’s legs.
He failed to reveal that he reacted with considerable anger, in [X]’s presence, after reading (without her permission) the diary her counsellor urged her to keep as part of her therapy.
Most concerningly of all the father failed to mention that since May 2018 [X] had been saying that she was hearing voices telling her to cut herself and commit suicide.
It was only after subpoena material was tendered and the father made admissions in cross-examination that the extent of the problem became clear.
The father was terse when answering questions in cross-examination and seemed to make admissions only if the right question was asked. In his affidavit the father denied drinking alcohol to excess. In cross-examination he initially denied any heavy drinking but then admitted that he got drunk at the social gatherings of his motorcycle club. He said that the children were not present on these occasions. Ms N said that this was not always the case.
I was left with a feeling of unease about whether the whole truth had emerged about whether [X] was struggling with living with her father, her stepmother and her two teenage step-sisters.
Perhaps from the father’s point of view the truth did emerge; perhaps he genuinely does not believe that [X] has issues with this although that may be a problem in itself. However another very real possibility is that the father was not willing to make admissions about things which did not fit with the case he wished the court to accept unless he was left with no option.
The mother was in some respects a better witness but I am not convinced that the entire truth emerged from the mother either, for example about matters such as whether she had had any difficulties with alcohol in the last two or three years and about the behaviour of her partner Mr S. Her affidavit, like the father’s, suggested that she was on occasions presenting evidence and making denials which fitted with the case she wished the court to accept rather than telling the unvarnished truth warts. She also gave some answers in cross-examination which contradicted evidence in her affidavit. An example was her saying in her affidavit that she no longer drank but admitting in cross-examination that she had recently had a social drink.
It is sadly not unusual for the court to be left in a position where it has to make decisions about children based on the evidence the parties choose to reveal and to be left with a sense of unease about where the truth actually lies. I will simply have to do the best I can aided by the content of subpoena material to make findings about significant matters and determine the orders which are in the best interests of the children.

Background

The parties commenced cohabitation in 2003 when they were 26 and 20 respectively. The mother moved from Town D to Town C to live with the father and the parties lived in the Town C area for the entirety of their relationship.
The parties have two children, [X] born on 2004 and [Y] born on 2006.
The father has an older daughter [A] born in 2001. [A] lives in Town C with her mother. The father does not currently have a relationship with [A].
It would appear from the evidence of both parties that their relationship was happy in the first few years but deteriorated from 2007 onwards.
The mother said and the father did not dispute it, that the father drank very heavily on weekends throughout their relationship which she initially accepted because it was the way things were in the country. However in 2007 the mother suffered the unexpected and tragic loss of her brother and then her father in quick succession. She also began to drink heavily and both parties alleged that from this point on they were increasingly unhappy and that family violence occurred although they each denied responsibility for it and blamed the other party.
The parties separated in April 2011 when [X] was 6 and [Y] 4 and they agreed that the children would live in an equal time arrangement which took the form of the children spending two separate blocks with each parent spread over a fortnight. Until 2016 they lived with the father from Thursday until Sunday and Thursday until Monday each fortnight. The arrangement then changed to be from Wednesday to Sunday in one week and Wednesday to Saturday in the other.
I accept the mother’s evidence that she was not happy about never having a full weekend with the children and that she asked the father to agree to something different and he would not agree save for the change which occurred in 2016 but for five years she did nothing proactive to try to try to alter the situation.
The father commenced living with Ms A in late 2011. He has been in steady employment since separation and has maintained stable housing as a result of housing being provided by his employer.
The mother was less fortunate and moved around, living at a number of different addresses after separation.
The mother commenced a relationship with Mr S in September 2015.
From late 2015 the relationship between the parents, which had never been especially cordial, became more fraught.

An issue arose about the children’s schooling. The father decided that they were falling behind and insisted that commencing in 2016 they change schools and repeat a year. The mother was not happy about this, especially about the repeating but the father prevailed and in 2016 the children moved from School 1 to School 2.
Another issue was that the father was unimpressed by Mr S’s presence in the children’s lives. Mr S separated from the mother of his children [B] and [C] in January 2015 and soon after separation he was charged with domestic violence offences and sentenced to a suspended term of imprisonment. The father soon became aware of this. He subsequently alleged that [Y] had made disclosures about being hit by Mr S and about conflict between the mother and Mr S. He raised these issues with the mother but also made complaints to the Department of Family and Community Services.
A further issue, although the mother did not raise it with the father at the time, was that the mother alleged that as 2016 wore on [X] and [Y] were increasingly reluctant to spend time with the father and began making complaints about things which were happening in his household.
The genesis of the current court proceedings was that in November 2016 the mother stopped sending the children to school so that the father could not pick them up. She maintained that the children did not want to spend time with the father but her actions not only prevented that, they prevented the children attending school between late November 2016 and the end of the school year.
The father went to see a lawyer and the parties attended mediation but no agreement was reached about the father spending time with the children.
At the start of the 2017 school year the mother enrolled the children in School 3 in Town C but they attended there only briefly. On 15 February 2017 the mother and Mr S relocated with the children to Town E, a suburb of Town A. The mother enrolled the children in School 4 without consultation with the father and did not facilitate them spending time.
On 20 March 2017 the father filed an application for a recovery order.
The matter came before me in Newcastle on 5 June 2017. The mother opposed the granting of a recovery order and proposed that the children remain with her in Town A but after an interim hearing I ordered that the children live with the father in Town C and spend time with the mother each third weekend and during school holidays.
The father collected the children from the mother and re-enrolled them at School 2.
On 27 August 2017 the parties and children attended a child inclusive child dispute conference in Town C. Both children were very clear that they wished to live with their mother but the father questioned the independence and/or reliability of their views and reiterated concerns about the mother’s parenting capacity and about Mr S’s history. He remained strongly of the view that the children should live with him and as a result a family report was ordered and it was released to the parties on 19 February 2018.
The family report writer provided a comprehensive report but felt unable to make a recommendation about where the children should live. The matter did not settle after the release of the report and it was listed for hearing in Town B on 10 & 11 July 2018.

The parties current circumstances

The father is 41. He is a (occupation omitted) for (employer omitted) and lives in a house at Town F provided by his employer which is next door to the (employer omitted).
The father remains in a relationship with Ms N who is 43 and is an (occupation omitted) for an (employer omitted). She has three children, Ms K aged 20, Ms C aged 18 and [D] aged 14. Ms K lives with her partner and baby in Town G. Ms C and [D] live with Ms N and the father.
Ms C commenced High School this year and attends School 5 which [D] also attends. [Y] attends School 2.
Given the ties the father and Ms N have in the Town C area, it could not reasonably be expected that the father would consider moving to Town A.
The mother is 35. She and Mr S, who is 37, live in Town E, a suburb of Town A. They have two children, [E] born on 2016 (2) and [F] born on 2017 (9 months).
Mr S works for a (employer omitted). The mother is an (occupation omitted) in (employment omitted) and may return to work in the future but she currently engaged in home duties and in caring for [E] and [F].
The maternal grandmother, a retired (occupation omitted), has moved to Town A and the mother was not challenged about her evidence that the maternal grandmother was a support to her.
The mother said that if the children returned to her care, [X] would be enrolled at School 6 and [Y] at School 4.
Mr S’s children [B] aged 9 and [C] aged 7 live with their mother Ms F in Town C. Mr S spent supervised time with them from 2015 to 2018. On 11 July 2018 final orders were made by consent for them to spend unsupervised time with Mr S in the future. It will initially be in Town C but from Term 1 2019 Mr S will be able to take the children to Town A during school holidays.
The mother and Mr S both like the Town A region and intend to remain there. Mr S’s parents have also moved to Town A.
In theory the mother and Mr S could move back to Town C notwithstanding that the maternal grandmother and Mr S’s parents have moved there. It would involve some upheaval for them and Mr S would have to obtain a different job but they are renting and Town C is not a strange place for them. It would also have its advantages in terms of Mr S spending time with his children.
However there was no suggestion at trial that orders should be made about the children which were dependent on the mother returning to Town C.

[X]’s predicament

The father gave quite limited information about [X]’s predicament in his affidavit. He did not reveal all he knew and the extent of her problems only became apparent as a result of answers he gave during cross-examination and material produced on subpoena.
The father said in his affidavit that [X] had mental health issues and had been cutting herself. He did not say when he became aware of the cutting but went into detail about what occurred on 27 March 2018. He said that [X]’s school contacted him that morning and told him that [X] had been cutting herself. He collected her from school and took her to hospital where she was seen by a mental health nurse. She was not admitted and was sent home with follow up to be provided from the mental health team over the phone.
The father said that the 27 March incident was preceded by the mother sending [X] 11 text messages that morning, implying that this had contributed to the incident at school. He said that [X] would often do the cutting in the days leading up to or following spending time with her mother.
The father went on to say as follows in his affidavit:
[X] has a number of cutting marks on her thighs, wrists, arms and on the inside of her ankles. [X] cuts herself with a blade from a pencil sharpener or with scissors. I am aware that [X] has another friend called [G] who also partakes in cutting.
The father said that he hoped [X] would outgrow the problem and that he was dealing with it by removing her mobile phone so that she could not contact [G], continuing to take her to Centacare for counselling and telling her that if she felt the need to cut herself she should come and sit with him and talk to him about it.
What became apparent as the trial went on was that the father was aware from at least August 2017 that [X] was having mental health issues, was made aware at or around the same time that she had mentioned suicide and became aware not long after this that she was cutting herself and yet he failed to tell the mother about these developments.
The father arranged for [X] to see a GP in August 2017. The GP observed her to be to be anxious and of low mood. A mental health care plan was developed for her and arrangements were made for her to see a Counsellor at Centacare.
[X] was also seeing the school counsellor at this time and the school counsellors notes of 17 August 2017 say as follows:
She seemed quite low – 4/10, and said she had been 0/10 – wanting to die – Pop, mum’s father suicided when she was 8 – would do the same – hang herself, does not have a rope and is not planning to currently. She has told dad and talked about it with him. We did a Safety Plan and she took it with her. Told her I would ring Ms N about talking about court all the time [and about feeling suicide risk]. Has scribble all over one hand – said the boys in class keep annoying her and she does it to distract herself rather than get angry. She said she does not cut but thinks about it sometime and wants the knives locked up.[2]
[2] Tender Bundle page 199
On 18 August 2017 the school counsellor rang Ms N and explained her concerns about suicide and encouraged her to tell [X]’s father and [X]’s counsellor at Centacare and to take her to hospital and ring emergency if she was concerned. The counsellor’s notes go on to say:
She agreed [X] is feeling overwhelmed at the moment and I said that is a time of increased risk. Ms N said father had said [X] talked to the counsellor about having cut herself a couple of time in the past. [3]
[3] Tender Bundle page 198
On 25 August 2017 the school counsellor rang Centacare and informed them that [X] had wanted to harm herself during class time and said that she wanted to confirm that [X] was going to have regular appointments at Centacare.
The appointments at Centacare began and on 5 September 2017 the father informed Centacare that [X] had tried to cut herself with scissors across her arms during class.
On the same day the school counsellor made a mandatory notification to the Department of Family and Children’s Services after [X] told her that she was afraid that the father would hurt her if she went home because she had disclosed she wanted to live with the mother.
On 11 September 2017 [X] told the counsellor at Centacare that her father had “gone off” when he found out that she had told the Independent Children’s Lawyer that she wanted to live with her mother and that he was not speaking to her. She said that she was hesitant about communicating with her father because of fear of his reaction. She was encouraged to write about her feelings in a journal.
[X]’s counselling ceased in December because the number of sessions funded by the mental health care plan had been used up.
The father failed to inform the mother that [X] was cutting herself until the mother raised the issue with him in December 2017 after noticing scars on [X] and talking to [X]. The mother also informed her solicitor about it and her solicitor wrote to the father’s solicitor requesting the father reinstate counselling for [X].
The response received from the father’s solicitor was:
I am instructed that the father was not aware of the cutting incident but has made an appointment for the child [X] to attend upon her GP on 21 December 2017 for a further mental health plan.[4]
[4] Tender bundle page 212
When the father was asked in cross-examination why he had not told the mother that [X] had been cutting herself when he first became aware of it his response was:
It was just an oversight.
[X]’s counselling resumed but the problem did not go away. The father included information in his affidavit about the occasion on 27 March 2018 when the school contacted him and he took [X] to hospital but until it was extracted from him in cross-examination, he did not reveal that on 25 May 2018 he informed Centacare that [X] told him that she had been hearing voices in her head telling her to cut herself and commit suicide.
The following appears in the Centacare records:
[X] was punctual to her session. Her physical presentation including attire and grooming was normal and unremarkable. During the session she appeared withdrawn and responded to questions with short, at times one word answers. These characteristics reflected [X’s] overall flat affect. She showed superficial scars on her left and right forearms.
Mr Gabriel said that he recently discovered that [X] had been hearing voices in her head telling her to cut herself. [X] explained that she had been taken out of class when she became emotional because the voices in her head would not stop. The voice relentlessly tells her to self-harm or end her life [X] explained. [X] said that it is the voice of a woman whom she has not ever heard before. She also described the voice as calm, mischievous and has a “hiss”. Often the voice tells [X] that if she cut herself even just once she will feel better. She again feels anger, sadness and stressed because of this.
[X] said that 3 months ago, when she first experienced the auditory hallucinations she was at her mother’s place watching a film alone while the lights were off. She said she been sent to her room after a fight with her brother [[Y]}. She said that she heard the voice and when the paused the film she continued to hear it which frightened her very much.[5]
[5] Exhibit E
The father said that he had asked [X] about the voices and she told him that they just tell her to cut herself.
The father admitted during cross-examination that he had not told the mother about this development and when asked why not he again said that it was just an oversight. When he was pressed about why he hadn’t told her even though [X] was coming into her care each third weekend and during school holidays he responded:
I just didn’t.
The father said that he had not considered taking [X] to see a psychiatrist because her counsellor had not recommended it. He said that he had taken [X]’s phone from her and had told her to come and sit with him if she felt this way and that she could use his phone to call someone if she needed to.
The gravely concerning issue with this is that in December 2017 the father read [X]’s journal (diary) without her permission and became extremely angry about what he read. [X] told her Centacare counsellor that the father punched the wall and yelled at her and that it was because she had written in her diary that she wanted to live with her mother.
The father denied punching a wall but admitted that he became very angry. He said it was because [X] talked about killing someone in the diary.
It does not matter why the father became angry, the fact is that he did. He made no mention in his affidavit to reading the diary or about his reaction upon reading it yet wanted the court to accept that [X] would feel she could come to him and talk to him if she was struggling emotionally.
The family report writer was told in January 2018 by both parents that [X] had been cutting herself but she was not made aware of the extent of the problem. She was provided with further information about it prior to being cross-examined on 11 July 2018 and in particular was told about [X] reporting hearing voices telling her to self-harm and commit suicide. She was strongly of the view that [X] needed to be assessed by a child psychologist.

[Y]’s situation

The father’s revelations during cross-examination about the extent of [X]’s cutting and suicide ideation were alarming and received a good deal of attention during the trial but the father also obtained a mental health plan for [Y] in July 2017 and [Y] has also made some alarming statements to his counsellors.
The GP who saw [Y] with a view to a mental health plan being obtained did not record [Y] as presenting with the same demeanour as [X] and [Y] told the doctor that his mood was “alright” but the doctor’s notes record that:
Father disagrees and believes he has had anger management issues.[6]
[6] Tender bundle page 148
[Y] had six sessions with a counsellor at Centacare commencing in August 2017. At a session on 19 September 2017 he reported that he was unhappy living with his father as he “gets angry and yells” and this escalated to [Y] feeling scared/fearful and angry and yelling back.[7]
[7] Tender bundle 154
[Y] attended some further sessions but on 16 November 2017 the father told Centacare that [Y] was doing well and he did not need further sessions.
The father revealed in his affidavit that on or about 16 May 2018, [Y]’s school counsellor contacted him and told him that [Y] had said words to the effect:
I just want to be dead, sometimes I think about stabbing myself with a knife. [8]
[8] Father’s affidavit paragraph 168
The counsellor said that the school had been obliged to make a report to the Department of Family & Community Services.
Following this the father took steps to obtain a further mental health care plan for [Y] and to re-engage him with Centacare and he instructed his solicitor to inform the mother about what had happened. However when he was asked during cross-examination about [Y]’s state of mind in May 2018 he said that he didn’t think [Y] really understood what he was saying when he expressed suicide ideation.

The children’s best interests

Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and s. 60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine their best interests.
The primary considerations are the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm from being exposed to or subjected to abuse, neglect or family violence.
It was not in dispute that the children would benefit from having a meaningful relationship with both of their parents. The parents both have their weaknesses but they also have their strengths; for example the father is a hard worker and a good role model for the children in that regard and the mother is a warm and loving parent.
In theory children can have a good relationship with both of parents even if they live at a distance from one of them; in theory. But if the children’s primary carer does not support the relationship with the other parent there is a heightened risk that the relationship with the other parent will founder if distance is added to the mix. If children miss a visit with the distant parent it may be a long time before the next visit is due, allowing resistance to build up; and the court is also not always able to deal speedily with complaints that a parent is breaching a court order, again allowing problems to fester and to become very difficult to solve. Last time the mother withheld the children from the father the problem took seven months to fix. If the mother withholds them again the problem may become unfixable.
I have considerable concern that if the children live with the mother their relationship with their father may be at risk. There was no evidence of the mother denigrating the father to the children but she does not think well of him, is suspicious that he is drinking heavily on weekends and is fixed in her view that the children are reluctant to spend time with him.
It could be that after what happened when she withheld the children last time that she will be cautious about withholding them again but she is soft hearted and if the children were to say something convincing to her about not wanting to see their father there is a considerable risk that she might fall in with their request and not to make them travel to Town C.
The father in his turn does not think well of the mother. When he was asked in cross-examination about her parenting strengths he responded:
I’ve no idea. I didn’t see too many parenting strengths. For most of the time she was drunk and passed out.
However he does not denigrate her to the children and he is someone who tends to obey the rules. If the children live with him their relationship with their mother is likely to be maintained.
I must consider the need to protect the children from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.
There is no risk of the mother abusing the children or neglecting them; allegations that she has failed to properly attend to their education in the past and allegations about her alcohol consumption are best treated as parenting capacity issues. However the father raised a concern that the children might be abused by Mr S or exposed to family violence as a result of Mr S’s conduct.

In January 2015 Mr S committed a number of domestic violence offences against Ms F and he was charged with two counts of assault occasioning actual bodily harm, two counts of stalk intimidate intend to cause fear and one count of destroy or damage property. He was convicted and was sentenced to 18 months imprisonment on the charges of assault occasioning and stalk intimidate suspended on him entering into a bond to be of good behaviour for eighteen months.
Mr S’s conduct toward Ms F was very serious. Police reports indicate that he dragged her out of bed by the arm, yelled at her and punched her arm. Shortly afterwards there were text exchanges in which Mr S threatened to harm himself, Ms F and the children and made threats to rape Ms F and slit her throat.
Mr F did not fully concede the truth of these allegations when interviewed for the Ms F/Mr S family report but during the hearing before me he was a little more forthcoming and he also said that it was a bad part of his life which he wasn’t proud of and tried to block out.
I accept the account in the police records about Mr S’s conduct toward Ms F.
On 16 September 2015 Mr S was charged with contravening the ADVO arising out of an approach to Ms F in public and on 8 February 2016 he was called up and placed on an 18 month intensive corrections order in respect of the offences for which he had been placed on the bond. The intensive corrections order ran from 8 February 2016 to 7 August 2017.
Mr S spent time with [B] and [C] supervised at Town C Children’s Contact Centre in 2015 but this ceased in December 2015 after a dispute over the costs associated with the visits. In April 2016 Mr S collected [B] and [C] from school and withheld them Ms F (something the mother tried to dissuade him from and she then called the police when he would not return the children). The children were recovered by police after a few days and Ms F filed an application for parenting orders. Mr S then spent no time with the children for quite a considerable period.
A family report was ordered in the Mr S/Ms F matter. It was prepared by the same report writer who prepared the report in this matter and was put into evidence before me.
Ms F told the report writer that there was no family violence in her relationship with Mr S until they moved from Town H to Town C but there was thereafter significant family violence and that Mr S was physically abusive to her son [H] born in 2002.
Mr S made some, although not complete, admissions to the report writer about committing acts of family violence but said that he had changed and he had done courses since the proceedings between him and Ms F commenced to assist him. He was able to resume spending supervised time with [B] and [C] after this report was released.
The father is not convinced that Mr S has changed and said that he was concerned that there might be family violence in the mother’s relationship with Mr S. He said that [Y] told him about an occasion when the mother threatened Mr S with a knife when he tried to harm [Y].
The mother denied that such an incident had occurred. She said that Mr S was frank with her from the start about the allegations of violence in his relationship with Ms F and told her he had done a parenting course and an anger management course. She said that there was no violence in her relationship with Mr S and that if they disagreed they talked things out.
I have some reservations about the mother’s willingness to admit things which might not help her case but she has been in a relationship with Mr S since about September 2015 and there are no police or hospital records or independent accounts which contradict this. The police were called to the home in December 2015 but it was because of the mother’s state which I will refer to later when discussing the issue of her alcohol consumption.
The father alleged that the children had made two reports to him of Mr S being violent to them. He alleged that in September 2015 [X] reported that Mr S had kicked her in the hip causing a bruise. He alleged that in November 2015, [Y] told him that Mr S had hit him across the back of the legs with a rake causing bruising. He further alleged that in February 2016 [Y] received a black eye and swelling to his face and told the father that Mr S caused it.
The mother denied that there was any truth in the allegations in respect of [X] or the allegation about the rake. She agreed that [Y] had sustained a black eye but said that it was an accidental injury and was the result of Mr S demonstrating (sport) to [Y].
The father, to his credit, raised his concerns with the mother at the time the children made these disclosures but he was not satisfied with her responses and he also made reports to the Department of Family and Community Services (DFACS) and in the case of the rake incident to the police. Nothing eventuated from these reports.
It is not possible for me to make a finding about the allegations concerning Mr S and [X] and [Y]. There is always a risk that things children say to parents are unreliable, not necessarily because children are untruthful (although that can happen in a high conflict family) but also because a brief report about what was said or done can have more than one meaning. Mr S might for example have kicked [X] but it could have been accidental in terms of manoeuvring on and off a bike. This is speculative and I say it only to illustrate that words briefly spoken can have more than one meaning and in fraught family situation the most damming interpretation is usually assumed to be the correct one.
The injury to [Y]’s eye could have been an accident and the “rake incident” might not have occurred as [Y] appeared to describe it to the father.
Mr S did not attend the family report interviews for the report in the Gabriel matter but neither child told the report writer that they had any problems with Mr S. This is in stark contrast to Ms F’s son [H] who attended the Mr S/Ms F interviews and spoke negatively of Mr S and refused to be observed with him.
The father’s counsel said that before I lightly dismissed the possibility of family violence or abuse of the children being perpetrated by Mr S, I should have regard to evidence in the police material which suggested that Mr S continued to have difficulty controlling his temper.
On 1 April 2015 a friend of Ms F’s alleged that the father threatened him and made a punching motion outside court when he accompanied Ms F to court. The friend complained to the police but the police did not take the matter any further and in the face of Mr S denying that he made a threat and the friend not giving evidence before me I cannot be satisfied that anything untoward occurred.
On 11 April 2017 after the parties moved to Town A, Mr S’s dogs were fighting in the backyard and he was attempting to separate them. One of his neighbours put her head over the fence to see what was going on and Mr S told her to piss off and mind her own business. The neighbour did not like the language and called the police. The police spoke to both parties. They said that Mr S was cooperative with them and they advised both parties to keep to their own yards and not engage in conversation.
This is not a strong indication that Mr S is likely to break out and be violent to the mother or the children.
Mr S must be perceived by Ms F to have made a genuine effort to deal with his violent behaviour (although she may well remain personally frightened of him) because on 11 July 2018, I made orders by consent in the Mr S/Ms F matter which permitted Mr S to commence spending unsupervised time with [B] & [C].
Given Mr S’s history, it would be naïve of me to believe that there is no risk of him behaving violently to the mother, [X] or [Y] in the future. He has been violent to a domestic partner and to a child not his own in the past. He has done courses and he wants very much to be a different person from now on but sometimes people do courses and have counselling and are able to convincingly present a case that they have changed and may even have a period when they do not perpetrate family violence but they have not changed at all and they go on to be violent in future domestic relationships.[9]
[9]Pitman & Bond [2014] FCCA 2126
However in circumstances where three and a half years have passed since the incidents between Mr S and Ms F and where Mr S has made some admissions about his actions, has undertaken some courses to address his behaviour and has lived with the mother for almost three years without attracting police attention because of incidents in their relationship I cannot find that Mr S poses an unacceptable risk of harm to the mother, [X] and [Y].
I can fully understand why the father is concerned but I cannot find that there is an unacceptable risk.
[Y] has made allegations to his Centacare counsellor that since the children had returned to live with him that the father had hit him with a belt. The father denied that this had occurred. When challenged during cross-examination he said that something had been said about a belt but it had been a joke or part of a game. I feel some unease about whether there might be more to it than the father is willing to admit but I cannot find on the state of the evidence that the father has abused [Y] or is unacceptably likely to abuse him in the future.
On 3 August 2017 [X] told the school counsellor that her father kicked her when she was on the large motorbike and she fell off.
The Centacare notes of 5 September 2017 refer to [X] telling her school counsellor that she was scared about her father’s reaction if he found out that she had told the Independent Children’s Lawyer she wanted to live the mother. She said that he had hit her before mainly on the back and legs. [X] said she felt unsafe to go home that afternoon.
I cannot determine on the state of the evidence whether the bike incident was accidental or deliberate or whether there has been any hitting which is in the nature of child abuse especially when [X] told the family report writer in February 2018 that her father had never physically hurt her.[10]
[10] Family report paragraph 72
[X] has undoubtedly been exposed to the father’s anger. She told her school counsellor on 29 November 2017 that her father had read her diary (presumably the journal the Centacare counsellor suggested she keep) and had:
…got really angry with her because of what she had written in there about wanting to live at Mum’s and he punched the cupboard and banged his head against the wall, yelled at her to stay in her room and walked out and slammed the door. [X] said he did not hit her but she was really shaking afterwards and she agreed she was worried that he would hit her.[11]
[11] Tender bundle page 194.
The father agreed that he got angry when he read the diary but denied punching anything or banging his head. In circumstances where the father was reluctant to make admissions about his behaviour I cannot place a great deal of weight on his denials and I incline to the view that [X]’s version of what happened is likely to be accurate. I intend however to consider the father’s propensity for anger and to reacting physically if upset about things the children have said or done as a parenting capacity issue rather than to take the somewhat risky step given the state of the evidence of categorising his behaviour as abuse of the children as abuse is defined in the Family Law Act. I cannot find that the children are likely to be exposed to or subjected to abuse by the father and he will not neglect them.
I must consider any views expressed by the children and any factors (such as the children’s maturity and level of understanding) that the court thinks are relevant to the weight it should give to the children’s views.
The Independent Children’s Lawyer spoke to the children in July 2017 and said that they both expressed a wish to live with their father. However the children had resiled from that position by August 2017 and the evidence of all the independent people who have spoken to them since (including the Independent Children’s Lawyer) is that they strongly wish to live with their mother.
On 24 August 2017 the children attended a Child Inclusive Child Dispute conference with a family consultant in Town C. The family consultant said as follows in her memorandum:
Both children reported being extremely unhappy in the current situation. They described a far closer relationship with the mother who was physically and emotionally available to them. They felt that the father was less connected and less physically available. [12]
[12] Child Inclusive Child Dispute memorandum Exhibit G
The children both told the family consultant that they wanted to live with their mother.
[X] said that she had told the Independent Children’s Lawyer something different in July because the father told her that he would find out what they said to the Independent Children’s Lawyer and she was scared of his reaction if she said she wanted to live with her mother.
The family report writer interviewed the children on 19 January 2018 and said as follows about [X]:
[X] said that she wants to live with her mother because she does not feel welcome in her father’s home. She reported that she loves her father but feels that her father sides with his current partner and her children and she and [Y] ‘miss out.’ She does not like Ms N and reported that she sides with her own children and emotionally abuses her. When asked to provide examples of this [X] was able to cite examples, adding that [A] left the father’s home ‘because of Ms N.[13]
[13] Family Report paragraph 70
She said as follows about [Y]:
[Y] said he wants to live with his mother and this is consistent with his view in previous reports. He said it was easier living at his mother’s ‘because she is not strict and lets me does what I want.’ On 19 September 2017 [Y] told his counsellor at Centacare that he was unhappy living with his father as he becomes angry and [Y] reported feeling scared and fearful. [Y] did not report physical abuse but reported yelling. He reported on October 26 he disclosed that he ‘very much dislikes his father’s girlfriend Ms N.’ It was further reported that his difficulty with receptive strategies made his ability to manage his home environment difficult. He also reported that he wanted to live at his mother’s house. [Y] reported a good relationship with his mother, her partner, his younger siblings and his maternal grandparents all of whom live at Town A.[14]
[14] Family Report paragraph 76
The father said that the children did not express such strong views to him or even said that they would prefer to continue living with him. He also opined that the children had been influenced by the mother to express the view that they wanted to live although it was not suggested to the mother at trial that she had coached the children.
I cannot place weight on the father’s evidence. Both children at different times and to different people have talked about prevaricating with or misleading the father about their views because of fear of his angry reaction to finding out that they wanted to live with their mother.[15] [X] said that the father yelled and punched the wall when he read this in her diary in December 2017 because she said in it that she wanted to live with her mother. Whether this caused the angry outburst or whether the father was reacting angrily to something else in the diary is immaterial. There is evidence that the father can get angry with the children and the statements the children have made more than once that they fear the father’s reaction if they say something he does not like are entirely credible.
[15] For example Tender bundle pages 207 and 204 [Y] and the school counsellor 27 July 2017 and s25 August 2017
I am satisfied that both children would prefer to live with their mother but children’s views are only one thing I have to take into account in determining appropriate parenting orders.
I must consider the nature of the children’s relationship with each of their parents and any other person including a grandparent of the children.
The father and Ms N said that [X] and [Y] had a good relationship with them both and that they had a “fairly harmonious household” notwithstanding all the teenagers living in the home.
However the father and Ms N both had a strong propensity to make minimal admissions and the evidence suggests that there are in fact issues in the relationships between [X] and the father, [X], [Y]and Ms N and [X], Ms C and [D] in particular and that whatever the father might like to believe the household is not always fairly harmonious.
[D] and [X] attend the same school and [X] has complained on more than one occasion about [D] making social media comments about her which have caused her problems at school. She has complained that Ms C will not let her use the kitchen if the father and Ms N are not around.
Ms N robustly denied in cross-examination that there was any truth in any of this or said that if there were issues with the children she dealt with them appropriately, and I need to bear in mind things [X] has said could include an element of embellishment by [X] or it could be a situation where storms blow up and then blow over and would not terribly serious overall if [X] felt someone in the household was listening to her when she had issues.
What is concerning however is that [X] has made a number of complaints about feeling unwelcome in the father’s household since the orders were made in June 2017, she regularly complains that her father does not listen to her, and she has been cutting herself since the orders were made.
[X] reported a troubled relationship with the father to the family report writer who said as follows:
When asked about her relationship with her father [X] said she cannot talk with him about how she is feeling because he gets upset and sometimes angry.
The father did not accept in the witness box that he had a poor relationship with [X] and said that he was trying to be responsive to her distress by telling her that if she felt upset she could come and sit with him and use his phone to speak to someone.
The evidence suggests however that the father has struggled to deal with the children’s dislike of or ambivalence about living with him since the orders were made, that he has resorted to outbursts of anger when the children have said they wanted to live with their mother and that the children are fearful of making him angry. I am not convinced that [X] would be very likely at all to speak to the father if she was feeling low.
The children refused to agree to Ms N being present during their observation session with the father at the family report interviews which does not support the notion that they have a close relationship with her.
The children have a good relationship with their mother. They made no complaint about her getting angry with them or not listening to them.
The mother and Mr S both said that the children had a good relationship with Mr S. He did not attend the family report interviews to be observed with the children but he has been part of their lives for three years. The children made no complaint about him the family report writer and his presence in the mother’s household has not deterred the children from expressing a strong and consistent desire to live with her.
The father said that the children had told him and Ms N that they did not like “Mr S” but it was a single line in his affidavit without a time frame or a context making it impossible for me to place any weight on it.
The children have young siblings, [E] and [F], in the mother’s household. The family report writer noted that at the observation session:
[X], in particular, wanted to interact with and provide care for her two young half-brothers who are 18 months and 2 months.[16]
[16] Family Report paragraph 79
The paternal grandparents live in Town C. The father said that they had a good relationship with the children. This was not challenged at trial but they did not give evidence and the father did not give any evidence about the nature of their involvement in the children’s lives.

The children told the family report writer that they had a good relationship with the maternal grandmother but she did not give evidence and I cannot assess the nature of their relationship.
I must consider the extent to which each parent has fulfilled or failed to fulfil the parents’ obligations to support maintain the children.
This is not an issue in the case.
I must consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in the relation to the children, to spend time with the children and to communicate with the children.
This is not a relevant consideration.
I must consider the likely effect of any change in the children’s circumstances including the likely effect of separation from either of their parents or any other child or person including any grandparent or other relative of the children with whom he or she has been living.
This is a complex issue which I can only address after making findings about all of the s. 60CC (2) & (3) matters.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
The parents live four hours driving distance apart. It is a lengthy distance to travel for the weekend. It was conceded that [X] had always found the travel burdensome.
The distance will remain no matter what order I make and notwithstanding that the children will still be able to see each parent regularly in the future but they will not be able to see each parent as frequently as they do at present because both parties agreed that [X] struggled with the travel. The fact that [X]’s time with one of her parents will reduce in the future concerns me if it means that she will see her mother less frequently.
I must consider the capacity of each parent to provide for the needs of the children including their intellectual and emotional needs.
The father is meeting the children’s day to day needs very well and he ensures that they attend school and provides to the best of his ability for their intellectual needs. He has an excellent employment history and he is responsible and reliable in providing financial support for his blended family.
An issue which the mother raised about the father was that he drank heavily at barbecues for his motor cycle group and that [X] disliked being required to attend these events. It has been a constant theme of the mother’s material since the proceedings began and [X] told the family report writer that the father:
Goes to bikie parties and consumes too much alcohol.[17]
[17] Family report paragraph 72
It did not seem to be in dispute that when the parties’ were together the father drank very heavily on weekends. It was the mother’s case that this was to the point of passing out or vomiting. The father did not dispute this detail.
The father did not admit that he currently drank to anything like that extent. He told the family report writer that he was a diabetic and couldn’t drink too much or he would get into trouble and during cross-examination he said that he had been diagnosed with diabetes about three years ago. In answer to questions in cross-examination he seemed to say at first that he had not drunk for quite a few years but he later agreed that he did drink at social gatherings of his motor cycle group (which is not an outlaw motor cycle group) and said:
If the kids are not there I’ll get drunk.
Ms N contradicted this by saying that there were occasions when the father got drunk when the children were there but said that she did not drink at the gatherings and was on hand to ensure that the children and father got safely home.
That is not the problem though, the problem is that [X] has expressed a dislike of attending these gatherings and the father is not willing to even consider that she might feel uncomfortable. From his perspective either there is nothing wrong with the gatherings so [X] is being unreasonable or [X] is saying one thing to others and a different thing to him.
This feeds into a significant issue in this case namely the father’s capacity to provide for the children’s emotional needs.
There are numerous pieces of evidence which suggest that the father is not kind and patient with the children particularly when they express views he finds difficult to accept.
In the Child Inclusive Child Dispute conference memorandum the family consultant said that:
Both children …reported the father as quick to anger, particularly if they reported that they wanted to live with their mother.[18]
[18]Child Inclusive Child Dispute Memorandum Exhibit G
In September 2017 [Y] told his Centacare counsellor he felt fearful because of the father’s yelling.
The father admitted that in December 2017 he read [X]’s diary without her permission and became angry about its contents and did not hide his anger from [X].
I have considerable concern about the father’s capacity to deal with [X]’s self-harming behaviour because he does not seem to understand that given his angry reactions to things [X] has said she may not be willing to approach him for help if she is feeling upset or low.
The mother’s counsel was critical of the father for not taking [X] to see a psychiatrist following her revelations in May 2018. The father said that he had not done so because the hospital in March 2018 nor the Centacare counsellor in May 2018 suggested that he do so. I cannot be too critical of the father in this regard because the mother also proposed at trial that [X] continue counselling and be engaged with Headspace. Both parents need to rethink their strategies in the light of the evidence of the family report writer.
However while the father might arrange for [X] to see a psychologist, he has a problem controlling his anger if the children say something he does not like. He is not well placed to cope with a situation where the children are stressed or unhappy because the court makes a decision about their living arrangements which is contrary to their wishes.
The father was slow to accept that this was a big issue commenting during cross-examination “I’m only human.”
However it is a big issue and in the report which was released in February 2018 the report writer recommended that:
…….both parents attend parenting courses that discuss parenting adolescents and that both parents attend a parenting after separation course.[19]
[19] Family Report paragraph 93
By the time of trial five months later not only had the father had not engaged in either of these courses, he admitted during cross-examination that he had not even made inquiries about the availability of such courses.
The mother has the capacity to provide for the children’s needs in terms of feeding and clothing them but a number of issues were raised about her parenting capacity.
The father complained about the mother’s changes of address since separation seven years ago but while the mother has moved around all the moves save for the move to Town E were within the area where the father was living and the children were going to school and I do not consider this in isolation a significant issue.
More concerningly the mother has historically had a problem with alcohol. It appeared to be common ground that she did not drink excessively in the early years of the parties’ relationship but in the last four years she did drink heavily and while the issue was not explored in depth at trial it appears that this may have continued after separation. The mother has a conviction for high range PCA on 20 July 2012 which led to a $500.00 fine and a 12 month licence disqualification.
The mother was charged with drive disqualified on 22 July 2013 and the charge was dismissed pursuant to s.10.
However it was the mother’s case that she had not consumed any alcohol since prior to [E]’s birth; she said that it helped that Mr S did not drink. She said that Mr S rarely drank alcohol which had helped her to cease consuming alcohol. She admitted during cross-examination that she had in fact drank socially on one occasion but said that there was no alcohol in the house and maintained that during cross-examination at the trial, that she ordinarily did not drink.
There is a COPS event on 17 December 2016 when the police came to the mother’s home after [X] called them. It appeared to the police that the mother was intoxicated to the point of becoming comatose on the couch and they called an ambulance and she was taken to hospital. The mother maintained that she was not intoxicated but in a bad state from exhaustion and taking two Valium.
I have considerable reservations about whether I should completely ignore the police report referring to alcohol and accept the mother’s self-serving version of events.
The father is certainly not convinced that the mother has ceased to drink but there was no evidence (such as test results, GP’s notes records, police records noting that the mother had been driving drunk, problematic CDT test results, comments made by the children to the father about the mother being drunk or the like) which contradicted the mother’s assertion that at the current time alcohol is not a problem for her.
It was the father’s case that the mother had been responsible for disruptions in the children’s education and by implication lacked the capacity to provide for their educational needs.
To assess this it is necessary to consider the history of the children’s school attendance.
[X] attended School 7 in 2010 and 2011 and [Y] attended there in 2011. In 2012 the children attended School 8 in Town C for half a year and then changed to School 1. They attended School 1 for half of 2012 and the whole of 2013, 2014 and 2015.
In 2016 the children commenced at School 2 and repeated a year. The father said that this was by agreement between the parents. The mother said that the father imposed this on the children despite her opposition because he was concerned about their progress at School 1 and was adamant that he persuaded School 2 to repeat the children although School 1 recommended against this, noting among other things that [Y] was a big boy for his age.
Wherever the truth lies about whether there was agreement, the fact is that it was the father who initiated the change from School 1 to School 2; this change was not due to any action by the mother. There was an occasion in February 2016 when she re-enrolled the children at School 1 but this lasted half a day and I do not consider it significant.
However on 20 November 2016 the mother ceased sending the children to school at all and they did not attend for the remainder of 2016. She enrolled them at School 3 at the start of 2017 but they attended there only briefly before the mother relocated and enrolled them at School 4 in Town A. They attended that school until they returned to the father’s care in mid-2017. Their education was significantly disrupted from late 2016 onwards because of the mother’s actions.
The situation with the children’s education must be seen in context however. They had some changes of school, or at least [X] did, around the time of separation but this was also a time when the mother had to find alternative accommodation. They then attended School 1 for three and a half years and ceased attending there only because the father insisted that they change schools.
They had a very unsettled time with their education between November 2016 and June 2017 and this was due to the mother but it was not because of her inability to attend to their educational needs as such, it was because of her efforts to distance them from their father.
The mother’s actions caused upheaval and distress for the children; she did not handle their needs including their intellectual needs appropriately. She caused the distressing situation for the children of living with her and not seeing their father for seven months and then being returned to their father by court order. However I do not accept that the evidence supports a finding that if the children lived with the mother in Town E they would face difficulties with their schooling. There is nothing remarkable about [X]’s absences from school either when she lived in Town C or when she was living in Town A.
As noted above the mother conspicuously failed to provide for the children’s emotional needs between late 2016 and early 2017 but she has done her best since then to support them. She has not sought to undermine the interim court order that they live with their father.
The mother does not have a history of yelling at the children if they displease her and she gave evidence about services she had identified in Town A which could assist the children, and [X] in particular, if they returned to live with her. Counselling is available through Interrelate which is a service similar to Centacare and the mother said that Headspace may be appropriate to assist with [X]’s issues.
The family report writer was of the view that [X] needed to be engaged with a child psychologist rather than Headspace but if that is required there are appropriate services available in Town A or within a reasonable vicinity of Town A.
The mother unlike the father made an effort to seek out the courses recommended by the report writer and prior to trial she completed a Parents Not Partners course at Interrelate in Town I.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents and any other characteristics of the children that the court thinks are relevant.
I have dealt with [X]’s self-harming earlier and nothing further needs to be specifically referred to here.
I must consider any family violence involving the children or a member of the children’s family.
I have considered the allegations about Mr S and about the father being violent to the children earlier.
It could be argued that the father’s behaviour when he read [X]’s diary was family violence; it frightened [X] and it must have made her wary about whether the father might react in the same way in the future if she said something which displeased him and in that respect it was controlling and coercive violence as defined in s. 4AB of the Family Law Act. However putting a label on the father’s behaviour is not helpful and I have dealt with it when considering the father’s capacity to provide for the children’s emotional needs.
In this section of the judgment I intend to consider the allegations each party made about the other perpetrating family violence during their relationship.
The father alleged that the mother had a terrible temper and that he had seen her head butt walls, punch walls, scream and swear and throw items across the room when she was angry.
The father called the police on 29 January 2011 alleging that the mother had threatened him and had thrown a barbecue plate and a pair of pliers at a glass door attempting to gain entry to the house. The parties had both been consuming alcohol. When the police arrived the father said that he wished the police to apply for an ADVO but did not want the mother charged.
The mother claimed that the father was violent to her. She said that in May 2008 after the parties had both been drinking the father shoved her into a wall and her body left a large hole in the wall and she suffered bruising. She said that from this time on arguments often ended with the father shoving or punching her. She alleged that in September 2008 the father pushed her up against the fridge and threw a punch and she ducked and the father punched the wall leaving a hole. She alleged that in 2010 he threw a beer mug at her which smashed against the wall.
The mother said that she recalled the police attending in November 2009 after (she assumed) being called by the neighbours and she said that the father’s guns were removed.
The mother alleged that the parties separated in or about April 2011 after the father punched her in the face.
The mother did not report the alleged incident in April 2011 to police at the time but on 24 July 2011 she reported it to the police because she claimed that the father had been contacting her and threatening to take the children. She said that the police told her that they would apply for an ADVO. It is unclear whether they did so.
The situation as far as violence between the parties is concerned is complex because from 2007 onwards both parties drank heavily on occasions. The mother admitted that after the tragic and unnatural deaths her brother and father on separate occasions in 2007 she began to drink heavily. The father continued binge drinking and the parties frequently argued when they were intoxicated.
Both parties alleged that the other was violent in the context of drinking (although the April 2011 incident may have been different) and both denied that they had been violent as described by the other. The father told the family report writer that the parties argued but there was no physical violence. However there may be self interest in the denials of them both and their recollections may be impaired as a result of time and intoxication at the time of the incidents and the passage of time since the incident occurred. The mother’s account of incidents which occurred between 2008 and 2010 were detailed and on their face credible but whether she accurately remembers what happened so long ago including details of conversations or whether and to what extent there is an element of reconstruction I am unable to say.
There is evidence of the mother calling the police in 2010, 2009 and 2008 and in the COPS records reference is made to excessive consumption of alcohol and in the 2008 and 2009 entries to both parties claiming there was a “physical component” to their argument but neither wanting the police to take action.
I consider it probable that there is some truth in the accounts of both parties about the other perpetrating family violence including some physical violence. I cannot make a finding about exactly what happened in April 2011 but otherwise it does not appear to have been controlling and coercive violence; it mainly seems to have been in the context of people losing control of themselves after consuming excessive alcohol.
However my findings about violence in the parties relationship insofar as I am able to make them do not assist me however to make a decision about where the children should live in 2018.
After separation the parties agreed on a shared care arrangement and save for the allegation he made about the mother threatening Mr S with a screw driver in 2015 when he was threatening to abuse [Y]. The father did not allege that the mother had been a perpetrator of family violence since separation seven years ago.
There was no evidence that there was any violence in the father’s relationship with Ms N.
The parties have not come into conflict at changeovers and there are no allegations of post-separation violence such as stalking and vile Facebook posts.
I must consider if a family violence order applies, or has applied, to the children or a member of the children's family--any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter.
In her affidavit the mother said that an ADVO was made against her for twelve months on the father’s application in January 2011[20] but this issue was not explored during the hearing.
[20] Mother’s affidavit paragraph 54
I must consider the attitude to the children and the responsibilities of parenthood demonstrated by each of their parents.
The mother showed a poor attitude to the children and the responsibilities of parenthood in withholding them from the father and then unilaterally relocating with them. However I have discussed this in the parenting capacity section of the judgment.

I must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
There is a risk of further proceedings no matter what order I make. To give some examples if I order that the children live with the mother there could be further proceedings if she does not comply with orders for the children to spend time with the father. If I order that the children remain with the father there could be further proceedings if the father fails to deal appropriately with [X]’s mental health issues or the children continue to express a strong view that they wish to live with the mother.
I must consider any other fact or circumstance which the court thinks is relevant.
The parents’ lack of capacity and at times unwillingness to communicate is a relevant matter.
The parties have historically had some capacity to communicate and reach agreement. They agreed about a shared care arrangement in 2011 and while the mother suggested it was imposed on her this may be a reconstruction. She had some difficulties in her life after separation and it may have suited her.
By and large the parties managed to make the arrangement work between April 2011 and November 2016 and they did communicate sometimes. The father raised concerns about Mr S with the mother between 2015 and 2016. The parties exchanged views surrounding the issue of the children changing schools for the beginning of 2016.
However the mother said that communication between them after separation was always difficult and often non-productive. She said that the father was rigid in his insistence that the orders not be changed and that when she tried to communicate with him she received terse one word responses, usually just “No.” The mother said that this was the response she received in September 2015 when she asked if she could have the children for a weekend now and then.
The father seemed to agree that communication was never good. He said as follows in cross-examination:
We haven’t contacted each other in years; we haven’t had a conversation in years. We’ve had the odd text message between us but it hasn’t been the best. There’s been a lot of animosity.
The parties’ personal animosity to each other and their communication styles are entrenched. The father made the following comment in answer to a question during cross-examination about why he and the mother had not exchanged information recently:
We’ve never had much a relationship when it comes to communication so it wouldn’t have happened and vice versa.
Events since November 2016 demonstrate the impact on the children of the parties’ refusal/inability to communicate. The mother did not inform the father that the children were expressing any reluctance to spend time with him prior to ceasing that time in November 2016 or that she intended to cease taking the children to school in November 2016 or that she intended to enrol them at School 3 in February 2017 or that she intended to relocate with them or that she intended to enrol them at School 4 in Town A.
The father has been uncommunicative with the mother since the interim orders were made. He failed to initiate any dialogue with her after [X] started talking of self-harming in August 2017. When he took [X] to hospital in March 2018 he did not contact the mother about it but asked his solicitor to do so with the result that a letter went out laying blame for what had happened at the mother’s feet. He did not tell her about [X]’s revelation in May 2018 about hearing voices telling her to cut herself and commit suicide.
The evidence as a whole strongly supports the following passage in the mother’s affidavit insofar as communication from the father is concerned since the children have been in his care:
I only appear to receive communication from Mr Gabriel relating to our children’s health, care and welfare and education when there is a crisis or I ask by text and generally such communication comes initially from his lawyers or I receive a text that blames me for whatever crisis has arisen, such as the events with [X] on 27 March 2018. Mr Gabriel has not advised me when [Y] has his first counselling appointment since organising the new mental health care plan in or around 16 May 2018. Mr Gabriel has not advised me of the outcome of the meeting with the Principal on Monday 28 May 2018. He has not advised me of the outcome of any medical appointments the children may have attended since living with him, except [X]’s attendance at Town C Hospital, which was via his lawyers. [21]
[21] Mother’s affidavit paragraph 26
The family report writer put the matter bluntly and accurately as follows:
The co-parenting relationship is toxic and there is a singular lack of trust between the parents.[22]
[22] Family Report paragraph 21
Both parties proposed that the children continue to spend time with each of them and yet it is clear that neither has given any thought to the impact on the children of moving between the parents who refuse to tell each other about things which are happening for the children while in their care or to think about the impact on [X] of failing to share information about what is happening for her and agree on a strategy to help her.
The parents have been separated for seven years. Communication between them has never been good and there is nothing to suggest that the end of the proceedings is likely to improve their trust in each other or their capacity to co-operatively parent their children.

Parental Responsibility

Pursuant to s.61DA of the Family Law Act I am required to apply a presumption that it is in the children’s best interests that the parents have equal shared parental responsibility for them absent a finding that one of the parents has engaged in abuse of the children or family violence.
There has been family violence between the parents and the presumption does not apply but I can still make an order for equal shared parental responsibility if that is considered to be in the children’s best interests and the family report writer recommended that such an order be made.
I would be inclined to make that order if the children were to live with the father, simply to ensure that the mother was not excluded from obtaining information about the children’s health and counselling in circumstances where the evidence suggests the father might well not keep her in the loop.
If the children are to live with mother however I would lean to making an order that she have sole parental responsibility for them at least as far as issues to do with health and counselling are concerned. The parties do not respect or trust each other and it would be regrettable if appropriate steps were not taken to deal with [X]’s issues because they could not agree or if stress or tension was created by the parties’ efforts to reach agreement.

Conclusion

I feel considerable sympathy for the father. He is not perfect; the example he sets the children by regularly drinking heavily at social gatherings is not a good example. However he has a strong employment history which does set them a good example, he wants his children to do well in life and he has taken steps to ensure that they make good progress at school.
The father cannot be criticised for being concerned about Mr S and he was forced to commence legal proceedings in 2017 or run the very real risk that he either would not see his children again or would be marginalised in their lives and the legal proceedings must have cost him a good deal of money.
[X]’s behaviour since returning to Town C, and to a lesser extent [Y]’s, has undoubtedly been challenging for the father to deal with. He has been required to arrange counselling for them and he cannot be blamed for believing that the mother’s actions have contributed to the difficulties he faces with the children.
There would be benefits to the children in remaining with the father. They would be assured of housing stability and stability with their education and the father will comply with orders about them spending time with their mother. The reverse may not be the case and if the children lose their relationship with their father it will be a great loss for them.
I cannot however order that the children remain with the father in Town C.
The children have consistently expressed a preference for living with the mother. On any objective view they have not settled happily with the father since the interim orders were made and given their ages there is a considerable likelihood of further proceedings if their wishes are ignored.
[X]’s situation is gravely concerning. Unless it is appropriately handled a catastrophic outcome cannot be ruled out.
There is evidence of the father feeling disappointed, upset and stressed and on occasions becoming angry when the children have evinced a preference for living with their mother and over them not settling in his full time care as he would have liked. He clearly finds this very difficult to handle. The children fear his angry reactions.
The father is not well placed to deal with an adverse reaction by the children to an order that they remain living with him and I cannot leave [X] in a situation where the father’s solution for the problem of her feeling impulses to cut herself or otherwise harm herself is for her to come and sit and talk to him, not when she experienced his intense anger when he read the journal which her counsellor urged her to keep and when he has not done the parenting courses the family report writer recommended.
The Independent Children’s Lawyer supported the children living with the mother and I intend to make that order.
It will mean yet another change of school for the children but in the overall scheme of things that is something which will have to be endured.
The mother’s situation is far from ideal. She could face further housing instability if her relationship with Mr S ends, Mr S may relapse into violent behaviour and [X]’s difficulties could also be challenging for the mother to deal with. There is no magic bullet in this case but on balance in light of the children’s views, the evidence of their unhappiness in the father’s blended household and the advantage to [X] and [Y] of living with a parent who listens to them (perhaps too much if [Y]’s perception of her letting him do what he likes is correct but nevertheless) and who is warm and empathic, I intend to order that they live with the mother.
The other benefit of this for the children is that they will live with their siblings [E] and [F].
The Independent Children’s Lawyer proposed that the mother have sole parental responsibility for decisions about residence and medical and allied health treatment and that the parents otherwise share parental responsibility. This is appropriate in that it will ensure that decisions are made promptly about treatment for [X] but will ensure that the father remains an important part of the children’s lives.
The Independent Children’s Lawyer did not suggest that the mother have sole parental responsibility for decisions about the children’s education and if I do not order this it will mean that she will need to consult with the father before enrolling the children at schools in Town A. I would be concerned about this save that common sense suggests that a return to School 4 would be in [Y]’s best interests as he has attended that school for a semester previously and the father did not suggest that he had an issue with [X] attending the high school identified by the mother.
The orders the Independent Children’s Lawyer suggested for the children spending time with the father are sensible. They ensure that [Y] spends time the father on some weekends during school terms but do not force that on [X]. Both children will spend time with the father during school holidays.
I intend to make orders largely in accordance with the carefully drafted orders proposed by the Independent Children’s Lawyer.
For all of the above reasons the orders of the court will be set out at the beginning of the judgment.

I certify that the preceding two hundred and seventy six (276) paragraphs are a true copy of the reasons for judgment of Judge Terry.

Date: 29 August 2018