GARRETY & STEYN

[2014] FamCA 1144

FAMILY COURT OF AUSTRALIA

GARRETY & STEYN [2014] FamCA 1144

FAMILY LAW – CHILDREN – Best interests – with whom the child shall live and spend time – where the mother was not truthful on more than one occasion during the course of her evidence and had a tendency to exaggerate – where the mother’s decision to remain living at such a long distance from the children is not child focussed – where the children’s relationships with the mother have been affected as a result – where the mother’s allegations of family violence perpetrated by the father are uncorroborated and inconsistently made – sibling relationships – where great weight has been given to the inability and/or unwillingness of the mother to meet the needs of the children – where the father has provided a stable environment for the children since they have been in his care – where the father understands the significance of the children’s relationships with both parents – where both children have their most secure attachment with the father – where the distance and travel involved in changeovers outweighs the benefit to the children of spending time in the mother’s home – children to live with the father – children to spend time with the mother, mostly in the father’s local area, but for block holidays periods in the mother’s local area

FAMILY LAW – CHILDREN – Parental Responsibility – where what is certain is that the parties do not have the level of trust and ability to make arrangements and communicate that would enable the sharing of parental responsibility – father to have sole parental responsibility

Family Law Act 1975 (Cth) ss 60CC, 62B, 64B, 65DA,

APPLICANT: Mr Garrety

RESPONDENT: Ms Steyn

INDEPENDENT CHILDREN’S LAWYER              Legal Aid New South Wales

FILE NUMBER: (P)NCC 802 of 2013

DATE DELIVERED: 18 December 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 8, 9, 10 October & 5 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Boyd

SOLICITOR FOR THE APPLICANT: Byrnes Lawyers

COUNSEL FOR THE RESPONDENT: Mr Duane

SOLICITOR FOR THE RESPONDENT: Flintoff Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Carty

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales

Orders

1. That all prior parenting orders in relation to B born … 2009 (“B”) and C born … 2011 (“C”), together referred to as “the children”, are discharged.

Parental responsibility

1. The father shall have sole parental responsibility for the children.

2. The father shall keep the mother advised of:

   (a)any enrolment at school/pre-school and any change of enrolment for the children or either of them;

   (b)any medical emergency or specialist treatment sought; with copies of reports generated by hospitals and specialists to be forwarded to the mother;

   (c)any religious instruction for the children or events of particular religious significance for the children or either of them.

3. The father shall authorise the school which the children attend to provide to the mother (at her cost, if any) documents relating to the academic progress and welfare of the children at school and pre-school, including but not limited to school reports, school newsletters and applications for school photographs. 

Residence

1. The children shall live with the father.

Time and communication

1. The children shall spend time and communicate with the mother at times as agreed between the parties, but failing agreement, as follows:

   (a)       For the period until B commences school in 2015:

   (i)on alternate weekends from 9:00 am Saturday until 4:00 pm Sunday (in the current pattern) changeover to take place at McDonalds Suburb D.

   (b)       From the time B commences school in 2015:

   (i)For up to five weekends in each of the four school terms, with one of those weekends to be in the I Region area and up to four  in the E Town area, with the mother to nominate the dates of the proposed weekends (provided they are not consecutive weekends) and to identify which one of those weekends she wishes to take place in the I Region area, not less than four weeks in advance of each period NOTING that one of the weekends nominated by the mother may be the weekend including Mother’s Day and may not be the weekend including Father’s Day;

   (ii)Each year for one week in each of the school term holiday periods after Terms 1, 2 and 3, being the first week in even numbered years and the second week in odd numbered years, with up to two of those holiday periods to take place in the I Region area and one in the E Town area, with the mother to notify the father, in writing and not less than eight weeks in advance, of the holiday periods she proposes should take place in the I Region area.

   (iii)During school holiday periods after Term 4, when Christmas falls in even numbered years, from the first Saturday of those holidays to the second Saturday, commencing December 2016, extending to the third Saturday (that is, a two week period), commencing December 2018.

   (iv)During school holiday periods after Term 4, when Christmas falls in odd numbered years, from the second last Saturday of those holidays to the following Saturday, commencing January 2016,   and commencing from the third last Saturday in 2018 (that is, a two week period).

2. Changeovers shall take place as follows:

   (a)For the weekends and holiday periods in the E Town area, at McDonalds Suburb D E Town, commencing at 9.00 am on Saturdays and concluding at 5.00 pm Sundays (for weekends) and 5:00 pm Saturdays (for holiday periods), unless the mother advises the father in writing in advance of a later time for commencement and/or an earlier time for conclusion.

   (b)For the weekend and holiday periods in the I Region area, at McDonalds CC Town, commencing at 9:00 am on Saturdays and concluding at midday Sundays (for weekends) and midday Saturdays (for holiday periods).

   (c)Changeovers may be effected by a parent or nominee, other than the father’s partner, who should not be present or in sight of the parties and children during changeovers.

3. The children shall have telephone communication with the mother as may be agreed between the parties, but failing agreement, as follows:

   (a)       each week during school term on Wednesdays;

   (b)       on each of the children’s birthdays;

   (c)       on J’s birthday; and

   (d)       on the mother’s birthday.

   with the mother to telephone the father’s mobile telephone number (0407 900 913) between the times of 6:45 am and 7:00 am, and with the father to make the children available to take the mother’s telephone call and ensure that the children have privacy and are not disturbed or distracted for the duration of the telephone call.

4. During holiday periods commencing in 2015, the father may have telephone contact with the children, by the father telephoning the mother’s mobile phone on Tuesday between 6.30 pm to 7.00 pm and the mother to make the children available to take the father’s call and ensure that the children have privacy and are not disturbed or distracted for the duration of the telephone call.

Information

1. Each party shall keep the other advised of current residential address and contact details, including personal mobile phone numbers.

2. Each party shall notify the other party of any medical emergency, illness or injury suffered by one of the children, whilst in the care of that party, and shall authorise any health professional providing treatment to communicate with the other party about the condition and treatment of the children.

3. Each party shall permit and assist the children to display family photographs, including the other party and the children, in the room where the children sleep, whether or not they are living or spending time with that party.

Restraints

1. Each party is restrained from denigrating the other party or the other party’s partner or extended family in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other party or his or her family.

2. Each party is restrained from discussing these proceedings with or in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person discussing these proceedings.

3. Each party is restrained from posting or causing to be posted via social media any information or images concerning the children, the other party and members of the other party’s household.

Parenting course

1. Each party is to commence and complete a Parenting After Separation course, run by either Relationships Australia or Q Org NOTING that it would be in the best interests of the children if the father’s partner also completed such a course if she is willing to do so.

2. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these Orders.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC802 of 2013

Mr Garrety

Applicant

And

Ms Steyn

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction  

1. These are competing applications for parenting orders in respect of two children, B, aged five, and C, aged almost four.

2. The applicant is the father, who lives in E Town, on the north coast of New South Wales.  His household consists of himself, the two subject children, his partner Ms F and her daughter, G, aged six.  The father wishes for the children to remain living with him and to spend time with the mother.

3. The respondent is the mother, who lives in H Town in the I Region area, to the west of Sydney.  Her household consists of herself and her son, B, aged seven and a half.

4. The mother wishes for the children to move to live with her and spend defined time with the father one weekend per month in her local area and one weekend travelling to the father.  There is 460 kilometres between the two households.

5. By date of hearing, neither child had had face to face contact with the mother for three months; the older child not since January 2014.

The hearing

1. On the morning of the first day of hearing, an application was made on behalf of the mother, that due to perceived deficiencies in the recent family report, there should be a further family report by another family consultant, or the appointment of a single expert pursuant to Chapter 15.  Despite that application, there was no application for adjournment; the submission was that the hearing should nevertheless commence. 

2. There had been two Family Reports prepared by the family consultant in October 2013 and September 2014.  A limitation to the second report was identified by the family consultant, that is, that B’s relationship with the mother and her step-brother, J, was not observed and that B:[1]

   …refused to be interviewed by the [family reporter] so her views in relation to spending time with the mother were not canvassed. 

   [1]Family Report dated 29/09/2014, par 51

3. The interviews had taken place the week previously on 22 September 2014; all parties and their children had been present. 

4. There was no consent to the appointment of a single expert and in any event, neither party was willing or able to fund such a report.  There was no obvious basis for a further report by a different family consultant.

5. Arrangements were made for the family consultant to see the mother and both children early on the morning of the second day of hearing.  The family consultant was able to provide a supplementary written report and the matter was resolved in that way. 

6. The matter was unable to be concluded in the allocated three days and a further day was required, namely 5 November 2014.

The Applications

1. The father, since the filing of his Initiating Application in April 2013, has consistently sought sole parental responsibility for the children and residence with him.  In relation to time and communication with the mother, he proposed supervised time at a contact centre.  However, he was reassessing his proposal in that regard pending the updating report of the family consultant prior to trial. 

2. At the time of filing his Initiating Application, the father also filed a Notice of Child Abuse, Family Violence or Risk of Family Violence.  The acts alleged to constitute abuse were as follows:[2] 

   The Respondent has been suffering mental health issues for some time. That affects her behaviour towards the children. On 19 March 2013 the Respondent advised the Applicant that she had put her hand over the mouth of [C] (aged 2) and had picked up a pillow and covered [C’s] face with it. The Respondent has also expressed an intention to commit suicide.

   [2]Notice of Abuse filed 11/04/2013, Pt E, par 6

3. In final submissions, the position of the father crystallised.  He proposed unsupervised monthly contact for the children with the mother, to be in the absence of their step-brother.  The father was concerned about changeovers; noting the negative implications of police station handovers and the fraught history between the parties of changeovers in public places.  The preference of the father was for contact centre changeovers.

4. The Amended Response of the mother filed 28 May 2014 sought orders for equal shared parental responsibility between the parents, residence with her and substantial and significant time for the children with the father, including alternate weekends, half school holidays and other special occasions.

5. In her final submissions, the mother maintained her position and amplified her proposal for contact as one weekend per month with the father in his area (E Town) and one weekend per month in the local area of the mother (I Region).

6. In the event that the children remained living with the father, the mother proposed the father travelled to her local area with the children, with changeovers to be at a local restaurant.

The issues

1. The issues for determination are as follows:

   (i)Whether the mother harmed, or said she had harmed, C in March 2013.

   (ii)Whether there had been family violence and assaults by the father on the mother during the course of their relationship.

   (iii)Whether there has been family violence involving the mother and the father’s partner.

   (iv)Whether the mother considered the subject children when she chose to live where she presently does.

   (v)Whether there is an unacceptable risk of harm to the children in the household of either party.

   (vi)The nature and significance of the relationship between the subject children and their step-brother J.

History of relevant events

1. In 2004 the mother immigrated to Australia from either her birth place, Country K, or from Country L. She was 23 years of age and settled in Sydney.

2. In 2006 she married her first husband and in 2007 their only child, J, was born.  About seven months later, the mother separated from her first husband and J remained in her care.  At that time, the mother was living on the northern beaches of Sydney.

3. In mid-2008 the parties met and formed a relationship.

4. In April 2009 they began living together, the father buying a home on the northern beaches.

5. In September 2009 the parties’ first child B was born. 

6. In February 2011 the parties’ second child C was born.

7. With the birth of C, the mother was at home with three children under the age of four.  The father was working fulltime. In the father’s view, the mother was finding it difficult to cope, especially as C was an unsettled sleeper.  He said she was not an easy baby, as her older sister had been; she was a “very restless sleeper … and difficult to console/settle”.[3]

   [3]Affidavit of father filed 18/09/2014, par 35

8. The father alleges that the mother began smacking C for “misbehaviour” when she was three or four months old.  He also observed that the mother slapped her son J across the face if he misbehaved.  He received phone calls at work from the mother indicating that he needed to come home and help her and that she was having difficulty dealing with the children.  The parties decided something had to change and they moved away from Sydney.

9. In April 2011 the parties sold the property on the northern beaches and moved to N Town.  The father owned a rural block of land in E Town but deferred to the mother’s wish not to live there.  The mother says she left Sydney reluctantly, although N Town was her choice, and that it was a mistake that she later came to regret. 

10. The father found work in the building industry for about six months.  Thereafter the parties moved from N Town to Z Town and the father worked on an intermittent basis, helping with the children when not at work. Their financial position declined, putting further pressure on their relationship.   

The mother’s child, J, moves to live with his father

1. In May 2012, by agreement between the mother and her former husband, their son J returned to Sydney to live with his father.  I am unable to conclude what the real reason for this move was.

2. The father asserts that the mother had been struggling in her relationship with J, regularly becoming angry and frustrated, “If [J] doesn’t go back to his father’s I will end up killing him”.[4] 

   [4]Affidavit of father filed 18/09/2014, par 52

3. The mother alleges that it was because of mistreatment of J by the father and also because of the parties’ difficult financial circumstances.

4. In her oral evidence, the mother gave as the reason that she could at least spare one of her children the difficulties of living in the uncomfortable circumstances they were in.  That may have been so, but I am not at all satisfied that the father mistreated J in any way.

5. The mother asserts, and the father denies, that the father regularly left her and the children alone for days at a time.  The father asserts, and the mother denies, that the mother made comments to him about hearing voices and experiencing hallucinations.  He also said that the mother was extremely aggressive and violent towards him at times.

6. In August 2012 the father obtained fulltime employment in the construction industry in E Town.  The parties moved into a property he purchased in that city. 

7. I accept the evidence of the father that he felt concerned about the mother’s ability to cope, but was compelled to return to work to support the family.  However, I infer that the father was sufficiently confident about the mother’s ability to provide care for the two children.  I accept that the father worked intermittently for a period when the mother needed his assistance to manage the children, but that his preference was to be in fulltime work. 

The parties’ relationship deteriorates

1. By early 2013 the parties’ relationship was tenuous.  The parties were sleeping in separate rooms.  The mother gave evidence in some detail in her affidavit of an incident in February 2013, when she says the father took C from her bed during the night to his bedroom.  On the following morning, when she changed the child’s nappy, the mother says, “I found a pubic hair in her nappy”.  She then went on to refer to an incident 12 months later, where the same child had nappy rash and is alleged to have made a complaint about the father hurting her genitals, “Daddy hurt my cookie”. 

2. That the two incidents were included in one paragraph[5] suggests that the mother saw a link between the two incidents.  In her oral evidence, the mother said that this was not the case; she was simply putting all information before the Court.

   [5]Affidavit of mother filed 19/09/2014, par 44

1. The child had spent that night in two separate beds with each of her parents. The hair the mother found may well have been a pubic hair.  Her belief that it was a pubic hair apparently caused her to feel concerned about the child’s safety.  There was no adequate explanation for that concern which on the evidence, is unfounded.

2. By March 2013 the mother consulted with her then general practitioner in E Town, and was again prescribed an anti-depressant.  The mother was able to identify for her general practitioner a named drug Pristiq, which had worked well for her previously.

3. By mid-March 2013 the mother was telling the father that she did not want to live in the house in E Town any more.  There is a significant difference between the parties on this point.  The mother says she was telling the father she intended to separate from him, taking the children with her.  The father says that the mother was constantly asking to return to live in Sydney so she would be closer to her son.

Conversations in March 2013, separation and following events

1. In late March 2013 there was an incident which ultimately gave rise to final separation.  The father says that on 20 March 2013 he had a significant conversation with the mother.

2. In earlier affidavits he had referred to this incident taking place on 19 March 2013, but in his trial affidavit, he corrected the date to 20 March 2013 accepting the incident could not have occurred on 19 March 2013, the children both being in day care on that day.

3. However despite being challenged strongly as to his honesty and castigated for his error, if that were to be accepted by the Court as such, the father was unshaken in his evidence that the reported conversation did take place.[6]  He says he arrived home from work at approximately 5.00 pm and the mother said words to the effect:

   [6]Affidavit of father filed 18/09/2014, pars 64-70

   Mother:I have done something bad

   Father:  Are the kids okay?

   Mother:Yes, but today I put a pillow and then my hand over [C’s] mouth.

   Father:  Was she crying?

   Mother:Yes, I don’t know what happened. It was like I was not in control of my body but somebody else was. I picked up a pillow and covered her face. It was like I was watching someone else doing it.

4. The father says he was shocked, concerned about the mental health of the mother and worried about potential harm to the children.  There is no evidence to suggest that the child was injured; no medical attention for the child was sought by either parent.  The father contemplated contacting the Department of Family and Community Services (‘the Department’) but feared the children being taken away.  He “stewed over what to do”.

5. After a few days he contacted the mother’s parents in Sydney.  The maternal grandmother had recently phoned him to see if there was anything wrong because the mother had not rung for two weeks.  He responded that the mother was “really depressed … [and] struggling to function.”[7]  She asked the father to get the mother to ring her.  The mother did not ring.  

   [7]Affidavit of maternal grandmother filed 25/06/2014, par 17

6. One or two days later the maternal grandmother says the father rang and said to her:

   [The mother’s] not coping with the children.  She told me she held a pillow on [C’s] face when I was at work.  She has threatened to leave and take the girls to Sydney.

7. Without reference to him, the maternal grandmother contacted the Department and then advised the father that she had done so.  They discussed medical treatment for the mother.

8. On 30 March 2013 the maternal grandparents travelled to visit the parties for a planned Easter visit, prior to their departure to live in the Country M.  The maternal grandmother had arranged with the father for him to take the children out so she could speak to the mother alone.

9. During the course of an eventful and uncertain day, the father called the police. He had become concerned that the mother intended to leave that day and take the children to Sydney.  She had packed big bags of belongings.  The police made contact with the mother and at the request of police, she was taken to hospital. An Apprehended Violence Order (‘AVO’) was initiated for the protection of the father and children.

10. Whilst in hospital, the mother reported that the threat of violence to her children had been “fabricated by her partner.”  In the hospital notes, there is a lengthy report of the mother’s statements, including this: 

    Allegation that she tried to smother a child with a pillow strongly denies this. Says that she told partner ‘got so annoyed by [C] that she nearly threw a pillow at her.’ The mother at that time self-described as suffering with depressive feelings recently, feelings of hopelessness and despair, low self-confidence and self-esteem and anhedonia.[8]

    [8]Exhibit 21, p 24 of 77, E Town Base Hospital General Notes 30/03/2013.

11. I note that the mother did not make reference in her affidavit to having said words to the father to that effect, that she was “so annoyed with the child that she nearly threw a pillow at her”.  

12. The mother denied what she is alleged to have said by the father in this way:[9]

    I am aware of [the father’s] allegations … that I told him on 19 March 2013 that I picked up a pillow and covered [C’s] mouth with it.  I deny I said this to [the father].  I deny I did this.  I have at no time physically hurt any of my children.

    [9] Affidavit of mother filed 19/09/2014, par 52

13. It is a matter of significance.  The mother was focusing on the incorrect date, perhaps to deflect from the real issue.  She was not candid in her affidavit about her own state of mental health and emotional feelings at critical times (March 2013), in the way that she apparently was candid at the hospital.  I conclude as follows:

    a)That on 20 March 2013 the mother formed an intention, involving C and a pillow, whilst feeling angry with the child.

    b)That on that day she and the child were present in the same room, the child was crying, the mother was annoyed with her, the mother was holding a pillow and that the mother became fearful about her own intentions.  She may have  put her hand over the child’s mouth, she may have a held the pillow over the child’s face.  It is equally probable that she did neither of those things.

    c)That later that day she told the father in the words reported by him a version of how she had felt and what she had done with the child.  I infer that she trusted the father and was asking for his help.

    d)That the mother made the denials she did of having said the alleged words and of having done the acts described by those words, for reasons relating to the outcome she hoped for in these proceedings.

14. The father’s reaction and the steps he took are consistent with genuine concern and shock. If anything, he under-reacted. 

15. Between 19 March 2013 and final separation on 30 March 2013, the father continued to go to work and leave the children with the mother.  In that 11 day period, life had more or less returned to what was normal for the parties and the children.

16. On 30 March 2013, when the maternal grandparents and their son had arrived for a visit, the father became concerned that the mother was not present at the beach, as she had said she would be, and he was unable to find her.  The relationship ended on that day.  The mother went to hospital and did not return to the home.

17. On 9 April 2013, 10 days after final separation, an application was made by the father to the Federal Circuit Court with the father seeking sole parental responsibility.

18. On 12 April 2013 orders were made, by consent, that the children live with the father, spend time with the mother as agreed, with such time to be supervised, and for there to be reasonable telephone communication.

19. The mother returned to Sydney with her parents for a period of time and then in May 2013, returned to E Town, where she rented a furnished studio.

20. On 2 May 2013 the mother attended the Department E Town office for a risk assessment.  At that time, the mother had not seen the children for about two weeks.

21. On 14 May 2013 the mother filed her Response.

22. On 17 May 2013 an order was made for the preparation of a family report and further consent orders were made for equal shared parental responsibility, residence with the father and time, failing agreement otherwise, between the children and the mother, in the E Town area, from Saturday to Sunday with varying hours each weekend. 

23. It is agreed between the parties that the mother thereafter had significant and substantial time with the children, in excess of what had been contemplated by the orders.

24. In mid-2013 the father began a new relationship with his current partner, Ms F.

25. In August 2013 the mother moved from E Town to N Town.  In terms of her being able to continue having liberal time with the two very young children, this move is hard to understand.  The only explanation offered by the mother was that she needed to get away to have the opportunity to work out what she would in future do.

J returns to live with the mother

1. In September 2013, the mother’s son, J, now aged six and a half, ceased living with his father in Sydney and came to live with the mother, for reasons which are entirely unclear to me.

2. In October 2013 the mother then moved to the I Region area. That move was even more inexplicable than the one from E Town to N Town.  It made regular time with the children virtually impossible. 

3. The parties have been since that time 460 kilometres apart, five or six hours by car at least. 

4. On 19 November 2013 the mother filed an Application in a Case proposing shared care on a fortnightly basis (two weeks in E Town, two weeks in I Region), with changeovers in Newcastle.

5. On 26 November 2013 further interim consent orders were made providing for the children to spend time with the mother on alternate weekends in their local area and for a week to include Christmas (23-30 December 2013).  The mother was to collect the children from, and return them to, E Town.

6. Provision was made for the release of the Family Report to the mother’s treating psychologist and her general practitioner and to any other person to which either of those practitioners referred her.

The changeover in the I Region December 2013

1. On 29 December 2013 there was a heated argument between the parties at a changeover outside a police station in the I Region.  This arose from the mother’s refusal to wake C in order for her to be placed in the father’s car for the trip back from the I Region to E Town.  The police intervened at the request of the father.

2. The mother disingenuously told police that she was not obliged to return the children until the following day.  That is what the orders stated, but the parties had varied the order. The mother had not wanted to travel back to E Town; the father agreed to come and collect the children, but could only do so on Sunday, 29 December 2013.  The parties settled on that arrangement.

3. The statement to the police by the mother lends support to my overall conclusion that the mother says what it takes to get what she wants and feels justified in doing so in the context of her desire to have the children in her care.

4. The mother conceded in her oral evidence that it had not been a good judgment on her part. I agree. The police statement refers to the mother speaking in a “loud aggravated manner” sometimes yelling and repeatedly calling the father an “Evil man”.[10]

   [10]Exhibit 7

5. Further the mother was observed to kneel down in front of C and say, “Who do you want to go with, Mummy or Daddy, you have to choose.”  The child did not respond. C had been in the mother’s arms moments before when the mother suggested to the father that he take B and she keep C.  It was a cruel thing to do.  The children were assessed by a police officer to be alright and not upset when they left with the father.

6. On 1 January 2014 the mother reported concern for the children’s safety to police which prompted a safety check at the father’s home.  The mother had seen the children two days before; it is improbable that she had genuine concerns.

Last period of regular time between the mother and the children

1. On 11 January 2014 the mother collected the children for the weekend.  They were due to be returned at 9.00 am the following Monday and they were.[11] However there was a series of SMS exchanges between the parties on Sunday and Monday, in which the mother created the false impression that she had returned to the I Region with the children on Sunday night.[12]  The messages from the mother were provocative and clearly left both parties antagonised and upset. It was immature conduct by the mother.

   [11]Order 2(a) of the Orders dated 26/11/2013

   [12]Affidavit of father filed 18/09/2014, par 152

2. On 19 January 2014 the mother rang to speak to the children.  The father says they did not want to talk.  Perhaps he was not particularly encouraging. In any event, there was no conversation.

3. The mother responded by again reporting concerns for the children’s safety, which prompted another police safety check and observation of the children. The mother had seen the children six days earlier.  The report was a reflection of the mother’s feelings of disappointment and not at all child focused.

4. On 20 January 2014 the father successfully applied for a provisional AVO;[13] one of the grounds was that the father had received more than a thousand text messages from the mother since separation.  Thereafter the father ceased making the children available in defiance of Court orders.

   [13]Affidavit of father filed 18/09/2014, Annexure ‘K’

5. On 24 January 2014 he advised the mother’s new solicitors of his decision and the reasons for it.[14]  For the six months following, the children did not see the mother at all.

   [14]Affidavit of father filed 18/09/2014, Annexure ‘J’

6. In April 2014 the mother created a website about the children. Under the heading ‘Stolen Children’ she posted photographs of the children, their names, ages and town where they lived, with the statement ‘Stolen Unlawfully by Father.’  She has since removed a film to a similar effect from Utube.  The consequences, including kidnapping by motivated third parties, could have been most serious.

7. On 4 April 2014 the mother filed an Application in a Case (Enforcement) and a Contravention-Application in the Federal Circuit Court.

8. On 5 May 2014 both those applications were dismissed.  Leave was granted for the mother to provide a copy of the first Family Report to Dr O, psychologist.  The purpose for that was not explicit in the orders, although probably it was for therapeutic assistance of the mother. In fact, the psychologist prepared a detailed critique of the Family Report.

9. On the afternoon of that Court event, the mother and her friend, Ms P, went unannounced to the dance school run by Ms F.  There was an angry confrontation between the mother and Ms F.  The mother was charged with assault and there is an AVO in place for the protection of Ms F.  The matter was anticipated to be before the Local Court for the hearing of the assault charge in November 2014.

10. On 22 May 2014 the matter was assigned two hearing days in early July 2014, in the Federal Circuit Court.

11. In June 2014 the father and Ms F began living together, forming the current household.

12. On 4 July 2014 interim orders were made in the Federal Circuit Court as follows:

    ·the children live with the father;

    ·the children spend time with the mother on defined overnight weekend periods; and

    ·changeovers to be at Q Org, but at McDonalds pending the availability of Q Org to take on the changeovers; and

    ·the matter transferred to this Court.

13. On 8 August 2014 an Independent Children’s Lawyer was appointed.

14. On 22 August 2014 an updated family report was ordered and the matter given expedited hearing dates in October 2014.  That report was released in late September 2014. 

15. The hearing commenced on 8 October 2014 and proceeded for the three allocated days, plus an additional day on 5 November 2014.

The Evidence

1. The parties relied on the following documents:

   a)Initiating Application of father filed 09/04/2013;

   b)Amended Response of mother filed 28/05/2014;

   c)Affidavit of father filed 18/09/2014;

   d)Affidavit of Ms F (father’s partner) filed 18/09/2014;

   e)Affidavit of Ms R (father’s sister-in-law) filed 18/09/2014;

   f)Affidavit of mother filed 19/09/2014;

   g)Affidavit of Ms S (maternal grandmother) filed 25/06/2014;

   h)Affidavit of Ms T (friend of mother) filed 23/06/2014;

   i)Affidavit of Ms U (mother’s treating Psychologist) filed 18/09/2014;

   e)Affidavit of Dr O (Psychologist) filed 26/06/2014;

   f)Affidavit of Mr V (friend of mother) filed 26/06/2014;[15]

   g)Affidavit of Ms P (friend and business partner of the mother) filed 20/06/2014;[16] 

   h)Parts of an affidavit of the mother filed on 14/05/2013 were tendered into evidence and became Exhibit 21.

   i)Reports of Dr X dated 31/09/2013; 29/09/2014 and the supplementary report dated 08/10/2014, which became Exhibit 5.

   [15]   Mr V was unavailable for cross-examination at the conclusion of the third day of hearing, but had been contactable on the first day. Leave was granted for him to be called on the adjourned date. He was not called. His affidavit was not read.

   [16]   Ms P’s affidavit was not relied on at the first day of hearing. Ms P was unwilling to attend for cross-examination. The alleged reasons for that unwillingness formed part of the mother’s evidence. Ms P attended on the adjourned date and her affidavit was read.

The father

1. The father is aged 37 and is a qualified tradesman.  In my view, he had not anticipated being the fulltime carer to the children.  It was always his preference to be working, preferably fulltime, and for the mother to be at home with the children.  However since March 2013, when the two children have been in his fulltime care, the father has stepped up to his obligations to care for them.  He appears to have struggled with the difficulties around the children spending time with the mother. 

2. There have been problems with geography because the mother has chosen to live so far away.  The greater problem has been the resistance of the children over the past 12 months, most particularly B, to spending time with the mother at all.  The father has not known how to ensure that time be spent in accordance with the orders, although I am satisfied that he has wanted to be compliant.  He said that he found it very difficult to know how far he was meant to go in insisting on the children going with the mother over their opposition. 

3. One benefit of this trial was the evidence of the family consultant about the method he had used to break the impasse which had developed between B and the mother.  That he was able to do so in a particular way and that the child then enjoyed time with the mother, reassured the father that it was possible and also a benefit to the children.

4. Overall, the father was a calm, straight forward, open and candid witness.  He readily conceded that until separation the mother had been the primary carer of both children, other than for the period in N Town and Z Town where he had worked less in an attempt to assist her with, at that time, three children to care for (June 2012 to February 2013).

Family violence

1. The proposition was put to the father that he had been violent in the relationship, on one occasion repeatedly slamming the bedroom door on the mother’s arm.  There was no medical or police record to corroborate such an allegation.  As I have stated elsewhere in this judgment, such actions by the father would certainly led to serious injury for the mother, who is slight and of delicate appearance.

2. The proposition was also put to the father that he raped the mother, which he denied with some vehemence.  Again, there was no corroborative evidence such as reports to police or a hospital.

1. The proposition was also put to the father that he had head-butted the mother and caused her nose to bleed.  He denied it.  There was no medical evidence.

2. Bizarrely he was cross-examined about a dispute between the parties and a third party, Ms W.  The proposition was put to the father that he had acknowledged in a Deed of Agreement which had been drawn up to resolve this dispute, that he had been violent to the mother.  The father denied such an acknowledgment and the Deed was not produced.

3. It was apparent that the relationship was an unhappy one, almost from the beginning; with several changes of residence over long distances and two pregnancies, neither of which apparently were planned.  When the father ceased working, or reduced his work hours to assist the mother with the care of three young children, their finances led to something very close to homelessness; they were in a tent for some weeks before the father returned to work.  However I am not satisfied that there was violence by the father to the mother, nor a threat.  It is almost certainly the case though that there were very many unhappy conversations which became arguments.

The mother’s son, J

1. Propositions were put to the father that he had referred to J as a “troll” and expressed his unwillingness to deal with the problems of another man’s child. He denied it.  The father conceded that the child was difficult at times, “Definitely a challenge”, but he said the child grew close to him. 

2. The evidence from the school suggests that J’s behaviour is extremely challenging and that he has struggled socially and academically.  He has certainly had a disrupted life.  His parents separated when he was a baby.  He then lived with his mother, the father in these proceedings and as they were born, his two younger sisters. J’s parents agreed that he would return to live with his father, which he did for about 18 months, and then in September 2013, they agreed that he would return to live with his mother, which he has done since September 2013.  He presented in quite an alarming way for the second Family Report interviews:[17] 

   … [he] did not present developmentally within normal parameters and his behaviour on arrival for the assessment did not appear appropriate for his age.

   [17]Family report dated 29/09/2014, par 14

3. There has been no complaint to the Department or any other evidence to suggest that the father has been a negative influence in the life of J.

New partner

1. The father has now entered into a new relationship with Ms F, and she and her child, G, are living with him.  That child’s father lives in Europe and she presently spends no time with him, although occasional messages are exchanged. She last saw her own father two or three months before the hearing.

2. G has begun to refer to the father as ‘daddy’.  His answers about that situation were informative.  He said he did not say anything about it and that in circumstances where a child did not have a father available, he was happy if that was the child’s choice, for her to call him ‘daddy’.  Further, he would be willing for that to happen if he was not available to his own children, “If I wasn’t there to be their father, yes”.

Proposition that father schemed to exclude mother

1. The father was cross-examined on the basis that he had made up his allegation of the mother telling him about putting a pillow on C’s face as a malicious plan to exclude her from the life of the children.  The evidence does not support that proposition.  The father did nothing to separate the mother from the children for 10 days after the event.    

2. On 30 March 2013 the father became concerned that the mother was leaving E Town that day, perhaps with her parents, to take the children back to Sydney.  Otherwise the parties could have gone on for some further time as they had, discontented about their relationship; the mother wanting to return to Sydney, but staying together.

3. The father adhered to his statements that the mother had from time to time told him that she had heard voices and felt suicidal.  He was challenged on the basis that he would have done more if those things had been true.  However my impression was that the father worried about those matters, was not sure what to do, spoke to the maternal grandmother for assistance, but otherwise worked hard and naively hoped that things would work out.

4. The father has had to manage, since 30 March 2013, all the needs of the children, including their need to spend time with the mother, who had previously been their fulltime day to day carer.  He initially told them that “Mummy has gone to a hotel to have a bit of a rest”.

5. There is certainly nothing to suggest that he was critical of the mother to the children, or tried to deliberately limit their time with her.  Post-separation, the mother was having liberal time with the children in the E Town area until she chose to relocate to N Town.  The father agreed that C had at times been distressed leaving the mother, but then she would recover and “be her normal little self”.

6. Despite some difficulties in October 2013, when the mother unsuccessfully applied for an AVO against the father, by December 2013, the children were able to spend eight days with the mother quite successfully.  Unfortunately the return was traumatic for them.  The mother should have returned them to E Town and did not.  The father drove to the I Region area to collect them.  My impression is that the father simply wanted the mother to comply with the orders, but the mother was feeling increasingly resentful and frustrated that the children did not simply come back to her care when she was ready to have them.

7. In the same considered way that the father had talked about G calling him ‘daddy’, the father commented on the fact that the children had begun to call Ms F ‘mummy’.  He said he found out that the mother was offended by it in a phone call, but he had not actively stopped the children from doing it, “It’s a balance between the harm of allowing it and the harm of stopping them”. I do not consider that the father was trying to offend the mother; rather I think he was revealing a capacity to understand the children’s emotional needs.

8. In July 2014 there were new orders that required the parents to undertake intake procedures for changeovers at Q Org, E Town. Until Q Org was accessible to them, changeovers were to be at McDonalds.  The mother did not undertake the Q Org intake procedures. 

9. Before the first period of time was to take place, the mother advised that B was sick, that his paternal grandmother had leukaemia and that she could not go to Q Org.  However the next day, she drove to the E Town area and required the children to be made available at McDonalds.  The father and Ms F could have simply accommodated the McDonalds changeover; that could have been done.  However the mother, if she was able to drive over for the visit, could have completed the intake process at Q Org.

10. When he is concerned, it is apparent that the father reverts to the orders strictly in an attempt to reduce conflict.   It was also apparent that the mother longed for a more natural changeover point than the contact centre, so she went about things in order to avoid using it. 

11. The matter was aggravated in my view by the presence of Ms F. Understandably, the father says many kinds of accusations were being made against him and as a result, he did not want to be present with the mother without somebody monitoring the situation.  However the mother has been antagonised by the father’s partner since that relationship began and there have been proceedings in the Local Court arising from her conduct in Ms F’s dance school.  In future, it would be easier for the children if they are not exposed to the hostility between the mother and Ms F.

12. The father was asked by the Independent Children’s Lawyer what he would do if there was an order made for the children to live with the mother.  Without hesitation he said, he had considered that possibility and his plan would be to move to the I Region area, “It would be pointless to continue in [E Town]”.  The father has no known connection with that area and I am satisfied that he is genuine in that statement and he is determined to be close to the children wherever they are.

The father’s partner

1. Ms F is aged 36.  She owns and runs a business. She has the fulltime responsibility for the care of her six year old daughter, whose father came to Australia in January 2014, but has since returned to live in Europe. 

2. Ms F corroborated the father’s evidence in the sense that she said her daughter had begun to call the father ‘daddy’ and that she was at ease with that, and that his children had begun to call her ‘mummy’ and she was at ease with that, if they were happy to do it and wanted to: 

   I don’t want to upset anybody, if that’s what makes them happy, I haven’t got it in me to say no. I’m honoured that they want to.

3. Ms F appears to take seriously her duties as a step-mother, but denied that she was the main care giver for the children. 

4. On 5 May 2014 there was an incident of violence between the mother and herself; where the mother came into the dance studio, to use the words of Ms F, “screaming” and the first thing she did was to “push me in the chest asking where are my children”.  The incident led to an interim AVO being made for the protection of Ms F.  Final proceedings in the Local Court were due to be concluded soon after this hearing ended.  There is a hostile relationship between the two women.

5. Ms F expressed a similar view to the father about being uncertain about how forceful to be with B to ensure she spent time with the mother.  She said the child had spoken to her about violence from the mother, which resonated with her own experience.  It seems likely that it has made her reluctant to encourage or insist on B spending time with the mother.  However the experience of B easily spending time with the mother and enjoying it may have assisted Ms F in the way that it did the father to understand how necessary support for B is.

6. Ms F is strongly supportive of the father. My impression is that she finds it extremely difficult to conceal her dislike and disapproval of the mother.  It is essential for the healthy emotional development of the children that she does.

7. Of course she cannot be the subject of an order, but it would benefit the children if Ms F attended a Parenting Course with the father.  The impact on the children in adolescence of an unsatisfactory relationship with the mother in childhood is a matter of particular relevance.

The paternal aunt

1. Ms R is the paternal aunt of the children.  She is married to the father’s brother.  She stated in a brief affidavit that in 2011, soon after C’s birth, the mother said to her, “I threatened [the father] with a knife; he was scared and locked himself in a room.”  Ms R was challenged that the mother had not made this statement.  Ms R held her position, “It’s the truth”. 

2. On balance I accept it was said.  It is a strange incident and does not of course mean that the mother did threaten the father with a knife, or that if she did, he hid in the room.  The father did not refer to such a specific threat although he did assert that the mother was angry and physically violent towards him at times, punching and scratching him in the face.

3. It lends support to the proposition that the mother is sometimes untruthful for no apparent reason other than dramatic effect.  The incident where the mother told the father that she feared that her first husband might be outside on the property and the father picked up a knife to go out and investigate, is another incident of this kind.

The mother

1. The mother is aged 32.  She works in her own business, about 20 hours per week, mostly from home.  Her son, J, has lived with her again since September 2013.

2. The mother was born and raised in Country K.  Early in their relationship, she told the father that as a child, she had been exposed to violence by her late father perpetrated on her mother, “I remember him kicking her down the stairs. I recall seeing blood everywhere”.  The mother also told the father that her father had run a brothel and had been murdered by one of the prostitutes when she was eight years old.

3. The maternal grandmother confirmed the death of her late husband, but described him as “a noisy breaker of things; not violent”.  The difference remained unaccountable.

Mother’s attitude to father

1. From the commencement of her evidence, the mother made it clear that she felt she had been the victim of an injustice, namely, separation from the children, created by the malicious lying of the father, lying about the risk she might represent to the children. 

2. She sent a text message to the father on 28 March 2013, “Even if I get nothing you need to be punished”.  She followed up her oral confirmation of having sent that text message with these statements:

   I’ve been a victim of this man’s blatant lies for years. I want justice.  He’s got off scot free. He’s an exceptionally good liar.  He needs to be punished.

3. Her case was that the father had fabricated the story of her revealing in March 2013 her actions towards C, in order to keep her away from the children and stop her from moving to Sydney.  However the actions of the father before and after separation are in my view entirely inconsistent with a malicious campaign to exclude the mother from the lives of the children, or to forestall her intention to move with the children to Sydney. 

4. The mother herself acknowledged that there had been cooperation between the parties and a substantial amount of time spent by her with the children post separation.  She further stated that everything changed after the father formed his new relationship in mid-2013.  She then moved away to N Town.

5. I do not consider that the father’s actions were based in malice or anything other than concern for the children when he cooperated with an AVO against the mother in April 2013.  Indeed, it seems likely that the mother moved away to avoid exposure to the father’s new relationship. 

Depression and family violence

1. The mother has suffered episodic depression, at least from the date of birth of her first child, J, in 2007.  She told the father when the parties began living together in 2009, that she was taking anti-depressants.  Unfortunately the mother’s own evidence suggests that she did not always take prescribed medication.

2. In her oral evidence the mother said that she had been prescribed medication after the birth of J, but had done some research and decided not to take that medication, which was apparently anti-depressant medication.  The maternal grandmother certainly thought in December 2007 that the mother was taking anti-depressant medication following on from the birth of that first child.  The maternal grandmother referred to her concern about the mother’s post natal depression and the re-activation of those concerns when the father told her in March 2013 that the mother was “really depressed … [and] struggling to function”.[18]

   [18]Affidavit of maternal grandmother filed 25/06/2014, par 17

3. The mother attributes “feeling low” to the father’s behaviour and attitude towards her.  The father attributes the mother’s mood and conduct to post-natal depression.  In any event, the mother says that in either late 2009 or early 2010, she consulted her general practitioner in the local area, who prescribed an anti-depressant medication.  It is unclear to me whether the mother then took the medication and if so, for how long.

4. The relationship was, at least from the mother’s perspective, unsatisfactory and tumultuous by late 2009.  She alleged that in early 2010[19], when she was breast feeding B, that the father took the child from her, went into a bedroom and closed the door; that when she attempted to open the door the father “slammed the door on my arm and repeated this action with force several times”.  The mother says she had bruises on her arm from the incident.

   [19]Affidavit of mother filed 19/09/2014, par 17

5. The father denies any such event taking place.  Having seen the parties, their relative sizes and given that the father is a carpenter/builder by occupation, it is likely in my view that if he had slammed the door on the mother’s arm and repeatedly done so with force several times, she would have suffered very significant injuries.  There was no evidence before me of injury or even of medical attention; no other person referred to this incident in their evidence. 

6. This was one of many incidents where the mother made serious allegations of violence and misconduct by the father, which he entirely denied and which were uncorroborated.  Ultimately, I came to the conclusion that the mother was not truthful on more than one occasion during the course of her evidence and also had a tendency to exaggerate.  This incident is an example of what I consider to be serious exaggeration at best.

The move from N Town to the I Region

1. In October 2013 the mother moved again, from N Town to H Town in the I Region area (about 100 kilometres west of Sydney).  She now lives about 460 kilometres away from the children.  The mother was unable to explain why she would choose to put herself so far away and not in a coastal region nearby to where the children were.  Such a move could have avoided any of the “small town discussion” that she raised as an explanation for the move. 

2. There were no orders compelling the mother to remain in the Sydney area with her son as she had suggested.  The only current orders about J were made in March 2011[20] and have been overtaken by subsequent events.  The orders provided for alternate weekend changeovers in BB Town, which is 130 kilometres from H Town, and unlikely to be occurring.

   [20]Exhibit 6

3. The mother is resolute about remaining in the I Region area on the basis that she does not want to further disrupt her son.  She seemed unconcerned by the prospect of the two younger subject children travelling such a long distance regularly and was resolute in her intention to remain living where she is, whether or not the children came to live with her.   The decision in my view is inexplicable and not child focussed.

The mother’s son, J

1. There is ample evidence to support the proposition that J, aged seven and a half, is struggling emotionally and academically.  His parents separated when he was six months old.  His mother began living with the father when he was about two years old.  He probably spent time with his own father, who lived locally.

2. In 2011, when J was just four, he then moved away from Sydney to N Town with his mother, step-father and two infant step-sisters.

3. The mother asserts that she saw the father using harsh corporal punishment on J many times.  The father specifically denied doing so.  The mother said she expressed her disagreement, but took no other step.  It seems unlikely.

4. Twelve months after the move to N Town, by arrangement between his parents, J returned to Sydney to live with his father.  If the mother had been truly concerned about the father’s conduct with J, he could have returned to live with his father at any time. Indeed he could have remained with his father in Sydney rather than being taken to N Town at all.

5. The father asserts that it was the mother who used harsh corporal punishment with her son.  I am unable to come to any conclusion about that.  However I note the comments of the family consultant after observing J for the first time in September 2014:[21]

   [J] did not present developmentally within normal parameters and his behaviour on arrival for the assessment did not appear appropriate for his age.

   This observation took into account the child having apparently suffered a back spasm from travelling in the car for ‘7 hours the previous day’ which he was successfully treated for during the morning.

   [21]Family Report dated 29/09/2014, pars 14, 41-50

6. In September 2013, after 18 months with his father, and again by arrangement between his parents, J returned to live with his mother, moving with her to the I Region.  Interestingly and bizarrely, given that he had lived with his father for the previous 18 months, J told the family consultant in September 2014, that “the father kept him from seeing his biological father but now he has met him”.[22]

   [22]Family Report dated 29/09/2014, par 50

1. His attendance at school in 2014 was limited. In the first three terms he had 33 days absence and 55 days partial absence.[23]  Partial attendance was negotiated by the mother with the school for the first half of 2014.[24]

   [23]Exhibit 8

   [24]Exhibit 27

2. The consultant paediatrician who conducted an evaluation in mid-2014 noted many reported concerns of the mother about J, which she had held since the child was three to four years old, including aggression, uncooperativeness at school, threatening behaviour and worry if his mother was not in sight.[25]  The doctor recommended targeted behavioural therapy with a clinical psychologist and support at school.

   [25]Exhibit 9

3. By September 2014 the school was reporting to the paediatrician that despite:

   … using a number of strategies to manage his difficult behaviours … these behaviours have shown no improvement in the time he has been here and appear to be escalating.[26]

   Medication was the next step to be undertaken.

   [26]Exhibit 10

4. The only available conclusion is that J has some very serious problems for his mother to contend with.  Her statement that J was “progressing well at school”[27], even if expressed in a hopeful way about improvement, was hardly accurate. “I have in the past experienced behavioural problems with [J]” was an evasive half-truth. Behavioural problems are continuing.

   [27]Affidavit of mother filed 19/09/2014, par 111

5. It seems likely that J has been over involved in the dispute between the parties. The birthday message posted on Facebook for him by his mother was simply a diatribe about the father and could hardly have been for his benefit or likely to bring happiness.[28]

   [28]Exhibit 18

The maternal grandmother

1. The maternal grandmother is aged 49. The mother is her elder child, born to her when she was 16. She was widowed; remarried in 1992 and has a child from that relationship, now aged nine.  She moved to Australia with her second husband in 2001.  Presently she and her family are resident in the Country M for reasons related to her husband’s work.  The move took place in April 2013, very soon after the parties’ separation.

2. The maternal grandmother anticipates returning to live in Australia in 2017.  She anticipates returning to Australia for visits two to three times a year prior to return. 

3. I formed the impression that there is a loving relationship between the maternal grandmother, the mother and her three children and that she is, as stated, in support of the mother’s application for the return of the two subject children to her fulltime care.

4. The maternal grandmother acted on advice from the father in March 2013; that the mother was depressed and struggling to function.  She contacted the Department.  I accept that the maternal grandmother was worried, particularly because of her concerns about the mother’s post-natal depression in the past and that had she known a friend of the mother’s, local to the E Town area, she would have contacted that friend.  I also accept that the maternal grandmother believed she was making contact with a community social work service when she rang the Department to go out and arrange support and assistance for the mother.

5. The maternal grandmother encouraged the father to take the mother to the doctor and to obtain medication.  She reports in her affidavit the father’s efforts in that regard and his assertion that the mother was refusing to go.

6. The relationship between the maternal grandmother and the father appears to have been a good one right up until separation.  Certainly they arranged between themselves for her to have privacy for a conversation with the mother on 30 March 2013.  This was 10 days after the conversation which the father alleges took place, where the mother told him about her actions with C and the pillow.  He had told the maternal grandmother about that, which sparked her concern.  She had never previously been concerned about the children’s safety with the mother.

7. Set out in her affidavit are the statements which the maternal grandmother says the mother made to her, including:[29]

   [the father] told me that you were the problem in life and that I should limit my contact with you. 

   [29]Affidavit of maternal grandmother filed 25/06/2014, par 23

8. The father may have said that to the maternal grandmother but it would be strangely inconsistent with his actual belief.   The first person that he turned to for advice and help in March 2013 was the maternal grandmother. 

9. Clearly the day of 30 March 2013 was a difficult one. The maternal grandmother, her husband and their child had planned to visit for Easter in anticipation of their leaving Australia to live in Country M.  Having spent the day together, the evidence of the maternal grandmother is that she, her husband and their child went out for dinner that evening and that she received a telephone call from a police officer, who advised that the mother was in the E Town Base Hospital.  They returned to their hotel and the maternal grandmother visited the hospital.  She was present when police officers attended at the hospital, served the mother with an AVO and explained that the mother was not to return to the home, or to have contact with the father or the children.  This was at about 11.30 pm on 30 March 2013.

10. The mother and J then stayed with the maternal grandparents, returning with them to Sydney a few days later.  The maternal grandmother and her husband rented premises for the mother and J in Sydney, about 20 minutes from their home.  J was at that time staying with his mother for school holidays.  The maternal grandmother then left Australia as planned and arranged for her parents, the maternal great-grandparents, to travel from Country K to stay with the mother for a month, when she returned to the E Town area in May 2013. There was no hint in the evidence of the maternal grandmother that she attributed blame to the father for the separation, or for his taking on fulltime responsibility for the care of the two subject children.

11. In speaking to an officer of the Department, the maternal grandmother acknowledged that “the birth father was appropriate with the children and they were in the best place at the moment.”[30]  The maternal grandmother also told the Department that the birth mother was very nurturing towards the children and that she believed the mother would benefit from having supports put in place.  That information was provided on 2 April 2013.

    [30]Exhibit 12

12. In June 2014 the maternal grandmother travelled to Australia and asked the father for time with the children.  Unfortunately, the relationship between the two had deteriorated; the father was highly critical of the maternal grandmother for absenting herself from the life of the mother and children for more than a year.  The maternal grandmother was highly critical of the father for not allowing her to spend time with the children.  

13. The maternal grandmother is not in a position to offer active support to the mother and the children, but will continue to be significant in the lives of the children.   

The mother’s business partner

1. The mother, in her oral evidence, stated that Ms P was no longer willing to be cross-examined on her affidavit, there having been some falling away in their friendship.

2. On the adjourned date, the Court was advised that Ms P was available to be cross-examined.   The pragmatic decision was taken on behalf of the father that she was not required.  Ms P is the business partner of the mother, operating a company of which they are both directors.  She has known the parties for about four years. They met by chance when Ms P and her husband stopped to offer assistance to the parties who had had an argument, the father having walked away from the car and the mother and two children, presumably J and B, sitting in the car.  They exchanged details; the argument appeared to settle and thereafter there was social contact on a regular basis between the two families for the next six months or so.  The parties then moved to N Town and thereafter kept in contact by email and text. 

3. By October 2012 Ms P and her family had moved to the I Region area. 

4. In April 2013 Ms P’s husband obtained the mother’s mobile telephone number and advised Ms P that the mother was staying in Sydney.  They resumed contact and Ms P was with the mother in May 2013 when she spent time with the children. 

5. In October 2013, when the mother and J moved to the I Region, it was to stay with the W family.  She moved to her own premises in December 2013. The subject children stayed with the mother at that time in the new home for about 10 days.  She also refers to there being holiday periods when the mother had the children with her, in the second half of 2013 and in January 2014.

6. Ms P was present at Ms F’s dance studio in May 2014 with the mother.  She denies any loud or aggressive conduct by the mother or herself.  However I note that she and the mother attended at the dance school with an intention to see the children.  The mother had not seen at least B, if not both children, for three or four months at that time.  They went there unannounced.  It does not seem to have been a particularly well considered decision, given that the business was operating at the time and there were young children present for dance classes.  Some level of dispute, if not conflict, could have been anticipated.

Mother’s treating psychologist

1. Ms U is a registered psychologist.  The mother began consulting her in April 2013, very soon after separation.  An affidavit was filed by Ms U, which consisted of three annexures: Annexure A, her Curriculum Vitae, Annexure B, a critique of the Family Report prepared by the Court appointed family consultant and Annexure C, a letter from the psychologist to the solicitors for the mother. The critique and letter of advice to the solicitor were both dated 18 September 2014.

2. Ms U expressed her view that over the 17 months of contact with the mother, which included 14 sessions of counselling, she had concluded that there was no longer a need for therapy and that the focus of the mother on her goal of reinstating regular contact with the children, showed her resilience and was evidence of robust mental health. 

3. I give no weight to the views of Ms U about the Family Report.  She unreservedly accepted everything that she was told by the mother about contentious issues post-separation; she did not express any restrictions to her report based on the fact that she had not met the father or the two subject children.  She did not acknowledge to any extent, that the reasons for the critique of the Family Report and the letter to the solicitor were for the purposes of pending litigation and that accordingly, the mother may have been consciously or unconsciously influenced to present a positive report about herself, in order to be assisted by Ms U in these proceedings.

4. In her oral evidence Ms U acknowledged that there was nothing in her report about alleged domestic violence by the father towards the mother, sexual assault of the mother by the father or substance abuse by him.  She agreed that had she been told about any such matters, they would have been included in her report.  I do note that Ms U notes that the mother told her that she had “struck [the father] in frustration”[31] but that there is otherwise no reference to violence in the relationship.  I consider that Ms U was drawn into the litigation and became a champion for the mother through the work she did.

   [31]Affidavit of Ms U filed 18/09/2014, p 12 of 13

5. Ms U readily conceded that she had not been caught up in litigation that her patients were involved in previously.  She advised that it was the mother’s idea that she furnishes a critique of the Family Report because “she was concerned some of the details were incorrect”.  Ms U said she had been unaware that the purpose of an order for the release of the Family Report may have been for the mother to be assisted in therapy.

6. In March 2014 the mother provided to Ms U a detailed set of notes in response to the first Family Report together with emails and correspondence about the father.  There is no doubt that some of that material found its way into the report prepared for this Court.[32]

   [32]Exhibit 15

Psychologist/Medico legal

1. Ms O is a Clinical Psychologist.  She has not had a therapeutic role with the mother; rather she was asked to prepare reports for the purposes of these proceedings.  She prepared two reports dated 29 May 2014 and 17 June 2014.  The first report was said to be for diagnostic determination of the nature and extent of any psychological difficulties (of the mother). 

2. There were two clinical interviews, each of two hours and the administration of tests.  The report consists of a full social history given by the mother.  I can give little weight to the report on the same basis as for Ms U, in that there was a critique provided by Ms O of the Family Report, with no acknowledgement of the purpose for which that critique was going to be used and the restriction to the report by Ms O not having spoken to the father or the children.

3. The critique tends to argue the case with Dr X paragraph by paragraph and the only restriction expressed is this:[33]

   As I have only been privileged to assess [the mother] and have concluded that she is psychologically well, I cannot comment on the state of [Mr Garrety].  However, when domestic violence occurs in relationships there are issues of power and control underlying the perpetrators motives.  As the Family Court would be aware, these themes are often exacerbated when financial and property issues are also at stake. 

   I take this to be a reference to Ms O’ conclusion that:

   There was evidence of domestic violence in the relationship perpetrated by [the father] against [the mother].[34]

   [33] Affidavit of Ms O filed 26/06/2014, p 24 of 24

   [34]Affidavit of Ms O filed 26/06/2014, p 17 of 24

4. Ms O conceded that she had relied on the history from the mother and had not second guessed her information.  She agreed that there was no reference to domestic violence, sexual assault, drug abuse or physical violence by the father to the mother; no details of those things included in her report and if there was not, it would be because the mother had not reported it.

5. Ms O conceded that in the test that was administered, she had not included a qualification about the mother’s score on distorting results, which suggested that she may have done with her answers.  Ms O conceded that she had not prepared reports for court before.  In answer to my question as to whether information might be distorted by somebody involved in such a court case in order to achieve a positive outcome in court, by exaggeration, minimising, omission and misrepresentation, Ms O considered the matter and said she had not really thought about that previously.

6. I considered that the mother, who has been desperate to have the children returned to her care, enlisted Ms O to provide authority for her position.

Friend of the mother

1. Ms T is aged 34.  She gave evidence as a friend of the mother, whom she first met in Country L in 1997, but had not seen the mother with the children until after separation in March 2013.  She had migrated to Australia from Country L in the previous year.

2. Ms T attested to the children spending regular time with the mother in 2013 and had the opportunity between July and October 2013 to observe the mother and the children since they were staying with her in her premises in N Town.  The children spent time with the mother for up to two weeks at a time and the visits appeared to be unexceptional.  On one occasion, Ms T heard an argument between the parties about financial support for the father. 

3. There is no suggestion in the evidence of Ms T that the mother was required to leave her premises in October 2013, when she did, to move away to H Town.

Family Consultant

1. Dr X prepared three reports, one in October 2013, one in September 2014 and a brief updating report during the course of the first days of the final hearing.

2. In his first report Dr X recommended that the parties not have shared parental responsibility for the children.  One of his concerns was the uncertainty of the mother’s conduct around maintaining contact with the children.  When she was interviewed for the first report in September 2013, the mother told the family consultant that she had decided to move back to E Town.   At that time the mother was living in N Town, sharing the home of Ms T. 

3. The family consultant was concerned that the mother had apparently initially believed that it was best for the children to live with the father and for her to move to N Town, but had not decided to move back and to have the children returned to her care.  She explained to the family consultant that her legal advice had persuaded her that it would be more appropriate to return to E Town and seek shared care.

4. The mother also expressed a wish at that time to:

   Eventually reside in Sydney …  [as she had] friends in the [I Region] who could support her.[35] 

   [35]Family Report dated 31/10/2013, par 48

5. The thrust of the report was a need to focus on the dependency needs of the children, who were at that time aged four and two.  I share the family consultant’s puzzlement as to why the mother had moved so far from E Town to N Town in the first place and appeared to be unaware of the impact that that decision may have had on very young children.  In fact, within a very short time of the report interviews, the mother moved to the I Region and arranged for her son to move with her.

6. The second report stresses the psychological impact on the children of the mother’s decision to move so far away in October 2013.  The family consultant’s central concern was that decision making and also the confrontation between the mother and the father’s partner, which had led to proceedings in the State Courts for an AVO.  An important, but secondary matter was the mother’s website ‘Saving [B] and [C]’ which the mother had used to criticise the father and his partner and also to identify the details of the children and the father by name and in the case of the children, by photograph.

7. The recommendation that the children live with the father was made more forcefully by the family consultant in the second report.

8. In the third report the family consultant was able to effect a meeting between B and the mother.  This had been the restriction to the second report, which was of concern to the mother and indeed to the Court.

9. The family consultant arranged for both parents to be present in the family room so that the two children and the two parents were together in the presence of the family consultant, for sufficient time for B to relax, begin to interact with the mother and then happily to enjoy time with her.  The family consultant describes “a good amount of interaction between the mother and the children” with B tolerant of the mother’s closeness.  The session ended well with the child apparently looking forward to more time together in the future.  It represented a breakthrough.

10. However the observations of the family consultant about attachment are of some concern.  He said that B’s conduct was consistent with a secure attachment to the father and an insecure attachment with the mother; whereas C had an ambivalent attachment to the mother.  The family consultant identified genuine affection between the mother’s oldest child B and the two subject children.

11. The proposition was put to the family consultant on behalf of the mother that the father had failed to ensure that the children, particularly B, spent time with the mother in 2014.  The family consultant did not agree.  He thought the father had done his best and referred to the Q Org notes. 

12. In my view, the father was tentative in his dealings with B, probably through inexperience, or a wish not to upset the child.  He would be greatly assisted by a parenting course to understand the need for him to establish rules and boundaries for the children, in order to support and protect their relationship with the mother.  He needs to develop confidence in ensuring that orders are complied with, on the basis that compliance with the orders ensures that the children maintain their relationship with the mother.  I also consider that Q Org offered some latitude to the children, particularly B, giving her the choice as to whether or not to spend time with the mother, which no doubt created some anxiety for the child, but was also a model for the father of allowing the child to make her own decision about that matter.[36] 

    [36]Exhibit 22

The law

1. The objects of the Family Law Act 1975 (Cth) (‘the Act’) in relation to parenting Orders are to ensure that:

   a)   Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)     Children are protected from physical and psychological harm;

   c)     Children receive adequate and proper parenting to help them achieve their full potential; and

   d)     Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a Court must have regard to the best interests of the child as the paramount consideration. The way a Court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.  The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents

1. There is great significance for these children in having meaningful relationships with each of their parents. Until March 2013 they were in the primary care of the mother, with the regular presence of the father around his fulltime employment. 

2. After 30 March 2013, there have been varied arrangements, but they have been in the fulltime care of the father.  At first seeing the mother very regularly; then after a couple of months when the mother moved to N Town, for intermittent periods of time; then after September 2013 when the mother moved almost 500 kilometres away, for weekends in the E Town area.  Naturally the children’s relationship with the mother has been affected by these changes. 

3. They are both assessed to be attached to the father, B more securely.  The observation of the family consultant is that there are problematic aspects to their attachment to the mother.  It will be a matter of commitment and sacrifice for the father to ensure that the relationship with the mother is supported to the level it can be, whilst the parties live so far apart.  It is very much in the interest of the children to maintain relationships with both parents.

4. What is certain is that the parties do not have the level of trust and ability to make arrangements and communicate that would enable the sharing of parental responsibility.  The last two years have been tumultuous, with continuous Court events in these family law proceedings and in the State Courts around AVO’s involving several different combinations of parties and third parties.  At least on one occasion the mother deliberately misled the father about whether or not she had remained in the E Town area and his trust and confidence has evaporated.

Section 60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or family violence

1. I am not satisfied that the children have been subjected or exposed to abuse or family violence.  The mother has made allegations of violence perpetrated on her by the father, but I have found that the allegations are uncorroborated and inconsistently made. 

2. There is evidence of the mother having struck the father; slapped his face, but there is no evidence that that happened in the presence of the children.  The children probably were exposed to arguments and recriminations. Post-separation, the incident on 29 December 2013, where for 60 to 90 minutes the parents were unable to effect a changeover without the intervention of police, was probably quite stressful for both children and for C to be confronted by the mother with the need to make a choice about whether she wanted to return home with the father or return to the I Region with her, was emotionally abusive.

3. The children have been safe and well cared for in the father’s home.  The children, until the end of 2013, enjoyed the warmth and engagement of time spent with the mother.

Section 60CC(3)(a) – any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views

1. At five and almost four years of age, the children are too young to express a view about where they should live.  Their lives have been quite disrupted by the separation of their parents, although they have been consistently well cared for by the father and more recently with the assistance of his partner.

Section 60CC(3)(b) – the  nature of the relationship of the child with each of their parents and other persons

1. The children presently have their most important relationships with the father, each other and the mother.  There is a developing relationship between the children, their father’s partner and her child G. 

2. There is also a relationship between the children and their half-brother J, which has been intermittent, but nevertheless is a loving and affectionate bond.

3. The children have had limited exposure to the maternal grandparents, who have lived in America since the parties separated.  In time, if and when the maternal grandparents return to Australia, those relationships, including with their mother’s young brother, will likely become more significant.

Section 60CC(3)(c) – the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. In my view the mother has failed to take the opportunity to spend time with the children at the level she could have.  It is not to say the mother has not wanted to spend time with the children; she has wanted the children to live with her and feels immensely resentful that they are not living with her.  However she has chosen to put distance between herself and the children by moving away geographically from them.

2. The father has committed himself to the fulltime care of the children, financially provides for them and supported the relationship between themselves and the mother until January 2014, when he withdrew that support.  The children did not see the mother between late January 2014 and July 2014, when visits started in the contact centre. 

3. To some extent the father’s decision and the expressed reasons for it were endorsed by the dismissal of the mother’s application for contravention and variation of orders being dismissed in the Federal Circuit Court.  Nevertheless it was a very long period of time for young children and has undoubtedly contributed to the difficulty B had in re-establishing her relationship with the mother. 

4. It is possible that one or both of the children felt abandoned by the mother and each of the parents has some responsibility if that is the case.

Telephone communication

1. The children have been at times reluctant to speak to the mother on the telephone.  The father said that when the mother rings, he encourages the children to have a quick chat and on occasions they resist, “too tired” or “don’t want to.”  However he said they usually did talk.  C in particular was likely to talk; B could be a bit “hit and miss”.

2. At five and almost four years of age, it is not surprising that the children do not always want to talk on the telephone.  It is no reflection on their positive feelings for the mother. It is also awkward for young children to be having conversations at routine times; particularly if they are not seeing that parent very often.  There is nothing easy for them to talk about.

3. However there is a benefit to children who are not having much face to face time, in hearing the sound of the missing parent’s voice and a weekly telephone call should be manageable.

Section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. The father has been responsible for the children financially throughout their lives.  There is no evidence to suggest that the mother is paying child support.  She is presently working 20 hours a week and has also commenced tertiary studies.  It may be some time before the mother is in a position to substantially contribute to the material needs of the children.

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances including any separation from either of his or her parents, or any other child or other person

1. To do what the mother proposes, that is to change the children’s residence to living with her and their brother, would be to significantly disrupt their relationship with the father and his partner and to put at risk the stability that has been maintained for them since the parties separated.

2. The father gave spontaneous evidence that in the event such an order was made, that he would move to the I Region area in order to be available to the children.  I accept his evidence in that regard.  However even if that were to be the case, I am not satisfied given the findings I have made about the impaired capacity of the mother to give priority to the children’s needs, that she would remain living where she is now. There is a real possibility if the mother’s circumstances changed and became less favourable, that she would move away again.  The father moving to her local area could be sufficient to prompt such a move in view of the mother’s adverse feelings about his partner.

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent

1. This is a matter where there is immense practical difficulty and considerable expense.  The trip from E Town to H Town is a long one; between five and seven hours, depending on the traffic.  It is too long, even for much older children than these, for a weekend to be justified on a regular basis.  Leaving early on Saturday morning, contact would start at lunch time on Saturday and would need to cease at lunchtime on Sunday.  In my view the children would come to dread such trips and start to protest fiercely about having to undergo them.  For that reason it seems most appropriate for no more than one weekend a term should be spent with the children travelling such long distances.

2. No matter how the parents shared the driving, the children would still have to experience a very long trip.

3. The majority of the time should be spent in E Town.

Section 60CC(3)(f) – the capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The father has expressed his concerns about the mental health of the mother.  It is established that she has suffered from depression episodically, for which she has been prescribed medication. She stopped taking an anti-depressant prescribed after the birth of B, when she became pregnant with C.  I am unable to draw any conclusion about the impact, if any, of that course of events.

2. In April 2013 a general practitioner who had seen the mother and children twice, wrote a letter of support for the children being returned to her care.[37]

   [37]Exhibit 21, Annexure ‘A’

3. Another general practitioner in July 2014 stated that he had “never had any concerns for her mental health”.[38]

   [38]Exhibit 11

4. Her treating psychologist provided supportive counselling and Cognitive Behaviour Therapy for stress and anxiety (post separation), but otherwise concluded that after 14 sessions, therapy was no longer necessary, “Her resilience is evidence of robust mental health”.[39]

   [39]Affidavit of Ms U filed 18/09/2014, p 13 of 13

5. The mother reports herself as “lonely, not a soul to talk to” in E Town at the time of separation.[40]

   [40]Exhibit 12

6. The mother has moved again and again throughout her life.  The evidence suggests that unhappiness prompts her to move, to get right away. Unfortunately the mother has done just that to the detriment of the children. Post-separation in April 2013, she had established something akin to shared care with the father in E Town.  When he met a new partner, the mother moved away to N Town.  She put her own emotional needs before those of her two children then aged almost four and two years.  She had been their main carer all their lives.  She stayed with a friend in N Town and the children came to spend time with her there.

7. Within a few months she moved much further away to the I Region area. There was no acknowledgment by her of the burden this imposed on all three of her children.  She bought her son from his father’s care to the new area staying with friends in their home then moving to live independently.

8. The travel is onerous for such young children, prohibitively so.  It is expensive for the parties, to the detriment of the children. Most importantly it makes regular periods of time and spontaneous arrangements for additional time impossible.  If the adverse emotional impact on the children was apparent to the mother, she did not reveal that knowledge.

9. It is this factor, the inability and/or unwillingness of the mother to meet the needs of the children to which I have given greatest weight.

10. The mother is capable of great warmth and fun in her interactions with the children, but she has in my view failed to consider their long term emotional needs.  Her capacity as a parent is limited by that failure.

The father

1. The father’s judgment was clouded by the mother’s conduct in the second half of 2013, her moving so far away, creating a scene about returning C, sending endless critical text messages to him, causing the police to conduct unnecessary welfare checks; provoking certainly.

2. However from early 2014 the children stopped seeing the mother for six months, B for nine months.  Their attachments with the mother have been assessed by the family consultant as “ambivalent ([C]) and insecure ([B])” respectively.   It was a risky decision to suspend time, although taken to protect them.

3. I am satisfied that the father does understand the significance of the children’s relationship with both parents.  He was tentative with B about ensuring time occurred with the mother in the Contact Centre after July 2014, but I consider that it was inexperience and insecurity as a parent and not an intention to undermine maternal relationships.  I am reinforced in that view by two things:

   a)   That C spent time with the mother when her sister would not.

   b)     That the Q Org workers modelled a permissive approach for B deciding whether to spend time with the mother.[41]

Section 60CC(3)(g) – the maturity, sex, lifestyle and background of the child and either of their parents

[41]Exhibit 22, flag 5

1. B is a five year old girl; she is due to start school in 2015.  It is particularly important for her that she makes the transition to school in a way that is safe and enjoyable for her, drawing on the friendships that she has made in the pre-school she attends. 

2. B is assessed to be an intelligent and mature child.  With the assistance of the family consultant, she was able to re-establish her relationship with the mother and really engage with her after a very long period of separation and fear on B’s part.  It is obvious from the updating report[42] that by the conclusion of a period of play with the mother, B was looking forward to the next time they would be together.  She is securely attached to the father and insecurely attached to her mother.  Regular periods of time with the mother re-enforced by telephone contact will obviously build on the breakthrough that was achieved with B and the mother.

   [42]Exhibit 5

3. C is almost four. She has been able to happily maintain the relationship with the mother since separation, despite the fact that her older sister was reluctant to spend time with the mother and would not do so given a choice.

4. C is assessed to have an ambivalent relationship with the mother.  This is described by the family consultant as:

   A child who doesn’t seek proximity with a parent, but then shows strong protest behaviours at separation. 

5. C may well be assisted by an ongoing therapeutic relationship with a child psychologist.

Section 60CC(3)(i) – the attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. In 2014 there was an incident where the mother failed to complete intake procedures for Q Org, but insisted on the first period of time going ahead, with changeover at McDonalds.  In my view both parents behaved unreasonably. 

2. The mother should have completed the intake procedures forthwith as ordered and not manipulated the situation to obtain the outcome she wanted which was changeovers outside a Contact Centre.  The father might have facilitated the time through McDonald’s as the fall-back position, despite the mother’s failure to comply with orders.  In any event, the children were upset; the changeover took place late, with both parents angry and police involved.

Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family

1. There have been several protective orders made.  There was a current AVO for the protection of the father’s partner from the mother.  Whilst ever there is such an order in place, it is essential that the father’s partner not participate in changeovers and be out of sight when they take place.

Section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family

1. The father did obtain a protective order when the mother was sending him an extraordinary number of text messages.

Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings

1. The orders are designed to provide for maximum enjoyable time between the children and the mother, with the least amount of stress and travel for the children.  If the mother takes up all of the periods of time provided for, she will be doing the majority of the travel; very long trips with herself and perhaps her young son. 

2. It may be that she chooses not to take up all those periods of time, but instead to focus on provision for school holiday periods, with two periods per annum in her local area.

Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant

1. It was submitted on behalf of the father that the time between the children and the mother should take place in the absence of their brother. 

2. In considering this position, it seems to me both impracticable and unnecessary to separate the children in that way.  Although it is undoubtedly the case that B has serious behavioural problems and is perhaps emotionally damaged from events in his own short life, that does not directly impact on the relationship between the three siblings, who are reasonably close together in age and have spent some time together from the birth of each of the girls until mid-2012. They have the same mother and maternal family.  Those connections and their family history connections in Country K will be significant perhaps as they grow up and should be supported.

3. I accept the evidence of the father that although he sometimes found him difficult to handle, he was fond of J.  His concern is more that the mother will be too distracted by managing J to adequately care for the two subject children.  That may have been the case when all the children were very young infants, but now, especially once B commences school and Chloe is more self-sufficient, the value of maintaining that relationship outweighs some potential chaos during periods of time spent together.

The Orders

1. For the reasons set out above, orders have been made for the father to have sole parental responsibility for the children, with provision for him to keep the mother advised of all the significant matters, where decisions are taken for the long term interests of the children.  The mother shall also receive documents relating to the progress and welfare of the children at pre-school and school over time.

2. The children will continue to live with the father and spend time with the mother for five weekends in each school term, with one of those weekends each term to be in the I Region area, at the option of the mother.  Likewise, school holidays can also be taken on two occasions each year in the mother’s local area.

3. In this matter, the distance and travel involved outweighs the benefit to the children of spending time in the mother’s home, but in balancing those two factors, holiday time for a week at a time is of more significance than for a shortened weekend.

4. The orders provide for changeovers at McDonalds.  Although the Q Org was helpful to some extent for re-establishing connections between the children and the mother, the evidence suggests that there is a negative association, particularly for B, in seeing or not seeing the mother there and that the children are now well able to move between their parents in a more natural setting.

5. Provision for telephone contact has been made for both parents and for the children on special occasions in the lives of themselves, the mother and brother.  There is also provision for information to be provided by the parties to each other and restraints on conduct.

6. The final order is for each party to commence and complete a Parenting After Separation course.  The benefit of such a course is for each of the parents to develop a sense of a child’s perspective on the separation of their parents and the techniques that can be used to secure the security and stability of the children and to support the relationships of the children with each of the parents.  Orders are made accordingly.

I certify that the preceding two hundred and sixty-five (265) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 18 December 2014.

Associate: 

Date:  18 December 2014