Gillette and Agnew

FAMILY COURT OF AUSTRALIA

GILLETTE & AGNEW

[2017] FamCA 778

FAMILY LAW – CHILDREN – Parenting orders – Where mother seeks sole parental responsibility (with minor exceptions) and for children to live with her and spend time with father on progressively increasing basis – Where father seeks equal shared parental responsibility and equal shared care – Whether father’s overnight time with children should be suspended and progressively reintroduced – Where children suffering separation anxiety – Where there are reasonable grounds to believe father has engaged in family violence – Where best interests of children are for there to be sole parental responsibility to mother – Where immediate move to equal shared care likely to harm children – Where cessation of overnight time in children’s best interests – Where orders made for staged reintroduction of overnight time when children once oldest children in school, culminating in equal shared care.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
Evidence Act 1995 (Cth) ss 140

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
K v R (1997) 22 FamLR 592
Re W (sex abuse – standard of proof) [2004] FamCA 768

APPLICANT:

Ms Gillette

RESPONDENT:

Mr Agnew

FILE NUMBER:

TVC

925

2015

DATE DELIVERED:

28 September 2017

PLACE DELIVERED:

Cairns

PLACE HEARD:

Townsville

JUDGMENT OF:

Tree J

HEARING DATE:

21, 22 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Raeburn

SOLICITORS FOR THE APPLICANT:

Mobbs & Marr Legal

THE RESPONDENT:

In person

Orders

IT IS ORDERED:

All prior parenting orders are discharged forthwith.
That the Mother have sole parental responsibility for the major long term issues relating to B (born … 2013) and C (born … 2014) (“the Children”), in relation to:-
(a)       The Children's education (both current and future);
(b)       The Children's health; and
(c)       The Children's religious upbringing;
That the Mother and Father have equal parental responsibility for the major long term issues relating to B (born … 2013) and C (born … 2014) (“the Children”), in relation to:-
(a)       The Children's cultural upbringing;
(b)       The Children's names; and
(c)       Any changes to the Children's living arrangements which make it significantly more difficult for the Children to spend time with each parent.
That in the exercise of the sole parental responsibility in paragraph 2 of this Order, the Mother shall consult with the Father about decisions to be made as follows:-
(a)the Mother will inform the Father about the decision/s to be made in writing (including byway of email);
(b)the Father will provide a written response (including by way of email) within fourteen (14) days, or less if time limit imposed by third party;
(c)the Mother shall consider the Father’s view about the decision/s to be made; and
(d)the Mother shall inform the Father in writing of the decision that has been made in writing (including by way of email).
That the parent in whose care the Children are in have parental responsibility for the decisions concerning the daily care, welfare and development of the Children.

Living arrangements

That the Children live with the Mother.
That the Children spend time with the Father at all reasonable times as agreed between the parents in writing (including by way of email), but failing agreement as follows:-
(a)Until B has completed the first half of prep in 2018, in a two week rotation as follows:-
(i)Week 1 – from 8.30am until 6.00pm each Saturday and Sunday;
(ii)Week 2 – from after day-care/school until 6.00pm each Tuesday and Thursday or in substitution of one (1) afternoon from 9.00am until 6.00 on any RDO (not to coincide with RDO’s where the Children would otherwise be spending time with the Mother);
(b)       Upon B completing the first half of prep in 2018, in a two (2) week rotation as follows:-
(i)Week 1 – from 8.30am on Saturday until 6.00pm on Sunday;
(ii)Week 2 – from after day-care/school until 6.00pm on Tuesday and from after day- care/school on Thursday until before day-care/school on Friday;
(c)       Upon B commencing year one (1) in 2019 in a two (2) week rotation as follows:-
(i)Week 1 – from after school on Friday until 6.00pm on Sunday;
(ii)Week 2 – from after school Thursday until before school Friday;
(d)       Upon B commencing year two (2) in 2020:-
(i)Week 1 – from after school on Friday until 6.00pm on Sunday;
(ii)Week 2 – from after school Wednesday until before school Friday;
(e)       Upon C completing the first half of year one (1) in 2021:-
(i)Week 1 – from after school on Friday until before school on Monday;
(ii)Week 2 – from after school Wednesday until before school Friday;
(f)       Upon C commencing year two (2) in 2022 from after school on Wednesday until before school on Monday;
(g)       Upon C completing the first half of year two (2) in 2022 on a week about rotation from after school Friday until before school the following Friday.

School holidays

That living arrangements for Orders 7(a) to (g) above continue throughout school holiday periods for each respective year, with week about arrangements continuing after C completes first half of year two (2).

Special Days

Notwithstanding the above orders, provided that the parents are in the same location, the Children will always spend time with the Father as agreed in writing but failing agreement:-
(a)from 9.00 am to 6.00 pm on Father's Day;
(b)from 9.00 am to 2.30 pm on the Children's birthdays;
(c)from 9.00 am to 6.00 pm on the Father's birthday;
(d)from 9.00 am to 2.30pm on Easter Sunday in odd numbered years and from 2.30pm to 6.00pm on Easter Sunday in even numbered years.
(e)from 9.00 am to 2.30pm on Christmas Day in odd numbered years and from 2.30pm to 6.00pm on Christmas Day in even numbered years; and
(f)from 9.00 am to 2.30pm on New Year’s Day in odd numbered years and from 2.30pm to 6.00pm on New Year’s Day in even numbered years.
Notwithstanding the above orders, provided that the parents are in the same location, the Children will always spend time with the Mother as agreed in writing but failing agreement:-
(a)from 9.00 am to 6.00 pm on Mother's Day;
(b)from 2.30 pm to 6.00 pm on the Children's birthdays;
(c)from 9.00 am to 6.00 pm on the Mother's birthday.
(d)from 9.00 am to 2.30pm on Easter Sunday in even numbered years and from 2.30pm to 6.00pm on Easter Sunday in odd numbered years.
(e)from 9.00 am to 2.30pm on Christmas Day in even numbered years and from 2.30pm to 6.00pm on Christmas Day in odd numbered years.
(f)from 9.00 am to 2.30pm on New Year’s Day in even numbered years and from 2.30pm to 6.00pm on New Year’s Day in odd numbered years.

Changeovers

That for the purposes of changeovers:-
(a)for day-care/school days, changeover will occur by the parent ending time with the children delivering the children to day-care/school and the parent commencing time with the children will collect the children from day-care/school;
(b)for non-day-care/non-school days, changeover will occur at 5.00pm inside McDonalds in D Town;
(c)only parents attend changeover unless the other parent has been provided with forty-eight (48) hours notice of an alternate/additional person attending changeover and that other parent has agreed to that proposed changeover arrangement; and
(d)in the event the Father is unable to collect the children from day-care/school, the Paternal Grandmother can collect the children.

Travel

Upon C commencing year two (2), the parents each be able to take the Children on a holiday for a block period of up to two (2) weeks twice each year, upon the parent wishing to take the Children on a holiday giving the other parent thirty (30) days written notice with such two week period to be inclusive of and not in addition to the time that the Children would otherwise spend with the parent pursuant to these Orders.
For Order 12 herein, holiday time cannot accrue from year to year and must be taken in a single calendar year and cannot include special days included in Orders 9 and 10 herein, unless otherwise agreed in writing.
That in the event either parent wishes to travel with the Children outside of the D Town district or E district but within Australia the parent who proposes such travel must provide the other parent with the following information in writing (including by way of email) not less than fourteen (14) days prior to the date of departure:-
(a)details of itinerary of intended travel; and
(b)list of contact numbers and addresses at which the Children may be contacted in the case of an emergency.
That in the event either parent wishes to travel outside of Australia the parent who proposes such travel must provide the other parent with the following information in writing (including by way of email) not less than sixty (60) days prior to the date of departure:-
(a)details of itinerary and intended travel and return dates;
(b)list of contact telephone numbers and addresses at which the Children may be contacted in the case of an emergency; and
(c)copy of any flight/travel itinerary.

Supervision and discipline

That Mother and Father will not physically discipline the Children and neither parent will allow any other person to physically discipline the Children.

Communication between parents

That the parents communicate as follows, unless otherwise agreed in writing (including by way of email) or provided in these Orders:-
(a)For the purpose of changeover information, by Legal Aid communication book (or similar book), with the parents to limit changeover information to a single page. The communication book will not be required for periods of time which are less than seven (7) hours;
(b)For the purpose of parental responsibility, by email;
(c)In case of emergency, by telephone.

Communication with the Children

That upon request by the Children, the Children may communicate with either parent at any reasonable time, with the parent caring for the Children to send a text message to the other parent advising that parent the Children wish to have telephone communication, and the parent who is not carer for the Children is to initiate the phone call.
Upon week about living arrangements commencing, the parent not caring for the Children will call the Children on Wednesday at 5.00pm, with the parent not caring for the Children to initiate the phone call.
That in the event, a phone call is missed or goes unanswered, the parent caring for the Children will ensure the Children return the phone call.

Extra-curricular Activities

Each parent will use their best endeavours to ensure the Children to attend extra-curricular activities.
In the event that a parent is unable to take the Children to an extra-curricular activity, they are to give the other parent first option to take the Children, with at least seven (7) days writing notice (including by email or communication book).

Miscellaneous

That each party notify the other within forty eight (48) hours of any change in their residential address, phone numbers, email address and any person who shall reside at the any address where the children will be residing.
That in the event of childhood illness or emergency, the parent with whom the Children are with will contact the other parent forthwith or as soon as possible after its occurrence to inform them and in the event that a parent cannot reach the other parent, they will contact the other parent’s next of kin to advise and continue to endeavour to make further attempts to contact the other parent.
That neither parent shall denigrate the other parent, their extended family or their partners in the presence of the children or are they to permit other persons to denigrate the other parent, their extended family or their partners in the presence of the children.
That neither parent shall engage, or permit their partners or family to engage, in social media to publish any matters or express any views relating to parenting arrangements for the children, the other parent, the other parent's partner, the other parent's family and any family law matters between the parents and the children generally.
That neither parent shall consume an excessive amount of alcohol whilst the children are in their care.
That neither parent shall use prohibited drugs whilst the children are in their care or allow the children to come into contact with any person who is under the influence of prohibited drugs.
That these Orders of the Court shall be sufficient authority to the Children's Day Care(s) and/or school(s), extra-curricular activity providers and medical practitioner(s) to ensure that the parents are at liberty to make any enquiries s/he wishes in regards to the Children's schooling and progress and health.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT D TOWN

FILE NUMBER: TVC925/2015

Ms Gillette

Applicant

And

Mr Agnew

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These proceedings relate to the appropriate parenting arrangements for the parties’ two children, being B (born in 2013, and hence presently four years of age) and C (born in 2014 and hence presently three years of age) (“the children”). For her part, Ms Gillette (“the mother”) seeks orders that she have sole parental responsibility for both children (with minor exceptions), who would live with her but spend time with Mr Agnew (“the father”) on a progressively increasing basis. Importantly however, she contends that the present arrangements – which see the father spend four nights with the children per fortnight – should be immediately reduced so that the father spends no overnight time with the children again until July 2018. Thereafter, she contemplates that progressively increasing until, by July 2020, it would culminate in the children spending time with the parties on a week about rotation, including during school holidays.
For his part, the father primarily sought that there be equal shared parental responsibility for the children, and that they immediately move to living with the parents on a week about basis. In the event that such an order was not made, then in the alternative he proposed that the present four nights per fortnight regime continue (save that it would be in a block of four nights rather than two nights per week) but move to an equal shared care arrangement by the time that C commenced prep.
There was no Independent Children's Lawyer appointed in these proceedings.

BACKGROUND FACTS

The father

The father was born in 1984 and hence is presently 32 years of age. It seems that for most of his life he has lived in the D Town district, and has been employed in the building industry. He commenced his relationship with the mother in February 2012 when he was 27 years of age. At that time he had been single for four months, having just separated from his partner of six years.

The mother

The mother was born in 1979 and hence is presently 37 years of age. Like the father, it appears as though she grew up in the D Town area and has spent most, if not all, of her life there. When, aged 32, she commenced the relationship with the father, she had been for some years working at Company F. It appears as though she too had recently ended a long-term relationship.

The relationship

The parties commenced their relationship in February 2012 and commenced living together in May of that year. Shortly thereafter, the mother fell pregnant with B, ultimately taking seven months maternity leave before returning to full-time work after he was born. In the latter half of that year she fell pregnant again with C, who was born in 2014.
In November 2014 the father lost his then employment, and did not return to work until January the following year.
At around that time it appears as though the mother began to socialise independently of an evening, and on some occasions did not return home. Plainly the relationship was in difficulty.
The mother asserts that throughout the relationship the father has been aggressive and, on occasions, violent towards her. I will consider that later in these reasons.
Both parties allege that the other abused alcohol during the course of the relationship. Again, to the extent that it remains relevant, I will consider that in due course.
The parties are agreed that the relationship terminated on 2 January 2015, but that until 7 February 2015, they remained living under the one roof, together with both children. It can therefore be seen that the relationship was of two years and eight months duration. At the time of the termination of the relationship, both children were very young: B 22 months of age, and C not quite yet 6 months of age.

Post-separation

Shortly after separation, the matter took an unusual twist, which likely is the cause for much of its subsequent trajectory. That is because the mother almost immediately formed a relationship with a Mr G. The father says he became aware of that through social media posts made by the mother, and became incensed when he saw a photograph of Mr G holding C. He established Mr G’s identity, and contacted Mr G’s wife. She told him that she was aware of Mr G’s relationship with the mother, and that her and Mr G’s marriage of 14 years had recently concluded. Because both the father and Mr G’s wife (who I will hereafter refer to as “Ms H”) were both grieving the loss of their relationship, they began to spend time with each other and formed a friendship, which developed into a relationship from March 2015. From the commencement of the relationship, the father would spend overnights with Ms H.
It will be appreciated that therefore by March 2015 – only about a month after the parties had ceased residing in the same home – they had formed a relationship with new partners, who had themselves only recently separated from each other, in circumstances where, at the very least, the father believed that the relationship between the mother and Mr G had formed prior to separation and was part of the cause for separation. In my view this rather unusual situation has likely amplified the conflict between the parties such that it is at an intensity, and has been of a duration, which it might not otherwise have reached.
In the first month after the parties ceased residing in the same residence, they effected an equal shared care regime of week about time. However the mother became concerned about the children’s behaviours, including them being tired, angry and demanding of extra attention, which lead to a mediation on 5 March 2015, resulting in a parenting plan of that date. That provided for equal shared parental responsibility, for the children to live with the mother, but spend time with the father every second weekend from Thursday afternoon until Monday morning. Notwithstanding that plan, the mother formed the view that the children were still not coping well with the arrangement. Attempts by her to vary the plan by agreement did not succeed.

The mother obtained a referral for B to a psychologist under a Mental Health Care Plan prescribed by her general medical practitioner. That psychologist was Ms J, whom the parties had previously taken B to during the course of their relationship in relation to unrelated matters. B first attended Ms J’s practice on 26 May 2015, albeit the father says that he was unaware that B was being taken to see her until he received a bill on 15 July 2015. On that day he made contact with Ms J, who invited him to make an appointment. It appears that transpired, and on 3 August 2015 Ms J emailed both the mother and father advising them of her opinions in relation to B. In that email she said:
·That B’s physical skills, language and social skills are on track for his age, however he was acting out and getting very angry without being provoked;
·B was taking a long time to readjust after visits with the father, and according to the mother, wakes about three times per night when he returns home and is upset for hours;
·That B’s behaviour was “very indicative of separation anxiety;”
·That waking during the night and remaining upset causes a child to lose a large amount of sleep, in turn making B over tired during the day, which then was making it very difficult for him to regulate his emotions, causing him to become angry quickly and explosively;
·The best way to manage the situation until his anxiety eased was to review and reduce the amount of time the children spent away from their primary carer, which was the mother;
·If changes were not made, then the situation would not improve for B and he would continue to struggle to keep his emotions under control;
·She recommended that a child of B’s age not have any overnight visits away from his mother “until this behaviour changes and he is emotionally more settled;”
·He should, however, have day time with his father, but return to the mother by 5:00pm at the latest;
·She was aware that the father would be resistant to this, but “[B] is simply not coping with the situation as we can see by his aggressive behaviour. This will not change until we change the amount of time he is away from his mum and his anxiety eases and his good night sleep returns. It is a vicious cycle.”
Unfortunately, that prediction has proved to be almost completely accurate, including that the father would resist her diagnosis; even at the trial before me, he still refused to accept it. That is because he says that B has not displayed the sorts of behaviours reported by the mother when coming into his care. Accordingly, he formed the view that Ms J was simply working upon an accepted history as provided by the mother, and not having regard to the information which he had provided her.
These proceedings were commenced by the mother on 10 September 2015. In her initiating Application she sought equal shared parental responsibility between the parties, but that the children live with her and spend time with the father to be particularised by her after a Family Report was to hand. However notwithstanding the absence of a Family Report, when the matter first came on for mention before the Federal Circuit Court on 16 November 2015, the parties agreed interim orders for equal shared parental responsibility, and for the children to live with the mother, but to spend two nights with the father each week, being Friday and Saturday nights in week one, and Wednesday and Thursday nights in week two. Orders were also made for special days. Those were the orders which continued in force before me at the time of trial, with some slight modification.
In January 2016 the Family Report writer, Ms K, conducted interviews and observations. Based upon those, in her Family Report dated 18 March 2016, she recommended that the parties have equal shared parental responsibility and that the children live with the mother. However she recommended that there be a reduction in the time that the children spend with the father to only one overnight per fortnight, together with some additional afternoon time. She recommended that arrangement remain in place for at least 12 months, and at the conclusion of that, a further Family Report update be prepared “to assess whether a shared care arrangement is suitable for the children.”
The justification for that recommendation lay in her opinion that the children’s behaviour “are clearly each child’s attempts to reap more time and a greater sense of security with their mother whilst with her” in the context of a high conflict post-separation co-parenting relationship. Later she said “.. [B’s] demanding and angry behaviours [as observed by her] were direct efforts to increase his sense of psychological security through his mother. His behaviour indicates [B] feels his mother is either unavailable or inconsistent in in her responses to him.”
On the same day as that report was released to the parties, trial directions were made for a one day trial on a date to be fixed. Ultimately that proved to be 24 October 2016, save that it was listed as a reserve hearing.
By then further developments had occurred. Most significantly, on 26 July 2016 and 1 August 2016, B had reported to Ms J during sessions with her that, amongst other things, he had been assaulted by Ms H whilst the father was absent from their home. He also referred to Ms H throwing chairs at the father, and that their house was “the bad house.” Ms J relayed these disclosures both to the mother and father, and made a notification to the relevant department. The disclosures also led to the mother filing an Application in a Case on 11 August 2016 seeking, amongst other things, an injunction restraining the father from leaving the children in the unsupervised care of Ms H. That order was made by a Federal Circuit Court Judge on 18 August 2016.
Also in that Application in a Case, the mother sought orders that the children’s time with the father be reduced to day time only on three occasions per fortnight, but for reasons which are unclear on the material, either that part of the application was not pressed on 18 August 2016, or was unsuccessfully pressed; either way the orders of 18 August 2016 did not either make any reduction in the father’s time with the children, or dismiss the mother’s Application in a Case filed a week earlier. However an updated Family Report was ordered.
Initially the father refused to participate in the update interview process, but ultimately relented, and the usual suite of observations and interviews occurred. Ms K’s observation of the children with the mother was quite remarkable. B became agitated, angry and defiant. Ms K reported “[B] demonstrated severely restricted impulse control, reacting defiantly and/or aggressively when his desires (impulses) were frustrated.” Subsequent observations between the children and the father recorded that B’s behaviour demonstrated when with his mother settled, although both children kept on indicating that they wanted to either see their mother, or be told where she was. For his part the father seeks to explain that on the basis that the children knew the mother was just outside the small room in which they were, and that there would have been a similar inquiry made by the children of his whereabouts, or expressions of a desire to be with him, had the situation been reversed.
Ms K reviewed the ongoing conflict between the parties, and their inability to resolve matters by communication, which informed her recommendation that the mother have sole parental responsibility for the children.
She further recommended that the children live with the mother, and that although they should spend time with the father, they should not spend any overnight time away from their mother until B has completed six months of prep in 2018. The basis of that recommendation was that, notwithstanding the father’s belief that the current arrangements were working well, “all other information suggests neither B nor C are coping with being separated from their mother for two nights at a time.” However she anticipated that by the time B had completed six months of prep in the middle of 2018, he and C would likely be better prepared and able to spend evening time away from their mother, and she recommended that initially the regime be one night per week with their father, which could be considered for increase after C has also completed six months of prep.
That Family Report was not to hand when these proceedings were transferred to this Court on 5 October 2016, however subsequently no application to vary the interim orders of 21 March 2016 to accord with those recommendations was made by the mother.
On 14 December 2016 I fixed the matter for trial to commence 22 May 2017. However pursuant to the liberty to apply which I ordered on that occasion, the matter returned before me on 18 May 2017, on which occasion I was advised that the father’s Legal Aid funding had been revoked, and that it was neither possible for the father to obtain alternative legal representation in the time available, (which included the weekend on which a major North Queensland legal conference in L Town was being held) nor himself adequately prepare for a trial, and accordingly, albeit unfortunately, the trial was adjourned to 21 August 2017.

Current situation

As at the time of trial before me, the evidence was that the mother and Mr G’s relationship had concluded on 28 December 2016, although they remain friends and very much in each other’s lives, to the point where, post-separation, the mother has, on occasion, permitted Mr G to take the children with him. The mother therefore resides alone with the children, in rented accommodation. She continues her employment with Company F, save that she only works eight days per fortnight, and on reduced hours on those days, to enable her to care for the children without them being excessively placed in day care.
For his part, the father cohabits with Ms H, and they share the care of the children when they are spending time with the father. Notwithstanding the order of 18 August 2016, it transpired that in fact since the departmental investigation concluded with an unsubstantiated finding in January of 2017, Ms H has, on occasions, had the children in her unsupervised care.
The father remains engaged in the building industry, albeit it seems he will shortly be self-employed in that capacity, as he said that his current employer sees that as one means by which he could achieve greater flexibility, so that he can care for the children as he contemplates.
The mother’s evidence – which was not challenged by the father – was that the children continue to demonstrate negative behaviours, particularly when they are returning from the father’s care. Indeed she said that there had either been no change from those behaviours reported in the second Family Report, or if anything, they had worsened. She said that B’s aggression had increased, as had what she construed as C’s separation anxiety. She said that on occasion she can’t leave the kitchen without C screaming, and that C wakes up two times a night screaming. C is also reluctant to go to bed, and can take up to forty minutes to settle, when eventually she does go to bed.
As to B, she said that he was having as many as three tantrums a day, each lasting up to forty minutes. She identified that the children are very anxious about going to day care, and particularly the prospect of going to spend time with the father, (changeovers are effected from day care). On occasion, knowing that the father was going to pick them up from day care, the children have been reluctant to get out of the mother’s car, and once a teacher had to physically take C out of the car.
Even on the morning that the mother was giving evidence before me, she said that C had seen her dressing, and had become very upset. She refused to eat breakfast, and would not leave the mother’s side, even showering with her.
None of this was challenged by the father, but nonetheless he either does not accept that the mother is truthfully reporting the children’s behaviours, or alternatively, to the extent he does accept it, contends that it is the product of some fault on her part, which, given that the children do not demonstrate such behaviours in his care, is not a fault which he shares.

THE ISSUES

At the Trial Management Hearing of this matter, with the assistance of the parties, I identified that the following are the issues in these proceedings, in that their determination is likely to substantially determine their outcome.
1.What is the nature of the relationship between the children and each of their parent.
2.How would the benefits of the children having a meaningful relationship with both parents best be facilitated.
3.What risk, if any, do the father, mother and their partners pose to the children in relation to:
(a)Family violence;
(b)Substance abuse;
(c)Exposure to parental and other conflict.
4.Would each parent facilitate a meaningful relationship between the children and the other parent.
5.What would be the likely effect on the children of:
(a)Introducing an equal shared care arrangement;
(b)Reducing the amount of time that the children spend with the father.
6.Could the parties’ communication support equal shared parental responsibility, or sole parental responsibility with an obligation to consult.
Once I have discussed the relevant statutory provisions and legal principles, but in advance of a traverse of any additional relevant s 60CC considerations, I shall address those issues and then move to consider the appropriate orders in this case.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]
[1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Abuse, neglect and family violence

“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”

“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family … or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

The standard of satisfaction required

S 140 of the Evidence Act 1999 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)      the nature of the cause of action or defence;
(b)      the nature of the subject-matter of the proceedings;
(c)      the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2]
[2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

NATURE OF RELATIONSHIP BETWEEN THE CHILDREN AND EACH PARENT

Ms K’s evidence in relation to this was not challenged. She said that the children’s primary attachment is with their mother, and the father’s relationship with them is a secondary, but a growing, one. She said that the father’s relationship with the children confers benefits on them, and identified that B is particularly likely to obtain benefit from that relationship as he gets older.
She explained that the children’s anxiety is particularly pronounced with the mother, because their primary attachment is with her, and they feel confident to express their distress whilst in her care.
Notwithstanding the unchallenged evidence that the children’s relationship with the father is not their primary attachment,, there is an abundance of evidence that the children enjoy spending time with him. For instance, the father called evidence from a next door neighbour, Ms M, whose home is particularly close to the father’s. Her evidence was that she can hear constant laughter and singing when the children are in the father’s care, and when she sees the children (they apparently run to greet her when they arrive) they are happy, bubbly and vibrant. She says that she has not noticed this behaviour change during the visits. To like effect was the evidence of Ms N, the paternal grandmother, Ms Agnew, Ms H and the father himself.

BENEFIT OF MEANINGFUL RELATIONSHIP AND BEST MEANS OF FACILITATION

There was no dispute that the children would benefit from a meaningful relationship with both of their parents. Rather this issue devolved to a question of how it would best be facilitated. Ms K’s evidence was that the purpose of her recommendation in relation to the reduction of overnight time with the father, was to help facilitate the relationship with the children have with the mother, and particularly to properly and adequately prepare the children for spending overnight time away with her without experiencing the anxiety which presently attends that separation. The emphasis of Ms K’s evidence in this respect related to B, but given the mother’s unchallenged evidence in relation to C, and indeed observations detailed in evidence in relation to C, there is good reason to believe that she is also suffering anxiety associated with the regular overnight time away from the mother.
Save for the need to better facilitate the relationship of the mother with the children, there was no real disagreement that otherwise the children’s meaningful relationship with their parents would best be facilitated by them spending regular face-to-face time with each parent, and for the parents to be involved in as many aspects of the children’s lives as is possible.

RISKS POSED BY PARENTS’ HOUSEHOLDS TO CHILDREN

Counsel for the mother conceded that the evidence in relation to family violence was only relevant in these proceedings, in that it formed a basis for grounds to believe that the father had engaged in family violence, such that the presumption of equal shared parental responsibility did not apply. Particularly it was not asserted that either parents’ household poses a risk of family violence of a kind that would inform the exercise of my discretion in determining appropriate parenting orders. I agree with the parties’ positions in relation to that, and will consider family violence in more detail in relation to the allocation of parental responsibility.
Similarly, although the evidence was replete with accusations of alcohol and drug abuse, by not only the parties, but also by Mr G and Ms H, ultimately neither party sought to make any issue of that, and certainly did not assert that either of the parties’ households posed a risk of substance abuse of a kind which ought impact upon the exercise of the discretion in relation to parenting orders.
Likewise, neither party sought to argue that the prospect of exposure to parental or other conflict was the basis for the orders for which they contended in relation to the children. That said, Ms K’s evidence is that the greatest risk to the children is their exposure to the parents’ conflict. She said that the children have been exposed significantly to that conflict in the past, and B particularly understood exactly what was going on in relation to that conflict.

PARENTS’ FACILITATION OF A MEANINGFUL RELATIONSHIP BETWEEN CHILDREN AND OTHER

Ms K’s unchallenged evidence was that she had mixed views in relation to this, particularly because the parents have re-partnered with persons who are the former partners of each other. As she said, “it was always going to get messy.” She conjectured that maybe now, with the passage of time and the cessation of the relationship between the mother and Mr G, things may become easier. She opined that the mother does want the children to have a relationship with the father, but has a severe mistrust of the father, particularly given his excessive and aggressive communication with her early on in the separation.
For his part the father no doubt harbours a mistrust in relation to the mother facilitating a relationship between him and the children, because since separation, she has been pressing for them to spend less time with him, but I am satisfied that her basis for doing so was sound and professionally based, and remains so. When one looks at the orders which she proposes, they are final orders, and ultimately culminate in the children spending equal time with each parent. Had she been intent on seeking to use the reduction in overnight time that the children spend with the father as a lever to move him out of their life altogether, she would be unlikely to seek final orders for equal shared care.
Ultimately, and notwithstanding the history of conflict and the unusual facts which attend this case, I am satisfied that the parents do recognise the benefit to the children of a meaningful relationship with the other parent, and will, to an adequate degree, facilitate that.

EFFECT ON CHILDREN OF PARTIES’ PROPOSALS

The father proposed immediately moving to an equal shared care arrangement. Ms K’s unchallenged evidence was that if that occurred, she would expect B’s behaviour to worsen, as he would likely become stressed, with a high risk that he would demonstrate chaotic behaviours.
As to the long term effect of equal shared care if it were ordered now, she said that the children would both likely grow up with significant interpersonal problems, and in the case of B, there was a risk even that he may go on to develop a personality disorder. She said that at the least, she would expect there to be oppositional defiant behaviour demonstrated by him, which may be at a level to justify a diagnosis of oppositional defiant disorder. In this regard his aggressive behaviour as seen by her, together with the evidence of Ms J and the mother, provide real support for that conclusion.
The father did not directly challenge that opinion, but remained steadfast that, because he did not experience B’s aggressive and defiant behaviours when he was in his care, if it be the case that there is such behaviour when the children were in the mother’s care, it must have something to do with her, rather than him. However no expert opinion supported that view; rather the expert opinion was as I have set out above.
I suspect that part of the difficulty which the father has in accepting the expert opinion is that once accepted, it lends strong support to the recommendations which they make, namely that the overnight time which the children presently spend with the father – which they and he greatly enjoy – should be suspended and progressively reintroduced over time. The father operates from a position which he articulated a number of times during the trial, that the “children are half hers, and half mine” and therefore that he has an entitlement to equal time. Anything which attacks or undermines that perceived right is rejected by him. Unfortunately that approach is not child focussed.
I am well satisfied that, if the children were to move to an equal shared care arrangement now, there is a substantial risk that their present behaviours in the mother’s care would escalate, and further, that such an arrangement carries with it a real risk of long term psychological damage to the children.
As to the likely effect on the children of reducing the amount of time that they spend with the father, the real focus of the mother’s position and the expert recommendations is that the reduction should be principally in relation to overnight time, but that otherwise the father should spend regular time with the children during the day.
Ms K’s opined that “a reduction in time away from their mother should alleviate the children’s separation anxiety…” She was not challenged in relation to that. Although she had first expressed that opinion in her report of 28 November 2016, her recommendation in oral evidence before me remained that the children should cease spending overnight time with the father until B has completed 6 months of prep in 2018.
I am satisfied that there is a good prospect that reducing the time the children spend with the father, by ceasing overnight time, will indeed maximise the prospect that their separation anxieties will abate. In that regard I note that not only is that the opinion of Ms K, but that it was the opinion of Ms J as long ago as August 2015, and repeated by her in her report of 4 August 2016.
Unfortunately the father is likely to perceive the cessation of overnight time for approximately a year to be a direct attack upon what he perceives to be his rights as a father, to equal time with the children. He is likely to be supported in that view by Ms H, and his family more generally. One could conjecture that his disappointment may lead to further conflict, or at least to a perpetuation of the conflict between him and the mother, which of course may lead to the children being further exposed to it. That may have deleterious effects upon them, as their exposure to the conflict to date appears to have done. However it is not possible to gauge the likelihood of that outcome, or the likelihood that the children would be exposed to any perpetuated conflict. It is, however, a real possibility.

COULD PARTIES’ COMMUNICATION SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY / CONSULTATION

The parties have a long history of conflictual and acrimonious communication. That said, the father tendered into evidence emails exchanged between the parties in the last six months, which tended to show that there had been some civil communication, although the mother did not accept that those emails were broadly representative of the totality of the communication between the parties over that period. Further, the father pointed to the fact that, although it took some time, and although the parties argued about it, ultimately they have recently been able to agree upon the selection of the school that B should attend next year.
However there are a number of other matters upon which the parties remain in disagreement. For instance, the mother believes that B should have his tonsils removed, or at least be examined by an ENT surgeon to see whether that should occur. The father does not believe that the tonsils require removal, and does not agree with the referral to a specialist. Likewise, the father wishes to have a second opinion in relation to the alleged separation anxiety which B is said to suffer, but the mother does not agree to a second psychologist being involved. The reality is that the parties have a substantial history of reaching a stalemate in relation to such matters, I suspect largely because conflict and disagreement have become the hallmarks of how they engage with each other.
That conflict is, as I have indicated, no doubt exacerbated by the fact that the father remains in a relationship with the former partner of Mr G, who in turn remains on good terms with the mother. I had the distinct impression, in the hearing before me, that both Ms H and Mr G were active participants in the litigation and disputation. They were far more engaged in it than a new partner might ordinarily be; they struck me as active combatants. Therefore far from the new partners introducing some moderating influence, it may be that they in fact increase the conflict.
Unfortunately the conclusion which I draw is that the parties’ communication is unlikely, for the foreseeable future, to be at a level which would enable them to discharge their obligations under s 65DAC. To require them to engage with each other is only likely to further perpetuate the conflict between them.
At paragraph 108 of the updated Family Report, Ms K noted that, in the event that equal shared parental responsibility were ordered, then the parties would need to commit to long term mediation to build a more positive co-parenting relationship. She anticipated that initially it would need to be an intensive mediation “to negotiate more constructive communication strategies, personal and privacy boundaries, boundaries related to each parent’s partner and the other parent, strategies to develop a parenting alliance, ways to make changeovers more comfortable/less tense for the children and reach agreements over the children’s long term health, medical, education and extra-curricular needs and interests.”
The father expressed no willingness to undertake such a course; neither did the mother. The fact that such a prescription would be required in order for shared parental responsibility to work, underscores the inability of these parties to communicate in a way which could support equal shared parental responsibility. I would have to say that I would have real doubt that the parties could commit to the form of mediation which Ms K contemplates, or at least commit to it in a constructive way. Even if they did, there is no guarantee that it would work.

SECTION 60CC CONSIDERATIONS

It will be appreciated that I have addressed both primary considerations and a number of the additional considerations, enumerated in s 60CC. However I make the following further observations.
The children are too young to express any views.
The children have significant relationships with both sets of grandparents. Indeed from her observations during the first Family Report interviews, Ms K formed the view that the paternal grandmother may have been an alternative primary attachment figure for B. Certainly the maternal grandmother expressed some frustration that the arrangements that prevailed at the time of trial did not really give her and her husband an opportunity to do the sorts of things they would like to do with their grandchildren, because that would impinge too much upon the father’s time with the children. Nonetheless I assess that the relationship between the children and each sets of grandparents is an important one.
Some criticism was made of the mother’s use of child care, but she appears to have taken that criticism on board, and reduced her working time so as to be able to spend more time with the children.
The father fulfils his obligations to maintain the children.
Both parties are likely to remain living in the D Town district for the foreseeable future, and hence there is little difficulty or expense in the children maintaining personal relations and direct contact with both parents.
Both parties have the capacity to well provide for the children’s needs.
The father has recently learned that he has some aboriginal heritage, and is keen to explore that further. The mother recognised that, by not seeking sole parental responsibility in relation to cultural matters.
The mother alleges that there has been family violence perpetrated against her by the father, a matter I shall discuss in detail when considering parental responsibility.
The mother brought family violence proceedings against the father shortly after separation, but withdrew them on the basis of an undertaking without admission offered by the father.
It would plainly be preferable to make an order least likely to lead to the institution of further proceedings in relation to these children.

PARENTAL RESPONSIBILITY

As I have indicated, the father seeks an order for equal shared parental responsibility, whereas the mother seeks an order for sole parental responsibility with some exceptions.
The first matter I need to determine is whether or not there are reasonable grounds to believe that a parent of the children has engaged in family violence, in which event, the presumption of equal shared parental responsibility does not apply. In this regard it is important to bear in mind the definition of family violence, and particularly that there are two concepts involved. The first is the action (which needs to be violent, threatening or other behaviour) and secondly, the effect, namely that it coerces or controls a member of that person’s family or causes the family member to be fearful. “Family member” is not defined in s 4AB other than as “a member of the person’s family,” but plainly it would extend to partners, parents, children and extended family members.
The mother relies upon several instances of family violence which she says were perpetrated towards her by the father, and also points to family violence which may have been perpetrated by the father against Ms H.

The first episode of family violence relied upon by the mother is said to have occurred on 22 September 2012, when the father was intoxicated, and seemingly a passenger in the car which the mother was driving. She says that he swore at her and called her a “cunt,” stated that he did not love her, and spat on her. The father denies this occurred.
The next episode is said to have occurred on 1 October 2013, and involved him throwing the mother to the ground, kicking her and bending her arm behind her back. The father denied that this occurred. Annexed to the mother’s affidavit were some photographs which were said to show significant bruising and a hairline fracture to her arm, arising from the 1 October 2013 assault on her by the father.
Next the mother says that between 9 February and 28 February 2015, the father excessively telephoned or sent text messages to her, in which he would often call the mother names including “cunt,” “fucking liar,” “unfit mother” and “slut.” The father denies that he ever used such language, but concedes that he likely called her an “unfit mother” and a “drug abuser.” He said he called her that because he was upset about the family being ripped apart. He concedes, however, that the mother was likely to perceive those phone calls and texts as harassing and intimidating.
Next the mother alleges that on 23 February 2015, the father manoeuvred his vehicle at the children’s day care (where the mother was also in attendance) so that her vehicle was obstructed and could not leave, and then proceeded to yell at the mother, and call her a “cunt” in full view of the children and others. The father denies that occurred.
The mother first made all these allegations when seeking a domestic violence order against the father on 26 February 2015.
The mother also relies upon an incident which occurred between the father and Ms H on New Year’s Eve 2016. In evidence before me was a redacted police report to the alleged event. Notwithstanding the redactions, it is plain that the person whose name has been redacted, is Ms H. Inserting that name into the redacted areas, the report reads as follows:
Both parties have been in an intimate personal relationship for the past two years with them residing together for the past eight months. Shortly before 2:30am on the first day of January 2017 both parties had been drinking at the [O] Hotel. After waiting for a taxi a short verbal argument has occurred. [The father] has walked home with [Ms H] getting a taxi. At around 3:00am [the father] has arrived home. At this point both parties’ versions differ. [Ms H] stated they had continued the verbal argument and while in the bedroom [the father] has grabbed her and lifted her off her feet before throwing her forcibly onto the bed resulting in her bouncing off the bed and landing on the floor. Ms H has then demanded [the father] leave which he has without further incident. [The father] stated that upon arriving home [Ms H] has begun to verbally abuse him. [Ms H] has then thrown [the father’s] phone and keys down the hallway. The argument continued into the bedroom at which point [the father] has decided to leave. Ms H was blocking the exit. [The father] has then grabbed her and moved her aside. [Ms H] has landed on the bed. [The father] has then left the address. [Ms H] stated to police the relationship is ended and that she will have no contact with [the father] apart from collecting property.
The aggrieved stated to police she is not in fear of [the father].
This document came into evidence during the course of the trial from material produced pursuant to subpoena by Queensland Police. To my mind, it appeared to take the father somewhat by surprise, and he was not expecting that incident to form any part of the mother’s case.
His version of the events on the night did not coincide with the version in the police records. He said that he and Ms H went to a friend’s unit for a New Year’s Eve party, and he returned home, but Ms H stayed out with friends. He said that he had about six or seven beers, and got tired and went home. He denied he went to a night club. He concedes he walked home and took about 15 minutes to get there. He thinks he arrived just after midnight and went to bed.
His recollection is that Ms H was drinking at the party, and had about two or three drinks after they arrived at the party at about 8:00pm or 9:00pm. He denied that there was any argument between them before they left, and said that he would have arrived home, at the latest, by 1:00am.
He said he was later woken up by Ms H, whom he thought was tipsy. She shook him awake and he said that annoyed him, and she didn’t like the way he spoke to her. He said this occurred in the bedroom and he moved her out of the way so that he could leave. He denied that Ms H wanted to continue the argument, but simply said that he chose to leave, and caught a cab to his parents’ place, where he spent the night. He said that he only used gentle force in moving Ms H out of the way. His first knowledge of police involvement was when they attended his mother’s place the next day.
He said that he and Ms H had not discussed the matter since, although they did apologise to one another the next day. He denied that there was any imperilling of the relationship from that episode.
When pressed in cross-examination as to whether Ms H was intoxicated, he said that she didn’t seem drunk during the course of the argument.
Ms H’s version of events was very limited. She agreed that she and the father went to a friend’s party for New Year’s Eve, and she said that she “drank wine and champagne and lots of jelly shots.” She could not recall how much wine she had consumed, other than it was a lot. She said that she has a memory blackout of the night, and can’t even recall leaving the party. She could not recall any events when she got home, and cannot recall arguing with the father or calling the police. She was then confronted with the police records, and whilst denying that they helped jog her memory at all, did say that she thought that she was angry that the father had left the party before her, because New Year’s Eve was a sensitive time for her.
I would have to say that I have grave reservations about Ms H’s denial of any recollection of the events of the night. It is difficult to reconcile her being so intoxicated that she has little, if any, memory of events on the night, with the detail which the police incident report contains. Particularly, I am satisfied that there must have been some event which caused her (and plainly it was Ms H) to contact police. On the father’s version of events, his moving her out of the way so that he could get out of the bedroom and leave, could not possibly justify her involving police. I am therefore satisfied that something more than that occurred. The only version of events which would justify police involvement is that proffered by Ms H to police, as recorded in the tendered material.
There are some other interesting features of the police report. The first is that it notes that the time of the report of the incident was 11:05 (presumably am) on 1 January 2017. I am reasonably comfortable that in fact Ms H attended a police station then, because the time and date of the entry of the report is said to be 12:40 (presumably pm) on that day. Further, the reported time of the event is between 3:00am and 4:00am on that morning.
That document would therefore tend to suggest that Ms H made a complaint to police at 11:05am on New Year’s Day, after she had awoken from the night before.
Further, the high level of detail in the incident report, is inconsistent with the mother being drunk at the time of her speaking to police. In that regard, it is important that the report notes what is in dispute between the parties, and what is agreed.
Counsel for the mother did not ask me to make any factual finding in relation to family violence, but rather contented himself with saying that I should be satisfied that there are reasonable grounds to believe that there was family violence. That is because counsel conceded that, other than the displacement of the presumption, family violence had no role to play in the determination of these proceedings. Specifically the mother eschewed any suggestion that the existence or otherwise of family violence stood to impact upon any of the other parenting orders that either party sought.
I am satisfied that the police report does provide reasonable grounds to believe that there was family violence between the father and Ms H early in the morning of 1 January 2017. Those grounds are reasonable, because the document is a record maintained by police, and there is no reason to think that the information recorded in it is not accurate insofar as it details what was reported to them by the parties. It is also reasonable to believe that the reported time of 11:05 on 1 January 2017 is accurate, and that what is reported in there as having been told to police by Ms H, is indeed what she then told them.
Further, I am satisfied that at the time Ms H was a member of the father’s family, being his de facto partner and step mother to the children. Notwithstanding the statement by Ms H to police that she was not in fear of the father, I am satisfied that there are reasonable grounds to believe that the effect of the assault as she reported was to either coerce or control her, or was likely to cause her to be fearful at the time, albeit she was not fearful the following day.
As to the alleged family violence directed towards the mother, I am less confident about what occurred. However in relation to one of her allegations, I am persuaded that there are reasonable grounds to believe that there was family violence directed towards her. That incident is the assault on 1 October 2013, which is supported by the photographs of the bruising annexed to the mother’s affidavit. Other than as a record of the event, it is difficult to conceive why else the mother would take photographs of bruising; I am satisfied that the photographs show bruising, and in that regard am fortified in that conclusion because there would be no other reason for the mother to take the photographs of her arm, other than to record some feature of it. The only feature can be the bruising.
I am therefore satisfied that there are reasonable grounds to believe that the father engaged in family violence towards the mother, on at least 1 October 2013.
It therefore follows that as a matter of law, the presumption of equal shared parental responsibility does not apply. The question then, is whether such an order would nonetheless be in the best interests of the children. As to that, during the course of submissions and with the parties’ assistance, I identified the following points as favouring the father’s argument that an order for equal shared parental responsibility would be in the best interests of the children, or weigh against the mother’s proposition that sole parental responsibility should be ordered:
·The father’s life experience is likely to benefit decision making in relation to children;
·The children would likely benefit from knowing both parents have responsibility for decision making in relation to them;
·There is doubt surrounding the mother’s capacity and/or willingness to facilitate a meaningful relationship between father and children.
On the other hand the following points were identified as being contrary to equal shared parental responsibility being in the children’s best interests:
·The parties have a considerable history of significant conflict;
·The parties have only a very limited recent history of some amicable communication and joint decision making (eg school for B);
·Equal shared parental responsibility might be the triumph of hope over experience;
·The expert evidence was strongly against equal shared parental responsibility.
In similar fashion, the following points favour sole parental responsibility being given to the mother (noting that she specifically during the course of submissions excised cultural upbringing, the children’s names, and changes to children’s living arrangements which make it significantly more difficult for the children to spend time with the father, from sole parental responsibility):
·It would keep the father involved in some important decision making relating to the children;
·It would allow the children to know father has some role in decision making relating to them;
·It would limit the prospect of the mother using sole parental responsibility to impede the relationship between father and children.
Conversely, the following points were identified as being against an order for sole parental responsibility:
·It keeps alive the prospect of further conflict;
·It may lead to a stalemate on important issues.
There is one additional matter to which I should advert, and that is that even the mother concedes that by 2022 there should be an arrangement of equal shared care for the children. Assuming that is reached, there would then be some incongruity between one parent having ultimate decision making power in relation to most major issues, yet only having the children with them for one half of the time.
However notwithstanding that observation, weighing the competing considerations in the balance, in my view the mother’s proposal is more in the children’s best interests than is the father’s. Particularly I place weight upon the history of conflict between the parties, which, given the unusual relationship dynamics, in my view is likely to continue. I am satisfied that the mother is the better candidate for sole parental responsibility for two reasons. Firstly, as shall be seen, for the next few years, the children will primarily be in her care, but further, as Ms K observed at paragraph 93 of her updated Family Report, the mother takes primary responsibility for the children’s medical health, and instigates most of their medical checks. There is further the father’s antagonism and lack of engagement in relation to specialist medical opinions for the children.
There will therefore be orders for the mother to have sole parental responsibility in the terms formulated by her. Otherwise, the parties should share parental responsibility in relation to cultural issues relating to the children, any change to the children’s names, and any changes to where the children live which would make it more difficult for them to spend time with the father.

LIVING ARRANGEMENTS

The following points are in favour of the father’s argument that orders for immediate equal care would be in the children’s best interests:
·It would maximise the opportunity for a meaningful relationship between the children and father;
·The children greatly enjoy their time with the father;
·It would maximise the opportunity for children to spend time with extended family;
·It would appease the father’s belief that he is entitled to equal time.
On the other hand the following points are against that argument:
·It will not reduce B’s separation anxiety;
·It may lead to long-term adverse psychological problems in the children, and even personality disorders;
·The expert evidence was strongly against equal care;
·There is a high history of conflict between the parties;
·There is a lack of flexibility and trust between the parents.
Weighing those matters, I am firmly of the view that an order for immediate equal time is not in the children’s best interests. The evidence as to the risk of the children developing long-term adverse psychological problems is uncontradicted, and the risk is real.
Therefore, the next decision which I need to make is between the father’s alternative position, which would see overnight time continue, and the mother’s proposal, which would see that time cease. As to that, the following points are in favour of the father’s argument that continued overnight time is in the children’s best interests:
·It has been situation since separation;
·The children do enjoy time with the father, including bath time and meals, which are features of such overnights;
·It would provide some opportunity for the children to spend time with the extended paternal family;
·It would provide a reasonable opportunity for maintaining the relationship between children and father.
On the other hand the following points are against that:
·It will not reduce B’s separation anxiety;
·It would continue the risk of adverse psychological problems for children.
Turning then to the mother’s proposal, that overnight time immediately cease, (although be slowly but progressively reintroduced) the following points are in favour of it being in the children’s best interests:
·It is likely to reduce B’s separation anxiety, and hence his aggression;
·It is likely to reduce the stress on C, at least insofar as she has to deal with B’s aggression;
·It minimises the prospect of the children suffering long-term adverse psychological problems;
·It accords with expert recommendations.
Similarly, the following points are against that proposal:
·It is likely to see the father and his family bitterly disappointed, and hence probably perpetuate conflict between parents;
·It will interrupt the long standing status quo;
·There is no guarantee it will be effective to reduce B’s separation anxiety, or his aggression.
I am well satisfied that B suffers from separation anxiety, and note that the expert opinion has been consistent since July 2015 that the means to mitigate that anxiety is to cease overnight time with the father, until he has developed sufficient resilience to cope with time away from the mother without anxiety. Sadly, the father’s belief that the children are “half mine and half hers” has made, and continues to make, him strongly antagonistic and resistant to that recommendation. Unfortunately I conclude he is preferring his view of his rights over the welfare of the children. However it is the reduction of the children’s anxiety which is the critical factor in my concluding that the mother’s proposal is in the best interests of the children.
I should note that the mother’s proposal for the reintroduction of the children spending overnight time with the father is a little more generous than that contemplated by Ms K, in that it provides for equal shared care to be achieved, whereas Ms K was only prepared to contemplate reviewing the matter with a view to increasing the children’s time with the father to more than one night once C had concluded six months of prep. However counsel for the mother explained that the reason his client wanted to provide for increases in time beyond that was to try and obviate the need for any further litigation between these parties. I agree that consideration is important in this unique case. Moreover, although given the tender ages of these children, it is difficult to predict the success of the staged progression some years in advance, nonetheless it seems to be a relatively conservative and stepped progression, and I am satisfied that it is in the best interests of the children.

OTHER ORDERS

The mother sought an extensive suite of additional orders, which were not the subject of any debate before me. Generally I am satisfied that they are in the best interests of the children and will make them, with some exceptions. The exceptions are:
Proposed order 14
This appears to have resolved during the course of the proceedings before me in that the interim order restraining the children from being in Ms H’s unsupervised care was resolved by consent;
Proposed orders 20 – 22
These would oblige B to continue to attend Ms J, whereas the evidence is that he has not seen her now for over a year. The mother will have sole parental responsibility relation to medical matters, and hence attendance upon psychologists will fall within that. I decline to make orders in terms of paragraphs 20 to 22.
Proposed order 27
This may be adequately covered by the criminal law, or alternatively by domestic violence proceedings, and I decline to make an order in terms of paragraph 27.

CONCLUSION

For these reasons there will be orders as set out at the commencement of this judgment.

I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 28 September 2017

Associate:

Date: 28 September 2017

[2017] FamCA 778

28 September 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies