Gipson and Gipson (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

GIPSON & GIPSON (No.2)

[2020] FCCA 1003

Catchwords:
FAMILY LAW – Parenting – assessment of competing proposals.

Legislation:

Family Law Act 1975 (Cth) ss.60CC, 61DA, 62G, 65BAC

Cases cited:

Rice & Asplund (1978) 6 Fam LR 570

Applicant:

MR GIPSON

Respondent:

MS GIPSON

File Number:

BRC 5374 of 2012

Judgment of:

Judge Jarrett

Hearing date:

7 April 2020

Date of Last Submission:

8 April 2020

Delivered at:

Brisbane

Delivered on:

8 April 2020

REPRESENTATION

Solicitors for the Applicant:

Rosen Lawyers

The Respondent in person

Counsel for the Independent
Children’s Lawyer:

Mr Taylor

Solicitors for the Independent
Children’s Lawyer:

C M Bint Family Lawyers

ORDERS

The respondent and the applicant have equal shared parental responsibility for decisions concerning the major long-term issues for the children X born in 2004 and Y born in 2006.
The children live with the applicant.
The children spend time and communicate with the respondent at all such reasonable times as may be agreed in writing between the parties and failing agreement as follows:
(a)each alternate weekend from after school Thursday until the commencement of school Monday or Tuesday if Monday is a public holiday;
(b)from 9:00am Christmas Eve until 12 noon Christmas Day in even numbered years and from 12 noon Christmas Day until 5:00pm Boxing Day in odd numbered years (with the respondent to spend from 9:00am Christmas Eve until 12 noon Christmas Day in odd numbered years and 12 noon Christmas Day until 5:00pm Boxing Day in even numbered years);
(c)if Father’s Day falls on a weekend when the children are not with the applicant, then the weekend immediately preceding shall be substituted for Father’s Day;
(d)if Mother’s Day falls on a weekend when the children are not with the respondent, then the weekend immediately preceding shall be substituted for Mother’s Day;
(e)if the respondent’s birthday or applicant’s birthday falls on a weekend when the children would not ordinarily be spending time with the respondent or applicant pursuant to these orders, then the children shall be delivered to the respondent or applicant at 9:00am on the respondent’s or applicant’s birthday whichever applies;
(f)on the children’s birthdays, if the birthday falls during the week, from after school for two (2) hours, and if the children’s birthdays fall on a weekend, for four (4) hours;
(g)for one half of each school holiday period with the respondent having the first half in all even numbered years and the second half in all odd numbered years;
(h)during school term the respondent shall collect the children from school and return them to school and during the school holidays the parent into whose care the children are due to come, shall collect the children form the other parent’s residence at such time as the parties may agree; and
(i)reasonable electronic communication.
For the purpose of changeover of the care of the children, the applicant shall deliver the children to their respondent’s residence at the commencement of their time with her and the respondent shall deliver the children to the applicant’s residence at the conclusion of their time with her.
For the purpose of organising the care arrangements for the children during school holiday periods:
(a)school holiday periods are calculated as commencing from the day after the school term finishes and concluding on the day before the next school term commences; and
(b)the number of nights in each school holiday period is to be used to calculate one-half of the school holiday period and if there is an uneven number of nights, the person who has the care of the children in the first half of the school holiday period will retain the children for the one additional night; and
(c)the changeover times are to occur during school holidays at 12:00 noon on the day for changeover pursuant to these orders.
The children’s weekend time with the respondent pursuant to these orders recommence on the first week of each school term.
Each parent will authorise and direct any school or other educational facility at which the children are enrolled, to nominate the other parent as an emergency contact person in the event of any emergency.
Each party shall keep the other informed as to their residential address, telephone number, work telephone number, email address, facsimile transmission and mobile telephone number and advise the other of any change to those details within twenty-four (24) hours of the change.
Unless otherwise ordered herein, the parties communicate in respect of the children’s arrangements and needs by telephone, SMS or email.
Each of the parties is restrained from enrolling the children in any educational facility or extra-curricular activity which will impede or requires any commitment or attendance during the other parties time with the children, without the consent in writing from the other party.
The parties not discuss these proceedings or any issues surrounding the parties dispute in the presence of or within the hearing of the children or permit any other person to do so.
Each of the parties will take all steps necessary to ensure that the children are not in the presence of persons including themselves:
(a)engaging in harassing or intimidating conduct towards the other party or members of their family or household; and
(b)denigrating the other party or members of their family or household to or in the presence of the children.
These orders shall authorise any educational institution to which the children attend to provide to the respondent/applicant, at the respondent/applicant’s expense, all reasonable requests for information including but not limited to, school reports, newsletters and important school notices.
These orders shall authorise any health professional who attends upon the children to provide to the respondent/applicant, at the respondent’s /applicant’s expense, all reasonable requests for information by the respondent/applicant as to the children.
Each parent shall inform the other parent as soon as reasonably practicable of any serious illness or hospitalisation of the children.
Neither the respondent nor applicant shall physically discipline the children and not allow anyone else to physically discipline the children.
Each parent shall be entitled to attend any school function or activity.
Neither parent will attend within 200 metres of the other parent’s residence except for the purpose of collection and return of the children pursuant to these orders or by agreement in writing between the parties.
The children be at liberty to contact the respondent by electronic communication at all reasonable times and the applicant is to facilitate that communication.
The applicant and respondent be permitted to remove the children from the Commonwealth of Australia to enable the applicant and respondent to take the children to overseas for a period of not exceeding four (4) weeks.
In the event that either parent wishes to travel outside the Commonwealth of Australia with the children, that parent shall provide to the other parent, not less than forty-two (42) days’ notice in writing, as to where the children will be travelling, length of time the children will be away, the care arrangements for the children whilst they are away and contact details during the time that the children are away.
The respondent shall retain the children’s passports until such time as the children travel overseas with the applicant in which event they will be delivered to the applicant no less than twenty-eight (28) days prior to any travel and he shall thereafter retain the children’s passports in his care until such time as the respondent next travels with the children and he will relinquish them to the respondent no less than twenty-eight (28) days prior to her scheduled travel with this process to be repeated on each occasion.
Upon receipt of the children’s Australian passports, the parent who receives them shall within seven (7) days of receipt cause a copy of the passports to be sent to the other parent.
Within seven (7) days of the date of these orders the applicant cause a copy of the children’s New Zealand passports to be given to the respondent.
In the event that during any of the children’s school term time the children are not attending school by reason of the COVID19 pandemic, they should spend time with their respondent in accordance with these orders with time to commence at 3:00pm on Thursday and conclude at 9:00am on Monday, or Tuesday if Monday is a public holiday.
International holidays:
(a)a minimum of 8 weeks written notice for international holidays be provided to the other parent, except in the event of the death of a family member which requires urgent international travel;
(b)the child’s passport is to be given to the parent travelling internationally with the child within 10 days of the date of written notice being provided, except in the case of a death in the family, which will require immediate handover of passports;
(c)no later than two weeks prior to the intended dates of travel, the parent travelling shall provide the other parent with a copy of the confirmed travel itinerary including flight details, accommodation details and contact details whilst overseas. In the event the parent is travelling due to a death in the family, all travel details and itinerary is to be provided immediately upon confirmation of the flight;
(d)“Family members” shall be classified as immediate family members of the child and limited to great grandparents, grandparents, siblings of the respondent and or applicant, and their children;
(e)the travel overseas for death of family members be limited to one (1) week only;
(f)make up time for any time lost spent while the child was overseas be offered to the parent who is not travelling, immediately upon the child’s return;
(g)the child be limited to travelling overseas, with the exception of a death in the family, during each party’s school holiday periods without interruption to the other parent’s scheduled time with the child;
(h)the children shall not be taken to a court to which the Smart Traveller advice is “do not travel”.
The Court requests that the Australian Federal Police remove the names of the children X born in 2004 and Y born in 2006 from the Airport Watch List at all points of international arrivals and departures in Australia.
The Independent Children’s Lawyer is discharged.

IT IS NOTED that publication of this judgment under the pseudonym Gipson & Gipson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 5374 of 2012

MR GIPSON

Applicant

And

MS GIPSON

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for parenting orders in respect of two children, X and Y. They have been the subject of some orders in the past, and I will deal with that shortly, but there is now a current application to change the arrangements that are in place pursuant to some interim orders, such that the father seeks that the children should live with him – I will deal with his proposal in a little more detail shortly – and the mother seeks that they should live with her.
The parents were married in Country B in 2001. They lived in New Zealand and emigrated to Australia in about 2008. They separated in 2012. As I have said, they have two children, X and Y. X is now over 15 years of age and Y is 14.
Proceedings started between these parties in 2012. Those proceedings ended up in the Family Court of Australia and they resulted in consent orders being made on 4 July 2014. Those orders provided for the parties to have equal shared parental responsibility for the children; for them to live with their mother and for them to spend time with their father during school terms on alternate weekends from Friday to Monday and for half of the school holidays. There were a range of other orders agreed, none of which are particularly significant for present purposes.
The orders reflected, through certain notations, that there was an abandonment of claims by each of the parents against the other in certain respects and, in particular, claims by the mother that the children were at an unacceptable risk of harm in the care of the father or as might be represented by family violence. The orders also carried a notation that:
In the event the children are not living in a shared care arrangement by 2016 the parties shall undertake parental counselling to consider entering into a shared care arrangement on a week about basis.
Come 2016, the children were not living in a shared care arrangement and have not been until this point in time.
There was an occasion in November, 2018 when the children did not spend any time with the father for a number of weeks. That seems to have resulted in some proceedings and orders that were made in March 2019 which confirmed the arrangements that were already in place. I made an order at that time for the preparation of a family report. There was a report prepared. There was also some orders made by another judge that were necessary because the children had moved to the care of their father contrary to the orders that were in place, and they were not returning to their mother’s care.
On 15 July 2019 there was an order made for the children to return to their mother’s care and, as the material describes, in practical terms they did not. They refused to do so. And then in October 2019 I made a further order that the children return to their mother’s care, they having been in their father’s care from July 2019 until October 2019 without spending very much time at all with their mother.
The children have been living with the mother ever since the making of the orders in October 2019 and they have been spending time with their father in accordance with those orders.
There has been a subsequent and updated family report prepared. The report writer on each occasion was the same person, Mr C. He was appointed pursuant to s.62G of the Family Law Act 1975 (Cth).
By these proceedings the father proposes that the children live with him and that they spend each alternate weekend with their mother from after school on a Friday to before school on Monday, or Tuesday if Monday is a public holiday, and for half of the school holidays. There are a range of other orders he seeks, most of which are uncontroversial.
The mother seeks orders that the children live with her and spend time with the father. She says that the current arrangements should remain, which would see the children spending alternate weekends with their father from Wednesday after school to Monday morning, and for half of the school holidays.
I have the benefit of an independent children’s lawyer in these proceedings. The Independent Children’s Lawyer has recommended some orders. Those orders provide for the children to live with the father and for them to spend each alternate weekend with their mother from after school on a Friday to before school on Monday, or Tuesday if Monday is a public holiday. The orders also provide for half of the school holidays and the like.
The father relies on the material set out in his case outline document that was filed in these proceedings. The mother relies on two affidavits, one of which was filed on 10 July 2019 and a second which was delivered shortly prior to the trial and which she swore to when giving evidence in the trial. That statement was marked exhibit 1. She has filed an outline of case in which she sets out the orders that she seeks in a general fashion. The Independent Children’s Lawyer read Mr C’s two reports in the proceedings.
At the conclusion of the case, as I have indicated, the Independent Children’s Lawyer proposed certain orders. By and large a great many of those orders are agreed between the parties, or at least the form of them is. The substance of some of them will change, depending upon whether the children are to live with the mother or to live with the father, but by and large the form of the orders is agreed. I will return to them at the conclusion of these reasons.
An exercise in making orders about children in a case like this pursuant to Part VII of the Family Law Act is not an exercise in making orders which are designed to punish bad parents or to reward good ones. And whilst what the parties have done in the past, or have not done in the past, is important and informs many of the factual matters that the Court has to make a determination about to determine what is in a child’s best interests, it ought be firmly borne in mind that the purpose of the exercise is not a punitive one. It is an exercise which is designed to divine the best interests of the children in the circumstances of the case. As the authorities reveal, that is a value judgment, having regard to the factual matters which are either agreed or about which the Court must necessarily make findings.
The welfare of the children concerned, X and Y here, is the paramount consideration, although it is not the only consideration. To determine what is in a child’s best interests, of course, the Court needs to take into account the matters set out in s.60CC of the Family Law Act to the extent that any of the matters set out in that section is relevant. Not all of them will be relevant and not all of them are relevant in this case, but the relevant matters need to be identified and they need to be assessed having regard to the evidence and findings made by the Court, and findings about those matters then inform the Court’s decision about what is in the best interests of these children, both in terms of parental responsibility and where children should live and with whom they should spend their time and communicate.
The question of parental responsibility is one aspect of the matter that requires attention in this case. Section 61DA of the Act provides for the Court to presume that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. There is no definition in the Act of the phrase “equal shared responsibility”. It is defined by its consequences.
The consequences are twofold. The first set of consequences fall upon the Court if an order for equal shared parental responsibility is made. The second set of consequences fall upon the parents. I will talk about the consequences for the Court later, but the consequences for the parents for present purposes are that if there is to be an order for equal shared parental responsibility it means that the parents are obliged to make a genuine attempt to reach agreement about decisions concerning the major long-term issues for their children. It necessarily requires them to communicate, negotiate and to decide those matters jointly: see s.65DAC of the Family Law Act.
When this trial commenced the father’s position was that there ought to be an order for sole parental responsibility in his favour, but by the time the Independent Children’s Lawyer presented her proposal at the conclusion of the case the father’s position had changed, such that he agreed that there ought to be an order for equal shared parental responsibility in respect of the children. To the extent that it is necessary to make any indication about these things at all, I can indicate that I was not minded, and am still not minded, to make any orders for sole parental responsibility in this case.
Whilst the co-parenting relationship between these parents is fractious and difficult and at times, I imagine, impossible, the fact of the matter is that there are two young men, now, in these proceedings who are doing reasonably well and who have had decisions made for them as and when they have needed them to be made by one or other of their parents. There seems to me to be no warrant in the evidence for an order which would vest in one or other of these parents sole decision-making capacity for these children.

Having that, the parties now seem to be agreed on the proposition that there should be an order for equal shared parental responsibility. Whilst I have some misgivings about their ability to be cooperative and to make joint decisions, I am not about to take away from these children the opportunity that presents to them by an order for equal shared parental responsibility to have their parents make joint decisions for them. That is an important thing for these children, to see that their parents, in fact, are able to cooperate and to make joint decisions for them. So, to the extent that the parents now agree, and the Independent Children’s Lawyer agrees, that there ought to be an order for equal shared parental responsibility, I am content to make it. I am not satisfied that the best interests of the children, as revealed by the matters raised in this case for consideration by s.60CC of the Act, demand that such an order not be made.
The second aspect, or another aspect of the matter that requires some mention, albeit brief, is the notion that, there having been final orders made in 2012 between these parties, whether the matters that arise for consideration as set out in the judgment in Rice & Asplund (1978) 6 Fam LR 570 have been satisfied. No party addressed these issues and for obvious reasons. There has been a change in circumstances since the orders in 2012 were made - several in fact, but the most significant of which is the change in views of the children. These are not views expressed by young people who are in the early stages of their education, or who are, indeed, younger, but these are young men, teenagers, who are now expressing views, which I will discuss shortly. There has been a significant or material change in circumstances, I am satisfied, that warrants the revisiting of the welfare of these children.
Section 60CC contains two types of considerations. The first are described as primary considerations, the second are described as the additional considerations.
The primary considerations are twofold. The first is the benefit of the children having a meaningful relationship with each of their parents. The second is whether there is a need to protect children from a risk of physical, psychological or emotional harm by reason of being exposed to abuse, neglect or family violence. Where there is a competition between those two factors the latter outweighs the former.
Here there does not seem to be any contention from either party that these children will not benefit from a meaningful relationship with each of their parents. The evidence satisfies me that they will benefit from a meaningful relationship with each of their parents. Both parents have much to offer their children and, despite the complaint made by each of the parents in this case about the other, these children will do, and have done, well by reason of the input from each of their parents.
The question of the need to protect these children from harm is raised in this case, although the evidence does not support a finding that there is an unacceptable risk of physical, psychological or emotional harm to these children by reason of them being exposed to abuse, neglect or family violence. The mother’s case seems to be suggestive of the proposition that these children are at risk of harm in their father’s care – psychological harm and emotional harm – but there is no evidence to support her claims about that.
Both parties have filed affidavit material, which I have recounted earlier. Both parties’ affidavits are nothing more than a catalogue of complaints. They consist of assertion, opinion, conclusion, speculation. The one thing that does not seem to appear in their affidavits, at least not very much, are facts. Their affidavit evidence is not particularly helpful, nor was their oral testimony. I found both parties disingenuous witnesses. Neither wished to answer a direct question with a direct answer, each choosing to recast the question that was asked of them into a way which they found more palatable and then to provide answers to that recast question. Each demonstrated a proclivity to engage in speech making - speeches which were designed to be self-serving. None of that is helpful and it served to obscure the real issues in the case rather than to illuminate them.
The two aspects of the case which do raise for consideration the question of harm to these children, psychological harm, are these: the first is the conflict that continues to rage between these parents and their focus on each other’s shortcomings, and the second is perhaps the inability or unwillingness of the father to encourage, foster or facilitate a relationship between the children and the mother. I will deal with the first one of those matters now and the latter when I talk about the father’s parenting capacity.
As to the first, these parents have been in conflict for a very long time. Both seem to agree with that proposition and the family report writer’s reports bear it out. The conflict is unhelpful and not to the benefit of the children. It is something which, of itself, represents a significant risk of harm to them. The children are well aware of the conflict between their parents. They told Mr C about it on both occasions that they were interviewed by him, but it seems that the mother tends to involve the children more directly in the conflict than does the father.
So much comes from the statements made by the children to Mr C. For example, in his second report, exhibit 3 in the proceedings, at paragraph 90, Mr C recounts his conversation or part of it, with X. X, Mr C says, spoke with warmth and love about his mother and respects how much she cares about him. He knows that as far as his mother is concerned nothing else matters except him and his brother:
I asked what he might like to change about her and he said, “The amount of time she tells me about dad and their family, just how bad they are and the stuff they do, how they are dangerous. I have heard that multiple times a day for a few years now. It just gets really annoying.” He no longer bothers trying to reason with his mother about her dislike of his father.
There are other statements in the family report from Y to similar effect, and it is clear from those statements by the children to Mr C that the mother engages with these children regularly about her conflict with the father. To the contrary, the children told Mr C that the father does not say bad things about the mother.
That is just one example of the way in which the parents’ conflict in this case affects the children and is visited upon them. It is a risk that is evident in both households, although in different ways. But notwithstanding the different ways in which the risks present, both carry with it the ability to cause psychological or emotional harm to these children. I take that into account.
One of the more significant matters that arises under s.60CC(3) are the views of the children and the age and maturity of the children expressing those views. I think I called exhibit 3 the second report earlier in these reasons, it is in fact the first report. That was my error. In the first report Mr C records what the children told him about their views about where they should live. At paragraph 94 he spoke to X and records his conversation. He says this:
[94] I asked what he might like to wish for his family if he had three wishes. He said he is not sure. He does not think it would be a good idea for his parents to get back together. After some thought he said, “I would probably like equal time with them”. He does not think it is fair to spend only two or three days with his father out of two weeks.
[95]: He suggested that for him personally he likes the idea of becoming more flexible with the time arrangement so he can have the freedom to spend time with either parent as he wishes.
And then at paragraph 98 this is recorded:
[98] I asked what it might be like for him if a judge decides that he lives with his father from now on, perhaps reversing the arrangement. He spoke positively about being closer to school. He does not feel worried about that outcome. He would face a difference in rules and routine but that does not concern him. Both his parents are Christian and he will still attend church. I asked what it might be like for him not seeing his mother as much, or having her as involved in his day to day care. He said, “I don’t think I would feel different.”
[99] I asked what it might be like for him if a judge decides that he lives between his parents on a week about basis. He said that, “In some ways it might be more annoying managing books and belongings from house to house and trying to keep organised.”
At [100] he said this:
I asked what it might be like for him if a judge decides not to change the current arrangement. He said he would not feel upset by that outcome because he is fine with it is as it stands. He said, “It would suck for my dad because I know he wants more time.”
That last statement, of course, is indicative of the father engaging the children in the conflict between the parents as well as the mother.
In his first report Mr C recorded Y as saying this, at [108]:
I asked if decisions about his future living arrangement worries him. He said he feels worried about spending less time with his father and he has a strong preference to spend more time with him. He likes the idea of having an opportunity to live with his father to experience life more fully in his home.
At [109] to [111] Mr C records Y’s responses to the various scenarios that might arise if the matter was decided by a judge. At paragraph [109] Mr C recorded Y as saying that he thought a reversal of the arrangement so that he lived with his father mostly would be “better”.
In expressing a view that living with their father more than their mother would not be difficult, both children referred to the benefit that they perceived arising out of residence with the father in terms of a stability in routine and perhaps being closer to school.
In his second report Mr C recorded his conversations with the children. Again, at paragraph 85 he records what X told him. He said this:
[85] I spoke about how decisions would be made about his future living arrangement and X expressed a very clear preference for living with his father and seeing his mother every second weekend, and during holidays. “That would be perfect. I’d still get to see mum and do things I want to do well with my dad.”
[86] Not having his own choice about these arrangements frustrates him, and if the Court orders he continue to live primarily with his mother he would be left feeling very angry, especially given he has now disclosed so clearly how he feels. “I would be extremely angry. I would feel like I have not been heard. That would be my emotion. I would probably just make my own arrangement.”
And at paragraphs 103 and 104 Mr C records what Y told him. He said this:
[103] He made it very clear that he wants to live primarily with his father and spend alternate weekends and holiday time with his mother. “I like spending holidays with both.” He is invested in spending the school week with his father “so I don’t forget books and stuff.”
[104] I asked what it might be like if the Court decides not to change the current arrangements, and he replied, “I would definitely feel very bad knowing nothing could change and I couldn’t deal with it.”
Those views recorded in the second family report record very strong feelings by the children.

RECORDED : NOT TRANSCRIBED

Of course, s.60CC(3)(a) does not just deal with the views of the children but it also deals with the age and maturity of the children expressing those views. Mr C turned his mind to that. At paragraph 109 of his report he revealed that the children expressed their concerns and views –
with a level of conviction beyond a mere preference. Both are of an age and level of maturity to understand the consequences of structural change. Moreover, they have experiential knowledge of the parenting style, routine and care offered by each parent, such that it is reasonable to expect them to offer informed opinions that are independent of the parents.
In short, Mr C formed the view, having regard to his interviews with the children and the material contained in his report, that their views were their own and that they were informed views.
The children are described as mature children, and my own assessment of the matters that they mentioned to Mr C as informing their views – routine, school work, and the like – are all matters which one might expect the children, if they are to make a considered decision about these things, to take into account. I can be satisfied, I think, that the views expressed by the children to Mr C in the second report, and in the first, are views that are genuinely held by them; are their own views, and are the views of children who are mature. I intended to give their views significant weight in this case.
Their age is such that their maturity can be inferred. X will be 16 soon and Y has just turned 14. Their views, in my assessment, carry significant weight. To the extent that it was suggested, perhaps indirectly, that their views were formed as a result of some sort of coercion or coaching, or some other improper pressure brought to bear by their father, I reject that proposition, having regard to Mr C’s evidence.
I am satisfied that these children have a good relationship with each of their parents. Mr C’s assessment was to that effect, and the children’s own statements about each of their parents reflect the strength of that relationship. Both, particularly in the second report, felt the ability to speak about their views in a way which acknowledged the place of each of their parents in their lives and the things that their parents have done for them. That was one of the things that informed Mr C’s view about the maturity of these children. I can be satisfied, and I find, that these children have strong positive relationships with both of their parents, notwithstanding the conflict to which they have been subjected for such a long time now.
The effect on the changes in the children’s circumstances is a matter of considerable significance in this case. Mr C, in his reports, has identified the advantages and disadvantages of various proposals, and in his oral testimony he identified the advantages and disadvantages of the change for these children to their father’s care. His assessment was that the advantages outweighed the disadvantages. He thought that the advantages were multiple.
It would see the children’s wishes being given some recognition. It would see their concerns about the arrangements in their mother’s household, routine and the like, given some recognition. It would see them live in their father’s household in a routine which they seemed to accept and to willingly be part of. And the disadvantages are really the corollary of that, that is, they would be in a position, if they were to remain living with their mother, in a situation which they have very clearly expressed they did not want to live, and which gave one of the children to say to Mr C that he would contemplate running away.
I am satisfied by Mr C’s evidence that the father’s proposal, and that of the Independent Children’s Lawyer, would be more advantageous to these children than disadvantageous. Consequently, I am satisfied, and I find, that the mother’s proposals would be more disadvantageous to these children, for the reasons expressed by Mr C, than they would be advantageous.
Neither party, nor the independent children’s lawyer, identified, in terms at least, any of the other s.60CC factors which might bear on this case, although there is reference in each party’s material to questions of parental capacity. The father says that the mother does not have the capacity to meet the children’s physical and day-to-day needs. She does not feed them properly; she has no routine in her household; her house is dirty, and the children do not enjoy living in that environment. However, there is no evidence before me, in my view, that would support those contentions.
There is no evidence that the children’s description of their mother’s house as being dirty is, in fact, an attempt to describe an environment which is unhygienic, or one which presents a risk of harm to these children. Indeed, those statements made by them to Mr C, and recorded in his report, were not explored by him, and I am not willing to accept at face value the father’s statements about those matters, given the self-serving nature of most of his evidence.
The one aspect of the matter about the parties’ parenting capacity that does concern me is the capacity of the father to ensure that these children’s relationship with their mother is fostered, encouraged and facilitated in the way in which it should be. In that respect he has some runs on the board.
When the children first went into his care, which resulted in the making of the recovery order in July last year, and then when they refused to return home to their mother after the making of the recovery order, the father’s case was that despite him trying to get the children to return to their mother, they would not do so and he was unable to get them to do so. That bespeaks to me, a lack of parenting capacity; a lack of capacity to make decisions, to make what are properly parenting decisions, and to enforce them. And it is of some significance that, following the orders that were made in October, the father was then able to ensure that the children returned to their mother’s residence. The father’s attitude towards the relationship between these children and their mother leaves a lot to be desired and his actions or, more to the point, his lack of action demonstrate that.
The mother says that there is a risk of harm to these children in that her relationship with the children will be undermined by the father and not encouraged and facilitated as it ought to be if they live with him. There is merit in that argument. It is one of the matters that needs to be taken into account.
However, notwithstanding that, there is a real risk it seems to me, that if the wishes of these young men are not respected and not respected in a way in which they perceive the Court taking some notice of them, and their parents and their mother in particular, taking some notice of them, that they will come to resent their mother and their relationship with her. There are hints of that in Mr C’s second report. At paragraph 113 of his report Mr C says:
The previous family report contained an analysis of the advantages and disadvantages relating to the competing proposals. In light of the age and maturity of the children, and the strength with which they expressed their views in this setting, I hold greater concerns about their long-term wellbeing if they remain in the mother’s primary care during the school week. A risk to them in living with the father relates to his ability to promote and facilitate the children’s relationship with the mother. There is a risk that if he adopts a passive state, or elevates the children as decision-makers, it may lead to a rejection of the mother and consequently a loss of opportunity for her to be more robustly involved in their day-to-day lives.
I accept Mr C’s assessment of really what are the competing factors in this case. It really is, in my view, a question of weighing the views of these children – views given by mature children who have considered the position carefully, it seems to me – and the risk that their relationship with their mother might be damaged through their father’s undermining of that relationship, either actively or passively.
As I have already indicated, one of the matters that militates against the mother’s argument and which tends towards acceptance of the views of the children, is the age of these children. Not in the sense that these are views expressed by children who are nearly 16 and 14, but rather these are views who are expressed by children who do not have much of their childhood left, and they do not have very long to go before they will be in a position to make their own decisions, so that they will be in a position, irrespective of the views of their mother or their father, to determine for themselves whether they will be continue their relationship with either one of them, and will be in a position to make decisions about how they will continue that relationship with both of them. And having regard to the recognition that both of them gave to the relationships with their parents, and in particular their mother, in their discussions with Mr C, I am confident that even if the father places hurdles in the way of the children continuing their relationship with their mother, when they are in a position to make their own decisions, something which is not very far down the track at least for X, they will make decisions which will be to continue that relationship and to ensure that it endures.

In those circumstances, it seems to me appropriate to make an order that reflects those proposed by the independent children’s lawyer for the children to live with the father. In that way their best interests, as I have tried to elucidate in these reasons, will best be met. Accordingly, I will make the following orders.

ORDERS PRONOUNCED

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 8 April, 2020.

Associate:

Date: 12 May 2020

[2020] FCCA 1003

8 April 2020

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