Hackett and Hackett

FAMILY COURT OF AUSTRALIA

HACKETT & HACKETT

[2012] FamCA 1120

FAMILY LAW – CHILDREN - With whom children live - Where there are allegations of physical and verbal abuse of the children by the Father - Where the Mother has a history of alcohol and prescription medication dependency/abuse compromising her capacity – Where the Father contends the risks of Mother’s relapse significant – Where older children have expressed strong views as to the Father – Where focus of proceedings on youngest two children both of whom have health issues – Significant geographical distance between parents’ respective places of residence – Parental responsibility where parents’ relationship dysfunctional

Family Law Act 1975 (Cth)

Collu & Rinaldo [2010] FamCAFC 53
MRR v GR (2010) 240 CLR 461
Sigley & Evor (2011) 44 Fam LR 439

APPLICANT:

Mr Hackett

RESPONDENT:

Ms Hackett

INDEPENDENT CHILDREN’S LAWYER:

Ms J. Lilley

FILE NUMBER:

DGC

4086

2010

DATE DELIVERED:

10 December 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

27 and 28 November 2012

REPRESENTATION

COUNSEL FOR THE RESPONDENT:

Mr Middleton

SOLICITOR FOR THE RESPONDENT:

BM Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

All previous orders be and are hereby discharged.

Parenting

The mother shall have sole parental responsibility in respect of all “major long-term issues” (as that expression is defined in s 4(1) of the Family Law Act 1975 (Cth) (as amended)) in respect of the children, B, born … March 1995, C, born … February 1998, D, born … March 2001, and E, born … July 2003 (“the children”), save that the mother shall, prior to make the sole ultimate decision about any such issue:
(a)Use her best endeavours to advise the father in writing of the decision intended to be made;
(b)Seek the Father’s written response in relation thereto;
(c)Consider, by reference to the best interests of the children, any such response prior to making any such decision; and
(d)Advise the father in writing as soon as reasonably practicable of her ultimate decision.
The mother shall have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of the children whilst the children are in her care.
The father shall have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of the children whilst the children are in his care.

Lives/Spends Time With

The children shall live with the mother.
Noting that the said child, B, is 17 years old, turning 18 in March 2013, and that the said child, C, is aged 14 years old, turning 15 in February 2013, the children B and C are each at liberty to spend such time and to communicate with the father as they choose.
The father is at liberty to communicate with the children B and C including by sending letters, cards and gifts to the children at care of the mother’s postal address.
The children D and E shall spend time with and communicate with the father as agreed between the parties in writing, and in addition as follows:
(a)During D’s and E’s school holidays:
(i)During the December 2012/January 2013 school holidays, the children shall spend time with the father on up to three (3) occasions during these holidays, provided that the father gives to the mother no less than one week’s written notice in advance of his intention to spend such time, then the first such visit to be on two (2) consecutive days, between 9.00 am and 4.00 pm each day, and then the second and third visits shall be each between 9.00 am on one day and overnight until 12.00 pm midday on the following day;
(ii)Subject to paragraph (iii), during the children’s school holidays thereafter, in the Easter and the September/October holidays, for up to the first half in even numbered years and for up to the second half in odd numbered years, and in the June/July and the Christmas holidays, for up to the first half in even numbered years and for up to the second half in odd numbered years, provided that the father is available to take time off from his employment during these periods and is available to care for and supervise the children during these periods, further provided that the father gives to the mother three (3) weeks’ written notice in advance of his intention to spend such time with the children, and further provided that such holidays will be spent in South East Queensland until such time as the children’s treating professionals at N Group provide written confirmation that it is considered that the children are capable of travel by air to Victoria, the parties to share in the cost of the children’s return air travel and the father to pay the cost of a return air ticket for the mother to accompany the children should that be necessary;
(iii)Half holiday time as provided for in subparagraph 8(a)(ii) above will only commence after the Father has had not less than six (6) visits in total as provided for in subparagraph 8(a)(i) above and subparagraph 8(b) below;
(b)During D’s and E’s school terms, in South East Queensland, via time on up to the first and third weekends of each calendar month, as follows:
(i)The father will advise the mother in writing by Wednesday of the week prior to a visit, of his intention to spend time with the children;
(ii)That the first of any such weekend visits shall be during the days of Saturday and Sunday, between 9.00 am and 4.00 pm each day;
(iii)Then for two (2) further visits, from 9.00 am Saturday until 12.00 pm midday on Sunday each visit;
(iv)Thereafter, the father is at liberty to extend the time from after school on Friday until 4.00 pm on Sunday;
(v)But that, provided the father has spent time with the children for three (3) occasions pursuant to Order 8(a) above, then the children’s school term time with the father shall commence with the new school year in 2013 with above paragraph 8(b)(iv).
(c)The Father will use his best endeavours to obtain overnight accommodation for himself and the children which can include the pet dog of the child, D, and if such accommodation is able to be secured, the mother will facilitate the collection of the dog from her home at such time during the day as is arranged by the parties in advance, and the father is at liberty to return the dog to the mother’s home at such time on the following day as suits his plans for the children for the day;
(d)By telephone communication, with the father to initiate calls to the children on special days for the children on Sunday nights and Tuesday nights at 7.00 pm, the mother to use her best endeavours to facilitate the calls for the children;
(e)By the father being at liberty to write to the children and to send letters and gifts to the children at care of the mother’s postal address;
(f)Changeover for the children’s time with the father shall occur at the mother’s home, unless otherwise agreed between the parties.
The mother shall not consume alcohol when the children are in her care.
Save for in an emergency, the mother will attend for her general and ongoing medical care at only one medical practice to the exclusion of all others, and shall attend on her treating neurologist as recommended by that specialist, and shall only take prescribed medication issued from those providers and as directed and prescribed.
This order is authority for each of the parents to contact any school at which the children attend and are enrolled, about the children, and to request that the school provide to each parent (at each parent’s own expense) copies of documents produced by the school about the children such as parents are usually provided with (including, but not limited to, school notices, school reports, and school photograph order forms), and to attend at student functions at the school.
This order is authority for any medical and associated professional care provider of the children to release any information concerning the care, welfare and development of the children to both parents. Should either parent seek any documentation in relation to the children, that parent shall be at liberty to do so, with the parent seeking the documentation to be responsible for any expense involved.
The parents shall keep each other informed and appraised of the contact details of any professional care providers for the children, and advise each other in writing of any changes to these details within seven (7) days.
The parents shall inform each other of any significant events in the children’s lives, and both parents shall notify the other as soon as practicable in the case of any emergency involving the children, in particular any medical emergency or hospitalisation or health issue regarding the children.
The parents shall keep the other parent informed at all times of their respective residential addresses and contact telephone numbers and mobile numbers, if they have one, and e-mail addresses, if they have one (to be maintained for the purposes of communicating with each other for parenting matters), and to notify the other parent in writing at least seven (7) days prior to relocating their residence.

Miscellaneous

Following the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits be returned to the person or persons who tendered same.
The Independent Children’s Lawyer be discharged upon the later of the expiration of the appeal period in respect of these orders or the hearing of the appeal.
All extant applications for parenting orders be otherwise dismissed and removed from the list of cases awaiting finalisation.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: DGC 2508 of 2010

Mr Hackett

Applicant

And

Ms Hackett

Respondent

REASONS FOR JUDGMENT

The Applicant, Mr Hackett, aged 45 years (“the Father”) and the Respondent, Ms Hackett, aged 41 years (“the Mother”) and the Independent Children’s Lawyer for the children the subject of these parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”), each contend for different parenting orders for the subject children on their respective contentions as to the children’s best interests.
The Father and the Mother commenced a relationship in 1990; married in 1993; separated under the one roof in about March 2010 and physically separated in July 2010.
The relationship produced six children, two of whom are now adults, namely, Ms F, born in 1991, now aged 21 years, Mr G, born in 1993, now aged 19 years, B, born in March 1995, now aged 17 years, C, born in February 1998, now aged 14 years, D, born in March 2001, now aged 11 years, and E born in July 2003, now aged 9 years.
In about 2004, the family relocated from Queensland to Victoria, initially to H Town in the J area. It appears they were there within a rural and isolated location near to a small town. The family subsequently lived in K Town and L Town, but had returned to K Town by the time of the parties’ separation.
It is not in issue that for some years leading up to the parties’ separation, their relationship was dysfunctional and virulent. Each of the parents offer differing accounts and perspectives as to the contribution of the other to that (which will be further discussed), but central features of that dysfunction included verbal abuse by each party to the other to which the children were exposed; the Mother’s dependence upon, and abuse of, alcohol and prescription medication (and the consequences of that, from time to time, to her parenting capacity); the Father’s verbal abuse directed to the children and his physical abuse of Mr G, particularly from when Mr G, who has Asperger’s Disorder, turned 12 years of age in 2005.
In July 2010, what has been termed an “ouster order” was made as part of an Interim Intervention Order by a Local Court in Victoria (akin to a Domestic Violence Protection Order in Queensland) obtained by the Mother against the Father and the Father vacated the former matrimonial home as a result.
In about August 2010, the parents negotiated an arrangement for the Father to spend time with the children, although the parties differ as to the terms of that arrangement and as to the extent to which each provided care, particularly to the two youngest boys. On the Father’s account, the arrangement was in accordance with D and E’s wishes to live with him, whilst on the Mother’s account, she suggests that she was still providing essential parts of their care, such as readying them for school each day, even on those occasions when they spent overnight periods with the Father.
In the event, those arrangements were short-lived in that in about early November 2010, the Mother unilaterally relocated with the children to Queensland. On 16 November 2010, the Father commenced Court proceedings in K Town in Victoria, resulting in an order for the Mother to return to Victoria with the children on 24 November 2010. On 27 November 2010, the Mother returned to Victoria, but only with the two youngest children, D and E. On the Mother’s case, the older two children, B and C, refused to return and remained in Queensland with members of the Mother’s family. By that stage, Mr G had, well prior to the parties’ separation, been relocated to live with his maternal grandmother in Queensland and Ms F had attained her majority in 2009.
The order made for the Mother to return to Victoria is recorded as a consent order, but the Mother agitates that her then-legal representative did not in fact have her instructions to consent to that order.
In the event, on 3 December 2010, the Mother again relocated to Queensland with D and E and the children and their mother have remained in Queensland since, while the Father has remained in Victoria. The proceedings were transferred from Victoria to Queensland on 31 January 2011.
The thrust of the Mother’s case is that her relocation with the children to Queensland, on both occasions that occurred, was to protect the children from harm and to escape an abusive relationship and to obtain family support not available to her in Victoria. It was also a component, on the Mother’s case, that she would be relieved from the stresses caused by the relationship and its consequences for her concerning her alcohol/drug dependence/abuse. For his part, the Father views the Mother’s conduct, and seeks to have the Court likewise adopt the view, that the Mother was determined to limit his role and involvement with the children and that such determination was contrary to Court orders.

Proceedings and Orders

By his Initiating Application filed on 16 November 2010, the Father sought final orders in respect of each of B, C, D and E, including orders for equal shared parental responsibility and for the children to live with the Father and to spend time and communicate with the Mother. The final orders contended for a position which would see the Mother and the children (all four of them) returning to the K Town, Victoria, area.
The order of the Federal Magistrates Court at Melbourne made on 31 January 2011 provided, on an interim basis, for the children to live with the Mother (she was then living in Queensland), with the Father to have telephone contact and for the children to spend time with the Father for up to 72 hours in South East Queensland at times nominated by the Father seven days in advance.
Included in those orders was an order for the children to be represented in the proceedings and for the provision of a Family Report, as well as orders for supervised drug and alcohol testing.
The order referred to with respect to the Father spending time with the children in South East Queensland was subsequently (on 7 September 2011) amended by consent by including a provision for the Father to spend such time on one occasion each two months with the children D and E, and that during such times, the Mother was to vacate her premises to allow the Father, D and E to be accommodated in those premises. B and C were permitted to remain in the Mother’s care for such periods, but were at liberty to spend time with the Father during such periods.
It is not in issue that the Mother made the proposal involving her vacating the home to facilitate the Father’s ability to have time with the children and limiting the cost to him of doing so by having that accommodation provided for him.
The orders of 7 September 2011 relevantly provided for, inter alia, the Independent Children’s Lawyer to obtain a, “…whole of family forensic psychiatric assessment…” to be prepared by Dr M; for the Mother to arrange for B and C to attend on their treating medical practitioner for review and consideration of a referral for psychological counselling; for the Mother to arrange for E to attend counselling; for the publication of the psychological report regarding D completed by the organisation “N Group”; for referral of D to a paediatrician to be considered; and for the Father to continue completion of an anger management course.
Subsequent orders made by Registrars of this Court relevantly, for present purposes, included an order for Dr M to also provide a Family Report; and for Mr O, psychologist, to undertake a psychological assessment of the Mother. As a consequence of orders and directions, a great deal of subpoenaed documents were forthcoming over time from a variety of sources.
Thus, over time, in addition to subpoenaed material, expert reports became available to the parties from each of Ms P, Family Consultant; Dr M, psychiatrist; and Mr O, psychologist.
By the time of the commencement of the trial before me on 27 November 2012, the Father, who represented himself in the proceedings, focussed his proposed orders with respect to the younger two boys, D and E. That is, whilst the Father did not formally file an Amended Application, nor a Case Outline Document detailing the orders sought as at trial, it became clear from the outset of the trial (if not earlier from the reports of the experts referred to) that the Father was seeking orders directed to D and E in the form of parental responsibility and for the boys to reside with him and for the Mother to have time and communication with them. This reflected the Father’s acceptance of the reality that by the trial stage, the older two children, B and C, were adamantly expressing views to the effect that they did not wish to spend any time or have communication with the Father. As will shortly be noted, each of the Mother and the Independent Children’s Lawyer sought that specific orders be made with respect to B and C, but not orders with respect to specific time or communication with the Father.
The Mother continues to reside in the Suburb Q area of Brisbane with B, C, E and D. Ms F has recently returned from tertiary study to be part of the household, and the Mother envisages Ms F remaining part of the household for at least some months, and possibly longer. The Mother has not re-partnered.
D has been diagnosed with Asperger’s Disorder, and E has been identified as having definite traits on the Autistic Spectrum and his diagnosis remains an open question, although it is possible he also has Asperger’s Disorder. Whilst on her evidence, the Mother has considered and will consider some part-time employment, she has been, and is currently, a full-time mother and carer for the children in circumstances where D and E have particular needs. In her current environment, the Mother is assisted by her own mother, who lives nearby; B, who, it is to be noted, is almost an adult herself; and currently, Ms F. The Mother has not re-partnered and I am satisfied on her evidence that the demands of the children, and particularly the younger two boys having regard also to their special needs, requires substantial input which limits the Mother’s capacity to do a great deal else.

In February of this year, the Father formed a relationship with Ms R. They commenced cohabitation in Suburb S, Victoria, on 27 April 2012, and live together with Ms R’s four youngest children, namely T (aged 17 years); X (aged 14 years); U (aged 12 years); and V (aged 6 years). Ms R’s oldest son, Mr W (aged 19 years) is engaged in tertiary level study and is an occasional visitor to the household. Ms R’s children often spend weekends with their father.
Ms R has never met any of the children the subject of these proceedings. Her only contact with any of the children is a brief telephone conversation with E. None of Ms R’s children have ever met the subject children, nor have they ever spoken.
The Father is in full-time employment. Ms R is also engaged in employment, currently for about 12 hours per week with the prospect of expanding her current total of 12 hours per week by an additional six to nine hours per week.
Since the order in the Federal Magistrates Court in Melbourne of 31 January 2011, which, inter alia, provided for the children to spend time with the Father for three day periods (72 hours) at a time in South East Queensland (as later modified to include the consent provision for the Father to occupy the Mother’s home for the purpose and for her and the older children to vacate that property), it would seem there has only been a total of seven occasions over the period since on which such visits have occurred. It also seems that such visits since 31 January 2011 have coincided with Court or Court-related events, such as the interviews by experts. Some of the visits seem to have been for day time periods only.
Thus, the visits on 18 and 19 June 2011 were apparently day time visits associated with a Family Report being prepared by the Family Consultant. There was a visit on 24 July 2011 in conjunction with a Court event on 25 July 2011. It seems there was a gap between July and November 2011 and then short visits on each of 11 and 12 January 2012, 31 March to 1 April 2012 (in conjunction with Dr M’s assessment process) and on 21 and 22 July 2012. It seems that as at the time the trial commenced, the Father had not had “face to face” time with the children, and in particular, the younger two boys, since about July this year.

Proposals of the Parties

The Father

As already noted, the Father was self-represented in the proceedings. His filed documents do not reflect his position at trial in terms of the actual orders that he seeks to have the Court make. The Father gave evidence that reflected his proposal having evolved into seeking orders with respect to E and D only. His primary position is that, in summary, orders ought be made for D and E to reside with him in his reconstructed family unit with Ms R and her children in Victoria. Given the geographical distance between the parents, the Father proposed that if living with him in Victoria, the boys would spend some six weeks of holiday periods each year and six weekends per year with the Mother.
The Father’s alternative proposal, in summary, is that in circumstances where the boys remained residing primarily with the Mother, was that they ought spend six weeks of their holidays each year with the Father in Victoria. That proposal contemplated four of those six weeks being spent with the Father and two weeks being spent with the Father’s parents, who also live in Victoria. Otherwise, weekends on some six weekends per year.

The Mother

Exhibit 1 in the proceedings contains the Mother’s proposed orders. In summary, the Mother seeks orders that all of the children live with her and there are proposals for time and communication with the Father by telephone and in terms of face to face time, for the Father to spend one weekend of each calendar month, in South East Queensland, for day time periods between 9.00 am and 6.00 pm on each day of those weekends. Without detailing all of the orders contained in Exhibit 1, relevantly, the Mother sought the making of other orders addressing her prescription medication and alcohol issues.

Independent Children’s Lawyer

At the conclusion of the trial and at the outset of Counsel’s submissions on behalf of the Independent Children’s Lawyer, detailed Minutes of Orders proposed by the Independent Children’s Lawyer were provided.
In summary, the Independent Children’s Lawyer proposes that the Mother have sole parental responsibility for all four children, with a provision for consultation with the Father. An order is sought for the children to live with the Mother, and there is provision for the Father to communicate with B and C by the sending of letters, cards and gifts to them.
The time orders proposed by the Independent Children’s Lawyer would see D and E involved in a staged or graduated increase in time with the Father, initially for day time periods but expanding to overnight periods, with also an expansion of the periods from two to three days to half holiday periods. An important proviso in the proposal of the Independent Children’s Lawyer is that the boys would spend time with the Father in South East Queensland until such time as their treating professionals at N Group provide written confirmation that it is considered that the children are capable of travel by air to Victoria, after which the time may be spent in Victoria, with relevant provisions for the sharing of costs of such travel.
Thus, whilst the Independent Children’s Lawyer’s proposal in essence supports the proposals of the Mother in terms of the boys living primarily with the Mother and initially having physical or face to face time with the Father in South East Queensland, unlike the Mother’s proposal, the Independent Children’s Lawyer’s proposal involves overnight periods and the prospect of the boys travelling to Victoria to spend time with the Father.

Central Issues

As presented at trial on the evidence and having regard to the proposals of each party as set out above, it seems to me the overlapping and inter-related issues central to the question of parenting orders in the best interests of the children, and in particular, D and E, given the Father’s proposal, may be stated as follows:
a)Whether the Father’s proposal for D and E to live primarily with him in Victoria in his current circumstances is feasibly in the children’s best interests;
b)Whether, based on her past history of alcohol and prescription medication dependency and/or abuse, the Mother’s parenting capacity is compromised to the extent that the best interests of D and E would not be met by remaining in the Mother’s primary care;
c)Whether the risk of any relapse by the Mother into alcohol/drug abuse and its consequences for D and E justifies the consequences for D and E of now removing them from the Mother’s primary care given the nature of those consequences;
d)The capacity of each parent to promote the children’s relationship with the other parent in the circumstance of the geographical distance between them;
e)Given the geographical distance between the parents, and the needs of D and E, the orders for time and communication with the parent with whom they are not living likely to best achieve them having a meaningful relationship with both parents.

Part VII of the Act

Part VII of the Act (ss 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders. Many, but not all, of the recent amendments to Part VII of the Act do not apply to this case given that they do not apply to cases filed prior to the amendments.
Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); the principles which underlie those objects (s 60B(2)); and the specific right of an Aboriginal or Torres Strait Islander child to enjoy their culture. Section 60B(1) provides:
(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.
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests. That requirement is supplemented by the further requirement for the Court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in the particular respects identified in s 60CC(4).
Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. Section 64B defines that term and identifies the matters that may be dealt with by a parenting order. Section 65D(1) is expressed in these terms:
65D Court’s power to make parenting order
(1) In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.
Section 65D(1) expressly provides that the power to make a parenting order is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to 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. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (s 61DA(4) of the Act).
As can be seen, s 61DA(1) provides for a presumption relating to the allocation of parental responsibility but does not provide for a presumption about the amount of time the child spends with each of the parents. The latter is dealt with by s 65DAA and subsection (1) of that provision provides as follows:
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) requires, where a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child and the Court does not make an Order (or include a provision in the Order) for the child to spend equal time with each of the parents, the Court to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
“Substantial and significant time” within the meaning of subsection (2) is defined by subsection (3) as follows:
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The determination of “reasonably practicable” depends upon consideration of subsection (5) and the matters there identified.
In MRR v GR (2010) 240 CLR 461, the High Court observed (at para [9] of the judgment):
[9] Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents.
At [13], the High Court held:
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-section (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
Further, of particular significance to a case such as this, where there is geographical distance between the parents, I note that at paragraph [15] of the judgment, the High Court held:
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
In Collu & Rinaldo [2010] FamCAFC 53 (25 March 2010), the Full Court of this Court considered an international relocation case subsequent to the decision of the High Court in MRR v GR (supra). At paragraph 140 of their reasons, the Full Court said:
…however, we are of the view that, ordinarily, a consideration of the relevant matters in s 60CC of the Act would be undertaken before a concluded view could be formed that the presumption of equal shared parental responsibility applies. That does not mean that such a finding could not be made at an early stage of reasons for judgment, provided that it was clear that it was made having regard to findings made in relation to the s 60CC considerations.
At paragraphs 334 and 335, the Full Court dealt with the order in which the statutory provisions in Part VII are best considered and said:
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. “Parenting order” is defined in s 64B. Section 60CC then sets out how to determine what is in a child’s best interests. Section 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in s 60CC(2) being the primary considerations and the matters set out in s 60CC(3) being the additional considerations. In other words, the matters in s 60CC could be described as the “best interests” considerations, and they must be considered.
There is a possible overlapping of a number of considerations in s 60CC of the Act. For example, the first primary consideration in s 60CC(2)(a) of the Act, which deals with a child having a meaningful relationship with both of his parents, may overlap with the additional consideration in s 60CC(3)(b) which requires consideration of the nature of the relationship of the child with each parent and other persons. So also any finding as to the nature of the relationship of a child with a parent would be relevant to consideration of s 60CC(3)(d) which requires consideration of the likely effect of any changes in the circumstances of the child including the likely effect of separation from the parent. It is for this reason that there is some attraction in the idea that perhaps the additional considerations in s 60CC(3) should be looked at before consideration of the primary considerations in s 60CC(2).
After considering the requirements in section 65DAA, at paragraph 374 of their reasons, the Full Court set out their reasons as to how following the 2006 amendments to the Act and the decision of the High Court, a trial judge should proceed. Their Honours said:
As to the best interests requirement of s 65DAA of the Act, in our view, it is not necessary to repeat all of the findings made in relation to the primary and additional considerations in s 60CC of the Act. However, at some point, the best interests considerations must be considered in the context of, or by reference to, the requirements of s 65DAA(1)(a) and (2)(c) of the Act.
At paragraph 375 of their reasons, the Full Court said:
Then the trial judge was required to consider 65DAA(1)(b) and (2)(d) of the Act. Section 65DAA(5) sets out matters that the Court must have regard to in determining whether it is reasonably practicable for the child to spend either equal or substantial and significant time with the parents.
The Full Court, by reference to authority, affirmed the principle that the court must meet the legislative requirements under subsection (5) of s 65DAA as a mandatory requirement.

Approach in this case

Having identified the competing proposals of each of the parties, which will be further discussed, I consider that the following approach meets the statutory requirements:
a)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))
b)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
c)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).
d)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
e)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
f)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
i)Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
ii)Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
g)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
h)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.

Evidence and Findings re s 60CC Considerations

Neither the Family Consultant, Ms P, nor Dr M, psychiatrist, were required by any party for cross-examination. Their reports, and the transcript of the evidence Ms P gave at an initial hearing in the Federal Magistrates Court in Melbourne were admitted into evidence without challenge and without the need for cross-examination of those sources.
As appears from the Case Information Document filed by the Independent Children’s Lawyer, a plethora of subpoenaed material was obtained from approximately thirty different sources, including material reaching back into a significant period from the past. Reference to that Case Information Document reflects that Ms Justine Lilley, the appointed Independent Children’s Lawyer, applied extraordinary industry and effort in compiling from the subpoenaed material a very detailed chronology of relevant events.
Ms Lilley’s effort and industry in so doing has been of obvious assistance to the parties and to the Court given that the parties were able to tender as Exhibit 2 in the proceedings an agreed bundle of exhibits extracted from the relevant subpoenaed documents, and the parties agreed that the chronology prepared by Ms Lilley ought be admitted as an exhibit and that chronology is Exhibit 7 in the proceedings. As a result, significant trial time was saved, which might otherwise have been spent descending into the need for oral evidence to be given from a number of sources providing subpoenaed material, and Ms Lilley’s efforts are acknowledged as having obviated that need for the parties and for the Court.
Whilst I have carefully read and considered both the chronology referred to and the agreed bundle of subpoenaed documents, I do not intend to address more than is specifically necessary the specific content of this evidence or deal with each and every detail or aspect of evidence raised in these documents. Suffice to note that my reasons will reflect relevant consideration of this evidence.
The central component of the Husband’s case, which resonates with many of the s 60CC considerations, focuses upon the Mother’s alcohol and prescription medication dependency and abuse, and her more recent history of seizures addressed by Dr Y, neurologist, whose reports form part of Exhibit 2. Dr Y was not required for cross-examination and I accept his evidence.
In summary, the Father contends that the Mother’s history of alcohol and drug abuse is of a more serious nature and extent to that which the Mother has ever acknowledged. The Father contends that the Mother would not acknowledge an obvious problem historically and that she has been deceptive in subsequent acknowledgements as to the extent of her problems in this respect and as to the consequences for her capacity to care for the children. Whilst the Father accepts that from the pathology testing of the parties that has occurred since the beginning of 2011, that, other than a “relapse” in about May 2011, the Mother has been abstinent, he nonetheless contends that the Mother’s problem is underlying and exists and the Mother’s abstinence is in the context of the focus of these proceedings. That is, the Father urges propositions to the effect that the Mother has been and can be deceptive in relation to her acceptance or acknowledgment of her problem, and that once these proceedings and their focus are no longer upon the Mother, sooner rather than later the Mother’s difficulties are likely to re-emerge.
There is ample evidence from the subpoenaed material, as is reflected in the chronology prepared by Ms Lilley, of the significance of the problem historically for the Mother. Without detailing the specific references, it can be concluded that when engaged in binge drinking and/or the abuse of prescription medication, the Mother’s capacity to care for the children was compromised. There is evidence that, at times, Ms F and also B have felt that they were themselves fulfilling the “mother” role for the family given the extent to which they felt obliged to meet deficiencies in the Mother’s capacity. In more recent times, the Father seeks to point to unexplained absences of the children from school as evidence, inferentially, of the Mother’s incapacities.
I accept that the Mother has historically provided variable accounts as to her problems in this respect and, more particularly, as to when these problems were at their worst in terms of the Mother’s coping. For example, the Mother’s evidence at trial that the problems were at their worst between about 2007 and 2010 does not reconcile with the history the Mother gave to Ms Z, psychologist, on 17 December 2010 (Ms Z’s report is Exhibit 5) nor with paragraph 12 of the Mother’s affidavit of 24 November 2010 (Exhibit 6) where the Mother then deposed that she had then been abstinent for a period of about two years.
If the Court were left only with that evidence in isolation, there would be substance in the propositions advanced by the Father.
However, I did not observe in the Mother, in giving oral evidence at trial, any attempt to pretend this issue was not a significant problem for her or that she attempted to minimise the extent to which the problem compromised her capacity historically. The Mother readily acknowledged a significant period when the problem was at its worst, and likewise acknowledged her compromised capacity throughout that period, and in the end, the difference seemed to lie in precisely when that worst period occurred.
Likewise, the Mother acknowledged the temporary lapse or relapse in May 2011, but otherwise the pathology testing reflects a consistent and prolonged period of abstinence by the Mother. Exhibit 3 comprises the tabulation prepared by the Independent Children’s Lawyer of the pathology testing that has occurred together with the testing results for both parties, but in particular, for the Mother. It reflects consistent abstinence and the Father accepted that to be so.
I accept the Mother’s evidence that she has implemented profound changes in her life. Moreover, I accept the genuineness of the Mother’s recognition of the problem for her. It is not the case that the Mother suggested she could now control her drinking in some way. Her oral evidence extended to recognising that there would be a problem or the potential for a relapse, even if she purchased alcohol.
Mr O, psychologist, was engaged by the Independent Children’s Lawyer to undertake a psychological assessment of the Mother. He provided an affidavit attaching his report, and he gave oral evidence at the trial. Whilst it is true that Mr O proceeded upon an understanding that the history of alcohol abuse and dependence was at its worst from 2008 to 2010 (when the Mother said it was at its worst), Mr O confirmed in evidence his fundamental conclusions would not be altered if in fact the worst of the period was longer overall or that it occurred earlier in time.
Mr O assessed that after the family relocated to Victoria, the Mother developed depression. It is to be noted that both parties acknowledge the dysfunctional nature of the relationship and the contribution of both of them to that will be further discussed. In any event, Mr O opines that in what may have seemed a pathway to self-medication, the Mother commenced consuming large quantities of alcohol which masked an otherwise depressed mood and reportedly gave the Mother the energy to continue in the relationship.
The Mother has given a consistent history, including to Mr O, about verbal and emotional abuse perpetrated by the Father against the children, and with the intervention of her own parents, facilitated her relocation to Brisbane. Mr O acknowledges that the Mother contacted ATODS with respect to her problems with alcohol abuse. Mr O acknowledges the support of family that the Mother has had by returning to Queensland.
Mr O assessed the Mother as not displaying any features of alcohol dependence or abuse, and concluded that the Mother commenced using alcohol as a form of self-medication for stress and depression. He opines that the Mother developed a cycle of alcohol dependence when living in an isolated environment and away from family support. He opines that the Mother’s alcohol dependence had significant negative effects on her relationship and psycho-social functioning. In circumstances where the Mother is removed from these stressors, and has the support of family and friends, Mr O opines that she is able to abstain from alcohol abuse and that her prognosis in that respect remains, “…good…” while she is able to continue to access social and family support. I accept Mr O’s evidence.
Dr M’s very detailed report is attached to her affidavit filed 16 April 2012. Dr M opines that there is no doubt that the Mother has suffered from abuse of alcohol and, “…probably…” benzodiazepines in the past. At the time of her report, Dr M noted that current indications were that the Mother is abstinent. Dr M opines that the Mother’s condition is characterised by relapses, and observes that if the Mother were to relapse, there would be unfortunate consequences for the children. However, there is no suggestion by Dr M that it is more likely than not that the Mother will relapse, and indeed, it is to be noted that the Mother’s period of abstinence has occurred in the setting of these proceedings. That is, whilst the Father highlights that the Mother has been under the microscope because of these proceedings, which end with the orders to be made, conversely, it is the case that the Mother’s abstinence reflects a capacity to cope notwithstanding the stress of these proceedings. I accept Dr M’s evidence.
The involvement of Ms F, who is now an adult, in the Mother’s life and the fact that Ms F is currently a member of her household is a significant factor. As the subpoenaed material reflects, Ms F was keenly aware of the effects of the Mother’s problems upon her historically, and Ms F is now an adult achieving well in tertiary studies. There is an abundance of evidence as to the strength of the sibling relationship between all of the children. Likewise, while B is still a child, she is 17 years of age and will attain her majority in March next year.
The Mother’s mother, Ms AA, provided an affidavit filed 1 June 2012, and gave oral evidence in cross-examination before me. Ms AA has provided significant support to the Mother since her relocation to Queensland, particularly in the period that the Mother was unable to drive whilst her epilepsy/seizures were being addressed by Dr Y, and he had placed restrictions on the Mother’s driving. It is to be remembered that Mr G was placed in Ms AA’s care when he was about 15 years of age and there were profound difficulties, as will be discussed, with the Father’s methods of disciplining Mr G.
Mrs AA currently lives in close proximity to the Mother, some fives minutes’ drive away, and is in daily communication with the Mother and regularly visits the household. I was left in no doubt by Ms AA’s evidence that she would not acquiesce in a situation where the Mother relapsed into drinking.
Importantly, by reason of her involvement, Mrs AA has knowledge and understanding of the needs of D and E in addressing their particular needs by reason of D’s Asperger’s Disorder and E’s Autistic Spectrum Disorder traits and possible Asperger’s Disorder. She corroborated the Mother’s evidence as to the extent to which the Mother is diligent in attending to these needs, and what is required in meeting those needs.
Mrs AA provides evidence, which I accept, that the children, and in particular the two youngest children, D and E, have been much more settled and stable in routines and environment since their move to Queensland. Whilst in one respect that may simply reflect their response to the cessation of their exposure to the dysfunctional relationship between their parents, it nevertheless confirms the Mother’s continuing capacity to appropriately address their needs. This aspect is corroborated by the school reports, included as part of Exhibit 2. I accept Mrs AA’s evidence to the effect that the Mother has demonstrated a committed and consistent approach to her parenting over this period including in relation to addressing the particular needs of D and E.
Whilst the current school reports reflect some behavioural difficulties in E and limitations in the academic performance of D, it is clear on the Mother’s evidence that by accessing “N Group” psychological and counselling service and services such as occupational therapy and liaising with the school and support facilities available, the Mother has been diligent in addressing the boys’ needs in the period since they have been in Queensland. Whilst D’s academic performance is limited, he largely receives “As” for effort at school, and there is no suggestion in that body of material that there are limitations or criticisms as to what is occurring in their home environment.
I find that the Mother’s historical descent into alcohol and/or drug abuse occurred in the setting of the highly stressful situation she found herself in, including the highly dysfunctional nature of the relationship with the Father. I find that with the separation and finality of that relationship, her return to Queensland and family support; and recognition of her needs to address and monitor her own position, it is more likely than not that the Mother has overcome these difficulties. Whilst I accept that, by its nature, the Mother’s condition renders her susceptible to a relapse, I find that the Mother is well aware of that prospect and I accept her evidence that she would take immediate steps (and would be assisted in doing so by the family members around her referred to) to address that prospect in future should it arise.
On the evidence of Dr Y, which I accept, there is no clear causal connection between the Mother’s drug or alcohol abuse, or withdrawal symptoms, but in any event her seizure symptoms now appear to be well under control.
Outside of the effects of the Mother’s historical alcohol and drug abuse problem, there is no cogent evidence before me suggesting that the Mother does not provide a high degree of quality care for her children. There are references amongst the plethora of material that even the Father acknowledges that, free of the effects of the subject problem, the Mother is an extremely capable parent. There is a body of evidence, including that of Mrs AA and from schools and “N Group” that D and E are progressing well (as indeed are B and C) in the Mother’s care.
Given my findings, any uncertainty about the Mother’s future capacity is commensurately limited.
In contrast to that, I find the Father’s proposal for D and E to be now removed from their Mother’s primary care (which has been their life experience to date) to that of the Father in his present circumstances, to be riddled with uncertainties.
First of those is the Father’s capacity to cope with the primary care of these two young boys, who, because of their difficulties, present particular challenges to be met in terms of meeting their needs.
The parties’ son, Mr G, suffered from Asperger’s Disorder. Between the ages of 12 to 15 in particular, it is clear that Mr G’s behaviour was challenging. However, no such challenge could justify the Father’s response to it. The Father gave a description of repeatedly striking Mr G in the back with a clenched fist. He did not volunteer, but agreed with the proposition, that this involved the Father using as much force as he could muster. The image of an adult male (the Father) punching, repeatedly, his teenage (disabled) son in the back with as much force as he could muster, is confronting. If the image is confronting, all the more so for not just Mr G, but the other children who witnessed such events.
Although at trial, the Father acknowledged his personal responsibility for his behaviour, both in his oral evidence and his submissions, and rightly described his behaviour as, “…appalling…”, this has not always been so. An example of the Father’s capacity to minimise his role and indeed to blame the Mother for anything adverse about him appears in Ms P’s report. She undertook interviews of the parties in June 2011, and her report includes the following:
25. [Mr Hackett] accepted that he was not a perfect parent either but attributed his less than desirable parenting to being an adverse consequent (sic) of the mother’s dependency upon alcohol, “I used to raise my voice and get angry because I would come home to a wife comatose, children who may not have gone to school and were fighting… I was tired and I was frustrated at [Ms Hackett] because she was absolutely no support.” He was adamant, however, that he had not behaved as it is alleged by [Ms Hackett] and the eldest siblings.
Similarly, at paragraph 153 of her report, Dr M records in relation to her interview with the Father:
…He acknowledged there had been aggression between him and [Mr G]. [Mr G] was violent to the other children and often had a swing at his father who would hit him back. He said that in these confrontations, he never had any support from [Ms Hackett]; she was always drunk. …
I have reservations about whether the Father’s expressions at trial of personal responsibility for his behaviour and the appalling nature of it are genuine in the sense of the Father independently coming to this view or whether, confronted with the contents of the subpoenaed material, including statements by one or more of the children from time to time, as well as their reports to Ms P and Dr M, the Father finds himself without an alternative but to profess acknowledgement and contrition.
In this respect, I note that in his affidavit filed 12 June 2012, the Father acknowledges that from 2008, “…smacking…” Mr G and then that, “…my treatment of [Mr G] became unacceptable…” without providing details. Later in that affidavit (at paragraph 291), the Father acknowledges that when he began counselling, he was of the opinion that he was faultless, and that any harm done to the children was as a result of the Mother’s behaviour, but he then deposes:
292. I now acknowledge that I played a significant part in any harm done to the children in that I yelled and swore at their mother in front of them.
293. I also acknowledge that being a male, they may have found my behaviour intimidating.
(emphasis added)
In my opinion, the Father’s allowance only for the possibility, rather than the probability, of the effect of his behaviour upon the children being adverse, illuminates the Father’s lack of insight into the likely consequences upon the other children of the violence he perpetrated upon Mr G, which they witnessed. The subpoenaed material recording statements by the children and, for example, the detailed report of Dr M recording their statements, are replete with examples of the children’s perceptions of the Father as a consequence of their experience of him.
The Father’s acknowledgements also included acknowledgment about his verbal abuse directed not just at the Mother but also at the children. He acknowledged in oral evidence, as an example of the kind of verbal abuse directed at the children, to calling B, “…a stupid lesbian.” Again, the report of Dr M was replete with examples of the kind of verbal abuse the Father would mete out to the children, and I accept the accuracy of those statements.
The Father contended that, having completed an anger management course, for example, and now being in a happy relationship with Ms R, he was, in essence, a changed man. Whilst Ms R provided an affidavit and gave oral evidence at trial, and neither this nor any evidence of the Father suggests otherwise than that their relationship is a committed one and is expected by both of them to endure, the fact is that the relationship is relatively new and formative. It is yet to stand the test of time. No doubt it has its own demands given that Ms R’s household comprises her children, although it is not suggested any of those children suffer any disability or behavioural difficulty.

The point is that the Father clearly was unable to cope with Mr G’s behaviour associated with his Asperger’s Disorder. D has Asperger’s Disorder and E either has that disorder or is at least displaying traits consistent with a disorder in the autistic spectrum. E’s school reports reflect that his behaviour can be challenging and he is nine years of age. His challenging behaviours include the manner in which he relates with peers.
Not only have E and D not met Ms R they have never met her children. The Father’s confident prediction that counselling for all children involved would meet any problems encountered within the simulation of D and E into that household lacked insight. This is particularly so when it was clear from Ms R’s evidence that she had little information or knowledge about the specifics of D and E’s disorders and even the Father, whilst having an intellectual understanding from his reading and his employment, did not demonstrate that he had paid close attention to the specifics of the therapies E and D had been receiving.
It is reasonable to infer from all the evidence that the sibling relationships D and E have with their siblings are important to them.
As was submitted on behalf of the Independent Children’s Lawyer and by Counsel for the Mother, the Father’s proposal involves removing D and E from the primary care of the Mother to live a long way away in a place they have never been; in a house they have never been; with people they have never met; and away from all of the links they have formed in Queensland.
They would be removed not just from the Mother and their siblings but from the experience of their maternal grandmother’s input. From their school and the supports they have developed at the school. From their present treating counsellors and treating doctors. The latter would all, presumably, be replaced over time, but the adjustments these boys would be forced to make cannot be over-emphasised. Moreover, the capacity for these boys, given their particular needs by reason of their diagnoses, to deal with such adjustments can likewise not be over-emphasised.
The Mother’s evidence as did that of the paternal grandmother emphasised the importance of routine and stability for the boys. In oral evidence, she gave an example of having difficulty being out longer than two hours, even on a shopping expedition, before E would become agitated. Her evidence, which I accept, is that significant time and effort is involved in having the boys attend to their counselling and other therapies and appointments. She is available full time to attend to those needs. Neither the Father nor Ms R are so available.
No cogent evidence was provided by the Father to demonstrate the feasibility of his proposal for the boys to commence residing with him. For example, in relation to the counselling, there was no evidence that Ms R’s children’s father will agree or has agreed to them being involved in the counselling process if necessary. Whilst the Father and Ms R anticipated no difficulty in that respect, the fact is that Mr R has not been asked, nor has he confirmed his willingness to submit his children to that process. Moreover, implicit in the Father’s proposal is that counselling will succeed in enabling D and E to make the profound adjustments contemplated. That is hypothetical and speculative.
The Father provided no cogent evidence as to the availability of suitable school services of the kind these boys need and currently receive in terms of additional assistance. Nor was there any identification of the professionals who he might engage and indeed, I was left with the clear impression that the Father has not involved himself sufficiently in the specifics of the treatment they have been receiving to date and over the recent past to have a comprehensive understanding of what is necessary to assimilate that in Victoria.
The geographical distance between the parents and their limited financial means has the consequence that D and E would face all of the necessary adjustments in the knowledge that they were living far afield from their mother, other siblings and maternal grandmother, and the tyranny of distance would dictate limitations upon their ability to see these family members.
On top of all of that, the removal of D and E from their present circumstances to live with the Father would be contrary to the strong views they have expressed. Fortunately, it would seem that because of their younger ages and capacity for cognition, D and E did not form the same views of the Father as have clearly been formed by their older siblings. B and C (and indeed their oldest sibling, Ms F) have firm views, which the Father now accepts, that they do not wish to have any relationship with the Father currently. That would seem to be a product of their greater capacity, as compared to D and E, to assess the situation when their parents were together and to reach their own conclusions, right or wrong, as to the contribution by each of their parents to that situation. There is ample evidence in the subpoenaed material and the reports of Ms P and Dr M of Ms F and B and C expressing negative views about their own experiences of the Father and their observations of him in his interaction with the Mother.
In contrast, D and E have expressed views consistent with them desiring a relationship with the Father, but such expressions fall well short of views consistent with acceptance that they would readily embrace what the Father proposes. Indeed, their expressions are contrary to that.
Dr M records at paragraph 123 of her report D’s expression of him liking school and noting improvement, “…since the family has moved.” He expressed positive reaction to the Father’s visits, and at paragraph 125, is recorded as saying that he would like to see his father, “…once a month.”
For his part, at paragraph 128, E is recorded as follows, “He said he likes seeing his father but didn’t know if he wanted to see him more.” Notably, at paragraph 130, Dr M records E as saying:
Dad hates [Ms F] and everyone hates Dad except him and [D].
Dr M records the following in relation to the joint session she held with the Father and the children:
177. Father suggested that they might want to come down for school holidays but [E] said he didn’t want to be stripped from his comfort zone. He repeated that two times. [D] however said he would like to go to his father’s once in a while and would like to go back to Melbourne for a visit but both [D] and [E] said that Queensland was their home now and their routine. The other two children when asked if they wanted to stay elected to leave. Father said he would respect the children’s wishes but he would like them to live with him.
178. The younger two children did appear quite comfortable with their father. [D] took on the role of supporting his father to some extent. …
Ms P records in her report that neither E nor D were very forthcoming with information, but she observed that D and E appeared to be happy to spend time with the Father in the interview process and did not show any signs of stress or distress in the Father’s presence, but rather appeared to enjoy his complete attention.
It is to be remembered that the interviews of both Dr M and Ms P of the children occurred, particularly in the case of Ms P (June 2011) some time ago. I have already noted the relatively brief periods that the Father has had physical time with the children over the period since orders were initially made and that the Father has not had face to face time with either D or E since July of this year. The Father acknowledged in evidence an increasing reluctance on the part of the boys to be involved in telephone communication, and that part of the reason for there being no physical time since July was a conscious decision by him to, “…step back.”
However I find that both boys have clear views that they wish to remain in their current living arrangements with the Mother and their siblings.
Obviously enough, the above discussion and many of the findings and observations already recorded resonate with many of the specific s 60CC considerations.
I find that it would be of benefit to both D and E that they have a meaningful relationship with both of their parents. There cannot be any doubt that they currently have a meaningful relationship with the Mother, and their relationship with the Father can also be said to be meaningful currently, but perhaps has been somewhat tested by the lack of consistency of time with the Father over the more recent past.
I find there is no current need to protect D and E from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence in the continuation of care with the Mother. I have already observed my findings in relation to the risks so far as a relapse by the Mother is concerned.
Given the separation of the parents, the same dynamics no longer exist with respect to the exposure of the children historically to physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Whilst I do not suggest that in his current situation, the Father would present a threat of harm in the relevant sense to either D or E, his capacity to deal appropriately with a teenage boy suffering Asperger’s Disorder in Mr G has been found to be grossly wanting. His professed changes are yet to be tested with respect to D or E, and indeed it is an unknown whether they will present similarly to Mr G when they enter their adolescent years. However, as a primary carer, the Mother is currently dealing well with the boys and past history suggests at least a risk of the Father presenting a potential risk if either or both of the boys conduct themselves similarly to Mr G in circumstances where they were living in the Father’s primary care. There are significant differences between that and more limited periods of visits, even if including half holiday period, in terms of potential demands upon their carer.
I find that the views expressed by D and E are clearly consistent with their desire to continue to live in their current circumstances. Conversely, their removal into their father’s primary care would be plainly at odds with the views they have expressed. I am satisfied that notwithstanding their difficulties in terms of their health issues, the views of both D and E ought be given weight.
I am satisfied that both boys have a loving and nurturing relationship with the Mother and that they clearly have the foundation for a similarly good relationship with the Father in the future, provided they remain in the Mother’s primary care and have the opportunity to renew their relationship with the Father outside of any tension between the parents in the shadow of pending proceedings.
I find that the sibling relationships between D and E on the one hand, and their other siblings are likely to be of significant importance to them. They have had the experience of some challenges in their lives, and clearly have looked to their older siblings as part of the mechanisms of coping with such changes. I am satisfied it is in their best interests in coping with changes that inevitably lie ahead that they would be assisted, in part, by continuing their primary living arrangements with their older siblings.
I am also satisfied that the boys have a sound and meaningful relationship with the maternal grandmother, as is to be expected given the extent of her involvement in their lives, which is and will continue to be of benefit to them.
I find that the Father has not taken as much opportunity to spend time with D and E as was available to him, having regard to the terms of the orders already referred to, and the feature that the Mother’s home was available for his accommodation for such visits. I accept that financial constraints have played a part, but the Father has undertaken these proceedings on a self-represented basis, and given that his costs of visits involved no more than travelling to and from Brisbane from Victoria, albeit with associated expenses but not accommodation, it would seem the Father has had greater opportunity for visits than he has actually taken up.
Even accepting the parents’ incapacity to communicate in any meaningful way, it seems to me that the Father has failed to involve himself to the extent it was available to him in terms of the boys’ involvement with, for example, N Group counselling, their school and teachers and the therapies they undertake.
I reject the Father’s contentions to the effect that the Mother’s relocation to Queensland, even despite orders, was somehow designed to eliminate him from the children’s lives. I find that the primary motivation of the Mother was to remove herself and the children from a toxic situation and to obtain the support she and indeed the children needed from her parents and to be removed from the toxic situation that prevailed.
I am satisfied that the Mother has shown a capacity and willingness to facilitate the relationship between the children and the Father. Her willingness to absent herself from her home to make it available to the Father for the purpose of visits and to propose that for the Order to that effect which was made reflects not only her willingness in this respect, but also her focus upon the needs of the boys in terms of their health conditions dictating their requirement for stability and routine. Visits were always more likely to succeed if they occurred in an environment familiar to the boys.
I am not satisfied that, if the boys were living in the primary care of the Father, he has a demonstrated capacity to, or be willing to, facilitate the boys’ continuing relationship with the Mother. Much of the Father’s final submissions at trial seemed to be directed towards the Mother being brought to account or punished for past perceived transgressions. As I then attempted to explain to the Father, parental conduct is relevant not for this purpose, but only so far as it relates to determining the best interests of children. For all the disadvantages that exist in parties being self-represented, there is the corollary advantage to the Court of assessing a party who self-represents. I found the Father to be almost obsessively focused upon any negatives about the Mother he could emphasise, and this stayed true in his final submissions. His negative views of the Mother were palpable, and I am not satisfied he would not expose the children to those views. Dr M’s report includes an example where the Father, in the presence of the children, denigrated the Mother and Dr M had to invite him to cease that. That occurring in a report process highlights the prospect of it occurring outside of such processes.
I find that the likely effects of the changes for D and E proposed by the Father of them now living with him would, for the reasons already discussed, be profound and be profoundly adverse to their best interests.
There are obviously practical difficulties and expenses associated with D and E maintaining a relationship with both of their parents given the geographical distance between them. Other, practical, difficulties relate to their special needs. Both the Mother and Mrs AA gave evidence of how even simple interruptions or unexpected events have the capacity to produce distress or anxiety in the boys. I accept the Mother’s evidence that one of the boys has apparently developed a fear of getting on an aeroplane which he expresses. I find that such practical difficulties are best met, if the boys continue to reside with the Mother, by orders for time which see a progression from visits of the Father to South East Queensland to visits by the boys to Victoria when their health professionals determine that the boys are ready for this, as is contemplated in the orders proposed by the Independent Children’s Lawyer.
I also accept that the expenses of time and travel are satisfactorily met as best they can be by the proposals of the Independent Children’s Lawyer.
I find that both parents participated during the relationship in verbal abuse directed towards each other, and that in the case of the Father, he directed abuse at the children as well. I find that the Father has perpetrated acts of family violence within the meaning of the Act, as earlier discussed.
I find that the Mother has a demonstrated capacity to provide for the needs of D and E, including their emotional and intellectual needs. For the reasons already stated, I am not satisfied that the Father has the capacity to provide for those needs if the children were primarily residing with him, but I am satisfied he can do so for the purposes of visits.
I find that, free of the effects of alcohol or drug dependence or abuse, the Mother has demonstrated a positive attitude to all of the children and to the responsibilities of parenthood. I am satisfied that with the continuation of the supports she has accessed and her own recognition with the need to deal immediately with any relapse, the Mother’s capacity will more probably than not be enduring.
I have already made observations about the failures of the Father and will not repeat them here. On balance, I am satisfied that the Father recognises his contribution by his behaviour to the dysfunction in the parents’ relationship and his contribution in that respect to where his relationships currently are with the older children. Obviously, the Father needs to have a better understanding of the feature that his children, including D and E, are unlikely to respond positively if they are exposed to him denigrating or speaking negatively of the Mother or, in the case of D and E, if he speaks negatively of their older siblings.

Balancing of s 60CC Considerations with Central Issues

I am satisfied that the best interests of D and E would be served by a continuation of their current circumstances of living primarily with the Mother.
Balancing my findings on the statutory considerations with the central issues earlier identified, I find:
a)The Father’s proposal for D and E to live primarily with him in Victoria in his current circumstances is not feasibly in the children’s best interests;
b)The Mother’s past history of alcohol and prescription medication dependency and/or abuse does not result in the conclusion that her current and future parenting capacity is compromised to the extent that the best interests of D and E would not be met by remaining in the Mother’s primary care;
c)The risk of any relapse by the Mother into alcohol/drug abuse and its consequences for D and E does not justify the consequences for D and E of now removing them from their Mother’s primary care, given the nature of those consequences as discussed above;
d)The Mother has the capacity to promote the children’s relationship with the Father in the circumstance of the geographical distance between the parents. I am not satisfied that the Father has such a demonstrated capacity if the children were primarily living with him in Victoria;
e)As will be discussed further below, I am satisfied that the orders for time and communication proposed by the Independent Children’s Lawyer, as distinct from those proposed by the Mother, best achieve the boys having a meaningful relationship with both parents.

Conclusions and Orders

Given my determination of the best interests considerations and my findings as to “abuse” and “family violence” within the meaning of the Act, it is not presumed to be in the best interests of these children for their parents to have equal shared parental responsibility for them. That is, the presumption in s 61DA of the Act does not apply by reason of s 61DA(2). That means that s 65DAA does not operate and determination of orders for time and communication are at large.
For reasons already expressed, I am satisfied that the orders proposed by the Independent Children’s Lawyer best meet the children’s best interests. There needs to be a progression in line with the capacity of D and E to adjust to that progression, but with a view to it eventuating that they can make visits to their father in Victoria.

I am not satisfied that the Father’s proposal that the boys immediately move to travelling to Victoria is in their best interests. Nor am I satisfied that the nature of the children’s relationship with the paternal grandparents justifies the conclusion that it is necessary to make orders effectively providing for the children spending time with the paternal grandparents, as contemplated by the Father. There was no evidence before me from either of the paternal grandparents, and the evidence before me does not demonstrate a significant involvement of the paternal grandparents in the lives of these boys.
The best prospect of the boys’ time with their father succeeding in all the circumstances is if it initially occurs in South East Queensland in the vicinity of where their mother and siblings reside.
Conversely, I do not accept the Mother’s proposal that initial visits be limited to day time only, or indeed that there not be a greater expansion of time in due course.
In my view, consistent with the boys’ best interests, the orders proposed by the Independent Children’s Lawyer best strike the appropriate balance between the competing considerations in the respects discussed.
I am also satisfied that the best interests’ considerations dictate that the Mother ought have sole parental responsibility, given the level of dysfunction in the relationship and the incapacity of the parents to communicate. Again, by obliging the Mother to consult with the Father on major long-term issues before making a decision, an appropriate balance is struck.
For these reasons, I therefore make orders in terms of the orders set out at the commencement of these reasons.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 10 December 2012.

Associate:

Date: 10 December 2012

[2012] FamCA 1120

Key Legal Topics

Areas of Law

Family Law