HALBROOK & MUNSEN
[2021] FCCA 651
•6 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HALBROOK & MUNSEN | [2021] FCCA 651 |
| Catchwords: FAMILY LAW – Parenting – allegations of family violence – parental responsibility – best interests of the children – substantial and significant time. EVIDENCE – the rule in Jones v Dunkel. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC, 61DA, 65DAA. Evidence Act 1995 (Cth), s.140 |
| Cases cited: Jones v Dunkel (1959) 101 CLR 298 |
| Applicant: | MR HALBROOK |
| Respondent: | MS MUNSEN |
| File Number: | BRC 13648 of 2017 |
| Judgment of: | Judge Howard |
| Hearing dates: | 26, 27, 28 October 2020 and 26 February 2021 |
| Date of Last Submission: | 29 March 2021 |
| Delivered at: | Brisbane |
| Delivered on: | 6 April 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr Buckley on 27, 28 and 29 October 2020 and Mr Gordon on 26 February 2021 |
| Solicitors for the Applicant: | ABF Legal |
| Counsel for the Respondent: | Mr Ashcroft |
| Solicitors for the Respondent: | Freedom Law |
| Counsel for the Independent Children's Lawyer: | Ms McArdle |
| Solicitors for the Independent Children's Lawyer: | Cornerstone Law Offices |
ORDERS
Parental Responsibility
That the Mother and Father have equal shared parental responsibility for the children:
(a) X born in 2009; and
(b) Y born in 2011 ("the children").
That the Mother and Father consult with each other about decisions to be made in the exercise of their shared parental responsibility and make a genuine effort to come to a joint decision about any and all issues as they arise. They are not, however, required to consult with each other about the daily care of the children.
Care Arrangements
That the children live with the Mother and spend time with the father each alternate week from after school on Wednesday until before school on Monday (or Tuesday if Monday is a public holiday).
School Holidays
That the children shall spend school holiday time with the Father for the fast half of the March/April, June/July, September/October and December/January school holiday periods in even numbered years and the second half in odd numbered years, unless otherwise agreed between the parents in writing.
That the children shall spend school holiday time with the Mother for the first half of the March/ April, June/July, September/October and December/January school holiday periods in odd numbered years and the second half in even numbered years, unless otherwise agreed between the parents in writing.
Children’s Birthdays
That on each child's birthday, both children spend time with the non-resident parent from 3.00pm to 6.00pm if it is a school day; and from 2.00pm until 6.00pm if it is a non-school day, unless otherwise agreed between the parents in writing.
Changeover
That for the purpose of exchanging the children on non-school days; unless otherwise expressly stated in these orders or unless, otherwise agreed in writing between the parents, from time to time, the handover shall occur at 5pm in the carpark at McDonalds Restaurant, S Street, Suburb B. At such handovers, all conditions in any domestic violence order/s that may be in force between the parties from time to time shall be observed. The handovers may be undertaken by each parent or by either parent’s reasonable nominate. For the purpose of this order, a parent's "reasonable nominee" must be a responsible adult known to the children.
Communication between parents
The parents shall communicate with each other in relation to the children via the communication App known as Talking Parents.
Restraint
That neither parent will consume alcohol to excess or be under the influence of excessive alcohol while the Children are in his or her care.
Courses
That within fourteen days from the date of these orders, the mother and father shall enrol in the Parenting Orders Program and upon completion of the course, provide to each other a certificate of completion, and for this purpose the parents are to complete this course within 12 months of the date of these orders.
Passports
That the children's passports (Australian and Country L) are to be held by the Mother except for the purposes of the children travelling overseas with the Father pursuant to these Orders.
Overseas Travel
That the travelling parent shall obtain travel insurance for themselves and the children for the period they intend to take the children overseas.
That the parents are permitted to take the children overseas during holiday time (or at such other times as agreed between the parents) provided that the overseas travel is limited to those countries which are signatories to the Hague Convention on the Civil Aspects of International Child Abduction.
IT IS NOTED:
(A)Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.
(B)That these Reasons for Judgment and Orders were delivered and made at 9:30am on 6 April, 2021.
IT IS NOTED that publication of this judgment under the pseudonym Halbrook & Munsen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 13648 of 2017
| MR HALBROOK |
Applicant
And
| MS MUNSEN |
Respondent
REASONS FOR JUDGMENT
Background
The applicant father is Mr Halbrook. He was born in 1977 in Australia.
The respondent mother is Ms Munsen born in 1976 in Country T.
The parties met in 2004 and began living in a de facto relationship in 2005 whilst living in Country U. Between 2005 and 2008 the mother worked for a family as a carer on a rotational roster. The father lived in the mother’s apartment while she worked away. The father was studying at that point in time.
The parties married in Country T on in 2009.
The parties separated on several occasions during the course of the relationship – including in 2007 (four months); in 2010 (for nine months); in 2012 (for five months); and in 2014 (for nine months).
During the relationship the parties in fact spent extended periods of time living apart because of their respective work commitments. The father was based offshore as scientist.
The mother maintained that final separation occurred in February 2016 on the Region C. I do not accept that evidence. I prefer the evidence of the father, in relation to the date of final separation. I note the following evidence from the father in his trial affidavit:-
“14. In or about January 2014, Ms Munsen and I separated on a final basis.
15. In or about January 2014, following our final separation, I moved back to Australia, while Ms Munsen returned to Country T with the children. Ms Munsen did not allow me to have contact with the children for nine (9) months. During this time, I was sending money back to Ms Munsen each month for her and the children (around $2,000AUD per month).
16. This was a very difficult time for me. I requested to see the children, but Ms Munsen repeatedly refused.
This caused issues in my relationship with the children that was very close until that point. We now have fully recovered from that period of being apart and I have a very close relationship with both of the boys.
17. Ms Munsen was living in a house that we had built in Country T. Ms Munsen did not have to pay for rent or other associated costs.
18. In or about June/July 2015, Ms Munsen telephoned me and told me that she "felt trapped in Country T." Ms Munsen went on to say that she wanted to move back to Australia with the children.
19. In or about September 2015, Ms Munsen and the children relocated to Australia. They moved into my Mother's house with me, at Suburb B, in the state of Queensland. Ms Munsen and I had separate rooms. At no point did we recommence a relationship. I was working offshore as a scientist where I was working offshore two (2) to four (4) months at a time.
20. In or about June or July 2015, I purchased a property at D Street, Town E. The home was purchased in my sole name. Ms Munsen and the children moved in, again Ms Munsen and I were in separate rooms and not in a relationship.
21. While Ms Munsen and the children were living with me, I would spend a lot of time with the children while I was home from working offshore. Ms Munsen tried to minimize my time with the children, but I had as much interaction with them as I could. I would take the children to/from school, take them to sports training, building things, go to the beach and I did indoor activities with them like cooking. We would do additional activities like playing with arts and crafts, going on day trip adventures to see kangaroos, or playing in the park and having a picnic.
22. In or about April 2016, Ms Munsen and the children moved out of the home at D Street, Town E. I came home from work to an empty house, Ms Munsen had taken all the house effects, and moved to a town house nearby.”
The date of the final separation – so far as the parenting case is concerned – will not make much difference to the best interests determination in relation to the children. It was clearly a very strained situation for the family with the mother and the father living with the children in Australia leading up to April 2016 when the mother and the children moved from the D Street, Town E property.
The parties have not been able to agree in relation to parenting arrangements for their two children – X (born in 2009) and Y (born in 2011).
Further, the parties have not been able to agree in relation to property settlement.
The children currently attend the B School. The mother lives at Suburb B and the father lives to Town E.
The trial which commenced on 26 October 2020 is in respect of parenting matters only. These Reasons for Judgment relate only to parenting.
The father would like to see a continuation of the current interim arrangement – namely a week about shared care arrangement.
The mother seeks a final parenting order from the court to the effect that the children will live primarily with her and spend alternate weekends with the father from after school Friday until before school Monday. The mother also seeks an order for sole parental responsibility in her favour.
Both parents seek orders in relation to holiday time, special days and overseas travel, et cetera. The Court was told (during the trial) that the parties had agreed on certain orders. No orders were made by the Court because the Court was also told that the draft document in question which had been handed to the Court (exhibit 2) still required some more changes. In written submissions provided by Ms McArdle (counsel on behalf of the ICL) on 11 March 2021 – it was noted in paragraph 3 that the “level of agreement previously anticipated” had not materialised. The Court will work on the basis that there is no agreement between the parties. It will become apparent from these Reasons for Judgment that I agree with the orders proposed by the Independent Children's Lawyer. Those orders will be made into final orders when Judgment is delivered in this matter.
On 27, 28 and 29 October 2020, Mr Buckley of counsel appeared on behalf of the applicant father. Before the matter returned to Court on 26 February 2021, Mr Buckley died. His passing is noted by the Court and the Court’s condolences are extended to Mr Buckley’s family and friends.
Mr Ashcroft of counsel appeared on behalf of the respondent mother throughout the proceedings. Ms McCardle of counsel appeared on behalf of the Independent Children’s Lawyer. On 26 February 2021, Mr Gordon of counsel appeared on behalf of the applicant father.
Each of the parties (the parents and the Independent Children’s Lawyer) have forwarded to the Court written submissions which have been prepared by counsel. The Court has had close regard to all of those written submissions.
Section 60CA
In section 60CA of the Family Law Act 1975 it is stated:-
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Section 60CC of the Act sets out how it is that a Court is to determine what is in the child’s best interests. Section 60CC(2) states as follows:-
“(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
The first stated primary consideration (section 60CC(2)(a)) relates to the benefit to the children having a meaningful relationship with both of their parents.
The Court was assisted by two family reports. Both were prepared by Ms F. The first is dated 23 November 2018. It is exhibit 9 in these proceedings.
In both of her family reports Ms F observed very positive interactions between the children and both parents. (Note first family report paragraphs 108, 109, 110, 111, 112 and 113).
In the second family report (annexed to an affidavit filed 17 March 2020) formal observations were not conducted. However the family report writer did observe both X and Y engaging with both of their parents on that day. Both of the children appeared to be very relaxed, comfortable and happy in the care of their father and paternal grandmother (paragraph 76).
I also note that both children "presented as very happy to see the mother, giving her a big hug each and chatting to her in a relaxed, familiar and comfortable manner." (Paragraph 76).
I had an opportunity to consider the evidence in the witness box of both the father and the mother. I have come to the conclusion that there are great benefits to both X and Y in having a meaningful relationship with both of their parents.
Section 60CC(2)(b)
A good deal of time during the course of the trial was taken with cross examination of the parents in relation to allegations of family violence. The father's trial affidavit was filed on 29 September 2020. The mother relied upon an affidavit filed on 17 February 2020. This had been filed in anticipation of the trial taking place in March 2020. Unfortunately, because of the pandemic, the matter was adjourned from March 2020. By the time of the commencement of the trial on Monday 26 October 2020 the mother had filed a further affidavit on 20 October 2020. Counsel for the father objected to the mother relying upon that affidavit. Counsel for the mother sought leave to rely upon the second affidavit – even though it was late and well past the time stipulated by the trial directions. I granted leave to the mother to rely upon certain paragraphs of the more recent affidavit. I provided reasons in relation to that decision on 26 October 2020. The paragraphs of the mother's second affidavit that were admitted into evidence for the purpose of this parenting trial related to the updated evidence from the mother relating to the period of time after February 2020. Therefore, leave was granted to the mother to rely upon paragraphs 68 – 104 inclusive of her affidavit filed 20 October 2020.
In the mother's affidavit filed 17 February 2020 she has provided evidence setting out her allegations of family violence committed by the father. In paragraph 2(c) of the mother's February 2020 affidavit she has stated as follows:-
“2(c). He has anger management issues. Mr Halbrook has previously taken the TV from the family room to stop the children and I from being able to watch it; has told the children that I am not allowed to speak; has pulled my bed out of my bedroom and told me I could sleep on the floor; has told me not to eat the food in the fridge; has pushed me down stairs and told me to get my car off his property otherwise he would smash it. Some further examples of the domestic violence Mr Halbrook committed are as follows:
(i) In 2005, unsure of exact date, Mr Halbrook pushed me into a glass window during an argument;
(ii) In 2007 and 2008 while living in Country V, Mr Halbrook started to smoke a lot of marijuana and drink heavily. He said he needed to do so to remain calm for his studies. He became abusive and aggressive towards me. When I would come home, he would make comments to belittle me and made me feel worthless. His behaviours was unpredictable and erratic.
(iii) In April 2008, Mr Halbrook's behaviour and aggression was out of control He told me to leave as there was nothing there for me. His behaviour was unexplainable as we had just got engaged and he didn't appear to be making any sense. He would have erratic mood swings and I believe that Mr Halbrook's drug use was affecting his moods. During this time I asked him to leave my apartment as I was afraid of what he might do to me.
(iv) During my first pregnancy, Mr Halbrook and I argued because he told me that he felt trapped with me because of the pregnancy.
(v) In July 2013, Mr Halbrook began to control the finances and would abuse me if I would spend money on day to day essential items.
(vi) In February 2014 things had got so bad between Mr Halbrook and I that I went to Country T on holidays to take some time away from the relationship. Mr Halbrook called me and said to me "don't bother coming back to Country L, I am moving to Australia do what the fuck you want". I returned to Country L to collect my belongings and moved to Country T to May 2014.
(vii) In February 2015, Mr Halbrook became jealous of the friendships that I was developing. He would call me 5 - 7 times a day while I was working to see where I was. He would call me and say that he urgently needed the car and when I returned, he would simply go to the beach.
(viii) In September 2015, Mr Halbrook's drinking was out of control. Every other word was "Fuck”. My mother was visiting at the time and witnessed this behaviour.
(ix) Every time Mr Halbrook would return home from work he would take my bank card off me leaving me with no access to money to buy groceries and when he would return to work he would give me back the card but leave very minimal money on the card for me to access.
(x) In December 2015, Mr Halbrook left me with very little money but told me I should invite his family over for Christmas. When driving the car the car ran out of petrol and when I called Mr Halbrook he said to me "fucking sort it out yourself”. When I told him that I had no money on the ATM card I had access to he told me it was not his problem. I had to ask his mum for money and to assist me.
(xi) During the week of 15-21 February 2016, Mr Halbrook was drinking heavily. Late one evening when the children were in bed (around 11pm) Mr Halbrook was watching music videos and the computer. He turned the volume right up and when I asked him to turn down as it might wake the children, he told me “fuck off, it is my house and I will do what I want”. I asked him to think of the children and he replied, “I couldn’t give a fuck”.
There does not appear to be any specific evidence in response from the father to the matters contained in paragraph 2(c) of the mother's February 2020 affidavit.
In section 4AB of the Family Law Act there is contained a definition of “family violence”. Section 4AB(1) states:-
“(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.”
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the familymember's family, of his or her liberty.
Much of the behaviour referred to by the mother in paragraph 2(c) of the February 2020 affidavit would come within the definition of family violence. The father has not referred to those allegations at all. The mother was not cross-examined by the father's counsel in relation to that evidence. The matters contained in paragraph 2(c) were not specifically "put" to the father by counsel on behalf the mother – however I note what was said by the Full Court of the Family Court in relation to that issue in the case of LC v TC (1998) FLC 92-803. The father was on notice in relation to the allegations made by the mother – because they were contained in her February 2020 affidavit. He has not responded to that evidence at all. There is no further requirement (it seems to me – on the authority of LC v TC) for the mother’s counsel to specifically "put" those allegations to the father. In other words, the view that I have formed in the particular circumstances of this case, is that the rule in Browne v Dunn (1894) 6 RL 67 does not apply to this evidence from the mother.
The Court is therefore left in a position that the only evidence is evidence from the mother. The Court therefore accepts that evidence. As to the weight that I will give to that evidence – that is another question altogether. I will return to that point later in these Reasons for Judgment. I should point out that my comments here are subject to a conclusion that I have referred to later in these reasons concerning the allegation of family violence constituted by the allegation concerning financial support and financial autonomy.
A similar situation arose in relation to certain allegations of family violence made by the father against the mother. In paragraphs 36 – 38 of the father's trial affidavit he states:-
“36. There is a history of Ms Munsen being violent and abusive towards me and my family.
37. On one occasion Ms Munsen attacked my mother who is an elderly woman. She scratched her arm so bad it drew blood; Y witnessed this event.
38. In another example of Ms Munsen's violent temperament, Ms Munsen attacked me at the school when I was picking the children up. Ms Munsen had asked me to sign some documents and when I refused, she scratched the inside of my arm. The prep teacher, Ms G, saw this and took the children inside the classroom. I walked home without the children.”
There was some cross examination of the mother in relation to the allegation that the mother had attacked the paternal grandmother.
There was cross examination of the father (by counsel for the mother) in relation to the allegation that the mother had attacked the father by scratching him on his arm at the school.
I accept the father's evidence that the incident contained or referred to in paragraph 38 of his trial affidavit did in fact occur and the mother did scratch him on the arm. I also accept that the mother scratched the paternal grandmother on the arm as alleged by the father in paragraph 37 of his trial affidavit.
11 December 2017
On 11 December 2017 the parties attended at the Family Relationships Centre in Suburb W in order to discuss care arrangements for the children. The mediation apparently only lasted about one hour as the parties could not reach an agreement.
Both parents provided evidence in their trial affidavits concerning this incident and both parents were cross-examined at length in relation to the incident. I make the following findings of fact, in relation to what occurred on that day. I find as follows:-
a)the mother left the mediation approximately 30 minutes earlier than the father;
b)The children, on the day of the mediation were being cared for (on behalf of the father) by Ms H. At that stage Ms H was a babysitter for the children – she subsequently became the father’s partner;
c)The children were being cared for by Ms H at the father’s residence at D Street, Town E;
d)The mother, having left the mediation travelled to the paternal grandmother's house. The mother was hoping to collect the children. The children were not at the paternal grandmother’s residence and so the mother travelled to D Street, Town E;
e)This was at approximately 1:00p.m. or 2:00p.m. on 11 December 2017;
f)The mother arrived at the property at D Street, Town E. The mother entered the property through the front gate and knocked on the door and then commenced to walk around the house banging on the windows. I accept the evidence of Ms H in this regard;
g)The mother was calling out for the children;
h)Changeover was supposed to be (pursuant to a prior agreement between parents) at or about 5:00p.m. that evening at the home of the paternal grandmother;
i)Ms H saw the mother entering the property and asked the two young children and her own two children to go into a particular room and she turned on the television and turned the volume up;
j)Ms H then spoke to the mother and the mother told Ms H, "Mr Halbrook told me to collect the children". I find that the mother did say this to Ms H but it was not true. The father had not told the mother anything of the sort;
k)Both of the children on that day had a temperature and were wearing their boxer shorts. Ms H asked the mother to allow her to get them dressed. But the mother said no and started pulling/ushering the children up the driveway quickly;
l)At that point in time the father arrived home and came through the front gate and the mother was startled and either tripped or fell onto the driveway;
m)The mother then stood up and Ms H then stood between the mother and the father;
n)Ms H had already asked one of her children to take X and Y back into the house and that had occurred;
o)The father, in a raised voice asked the mother to leave the property using words to the effect of "get out";
p)The mother called out to her boyfriend/partner (Mr J) and Mr J entered the property abruptly through the front gate but the gate appears to have bounced back suddenly (because it was hit violently by Mr J);
q)Mr J began throwing punches at the father and the father retaliated and the father appears to have connected at least with one punch to the region of Mr J’s face;
r)The mother and Mr J then left the property and sat in Mr J’s motor vehicle on the street near the property;
s)When the mother was on her way to the D Street, Town E property she had contacted Mr J to ask him to also attend that property and, I find, this was because the mother was looking for "assistance" or "backup" because she had intended collecting the children from the property even though this had not actually been agreed between her and the father. There is no other explanation to explain why the mother contacted Mr J and got him to meet her at the property;
t)The police arrived and took statements from each of the witnesses;
I do not accept the mother's version of events in relation to what occurred on 11 December 2017. The mother maintains in paragraph 16 of her affidavit from February 2020 as follows:-
“16. Following mediation, an incident occurred on 11 December 2017 which lead to the Queensland Police making an Application for Domestic Violence Order on my behalf, naming Mr Halbrook as the Respondent. On this occasion, I was attending Mr Halbrook's home to collect the children to return them to my care as per the current arrangement. Mr Halbrook hit me and pushed me to the ground at the driveway. He then pulled me up by my hair and threw me towards the bin area. My partner Mr J was present at the time and Police were called who attended.”
Specifically, I do not accept the mother’s version that she was attending at the father’s home "to collect the children to return them to my care as per the current arrangement". Further, I do not accept the mother's evidence that "Mr Halbrook hit me and pushed me to the ground at the driveway. He then pulled me up by my hair and threw me towards the bin area".
There are a number of reasons why I have rejected the mother's version of the events of 11 December 2017. The mother's version given to the police seems to have been provided by her on 15 December 2017 at 8:45a.m. The police file in relation to the incident is contained in pages 5 – 30 of exhibit 1 (the tender bundle provided to the Court by the Independent Children’s Lawyer). The mother’s report to the police on 15 December 2017 is contained on page 8 of the tender bundle.
At page 10 of the tender bundle it is noted that on 15 December 2017 the police took photographs of the mother, which are described in exhibit 1 (page 10) as follows:-
"Further photos of what appeared to be injuries to the victim's body. These injuries consisted of bruises to the victim's left arm, left upper thigh, right lower leg shin area, left ear and left upper body rib cage underarm area."
On page 12 of exhibit 1 there is a typed police note of the versions of both parents. Paragraph 13 on that page of typed notes states:-
“Police attended and spoke with all parties. Police observed some visible injuries on all persons involved. The aggrieved (i.e. the mother) had some reddened marks on the side of her face and the back of her scalp. The aggrieved’s partner had a cut to his lip and the respondent had a small laceration on one of his knuckles."
The father specifically denied grabbing the aggrieved by her hair and I note paragraph 14 and 15 of the typed notes says that "the respondent denied grabbing the aggrieved by her hair and believes the aggrieved has gone out of her way to race back from (mediation) to attend the address and to cause the issues…” “The aggrieved stated to police she had considered an application for a domestic violence order in the past due to allegation of domestic violence. The aggrieved stated she is fearful of the respondent."
The mother gave quite explicit evidence in the witness box to the effect that when pulled up by the head by the father, her hair came out. She said she was sitting in the car with her partner and her hair was coming out.
There is no mention in the police notes of the mother’s hair coming out.
Further, when the mother went to see the general practitioner – (Dr K on 11 December 2017 – 40 minutes after the incident) there is no mention in the doctor’s note of the mother’s hair having been pulled or of any loss of hair.
In addition, the mother alleged to the general practitioner that the father had thrown her "against a fence (she hit her back and left side of the head on the fence) and pulled her up by the hair and dragged her by the hair at the back of her head."
In the witness box the mother maintains that, to this day, hair will not grow on a particular part of the back of her head because of what happened to her on that day. There is no evidence (apart from the mother’s missing hair).
The mother had no explanation as to why the doctor noted that the mother had been thrown "against a fence". The mother did not give that version anywhere else.
Crucially, I was impressed by the evidence of Ms H. I found her to be a forthright and honest witness. At the time the incident occurred (11 December 2017) Ms H was not in a relationship with the father. She subsequently entered into a relationship with the father. That relationship ceased some time ago and the father has a new girlfriend/partner. Ms H, it seems to me, has absolutely nothing to gain by coming to the Court and providing a version of what she witnessed on the day. Ms H was adamant that the father did not touch the mother. Ms H denied that the father had struck the mother in any way and Ms H denied that the father picked the mother up by the hair. I accept the evidence of Ms H.
The mother, in her affidavit of February 2020 stated, inter-alia in paragraph 16:-
“My partner Mr J was present at the time and police were called, who attended".
During her oral testimony to the Court the mother also (at least initially) gave evidence that Mr J was present when the assault by the father upon the mother occurred.
Subsequently, in her oral testimony, the mother was a bit less certain as to the precise whereabouts of Mr J at any particular point in time during the incident on 11 December 2017.
The Court does not have the benefit of evidence from Mr J. The inference which is available to the Court and which I have drawn is that the evidence of Mr J would not assist the mother. In this regard I note the decision of the High Court of Australia in Jones v Dunkel (1959) 101 CLR 298.
Even if Mr J had not specifically witnessed the precise events of what occurred inside the D Street, Town E property on 11 December 2017 – he would have at least been able to give evidence as to the mother’s version that while she was sitting in the motor vehicle with Mr J following the incident – her hair was falling out and (according to the mother) Mr J saw this. But Mr J has not provided an affidavit. The inference is available to the Court and the Court has drawn the Jones v Dunkel inference as outlined. I note what was said more recently by the High Court in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at paragraph 63 (per Haydon, Crennan and Bell JJ):-
“63. The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. That is particularly so where it is the party which is the uncalled witness (Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 at 582). The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn (Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) (2009) 264 ALR 201;). These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue (Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418–19). That problem did not arise here. The plaintiff’s counsel did ask the plaintiff relevant questions.
64. The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party.”
Mr J remains the mother’s partner. There is, in this case, an "unexplained failure" by the mother to call Mr J as a witness.
Mr J is still (as far as the evidence before the Court is concerned) the mother's partner. The absence of Mr J is unexplained.
The inference which is available to the Court and which I draw in the particular circumstances of this case is to the effect that the evidence of Mr J would not have assisted the mother. There can be no doubt in the circumstances of this case that there was a significant dispute between the parents concerning the events of 11 December 2017 at D Street, Town E. The inference (as outlined) should be drawn. That inference lends weight to the conclusion that I had already reached – to the effect that I prefer the evidence of the father (and Ms H) to the evidence of the mother.
In the event that I have incorrectly applied the rule in Jones v Dunkel and/or in the event that I have incorrectly drawn the inference referred to – it will make no difference to my decision. Even in the absence of the inference – I would have reached the same conclusion concerning the events of 11 December 2017. Even in the absence of the application of the rule in Jones v Dunkel – I would have reached the same conclusion – namely that the evidence of the father and Ms H are to be preferred to the evidence of the mother.
The police filed an application against the father seeking a domestic violence order. The temporary notice seems to have been issued to the father on the day in question. The father denied the mother’s allegations of an assault upon her from the outset. I accept the father’s version of events of what occurred on 11 December 2017 at his property at D Street, Town E.
The father subsequently filed an application for a domestic violence order against the mother later in December 2017.
The matter eventually went to Court, but the parties agreed to cross orders against each other – without admissions. The orders are in place for 10 years. This appears to have been specifically at the request of the mother.
Further, the mother and Mr J withdrew their complaint against the father in respect of any criminal proceeding. In this regard, I specifically note page 9 of exhibit 1 where the police records note:-
“On the 29/6/2018 all parties were involved in contested DV application hearing related to this matter. Following the finalisation in court, in which identical cross orders were agreed on, both MR J and MR MUNSEN discussed with the RO the assault matter. Both MR J and MR MUNSEN no longer wished to proceed with their complaint due to not wanting to go through another court hearing and also out of good faith towards the suspect, who is the father of MUNSEN children. Both have signed withdrawals as per previous sup entries. Matter is now finalised.”
I have also noted in particular the content of the father’s allegations of domestic violence made against the mother. The typed notes are contained in the police records between pages 14 and 18 of exhibit 1.
The mother should never have attended at the D Street, Town E property when she did (at about 2:00p.m.) on 11 December 2017.
It would have been better if the father had remained calmer on the day in question. The whole incident was unfortunate, to say the least.
I do not accept the mother’s evidence in relation to what occurred.
The conclusion I have reached in relation to the allegations of family violence made in this case is that both parents, on occasions, have been verbally abusive to each other. Further, both parents, on occasions, have physically assaulted the other parent. In that regard my findings are limited to the occasion when the father pushed the mother into a window (in 2005) and on the occasion when the mother scratched the father at the school (in August 2016). I also accept the father's evidence that the mother physically assaulted the paternal grandmother in or about August 2016.
It should also be noted that my specific findings accepting the father’s version ahead of the mother’s in relation to the events of 11 December 2017 takes into account section 140 of the Evidence Act 1995 (Cth). That section states:-
“(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.”
The mother alleged that a serious and violent assault by the father upon her took place in the driveway of the father's property on 11 December 2017. The gravity of the matters alleged by the mother against the father were extremely serious. The mother’s version of what occurred has been rejected by the Court for the reasons stated. Further, for the reasons stated the Court has specifically accepted the father's version. The Court also notes the decision and Qantas Airways Ltd v Gama (2008) 167 FCR 537 and Briginshaw v Briginshaw (1938) 60 CLR 336 in relation to the application by the Court of section 140 of the Evidence Act.
In the light of those findings the weight that I am prepared to give to the mother’s evidence contained in paragraph 2(c) of her February 2020 affidavit is reduced. I have no doubt that both of these parents were rude to each other on occasions; I have no doubt that both of these parents swore at each other on occasions and I have no doubt that their relationship was volatile. This is apparent from the mother’s own evidence that, during the course of the relationship there were no fewer than three periods of long separation – prior to the final separation. This was a volatile relationship – but I do not accept the mother’s version that the volatility in the relationship was all caused by the father. Both parents, to some extent, were at fault.
The parent’s respective versions of their own relationship were provided to Ms F at the first family report interview. I note the following paragraphs from Ms F first family report:-
“10. Both parties report a largely dysfunctional relationship that involved significant time living a part during their relationship due to their respective work commitments that involved travel away, Mr Halbrook's studying of health care in Country V and Mr Halbrook relocating on several occasions to Australia, in addition to Ms Munsen spending time with her family in Country T. The parties have also lived together in various countries, including Country L, Country T, Country V and Australia.
11. Both parties reported an on and off again relationship. Mr Halbrook's account is that their relationship was never positive and that he had tried to end the relationship on occasions, however described Ms Munsen as "insistent" on being together, stating that when she fell pregnant with X in an unplanned manner, he felt compelled to try to make the relationship work for the children. However he described that they often fought and that he knew that separating was the best outcome to shelter the children from conflict and difficulties.
12. Ms Munsen's account is that her relationship with Mr Halbrook was impacted on by his mental health, his diagnosis of Attention Deficit Hyperactivity Disorder (herein referred to as ADHD) and a cycle of alcohol and drug misuse by him, suggesting that he found it difficult to be there and commit to her and the children as a family and was focused on his studies and himself. Mr Halbrook denies these allegations, instead suggesting that Ms Munsen was emotionally volatile and overbearing in her relationship with him, having unrealistic expectations of him given his study and work commitments.”
The conflict and the dysfunction reported by the parties to Ms F pretty much accords with the conclusions I have reached above in relation to the relationship between the mother and the father in this case.
An interim order had been made by the Court on 26 March 2018 for the children to live in a week about arrangement between the parents.
The mother alleged that the father consumed alcohol to excess and abused illicit drugs. I do not accept that evidence. I accept the father’s version as conveyed to the family report writer and recorded at paragraph 47 of her first report:-
“47. Mr Halbrook told me that he did drink alcohol and use Marijuana on occasions during the parties' relationship, stating that at times he "partied" with Ms Munsen, particularly given their jobs. However he denies that this usage was alcohol or drug abuse or that it was over and above a normal person's alcohol consumption. He reported that he currently might have one to two beers during an evening and never drinks to get drunk, suggesting that this is not a concern or risk factor for him or his parenting.”
I also note that the father had apparently been diagnosed with ADHD as a child. His own mother had refused to medicate him. But as an adult the father sought some psychiatric support and was prescribed Ritalin in 2005. The father undergoes yearly reviews in respect of this medication and it supports him to "focus and study". The father has a Diploma as a scientist and receives his income from that field. The father also has qualifications as a health care professional – in particular, a Masters in that field. He was registered to practice and did indeed practice as a health care professional in the Country L. On moving back to Australia he tried to register as a health care professional but was unable to gain the registration. Subsequently, he has suffered an injury to his hand and this will prevent him from practising as a health care professional.
The father is now studying further qualifications through the M University. In particular he is studying to obtain a degree known as a further qualification. The father did not report any mental health issues and there is no evidence that he in fact ever suffered mental health issues apart from being under stress in 2008 due to his academic career and being disappointed and upset at the state of his relationship with the mother.
The mother reported some depression in the past, and post-traumatic stress disorder in 2001. The family report notes:-
“56. Ms Munsen reported that she suffered from some Depression and Post-traumatic Stress Disorder in 2001 when she lived in Country N and had been in a relationship with a man for a year that had just "disappeared'' and had reportedly had a number of relationships she had not known about. She reported being prescribed anti-depressants at the time.”
The mother and her partner reported that Y had threatened self-harm at some stage. There was very little evidence about this during the course of the proceedings and does not appear to be an ongoing issue in relation to this family.
In relation to the question of communication I note the following evidence from Ms F in her first family report. Ms F noted at paragraph 80:-
“80. It is evident that the parties have throughout their relationship and post-separation presented with ongoing communication difficulties, Both parties described a relationship that saw several separations and that they both described as largely dysfunctional, suggesting that each of their own personality vulnerabilities were the reason for the difficulties, Given this longstanding history and the current lack of communication between the parties, I find it difficult to envisage a time into the future where the parties are able to communicate without having issues or conflict arise between them, It is likely the current parenting and financial dispute is having an impact on the parties' capacity to communicate currently, however their communication difficulties have been present for a significant amount of time.”
The communication issues were therefore well-known to the family report writer at the time of the first family report.
I also note the following paragraph from the first family report:-
“84. Currently, the parties have no contact and such an absence of any form of communication, in my view, is problematic given some of the presenting behaviours described by professionals, Y's school and Ms Munsen, particularly in ensuring his needs are well met in a consistent and structured manner between homes. Furthermore, the parties have been unable to communicate to take steps in addressing the current situation whereby Y is only given Ritalin in his father's care and not given it in his mother's care and this causes me concern about their ability to put their conflict aside in the children's better interests.
85. Mr Halbrook is considerably more positive than Ms Munsen as to their prospects of being able to communicate into the future, suggesting that once Court proceedings have concluded, he hopes they will be able to reach a place where they can communicate more effectively and rebuild a co-parenting relationship.
86. Ms Munsen presented as much less optimistic about her ability to communicate with Mr Halbrook into the future, suggesting that it is unlikely they will be able to co-parent in a manner that supports an equal, shared care arrangement given their history. She expressed hesitance in effecting communication with him in any direct manner, for fear of what conflict it might cause, particularly given the incident that occurred on 11 December 2017.”
I agree with the assessment from of the family report writer (note paragraph 80 of the family report) that "the current parenting and financial dispute is having an impact on the parties capacity to communicate…"
I note that the father is considerably more positive and optimistic concerning the prospects of the parents being able to communicate into the future.
The incident referred to in paragraph 86 of the first family report that occurred on 11 December 2017 has already be considered at length by the Court and is noted earlier in these Reasons for Judgment.
Reference is made in paragraph 84 the first family report to the father providing Ritalin to Y when Y is in his care – but that the child was not being given Ritalin by the mother. This information must have come from the mother. It is not correct. I accept the father’s evidence in relation to the Ritalin issue concerning Y. In that respect, the parents were concerned at some of Y's behaviour. The mother organised for the child to see Dr O a paediatrician. The mother saw Dr O and then when the father returned from working offshore – he saw Dr O. Dr O told the father to give the child Ritalin and gave a script to the father for the Ritalin. The father had the prescription filled and gave the child one dose. He told the mother. The mother said she was not happy with the child being given Ritalin. So the father did not give the child any more Ritalin. I note the father's trial affidavit in relation to the question of Y and the consultation with Dr O. I accept the following evidence from the father:-
86. On or around 2017, Ms Munsen arranged for Y to attend a consultation with Dr O in relation to his ADHD.
87. On or around 2017 or early 2018, Ms Munsen arranged for myself and Y to attended another appointment with Dr O's. Ms Munsen had previously attended and received the diagnosis from Dr O who prescribed Y with Ritalin to take.
88. As Ms Munsen was aware of this diagnosis and treatment plan, I was of the assumption that she was agreeable to the medication. I received a prescription for Ritalin and followed the directions of Dr O.
89. Y only took the medication once following the consultation with Dr O. It was provided half a tablet (2.5mg) on a single occasion, and I informed of when he was taking it. She never raised any concerns to me about this.
90. I provided Ms Munsen with the medication for when he returned home. Ms Munsen advised me that she did not want Y taking Ritalin, so I immediately stopped.”
I also accept the father's evidence that he understood that the mother had been given the same information by Dr O.
It must be said that there are some items of evidence in relation to communication which are of very great concern to the Court. The first is an email from the father to the mother sent on Thursday, 24 December 2015. Having regard to the findings made by the Court this email was sent at a time when the parents were still living under one roof, although they were separated. It does not excuse the language used by the father. The email is contained at annexure 2 to the mother's affidavit of February 2020:-
“Why would you pay 620- for a water bill that is not even due !?
250 $ was due . In case you haven't already noticed the the amount you have already spent plus 400- at this lime of year.
Keep smashing the money 1 don't give a fuck anymore.”
The language used by the father is abusive and not appropriate.
The father had also used abusive language in an email dated 4 December 2015. It also forms part of annexure 2. In that email the father stated:-
“Ms Munsen go down to the electric box and tum off the breaker to the hot water! The unit has been disconnected and the wire are bare and you will kill someone.
I fucking told you this this morning. I have no idea what goes through your fucking head.
I don't give a fuck what you are doing but go down and open the switch and never touch it again.
Unbelievable”.
Again, the language used is abusive. It does confirm the mother’s evidence that the father used abusive language towards her during the course of the relationship and, indeed, after the relationship.
I also note the next page in the annexure 2 which is a text message or text messages from the father to the mother where he states:-
“I thought we were working on being firends
Its ok if you don’t want to. I don’t want to put up with your lies and bullshit and you steeling money from our house any more. thanks for getting pregnant to trap me. Glad things turned out so well…
Try closing your legs for the next looser.”
It is not actually clear from the affidavit when the text messages were sent by the father. It is not clear from the affidavit what the messages relate to.
The father did, during oral testimony, appear to confirm that the messages had been sent by him in 2016.
The father maintains that the communications which comprise 2 (pages 14, 15 and 16 of 88 in the annexures to the mother's affidavit filed February 2020) were "one-offs". He said that style of communication is highly inappropriate. The father accepted that when he was being cross-examined by Mr Ashcroft on behalf of the mother.
There is also a highly inappropriate email sent by the father to the mother’s then solicitor, Mr P. The email is dated 22 August 2016 and it is contained in annexure 8 to the mother's affidavit of February 2020. In it, the father states:-
“Mr P
as your clinet knows im currently studying for a professional exam and im in no position to negotiate nor discus such matters.
in regards to the kids the current arrangement “is what it is” until after this exam .
scheduled mediation is supposed to be free i cant afford to waste money on something that will reach no mutual results.
in regards to the united nations sanctions you sent me, feel free to bash it up your own asshole or if you prefer pop around here and ill do it for you.
Kindest regards,
Mr Halbrook”
The father says that he was studying at the time for his health care registration examinations and he was being harassed by the lawyer who was contacting him directly – even though the father had a lawyer. This is no excuse. It was completely inappropriate for the father to include the last paragraph in the above-mentioned email. The email was abusive and unnecessary. It is no excuse that the father was under pressure in relation to his examinations. Every parent is, at some point in time, under pressure.
Thankfully, there is in evidence quite a number of examples of reasonable, polite and civil communication between the father and the mother.
The father was not willing to consent to the boys travelling to Country T to see the maternal grandfather with the mother. The father's view was that the mother was a flight risk and, essentially, in the absence of a final parenting order he was not willing to consent to the children travelling with the mother. He is now agreeable to such travel by the boys being permitted as part of a final order. The communication between the parents in relation to this issue was reasonable, polite and civil. I note the following exchange. The relevant emails are as follows:-
a)There is an email dated 13 July 2018 from the mother to the father which states:
“Hope you had time to think about how the boys feel.
I will ask you the last time can they come back with me to see our family ?
See 29 paragraph below is the court order.
It clearly says I can take the boys to Country T with out any medical reports or documents , you are well aware that grandpa is sick and this have been the case for years . You as a father just have to make a written confirmation. Yes or no?
I need to go and will be gone for about 2 weeks,.
Ms Munsen”
b)There was a further email from the mother to the father dated 16 July 2018 sent at 12:39p.m. In that email the mother stated:
“I be back to pick boys up on the 6 th August from school.
When I call the boys it could be from different mobile numbers, but I will call on the set days and time each week
Tuesday and Thursday between 6 -7 pm.
Boys have all the numbers I sent them to the boys mobile so they can call me any time .
Ms Munsen”
c)Further, on 16 July 2018 at 17:19 the father responded as follows:-
“Call them as much as you can.
Please use what’s app as it gives video.
Its important.
Again please maintain contact with the kids thru what’s app. You have their numbers and you can contact them whenever you want. I’ll actively have them send video messages etc so please provide numbers that I can add to their account.
If you call my phone, (again) use what’s app I don’t take calls from unidentified numbers so advise what numbers you’ll contact my phone on or, the call wont be received.”
Both parents in fact have quite a direct manner of communication. The emails above are businesslike. I have no problem with businesslike emails between separated parents.
I note further reasonable, civil and polite communication between the parents including the annexures to the father’s trial affidavit.
On Monday, January 7, 2019 at 5:48p.m the father wrote the following email to the mother:-
“Hi Ms Munsen
Just want to organise the handover time and date for the 28th January. And to sort out the return to school stationery In order to split the costs.
The boys return to school on 29th and a, 5pm pick up on a school night Is Just to late.
Suggestions are
1: I was thinking grandma would like to take the boys to their first day of the year, and see our handsome proud boys goto school. I would pick up the boys on the Tuesday at the regular time.
2. If option 1 Isn't suitable, can we hand over much earlier on the 28th to get the boys settled and ready for the new year at school? I would prefer 12 o'clock on the Monday pick up McDonalds.
3. Let me know what works for you, the boys want to show grandma their school they are so proud and excited she's here,
Thanks
Mr Halbrook”
The mother responded at 6:57a.m on Tuesday, 8 January 2019:-
“For the hand over on the 28th of January, I suggest we stick to our regular plan 5 pm at mc-d.
This makes it easier for the boys so they know what to expect every hand over.
Uniform we have a set each Including ,lunch box,school bag,water bottle.
I suggest we pay for school books every second year .I payed all school books for X and Y last year 2018.
I tried to spilt It with you last year but you never collected or pay for your part so I payed all of it.This year I suggest you pay and next year I pay.
For school activities we pay 1/2 each to the school ,this means we don't have to work out who payed what.( If any forms are sent home with the kids the parent who care for them that week fill In the form and update the other parent how much need to be payed to school 1/2 of the cost.)
For example: we both payed for swim carnival last term for X, Y appointment with child development is on tha 22nd january,10.30am.lts my week so I will be there but suggest you speak to the pediatrician .”
There is further evidence of civil and polite communication between these parents contained in annexures 05 and 06 of the father's trial affidavit. These examples of communication cover the months of March 2019 and April 2019.
On 28 March 2019 the father wrote to the mother at 11:04p.m – the email is contained at page 48 of the annexures to the father's trial affidavit. I should point out that the paginated version of the annexures to the father’s trial affidavit was prepared after the Court directed that the father’s lawyer attend to this task. The paginated version of the annexures to the father's trial affidavit is contained at exhibit 8. That email states:-
“Hi there
X came home early from school today.
He was complaining of pain In his stomach and abdomen area.
He has no fever and responds well to TV and panadol. I'll take him to the doctor in the morning if he is still poorly.
However he does not have much appetite.
Thanks
Mr Halbrook”
It is apparent that during April 2019 the child X had a health issue that required attendance at a doctor in the hospital. The mother was concerned that X had not been returned. But the father indicated that the child was unwell and should not be moving unnecessarily around the place. The mother sent the following email on Monday April, 1 2019 at 5:24p.m. This is contained page 56 of the father’s annexures and reads as follows:-
“so its 5.23 pm we have now been to mc Donald 2 times today 3pm and 5 pm you have not returned X.
we were waiting for you both times and you did not show up.”
The father responded just over one hour later at 6:31p.m on Monday, April 1, 2019 as follows:-
“Hi
I made it clear many times in previous correspondence that X needs bed rest. And not up and about doing errands and out late. This is direct instruction from various MDs that we've seen.
To repeat the gravity of the condition Hes at risk of a toxic abdomen and things can go sideways very very quickly for him.
The specialist at Region Z Hospital said he can go back to school Wednesday.
As such I will. Drop him off on Wednesday morning to school If he continues to improve. I'll. Take, Him to the GP tomorrow to seek their opinion.
Feel free to call my phone to talk to X any time while he Is sick. This goes for either child. They need us both.
There will be no Issue raised.
School stuff, I will. Take Y bag and everything he needs in the morning to his class.
Thanks for your patience and understanding.
Mr Halbrook”
On Tuesday, April 2 at 10:48a.m the mother wrote:-
“You don't have to make anything clear to me ,I will make it very clear to you that we have not aggreged on anything and we can't communicate with each other as we miss communicate and miss understand each other all the time. I will contact your lawyer from now on and lncase of emergency for the children let a doctor /school or police contact me.
you have breached the order from the 26/03/2018 amended 13/06/2018 .( paragraph 5)
It's was my week(ll/03/2019) when X got ill and I'm well aware he need to rest and I would never put him in danger or stress .He will be ill and need to rest for 6-8 weeks.
You have not returned X to me, I was waiting for you in the handover spot ordered by court : mc donalds S Street, Suburb B on Monday 1/04/2019 at 3 pm on your demand of time and at 5 pm the same afternoon which is the time for non school days and holidays .
I will call X today between 6-7 pm if you still decide to keep him in your care. I do not agree to this at all.”
On April 2 at 11:42a.m the father replied:-
“I have no problem handing over the boy, but handover needs to be done ear1y In the day while he's fresh and feeling up to It.
Hes doing so much better today.
He slept from 8pm last night until 9am todayl And was sleeping through out the day when we got back.
There will be no 5pm handover while any of the kids are unwell. Consider their wellbeing.
Thanks for your patience and understanding
Mr Halbrook”
The parents did not mutually agree that X would remain with the father while he was unwell, but the communication was civil and polite.
In the mother's email sent Tuesday, April 2, 2019 at 10:48a.m she includes the words – "…I will make it very clear to you that we have not agreed on anything and we can't communicate with each other as we miss communicate and miss understand each other all the time…".
The emails that I have included from 1 April and 2 April 2019 show that the parents can in fact communicate. It may well be true that they had not mutually agreed that X would remain with the father while he was unwell. That does not mean that the parents were not able to communicate in a civil manner. As to the reasonableness of the parents’ positions on that particular issue – it is hard to say. If there was medical evidence to confirm what the father indicated in the correspondence then his position was perfectly reasonable. It is not necessary for me to make a finding as to the reasonableness of the father's conduct on that occasion. I merely note that the parents were indeed able to communicate in a civil manner.
Annexure 09 to the father's trial affidavit also contains evidence of reasonable, polite and civil communication between the parents via text message or email in December 2018 and January 2019.
There are further examples of reasonable, polite and civil communication between the parents contained in exhibits 3 and 7. Exhibit 3 is an email from the father to the mother, dated 14 February 2020.
Exhibit 7 contains email communication between the parents during the month of October 2020. On Friday, 23 October 2020 the mother wrote to the father:-
“FYI
I was called by Ms AA from school to talk with a very upset Y this morning at about 9 am.
He was upset and wanted to talking see me .
At 1.30 pm I went to school to give him a cuddle and reassuring things will work out ok.”
The father responded on 24 October 2020 at 15:28 as follows:-
“Ok, thanks for letting me know.
hi mum it's Y love you so much and I miss you ♥️♥️♥️♥️♥️♥️♥️♥️♥️♥️♥️ I'll see you on Monday.
love from Y”
Again this is polite, civil and reasonable communication between the parents. The mother seemed, in the witness box, to doubt that there had been a message directly from Y to her on 24 October 2020. The mother did not believe that the child would use the words "Y. It may be that the father wrote the final line. That does not make any difference for present purposes. The communication is civil.
The mother's insistence that "we can't communicate with each other” – as stated in her email of April 2, 2019 appears to be more a determination by the mother – to the effect that she does not want to communicate or does not want to admit that the parties can communicate. I note at the first family report interview that the father was more positive and optimistic than the mother as to the prospects of the parents being able to communicate into the future. As I noted earlier in these reasons, the view expressed by the family report writer is the view of the Court to the effect that – "It is likely that the current parenting and financial dispute is having an impact on the parties capacity to communicate." (Note paragraph 80 of the first family report).
Much of the mother's argument in relation to the communication issue is based upon her contention that the incident of 11 December 2017 (in particular) meant that the parents would not be able to communicate appropriately. In view of the findings made by this Court concerning the events of that day much of the mother's argument concerning communication does not stand scrutiny. Furthermore, the evidence to which I have referred – including email communications and text messages – during 2018, 2019 and 2020 indicates that the parents are able to communicate and they are able to do so in a reasonable, polite and civil manner. Their communication style is businesslike. That is appropriate.
Also, I particularly note that there is no evidence provided by the mother of any inappropriate messaging or communication by the father after the email of the father sent to the mother's solicitor in August 2016. That is four and a half years ago. I also note the father acknowledged in evidence the inappropriateness of that correspondence and the inappropriateness of his other abusive messages contained in the evidence. I accept that the father has shown insight in relation to the inappropriateness of sending abusive messages.
The evidence discloses that these parents can and do in fact communicate appropriately.
Section 60CC(3)(a); Section 60CC(3)(m) and the evidence of the family report writer
I note from the first family report the following paragraphs:-
“120. Both children made comments to me that suggested they feel a primary attachment with their mother, with both X and Y expressing feelings that they find it easier to manage their parenting arrangements when they know they will see their mother, and for Y, he particularly felt a need to remain primarily in his mother's care. I do not consider that this suggests the children may have a negative experience with their father, although this is alleged by Ms Munsen, but rather Ms Munsen has been the children's primary carer from birth and they have consistently lived with and been cared for by her, with Ms Munsen presenting with behaviours that appeared emotionally in tune with the children. Given these factors, it is unsurprising the children have shared such views.
121. It is also evident that the children spoke in what a considered to be a very positive and spontaneous manner about enjoying time with their father and spoke a range of positive activities and factors within their home with the father. I observed the children to engage with their father in a very positive way, seeking affection and comfort from him and observed Mr Halbrook to respond well to the children. It was strikingly evident to me that both children benefit from and enjoy the time they have with both of their parents.”
I accept this evidence from the family report writer.
There did not appear to be any updated evidence of the children's views of the more recent family report except that the writer does note in paragraph 90 of the second family report that "the children clearly love both of their parents and want to spend quality time with their father…"
It is helpful at this stage to consider certain aspects of the family reports and the recommendations of the family report writer – both in her written reports and her oral evidence. I note, of course, that her recommendations changed between the first family report and the second report. The first family report was significantly more comprehensive. The family report writer came to the conclusion that the children should live primarily with the mother and spend five nights per fortnight with the father from after school on a Wednesday until before school Monday. She also recommended that during the week the children were in their father's care they might benefit from having an afternoon one day during that week to meet with their mother (although paragraph 138(a) incorrectly uses the word father at that point).
At the time of reaching that conclusion the family report writer had all of the various versions and information from the parents and their then partners concerning the issues in dispute and the allegations of family violence and the allegations of poor communication, et cetera.
It became apparent during the course of the father's evidence in the witness box that he, in fact, is prepared to accept or finalise the matter on the basis that the children will live primarily with the mother and spend five nights per fortnight with him. Even though that was not his "pleaded" case – it was clear enough from the evidence that he gave.
The mother seeks orders in line with the recommendation of the second family report which was to the effect that the children would live with the mother and spend only three nights per fortnight with the father from after school Friday to before school Monday.
In the evaluation provided by Ms F in her second family report much was made of the difficulties in communicating. However, the written evidence from recent years suggests that the parents can and do in fact communicate appropriately. In paragraphs 80 and 81 I note the following:-
“I did not identify any current risk factors that would preclude Mr Halbrook from caring for the children at this time…".
The report writer goes on to say "…However, I am concerned that if Ms Munsen’s account is accurate…”
It will be apparent from these Reasons for Judgment that the Court has concluded that Ms Munsen’s account is not always accurate. Indeed Ms Munsen’s account in relation to 11 December 2017 is decidedly inaccurate.
What does come across when one carefully reads the correspondence between the parents is that the mother’s form of communication is (except for those three items of abusive messages sent by the father) as abrupt as the father's manner of communication. This is what I mean when I have referred to their communications as being “businesslike”. I have no problem with businesslike communications between parents. That is in fact what they are doing. They are in the "the business" of raising these two children.
The extent of the abusive messages from the father to the mother have been referred to at some length in these Reasons for Judgment.
The father left Queensland to work offshore in July 2019. He gave evidence to the effect that he needed to, because he needed the money. During that time the children were cared for solely by the mother. Although it is apparent the father communicated often with the boys. This communication occurred via Xbox.
The mother gave unconvincing evidence in relation to the Xbox issue. The mother got her solicitor to write to the father complaining that he was trying to contact the boys too often by Xbox. Frankly, I formed the view this was an unreasonable approach for the mother to take given that the father was offshore in order to earn an income.
The alternative for the father seems to have been to stay on shore and perhaps access welfare and be around for a week about arrangement with the boys.
In any event, with the onset of the pandemic in approximately March 2020 the father returned to Queensland and the week about arrangement recommenced and has been in place since. The family report writer referred to the father's unavailability from July 2019 as a reason to reduce his time to 3 nights per fortnight but I am satisfied that in fact the father will now reside on shore on a consistent basis as he has indicated to the Court and he will be available to care for the children on a regular basis.
Both parents and the children's school indicate that both boys X and Y – are doing well and have made significant progress. It is important to note that the family report writer has stated in paragraph 85 of her second report inter alia:-
“85. It is positive to hear from both parties and the children's schools and Dr Q that both Y and X are doing well and have made significant progress in their emotional and behavioural presentation . I hold the view that the children having some stability in their home environment and not needing to constantly change between their parents home over these last eight months may have served to support them being more settled and happier, along with Y engaging in support and assessment to meet his needs more robustly.”
The family report writer was also particularly influenced – at the time of preparing her second report by the evidence of Dr Q (note paragraph 87 of the second report). She is a developmental paediatrician and she had seen the child Y. She came to the view that Y was not suffering from ADHD. In this regard I note paragraph 6 of the report of Dr Q which is annexed to her affidavit for 13 February 2020. I note paragraph 6(vi) of Dr Q’s report where she stated:-
“6(vi). Y had been given a diagnosis of ADHD by private Paediatrician, Dr O in mid 2017. I believe however t hat this had been based mostly on information provided by his parents, not teachers, and observing Y in the clinic room. I corresponded with school staff shortly after this, and they reported that they had not provided Dr O any direct information about Y's attention, activity levels or impulse control at school, and Y's teachers had no concerns about these symptoms (as was soon verified in the Conner questionnaires completed by the teacher in 2017 and subsequently).”
I also note paragraph 5(ii) of Dr Q's report where she makes the reasonable point that it is not her responsibility to determine the facts in relation to the allegations of family violence. I also specifically note the following from Dr Q in paragraphs 5(v) and (vi):-
“5(v). Ms Munsen is uncertain when Mr Halbrook will be back on the Region C to see Y and X. This uncertainty, and inconsistency in Mr Halbrook's work schedules has been reported to be a regular occurrence, at least over' the past three years since I've known Y. Other than in 2018 when Mr Halbrook and Ms Munsen shared Y's care 50:S0, Mr Halbrook has often gone away for work for up to 3 months at a time. Ms Munsen reports that this inconsistency in caregiver arrangements significantly exacerbates Y's anxiety (since he needs lots of warning for change), and can exacerbate his anger and aggression also.
(vi) It is most likely that a combination of the above biological and environmental factors have contributed to Y's current developmental and behavioural profile.”
It is apparent from Dr Q's evidence that what Y needs is consistency. The father's absence during the second half of 2019 was, it appears, detrimental to both Y and X. There is evidence to the effect that young X cried when his father went away.
I was impressed by the father's evidence in relation to his need to go offshore in the second half of 2019. The father is to be commended for doing his best to access an income in the best way he knew how. It was not easy for the father and he was clearly very distressed that he had to leave his two young boys for such a long period. I accept his evidence that he sat them down and had a discussion with them and that it was not easy but – he did have a talk with them and explained that he had to go away and why he had to go away. The boys were upset but I am satisfied that the father dealt with the situation in a child focused manner. Sometimes parents have to be separated from their children. This occurs when people perform fly in fly out work. It also occurs if one parent is a member of the military and is sent on deployment. It is merely a fact of life. This father earned his income as a scientist. He is currently studying and is hoping to, I apprehend, qualify as a professional and earn an income at a location where he can spend time with his children on a regular basis.
There is nothing in the evidence of Dr Q that would have led the Court to conclude that it was imperative for the children's time to be reduced to alternate weekends with the father. What is needed is consistency. What is also needed is an avoidance of being exposed to parental conflict. There is no evidence that the children have been exposed to parental conflict for many years. They clearly were present at the D Street, Town E address on 11 December 2017 but as to precisely what they witnessed – I accept the evidence of Ms H. She did her best to shield the children from the conflict between the parents on that day.
I am satisfied that the father will remain on shore and has given up his work. This will make a significant difference to the boys.
In part of paragraph 92 of the second family report – the family report writer says, "However if continued concerns arise that Mr Halbrook was not abiding by Court orders and was not engaging in decision-making with Ms Munsen in a respectful, timely and positive manner…".
By the time that the family report writer (Ms F) gave evidence in Court on the fourth day of the trial – Friday, 26 February 2021 – the parents had signed up to a communication app known as, "Talking Parents". Exhibit 13 provides a very worthwhile account of the communication between the parties from 29 October 2020 up until 18 February 2021 – just before the fourth day of the hearing. Exhibit 13 is a record of the written communications between the parents utilising the Talking Parents app. This additional and recent evidence confirmed the correctness of the view that I had already formed during the course of the first three days of the hearing. The view that I have formed is that the parents' communication was improving and the view that I have formed was that the parents were able to communicate in a civil and businesslike manner. Exhibit 13 confirms this is correct. It is replete with examples of civil and businesslike communication between the parents in relation to issues pertaining to the children. I agree with the evidence given by Ms F on 26 February 2021 that it would have been better (and it will be better in the future) if the parents were careful to make sure that they always responded to a question or request from the other parent. These parties have the capacity and the ability to communicate in a meaningful way utilising this parenting app.
On the morning of 26 February 2021 the Independent Children's Lawyer forwarded to Ms F a copy of exhibit 13. Time was allowed for Ms F to read exhibit 13 before the commencement of her evidence in Court that day. Ms F expressed an opinion in Court (or at least via telephone evidence) that exhibit 13 does indeed show an improvement in the communication between the parents. Furthermore, Ms F noted that the father was now on shore and had no intention of returning to work. Stability had returned to the father’s domestic arrangements. He remains (as he was earlier in 2020) in a relationship with Ms R.
In essence, the opinion of Ms F was that exhibit 13, combined with the stability evidence from the father's new living and working arrangements led her to return to her earlier opinion that the best interests of the children would be served by living primarily with their mother and spending five nights per fortnight with the father.
It was urged upon Ms F (by Mr Gordon, counsel on behalf of the father on 26 February 2021) that an equal time arrangement would be more suitable. Ms F was adamant. Ms F's conclusion was that exhibit 13 was evidence of an improving trajectory in respect of the ability of the parents to communicate. However, she did note that exhibit 13, of course, is parenting app and the parents communicate via exchange of written messages. This works well for this family. Ms F said that in order for her to be in a position to recommend equal time there would need to be evidence of an ability by these parents to communicate face-to-face with ease. Ms F is also of the view that there would need to be evidence of the ability of these parents to communicate in a civil manner by telephone – including at short notice. Ms F was clear that it was only if evidence of that kind were available that she would be prepared to recommend an equal time (seven – seven) arrangement in respect of Y and X. That evidence is not present in this case. There is still a certain awkwardness in the communication between the parents. It is definitely improving and it is civil and businesslike. They have come a long way. But there is not that easy flow of communication which Ms F considers would be essential in this family before she would be prepared to recommend an equal time arrangement. The view of Ms F is that by allowing the children to live primarily with their mother – this provides the children with the necessary "buffer" or "caution" in respect of any possible continued areas of difficulty in communication between the parents. For instance, Ms F noted that the parents would have to be in a position where they could telephone the other parent and clarify (in a civil and polite way) issues that may have arisen during periods of contact. So, for instance, when the children returned to the mother they have (on occasions) told the mother about certain matters that arose or events that occurred in the father's home. Ms F pointed out that the preferred approach would be for the mother to be able to ring the father and discuss in an appropriate way any issue of concern that may arise from the discussion the mother might have had with the children. Ms F noted that these parents are not at that stage. They are not advanced along the path of communication to such an extent that they can easily pick up a telephone have a conversation with the other parent. These parents are not in a situation where they can sit down over a cup of coffee at a coffee shop and discuss issues in relation to the children.
I accept the opinion of Ms F that a seven-seven arrangement is not appropriate.
Similarly, Mr Ashcroft (counsel on behalf of the mother) urged upon Ms F that a better arrangement for the children would be to live with the mother and spend only three nights per fortnight with the father. Mr Ashcroft referred to Ms F’s second family report. But Ms F had moved on from that second family report. For the reasons that I stated earlier – Ms F explained why it is that she has reverted to an opinion of a 9-5 arrangement rather than an 11-3 arrangement. The clear import of Ms F’s evidence was that reducing the children's time from seven nights per fortnight at the moment to three nights per fortnight would be to revoke their time with the father to such an extent that (I infer) it could cause them emotional or behavioural difficulties. This was especially her view in relation to Y. It was put to Ms F that perhaps there could be an improvement in the children's behaviour and they could adapt to 3 nights per fortnight with the father. Ms F conceded that it "could" be the case. But having listened to Ms F give her evidence and having considered the nature of the evidence – generally from Ms F (her oral evidence in particular) the view that I have formed is that her clear and definite position is that the best interests of the children will be served by a 9-5 arrangement – not an 11-3 arrangement.
I do note, of course, that the children have been living in a week about arrangement for some time. When the father returned from offshore in early 2020 the children returned to a week about arrangement. That has been the case now for one year. There is stability in that respect. However, I do note that Ms F is looking at the totality of the history between these parties. There remains a certain amount of mistrust – especially by the mother towards the father. I accept the opinion of Ms F that, in the particular circumstances of this family, a 7-7 arrangement is not appropriate because there does not actually exist that ability to participate in a free flow of communication – in particular, the ability to conduct face-to-face meetings and have impromptu and civil telephone calls to deal with issues that arise on the spot. The clear import of the evidence of Ms F is that a 7-7 arrangement for this family – into the future – is more likely to create unnecessary stress for the children – primarily due to the fact that the ability of the parents to communicate – is still a work in progress although there has indeed been progress.
I accept Ms F's opinion that it is difficult to predict whether a 7-7 arrangement might be suitable in one year or in two years. In any event, the Court is not willing to put in place such an order – (as alluded to by Mr Gordon of counsel during his cross examination of Ms F). The communication between the parents is on a good trajectory. It has improved. The communication is now civil and polite and businesslike. The parents are not able to agree on every topic – but, as pointed out by Ms F, this is the case in any family (intact or separated).
Furthermore, I do not think that an order that would automatically revert to an 11-3 arrangement if the father was absent again for some reason is in the best interests of the children. This was suggested (in cross examination) by Mr Ashcroft when questioning Ms F. This is not an order that the Court would be prepared to make. The Court has made a finding that the father will be remaining in a stable environment. He has given evidence (and I accept) that he has given up his life offshore and that when he completes his degree he intends practising (or at least utilising his degree) and making sure that he is available for the children.
Other factors in section 60CC(3)
It is apparent that when the parents were together they were unhappy. Various friends and family witnessed the unhappiness between these parents and the inappropriate communication between them on occasions. In particular the father seems to have been quite rude and childish on occasions. The father was probably also too concerned with the expenditure of money and the family budget. These issues often give rise to tensions within a household. It is very often that the Court notes evidence of this kind. But, I do not accept that the allegations by the mother concerning finances amounts to family violence. I note section 4AB(2)(g) and (h) of the Act. The Act provide examples of behaviour that may constitute family violence. Those subsections state:-
“(2) Examples of behaviour that may constitute family violence include (but are not limited to):
…
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
…”
I am not satisfied the father's conduct constituted family violence in the manner described in those subsections. Even the (unfortunately) abusive email that the father sent to the mother concerning payment of a hot water bill indicates that the mother did in fact have a financial autonomy because she was the one who paid the bill. Once again, does not excuse the abuse that the mother received from the father for the payment of the bill at that particular point in time. The father’s communication in that regard was unhelpful and unnecessary. But it did not deny the mother financial autonomy – she clearly had access to the relevant account.
If my views in relation to the financial matters raised by the mother is not correct – it will not make any difference to my conclusions concerning the best interests of these children. These parents remain locked in dispute concerning financial matters. That aspect of the dispute will be determined by the Court at a later stage.
I have had regard to all the other factors in section 60CC(3). I have already made findings concerning the nature of the relationship of the children with each of their parents (section 60CC(3)(b)(i)). Concerning the relationship of the children with other persons – I note they have a good relationship with Mr J – the mother's partner. They also apparently have a nice relationship with the father's new girlfriend Ms R. Furthermore, they have a very close and loving relationship with the paternal grandmother and other members of the paternal family. They also have a loving relationship with the maternal grandmother even though they do not get to see her often – and she lives in Country T.
Each parent has taken every opportunity to participate in decision-making and spending time with the children and communicating with the children (section 60CC(3)(c)). Elsewhere in these Reasons for Judgment I have made significant reference to these matters and I will also canvass the issue of parental responsibility later in these reasons. The Court has made findings concerning the father travelling offshore to work as necessary.
Both parents have fulfilled their obligations to maintain the children (section 60CC(3)(ca)).
Section 60CC(3)(d) is not particularly relevant because the Court did not propose making any orders that are significantly different to the current arrangements. The children's time with their father will be reduced from seven nights per fortnight to 5 nights per fortnight, but for the reasons stated it is in the best interests of the children.
There are no practical difficulties and expenses with the children spending time and communicating with the parents. The parents live in close proximity to each other and the children will remain at the B School (60CC(3)(e)).
I am satisfied that both parents have the necessary capacity to provide for the needs of the children, including their emotional and intellectual needs. The grandmothers of these children also have the capacity referred to (60CC(3)(f)).
As to section 60CC(3)(g) I have made particular mention of young Y. Both parents are acutely aware of the situation concerning Y. Both parents are sympathetic to his developmental status and both parents have taken and are taking appropriate steps in that regard.
Section 60CC(3)(h) is not relevant.
Both parents have accepted the responsibilities of parenthood as demonstrated by their actions (60CC(3)(i)).
In relation to family violence I have already made significant reference to and made findings in relation to allegations of family violence made by the parents in this case (section 60CC(3)(j) and (k)).
Section 61DA and Parental Responsibility
As noted earlier, the Court has reached a conclusion that the parents are able to communicate and have been able to communicate in relation to these children. There is no reason to deny the father parental responsibility. For instance, I note the issue concerning the Ritalin. Dr Q confirmed that Dr O diagnosed ADHD. As noted earlier – Dr O gave to the father a prescription for Ritalin and told the father how to administer the drug for Y. The father did this on one occasion and when he gave the mother the instructions on the box of tablets the mother told him that she did not want the boy taking Ritalin. As soon as the mother told the father he stopped giving the boy Ritalin. That in itself is a very clear example of the ability of these parents to communicate and it is evidence of the father’s ability to take note of the mother's view and to change his own view and accept the mother's opposition to the use of Ritalin. As things have turned out, Dr Q has now confirmed that Y does not meet the requirements of a diagnosis of ADHD and Y does not need Ritalin. But the very events surrounding what did occur again indicate to this Court that these parents have the ability to communicate and the father has the ability (in particular – because there has been much criticism of the father by the mother) to listen to the mother's point of view and, if appropriate, to accept it. That is what he did on that occasion. There is evidence of family violence, but I have made findings about those issues and an order for equal shared parental responsibly is appropriate because it is in the best interests of these children.
The Court's findings in relation to the events of 11 December 2017 also make it clear that the mother is prepared to embellish or distort her version of events if she thinks there is some gain in it. There is no other explanation for the mother's actions – an order for equal shared personal responsibility is essential. It is also recommended by the family report writer.
I note paragraph 92 of the second family report where it is stated:-
“92. Ms Munsen has proposed that she hold sole parental responsibility in respect to the children. I do not consider that currently both parties do not have the ability to make appropriate decisions for the children and consider that they should both hold sole parental responsibility for the children at this stage.
However if continued concerns arise that Mr Halbrook was not abiding by Court orders and was not engaging in decision-making with Ms Munsen in a respectful, timely and positive manner, this may need to be reviewed and the Court considering Ms Munsen holding sole parental responsibility for the children may be required. If a pattern of either party withholding the children against the Court orders occurred this would raise concerns for me and again, I believe review of the sharing of parental responsibility may need to be reviewed.”
It will be apparent that the Court has concluded that Mr Halbrook has indeed been abiding by Court orders and that both he and the mother have been communicating in a respectful and positive manner. Both have also (generally speaking) communicated in a timely manner.
Both counsel drew the attention of the family report writer to certain aspects relating to exhibit 13. Mr Gordon concentrated on the positive aspects of communication in respect of exhibit 13. Mr Ashcroft attempted to highlight some possible negative aspects in the communication between the parents, as evidenced by exhibit 13. I do not consider that there is anything particularly negative in the communication evidenced by exhibit 13. I agree with the opinion expressed by the family report writer that the ability of these parents to communicate is on a trajectory upwards and this is good news for the children.
The definite opinion of the family report writer is that the parents should share parental responsibility. Ms F does use a somewhat unusual phrase by talking about the parents "hold(ing) sole parental responsibility". However, Ms F did clarify in oral evidence that she was talking about equal shared parental responsibility. The Independent Children's Lawyer seeks an order for equal shared parental responsibility, as does the father. The mother seeks an order for sole parental responsibility.
Having regard to the findings I have made in relation to the incident of 11 December 2017 as well as my findings in relation to family violence referred to in these reasons – along with the conclusions of the Court concerning the improvement in communication between the parents – the conclusion I have reached that it is in the best interests of X and Y for the parents to have equal shared parental responsibility. I am confident that they will be able to reach sensible and child focused decisions in relation to the important issues relating to the children. Some reference was made during the evidence (when counsel for the mother was cross-examining Ms F) about, for instance, some examples of disagreements. One notable part of the evidence related to haircuts. I did not consider this to be an important or vital issue. The fact that two parents do not always agree on the particular timing of when young boys should have a haircut is of no great moment so far as this Court is concerned. I am sure that the boy’s hair will be cut at an appropriate stage and I have confidence that the parents will be able to work out when that haircut should take place.
The other point to note, of course, is that to deprive one parent of parental responsibility is a significant step. I note the decision of Murphy J in Carlson & Bowden [2008] FamCA 1064. At paragraph 175 His Honour stated:-
“175. The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for a child — particularly when, as here, the child is young — is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.”
In Vallans v Vallans [2019] FamCAFC 26 Kent J, when considering section 61DA, stated at paragraph 38 as follows:-
“38. Section 61DA(1) is expressed in imperative terms. It is properly considered within its statutory context in Pt VII including by reference to the objects and principles expressed in s 60B. The references to “best interests” incorporates the paramount consideration expressed in s 60CA and the means by which a Court determines best interests as provided for in s 60CC. As observed by Mason & Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; 35 ALR 151 (at CLR 320; ALR 169):
… The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole…
There cannot be any doubt that the legislative intent is that the statutory presumption is of central importance. The corollary of that is that there must be convincing proof as to the children’s best interests for s 61DA(4) to be activated to rebut the presumption.”
It will be apparent from these reasons for judgment that I am not satisfied that there is “convincing proof” of the kind alluded to by Kent J. For the reasons stated there will in this case be an order for equal shared parental responsibility. The presumption in section 61DA has not been rebutted.
Section 65DAA
I have already made extensive references to the issue of equal time – as put to Ms F by the father. I have had regard to all the necessary subsections in section 65DAA – including section 65DAA(5) – and I have made reference to those including the ability of the parents to communicate and behave in a civil manner and I've had regard to their respective residences and so on. All those matters have been taken into account.
I have had close regard to the provisions of section 65DAA. I accept the opinion of the family report writer that an order for equal time is not in the best interests of the children. It would be reasonably practicable because the parents live close together but there has been a history of some poor communication. Even though there has been that history I do note that the Court has concluded that the parties have the ability to, and have, in fact, in more recent years communicated in an appropriate manner.
The opinion of the family report writer is to the effect that the children’s situation (and in particular Y's situation) requires one household to be the primary household. The preponderance of the evidence of the report writer is to the effect that that household should be the household of the mother. In those circumstances, it is not in the best interests of Y for there to be an equal time order. There is no suggestion that the boys would be separated at any period of time. No one thinks that is a good idea. Hence it is not in the best interests of these boys to live in a week about shared care arrangement.
However, the proposed order (namely a 9-5 arrangement) will come within the definition of “substantial and significant time”. I note again the provisions of section 65DAA(5) and I have had regard to the various subsections contained therein. I have noted how close the parents live together and I have referred to evidence and made findings about their current and future capacity to implement such an arrangement and their current and future capacity to communicate and the impact of the arrangements upon the children. While it is the case that these particular aspects (of the evidence) are sufficient to convince the Court that a substantial and significant time order is appropriate – the evidence does not support an equal time order.
Like the family report writer, I am optimistic that upon the conclusion of the family law litigation between these parents the communication between them is more likely than not to improve. In fact my view in that regard is more optimistic than the family report writer because I have had the benefit of extensively reviewing evidence that confirms that these parents are able to communicate appropriately.
Conclusion
The significant issues in dispute therefore have been decided by the Court as follows, there will be an order for equal shared parental responsibility.
Further, there will be an order that the children live with the mother and spend five nights per fortnight with the father.
Other time orders proposed by the Independent Children’s Lawyer are appropriate and in the best interests of the children.
I have had regard to the written submissions sent to the Court by counsel for the Independent Children’s Lawyer and each counsel on behalf the parents. I do not consider it necessary to make any specific reference to those submissions. The relevant issues have been considered by the Court in these Reasons for Judgment. It will be apparent that the Court has been persuaded that the orders proposed by the Independent Children's Lawyer are in the best interests of the children. Orders in terms of the final orders proposed by the Independent Children’s Lawyer (annexed to the written submissions of Ms McArdle, counsel for the Independent Children’s Lawyer) will be made on a final basis. I have included an additional order in relation to overseas travel being restricted to Hague Convention countries. Both parents have sought such an order. The parents in fact provided quite elaborate orders in terms any number of issues (including overseas travel) and the view that I have formed is that the better approach is to make the orders sought by the Independent Children’s Lawyer. The orders proposed by the Independent Children’s Lawyer are sufficient and they are in the best interests of the children. Furthermore, they are straightforward orders. The view that I formed is that the orders proposed by the Independent Children’s Lawyer are preferable because they are less likely to lead to the institution of further proceedings. This is because the orders are less complex and less prescriptive (section 60CC(3)(l)).
If there were other orders that the parties had wanted to agree upon – they ought to have attended to that prior to this point in time. If the parties – even after the making of the final order in this case – wish the Court to make some additional order (not referred to in the final order) in respect of parenting arrangements – such order could still be made if both parties consent. That is a matter for the parties.
I certify that the preceding one hundred and eighty-eight (188) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 6 April 2021
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