HERBERT & HERBERT

[2015] FamCA 803

FAMILY COURT OF AUSTRALIA

HERBERT & HERBERT [2015] FamCA 803

FAMILY LAW – CHILDREN – where the children are separated from each other – where the parties children have significant behavioural problems – where there are allegations of family violence –where the mother has consistently failed to comply with court orders - where the mother seeks the children remain living primarily in separate houses – where the father seeks the children be reunited and live primarily with him – where orders are made that the children live primarily with the father.

Family Law Act 1975 (Cth) s 4(1), s 64B, s 61DA, s 65DAB, Division 6 of Part VII, s 65D, Objects of Part VII, s 60B, s 60CA, s 65AA of the Act

Cox & Pedrana (2013) 48 Fam LR 651,

APPLICANT: Mr Herbert

RESPONDENT: Ms Herbert

INDEPENDENT CHILDREN’S LAWYER: Lyrene Wiid Lawyer & Migration Agent

FILE NUMBER: BRC 3105 of 2009

DATE DELIVERED: 24 September 2015
Reasons published:  29 September 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 4,5,6,7 & 21 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pendergast

SOLICITORS FOR APPLICANT: Munro Legal

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lyons

THE INDEPENDENT CHILDREN’S LAWYER: Ms Wiid, Lyrene Wiid Lawyer & Migration Agent

Orders

IT IS ORDERED THAT

1. All previous Orders and Parenting Plans are discharged.

IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER THAT

1. The child B, born … 2000, live with the father.

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. The children C, born … 2002, and D, born … 2004, live with the father from noon on Friday, 25 September 2015.

2. In order to facilitate the children moving into the father’s care and unless otherwise agreed between the parents in writing:

   (a)the father shall collect the children from the front of the E Town State School grounds at noon on Friday, 25 September 2015; and

   (b)the mother shall ensure the children are available to be collected by the father from the front of the E Town State School grounds at noon on Friday, 25 September 2015; and

   (c)the mother shall ensure that the children are able to take their personal possessions and clothing and any educational items with them when they are collected by their father from the front of the E Town State School grounds at noon on Friday, 25 September 2015.

3. The father cause the Brisbane Registry of the Family Court of Australia to be notified in writing immediately upon the children coming into his care.

4. The father have sole parental responsibility for the major long term issues for the children including in respect of:

   (a)       the children’s education (both current and future); and

   (b)       the children’s religious and cultural upbringing; and

   (c)       the children’s health.

5. Before making a decision about any such issue, the father shall:

   (a)inform the mother in writing of the issue about which a decision needs to be made, the decision he would like to make in respect of such issue and the reasons for that proposed decision; and

   (b)allow the mother twenty-eight (28) days after the provision by him of the information referred to above to respond to the same in writing; and

   (c)consider the mother’s response, if any, when coming to his decision about any such issue; and

   (d)inform the mother of the final decision he has made with respect to that issue as soon as practicable thereafter.

6. Each party has responsibility for daily decisions about the day to day care, welfare and development of the children whilst they are in his or her care.

7. The children C and D spend time with the mother at all times as may be agreed by the parties in writing but, failing agreement as follows:

   (a)commencing on the last day of the last school Term in 2015: once per month on either Saturday or Sunday at the F Town Children’s Contact Centre or, if a Contact Centre is operational in G Town then at that Centre, for up to four (4) hours or such duration as the Centre is able to accommodate; and

   (b)commencing on the last day of the last school Term in 2015: the parent with whom the children are living or spending time shall ensure that the children telephone the other parent each Wednesday between 6.30 pm and 7.30 pm; and

   (c)commencing on the last day of the last school Term in 2015: the children are at liberty to communicate with the mother by telephone, email, Skype or any other means at such times they reasonably request and the father shall facilitate the children making such calls as they may reasonably request.

   (d)from 11 April 2016: from after school on Friday until no later than 4.00 pm on Sunday afternoon (extended to Monday at 4.00 pm if Monday is a public holiday or pupil free day) on the third weekend of each calendar month; and

   (e)commencing with the June/July 2016 School holidays: for half of each  school holiday period, being the first half in odd numbered years and the second half in even numbered years.

8. The parties shall be equally responsible for the fees associated with the children’s time with the mother at any Contact Centre.

9. For the purpose of Clause 9(d) of this Order:

   (a)the mother shall collect the children from school on Friday afternoon and return the children to the father at McDonald’s Restaurant in G Town at the conclusion of the time on Sunday afternoon (or Monday afternoon if Monday is a public holiday or pupil free day); and

   (b)       neither parent shall approach the other during changeover.

10. The operation of Clause 9(d) of this Order is suspended during each school holiday period.

11. The father shall use his best endeavours to encourage the child B to spend time with the mother when the other children are spending time with the mother pursuant to this Order, and shall facilitate B spending time with the mother then and at any other reasonable time she expresses a desire to do so.

12. The parties shall communicate directly with each other in relation to parenting issues or arrangements for the children’s time with the mother via email (or, in the case of urgency or emergency, via telephone or SMS) and neither parent shall communicate via the children regarding these issues or arrangements.

13. The father and the mother shall:

    (a)keep the other informed at all times of their residential address and landline and mobile contact telephone number and advise any change to the same within 24 hours of such change occurring; and

    (b)notify the other parent at least seven (7) days prior to relocating their residence beyond a 20 kilometre radius from where they currently reside; and

    (c)keep the other informed of the names and addresses of any treating medical or other health practitioners who treat the children; and

    (d)inform the other party as soon as reasonably practicable of any significant health issue, accident or illness suffered by a child;  and

    (e)advise the other of any medication prescribed for a child and ensure that any prescribed medication is given to that child in the prescribed manner and dosage; and

    (f)keep each other informed of any school or educational facility at which the children attend.

14. Neither parent denigrate the other or their family to, or in front of, or within the hearing of, the children and each shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within hearing of, the children and, failing their compliance with such a direction, shall remove the children from that environment immediately.

15. Neither parent discuss these proceedings or the allegations made therein with the children save for in the context of any counselling in which the children and/or parents engage.

16. During the time the children are with either parent, that parent shall:

    (a)respect the privacy of the other parent and not question the children about the personal life of the other parent;  and

    (b)       speak of the other parent respectfully;  and

    (c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent or their family in the hearing or presence of the children;  and

    (d)use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

17. Save in an emergency, the mother is hereby restrained from taking the children to any medical, other health practitioners, counsellor, psychologist or other mental health specialist without the written consent of the father.

18. The father is at liberty to take the children to such counsellor, psychologist or other mental health specialist as recommended until such time as, in the opinion of the counsellor, psychologist or other mental health specialist, the child or children cease to require their services.

19. For the purposes of Clause 20 of this Order, the father has liberty to provide  any counsellor, psychologist or other mental health specialist upon whom the children attend with a copy of:

    (a)       this Order and the Reasons for Judgment published in support of it; and

    (b)any or all of the affidavits and reports prepared in these proceedings by Ms H, Ms I and Mr J; and

    (c)       any Family Reports prepared for use in the proceedings.

20. Each parent shall ensure that the children attend all scheduled appointments with any counsellor, psychologist or other mental health specialist upon whom they attend and the parents shall attend appointments with the practitioner only if requested or invited to do so by the practitioner.

21. At any time when the children are in their care, neither parent shall:

    (a)consume alcohol in excess of the legal driving limit or allow the children to be in the presence of persons consuming alcohol in excess of the legal driving limit;  and/or

    (b)use illicit or illegal drugs or allow the children to be in the presence of persons using illicit or illegal drugs;  and/or

    (c)perpetrate acts of domestic violence upon the children or allow the children to be exposed to persons committing acts of domestic violence against others.

22. By this Order, any doctor, health care and other treatment provider upon whom the children attend is authorised to provide each parent with all such information as they are lawfully able to provide about the children.

23. By this Order, any school or educational facility at which the children attend is hereby authorised to provide each parent with such information as they are lawfully able to provide about the children.

24. Any cost associated with the provision of any information or documents by the children’s doctors, health care and other treatment providers or school or educational facility shall be borne by the parent requesting the information.

25. Subject to any conditions imposed by the children’s schools, each parent is at liberty to attend school functions to which parents are ordinarily invited, including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interview.

26. The father is at liberty to obtain passports for each of the children and, to the extent necessary, the mother shall sign and return any document required for this purpose within seven (7) days of receiving a request to do so.

27. In the event that the mother fails to comply with a request to sign and return any document necessary to obtain passports for the children, a Registrar of the Family Court of Australia is appointed, pursuant to s 106A of the Family Law Act 1975 (Cth), to sign such document or documents in the name of the mother and to do all acts and things necessary to enable a passport to be obtained for each of the children.

28. The father shall retain possession of any passport issued to any of the children.

29. The father is at liberty to remove any of the children from the Commonwealth of Australia or to permit any of them to leave the Commonwealth of Australia for the purpose of holiday travel only.

30. In the event that the father intends to remove any of the children from the Commonwealth of Australia or to permit any of them to leave the Commonwealth of Australia for holiday travel, then:

    (a)no later than twenty-eight (28) days prior to the scheduled departure, he shall provide the mother with details of the proposed trip, including a copy of an itinerary with details of the proposed dates of departure from the Commonwealth of Australia and return to the Commonwealth of Australia; and

    (b)no later than 14 days prior to the scheduled departure, he shall provide the mother with:

    (i)the details of the telephone number on which the child or children may be contacted during the travel outside the Commonwealth of Australia; and

    (ii)details of the address at which the child or children will be predominantly based during the travel; and

    (iii)a copy of the return air tickets for each of the children departing the Commonwealth of Australia.

31. The process used for resolving future disputes about the children or the terms or operation of these Orders shall be as follows:

    (a)the parents shall consult with an agreed Family Dispute Resolution Practitioner at a Family Relationship Centre to assist with resolving any dispute in relation to the children; and

    (b)they shall pay the costs of the Family Dispute Resolution Practitioner equally; and

    (c)in the event that, for any reason, they are unable to have an appointment with the agreed Family Dispute Resolution Practitioner or cannot agree on an alternate Family Dispute Resolution Practitioner, the father shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability; and

    (d)the mother shall choose one of the listed practitioners with seven (7) days of the receipt of the list; and

    (e)if the mother fails to choose one of the listed practitioners within the prescribed time, then the father may choose one of the listed practitioners.

32. Unless there are some emergency circumstances, before an application is made to a Court for a variation of this Order to take into account the changing needs of the children, each parent is to take the steps referred to in Clause (33) of this Order.

33. Pursuant to s 67Q of the Family Law Act 1975 (Cth), a Recovery Order shall issue addressed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police Force and to all Officers of the Police Forces of all the States and Territories of Australia.

34. Such persons are authorised and directed to find and recover the children, C, born … 2002 (a boy) and D born … 2004 (a girl) and for that purpose, with such assistance as they require to stop and search any vehicle vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that each child may be found.

35. The children C, born … 2002 (a boy) and D born … 2004 (a girl) are to be delivered to the care of their father, Mr Herbert at such address as agreed to between the person executing the Recovery Order and the father.

36. The Recovery Order will lie in the Registry until 4.00 pm on Friday, 25 September 2015 at which time it shall issue unless the father has informed the Registry that the mother has complied with the Clauses (3) and (4)(b) of this Order.

AND IT IS DIRECTED

1. Any Application for a recovery order filed by the father be listed urgently before the Honourable Justice Hogan if available and if her Honour is not available then the Application be listed before any other Judge of the Court and the father and/or his legal representatives have liberty to appear by telephone at the hearing of that Application.

AND IT IS FURTHER ORDERED THAT

1. All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.

2. The Independent Children’s Lawyer is discharged.

3. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these Orders.

IT IS NOTED THAT

A.Upon the father notifying the Brisbane Registry of the Court in writing that the children have been taken into his care (as he is required to do by Clause (5) of this Order), it is intended that an order be made in Chambers discharging the Recovery Order made in Clauses (35) – (38) of this Order.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3105 of 2009

Mr Herbert

Applicant

And

Ms Herbert

Respondent

REASONS FOR JUDGMENT

1. The parties were in a relationship between 1999 and late 2008. During this time, in about 2005, they separated for about four months. They have three children:

   a)B born in 2000;  and

   b)C born in 2002;  and

   c)D born in 2004.

2. The children have lived with each parent primarily at various times since the final separation. Given that, in April 2011, the parties reached agreement – which was reflected in the terms of a Consent Order – that all three children live primarily with their father in G Town and spend time with their mother on one weekend per month and during school holiday periods, resolution of their varying accounts of the varying occasions and reasons underpinning the care arrangements which preceded this date is unnecessary.

3. It is, however, I think necessary to record that, in the period from late 2008 until about early 2010, the children lived with their mother interstate and spent no time with their father.  In 2009 the father was contacted by the relevant Child Protection Authorities in New South Wales and informed of their concerns about the care then being provided to the children by their mother.

4. After the mother failed to comply with orders to return the children to the G Town area, the children were removed from her care by the Australian Federal Police and placed into the father’s care in about February 2010. All three children lived with him until early October 2013.

5. At present, B lives with her father and C and D live with their mother. The siblings started to live separately when, in early October 2013, the mother refused to return the younger children to their father’s care - despite the terms of the April 2011 Consent Order.

6. The parties – and, therefore, the children who live with each of them respectively – now live about four hours’ drive apart. This has obvious ramifications for any parenting order which may be made to enable the children to spend time with each parent and each other if they remain living primarily as is currently the case. That each parent recognises this is demonstrated by the frequency at which it is proposed the children spend time with the parent with whom they are not primarily living.

7. B has quite consistently said she does not wish to spend time with her mother at present. She wishes to continue to live with her father. The mother accepts this reality and does not seek specific parenting orders in relation to B, other than for family therapy for the purpose of repairing the current rift in their relationship. A repair of the fractured relationship between the mother and B seems unlikely to occur whilst the mother continues to express the view – as she did repeatedly during the trial – that B presents a risk to her younger siblings:  the risk being her asserted physical harm of them in the past.

1. All of the children have exhibited significant behavioural issues over a long period of time. All have been excluded from attendance at school on a large number of occasions. All children’s behavioural issues have, on occasion, manifested in unruly and often unmanageable behaviours at school. These behaviours have included physical aggression toward other students, the use of profane language directed to students and teachers, defiance, oppositional behaviour and significant non-compliance with the directions of school staff.

2. Whilst D appears to have settled somewhat this year and has not been the recipient of any suspensions from school, C (who is currently in year eight at K School) has been suspended for a significant number of days in Semester 1, 2015. He continues to manifest extremely defiant and non-responsive behaviour towards teaching and other school staff and aggression toward other students.

3. B was excluded from attendance at school in November 2014. I accept the father’s evidence to the effect that she is currently engaged in a vocational programme two days each week with the hope that her performance may persuade the relevant authorities to permit her to return to high school at the beginning of next year in order to complete her secondary education. Given that Ms H, a guidance officer who has had knowledge of and involvement with all of the children since 2010, recounts that B is cognitively capable (but suffers gaps in her education – which I conclude are highly likely to have followed her early tumultuous care arrangements, manifestations in the behaviours outlined above and consequent fairly regular exclusions from attendance at school) and has shown great capacity when she feels safe and comfortable in the school environment, it is sincerely hoped that B will take advantage of any opportunity to complete her formal secondary education. The evidence certainly persuades me that she will be supported by her father in this undertaking.

4. C has been assessed as having high functioning Autism Spectrum Disorder which may well have its own behavioural consequences. The mother clearly regards C’s diagnosis as the primary causal factor in his unacceptable behaviour toward school authorities – and, on repeated occasions, her. She also clearly regards D’s asserted gluten intolerance and her recorded allergy to things like dustmite as providing the explanation for D’s observed and documented behaviours. However, I accept Dr L’s evidence to the effect that the behavioural difficulties demonstrated by D have, in all probability, not been caused – in a major sense – by diet and/or allergy. I accept Dr L’s evidence to the effect that, for D, her trauma and emotional difficulties are more easily explained by her exposure to emotional trauma than by any food or gluten intolerance and/or allergy.

5. I accept the evidence given by Dr L[1] to the effect that much of both of the younger children’s behavioural difficulties are highly likely to have arisen as a result of the historical instability in their care arrangements and their exposure to the highly conflictual relationship between their parents rather than as a consequence of any medical condition with which they are afflicted.

   [1]          (an adult, child and adolescent psychiatrist).

6. I also accept that a major causal factor for the children’s demonstration of significant behavioural and emotional disturbance and difficulties is likely to have been the long-standing acrimony between their parents and the uncertainty in the children’s relationships with each other and each parent. I accept and consider as highly likely that the children have been significantly damaged as a consequence of this and that such damage is ongoing as a result of their continued exposure to acrimony and uncertainty in their care arrangements.

7. I accept Dr L’s evidence to the effect that the children are victims of parental dispute and exposure to the consequences of parental decisions to withhold from them, on occasion, the opportunity to spend time with the parent with whom they are not then living. I also accept as likely that they have been exposed to either overt and/or implicit denigration of each parent by the other whilst in that parent’s care.

8. I accept that the clear stressors in the children’s lives provide a highly likely explanation for their demonstrated emotional and behavioural issues; I consider it much more likely than not that these are more responsible in a causal sense for their behaviours than the mother’s view that illnesses from which they possibly suffer provide the explanation for their demonstrated behavioural deficiencies. I accept Dr L’s evidence to the effect that, in so far as C is concerned, the assessed autism aspect of his functioning is likely to have contributed less to his behavioural and emotional issues than his environment and exposure to the conflict between his parents.

9. I accept that all three children have been exposed to trauma via exposure to parental acrimony. I also accept that they are likely to have expressed their difficulties in coping with exposure to this significant parental disharmony via disturbed behaviours.

10. It is within this overarching context, then, that the parents’ respective parenting proposals fall to be considered.

The parenting proposals

1. The father seeks orders in the terms provided by his Counsel at the conclusion of the trial. That is, he seeks sole parental responsibility for the major long term issues relating to the children (with the obligation to consult the mother about the same), that the children live with him, that there is a moratorium over the children’s time with the mother for three months and that, thereafter, they spend supervised time with her once per month with the mother to pay the cost of the same. He also proposes that the children have an opportunity to spend time with their mother during holidays and to communicate with her by telephone, Skype and/or email at any reasonable time upon their request to do so and that the mother be permitted to communicate with them in the same manner at any time prior to 8:30 pm each day.

2. The father advances that he will encourage B to spend time with her mother when the other children are spending time with her. He says he will facilitate B spending time with the mother if she expresses a wish to do so.

3. The mother originally sought that:[2]

   [2]          Exhibit A.

   a)she have sole parental responsibility for C and D;

   b)the father have sole parental responsibility for B;

   c)C and D continue to live with her;

   d)B continue to live with the father;

   e)the father spend no time and have no communication with the children C and D;

   f)C and D spend time with B at Harmony House M Town once per month (on the third weekend of the month) for a period of four hours;

   g)B and the mother undertake family counselling with the parents to share the costs of such counselling equally;

   h)the father undergo regular psychological counselling and complete anger management courses;

   i)the father be restrained from contacting the Department of Communities, Child Safety and Disability Services, the Police or other services with allegations about the mother;

   j)the father be restrained from causing other people to contact the Department, Police or other agencies with allegations about the mother;

   k)the father be restrained from contacting  C and D’s schools;

   l)she be permitted to access medical and psychological services for C and D.

4. However, during her cross-examination by Counsel for the Independent Children’s Lawyer (which occurred after Dr L had been cross-examined), the mother changed her position to advance that she would like the children to spend supervised time with their father until he completes an anger management course, after which their time with him should revert to one weekend each month and half of the school holiday periods.

   Assessment as to credit

5. I do not intend to outline my findings as to credit in relation to each of the witnesses (other than the parties) who gave evidence in the proceedings: rather, where relevant, my conclusions about their evidence finds expression in these Reasons. However, I do intend to make particular comment in relation to the credit of each of the parties.

6. Some of the mother’s evidence during cross-examination has persuaded me to conclude that she is a witness of limited credibility. For example, she initially said that “this year” (2015) had been “absolutely wonderful” for the children in terms of school participation. When pressed, her evidence was that C had not had violent outbursts at school this year. However, she then said he had been suspended on a couple of occasions for anger and that “maybe” in about February 2015, there “would have been” one episode where he exhibited violence toward another child at school. She went on to say he had been suspended on four occasions in the first month of attendance at high school this year and had been suspended on a couple of other occasions since then: her evidence was that, in total, he has been suspended for 15 to 20 days this school year, with his last suspension (for a period of five days because he was oppositional to teaching staff) occurring approximately three weeks before the trial. Records from the relevant school establish that, in fact, C has been suspended for 22 days in the period from 30 January 2015 until mid-July 2015. The reality of the situation is that, contrary to the mother’s assertion, this school year has not, in fact, been “absolutely wonderful” for C at all.

7. A further example may be found in the October 2013 Child and Youth Mental Health Service notes for C which contain the assertion that, whilst with the mother, the children respond well to boundaries: reference to Departmental entries for the period from about 2009 until about 2010 clearly establish that this simply is not the case.

8. Whilst the father’s evidence did not suffer from the same obvious difficulties, I intend to approach my assessment of his assertions with some circumspection also.

9. Where I favour an account of one or other of the parents in relation to a particular aspect of the case, I will express that finding during my discussion of that issue.

10. I record that, to the extent the evidence of Dr L differs from the evidence given by Dr N, a paediatrician engaged to assess the children, I prefer the evidence given by Dr L. I do so because I consider that, on occasion, Dr N proffered opinions which fall more within the purview of a psychiatrist such as Dr L. For example, I prefer Dr L’s evidence in relation to the assertion that C has post-traumatic stress disorder, noting his evidence that Dr N did not appear to identify the particular trauma to which C had been exposed which was the cause of this asserted disorder. I note, also, that Dr L did not diagnose C as suffering from post-traumatic stress disorder.

11. I also note that, unlike Dr L, Dr N did not have the opportunity to engage with the father. Accordingly, he was reliant upon the mother and documents she provided (as well as documents such as school reports provided by the Independent Children’s Lawyer) for the factual basis relied upon by him as the basis for his opinions. I consider that any opinion Dr N expressed about the preferable future care arrangements for the children not only exceeds the basis of his engagement but is also significantly undermined as a result of the father’s absence from the process. Additionally, it appears that – through no fault of his own – Dr N erroneously proceeded on the basis that the mother provided “consistent and appropriate parenting” to the children in the first few years of their lives.  This evidence does not support this assumed fact.

principles

1. In these proceedings, being proceedings for a parenting order[3] in relation to the children, I may, subject to s 61DA[4] and s 65DAB[5] and Division 6 of Part VII of the Act, make such parenting order as I think proper.[6] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[7] In deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration.[8]   

   [3] s 64B of the Family Law Act 1975 (Cth).

   [4]          Presumption of equal shared parental responsibility.

   [5]          Parenting plans.

   [6]          s 65D of the Act.

   [7]          s 60B of the Act.

   [8]          s 60CA and s 65AA of the Act.

relevant considerations[9]

[9]The consideration of the relevant s 60CC considerations under this heading is, of course, to be read as supplemented by any other discussion of the relevant considerations wherever this finds expression in these Reasons for Judgment.

1. I must consider whether there is benefit to the children of a meaningful relationship with both parents: an affirmative finding does not depend simply on there being a lack of danger of physical or psychological harm to them arising from time and/or communication with that parent.

2. I accept that C and D have, to some extent at least, a good enough relationship with each of their parents and that they love each of them. I accept that each of the parents love their children. Subject to the comments I make in considering the parenting capacity of each of the parents, I accept that the children will benefit from the opportunity to have a meaningful relationship with both of their parents.

   Imperative of protecting children from harm

3. The mother contends that D in particular has been the victim of physical assaults perpetrated by both the father and B. She has also asserted that, whilst in the father’s care, D was hit and kicked by C. She also asserts that both children have been exposed to violence between their father and B.

4. The father contends that, as the mother has previously failed to comply with orders with the result that the children have not been afforded the opportunity to spend time with him, they are at risk of losing their relationship with him and B if they continue to live primarily with her because she is unlikely, in the future, to support them in maintaining these relationships. It is contended that the loss of the opportunity to maintain these relationships would result in the children suffering further harm.

5. Whilst professing a wish to repair her fractured relationship with B, it is, I think, clear that the mother continues to hold that child responsible for aggressive behaviours toward the other children. She continued to reiterate that the children were at risk of physical harm if they spent time with their older sister.

6. It is clear that, since their retention by their mother in October 2013, the children have not been afforded the opportunity to interact with B at any time other than when they have spent time with the father. This obviously means that their opportunity to continue their relationship with her has been seriously impeded.

7. The mother seeks to justify this on the basis of her assertion that B represents an unacceptable risk of physically harming the children. When B, then 13 years of age, spoke with Ms O (a Family Consultant) in January 2014, she did not dispute that she may have hit D twice, but described this as occurring in the context of normal sibling interactions.

8. Reference to the contents of the Family Report persuades me that, whatever the disputes between B and her younger siblings, at least D expressed a desire to spend time with her. Consequently, I consider it more likely than not that, whatever happened in terms of the assertion that B hit D with a hairbrush or in any other manner, this has not remained an issue of particular significance or concern for D.

9. Having considered the contents of the Family Report (prepared after interviews in June 2014) and the comments made by C and D – which, as noted, included D expressing a wish to spend time with B - I am not persuaded that whatever happened between the children is such as to found a conclusion that they will be at an unacceptable risk of harm if they spend time with their older sister.

10. I do not accept that the mother was not involved in some way in the creation by D of the video recording of what she said were bruises inflicted by the father during the December 2014/January 2015 school holiday period when the children spent time with their extended paternal family in New South Wales.

11. The responsible officer with the Wollongong Child Abuse Squad reviewed the evidence compiled by the Queensland Police Service about this alleged event in early July 2015.  Having done so, that officer concluded that there was insufficient evidence to commence any criminal proceedings against the father and, relevantly I think, noted the following:

    a)the not insignificant delay between the time the alleged offence occurred (that is, during the end of year school holiday period) and the report to Police (which occurred in March 2015); and

    b)that despite the mother’s asserted concern expressed in her statement to Police, she permitted the children to spend time with the father on two occasions after becoming aware of the alleged assault; and

    c)D’s account was not entirely consistent and C was not a witness to the events she asserted occurred; and

    d)the video recording was not clear and appeared premeditated; and

    e)there was a potential that D had been influenced, given that an affidavit submitted by the mother in these proceedings outlined the incident before a report was made to authorities.

12. Given that the mother permitted the children to spend unsupervised weekend time with their father on a number of occasions after she became aware of this allegation, I can only conclude that she, too, did not consider them to be at an unacceptable risk of harm at that time or in his care. Additionally, I note the inconsistencies in accounts provided by both children about this asserted event at varying times.

13. Consequently, I am not persuaded that the children are at an unacceptable risk of physical harm or exposure to substantial violence by either the father or their oldest sister B.

    The children’s views and their relationship with each of their parents and others

14. Whilst the parties agree that B will continue to live with her father, a consideration of her expressed views about, and relationship with, each of her parents is clearly necessary.

    B

15. B, then 13 years of age, spoke with Ms O, a Family Consultant, in January 2014. At that time, she expressed a wish to spend no time with her mother and was concerned about the safety of her siblings whilst in the mother’s care. Whilst cognisant of her father’s deficiencies as a parent, she considered that, from her perspective and experience of being parented by each of her parents, the father was the more reliable parent. She felt that she and her mother had a volatile relationship and told Ms O she had seen the mother and her partner use drugs. She told Ms O she would not follow an order which required her to spend time with her mother.

16. When B spoke with Mr P, a Family Consultant, in June 2014, she said she did not like her mother or her mother’s lifestyle much, citing a dirty house, fighting and that the children did not have to go to school. She told Mr P that, when she lived with her mother, the children barely went to school – she also complained that her mother had slapped her across the face. She said she did not like the mother’s partner, describing him as an alcoholic, a druggie and angry. Even noting that the last entry in the mother’s husband’s criminal history was in 2004, her comments are given some credence by the fact that he has been dealt with for offences of supply and/or possession of dangerous drugs.

17. I accept the evidence given by Ms H, currently a guidance officer at the Q School, to the effect that, whilst B initially made positive progress when she commenced her transition to high school in 2012, by the end of 2013 her behaviour escalated significantly and this remained the position since 2014. Unfortunately for B, her behaviour has resulted in absences from school, which has, in turn, contributed to the “gaps” in her education identified by Ms H.

1. I accept Ms H’s evidence that B’s defiant and difficult behaviour is most likely attributable to the significant trauma she experienced during her developmental years and to the difficulties associated with attachment arising out of her complex family history.

   C

2. C was about 11½ years of age when he spoke with Ms O in January 2014. He was very aware, even at that time, that his parents did not agree about anything. He told Ms O he wanted to stay living with his mother and appeared to be siding with his mother. Ms O records him telling her that not living with his mother contributed to him having “abandonment issues” which he outlined as him not wanting to leave his mother and being worried and upset when she left. Ms O records that, whilst C outlined his perspective that he could do more leisure activities at his mother’s home, he also disclosed he had fun things to play with in his father’s home. Ms O records that C was opposed to returning to his father’s care and commented that the father had been physically abusive toward him and his sisters.

3. Whilst C told Ms O he would run away if made to spend time or live with his father, there is no suggestion in the evidence before me that he attempted to run away from his father’s care during their time together in the December 2014/January 2015 school holiday period nor on any of those weekends since January 2014 during which he actually spent time with his father.

4. C spoke with Mr P in June 2014. The manner of their interaction and the content of his comments led Mr P to opine that some of C’s responses had an automatic and/or rehearsed quality to them, suggestive of influence by someone else. I accept this as highly likely. C told Mr P he did not want to live with his father any more, that his father had never looked after them and had provided them with the wrong food. I consider it more likely than not that his reference to being provided with the “wrong food” had its genesis in comments to which he has been exposed in his mother’s household. He said the father used to yell and call the children names. He later told Mr P that he wished his father did not exist.

5. As was the case when he spoke with Ms O, C was clearly aware that his father wanted him to live with him and his mother did not want this to occur. Mr P said that, whilst C said he did not want to see his father, he was not particularly vigilant or distressed at the thought of seeing him. This assessment is significantly at odds with the information conveyed by the mother in her material.

   D

6. D, who was about 9½ years of age at the time she spoke with Ms O, is reported to have been oppositional to speaking with her father or seeing him. She told Ms O of experiences of the father being allegedly physically abusive to her, particularly if she misbehaved or was suspended from school. She told Ms O that she misbehaved because her father did not recognise that she was gluten intolerant, a condition which she said made her bad tempered; she thought her mother was addressing this issue by having her tested. She made what Ms O assessed as a vague reference to alleged drug use by the father, referring to needles and cigarettes.

7. Mr P considered that D’s presentation and/or way of relating to him was incongruent with the reports of her severe behavioural disturbance and outbursts. This led him to opine that she has the capacity to relate to others and to regulate her emotions. D told Mr P that the father used to beat the children up. She said that she did not miss B (because she had woken her up when she hit her with a hairbrush). Her comment about not missing her sister is inconsistent with her later telling Mr P she wanted B to come to her place for a night or two.

8. I accept Dr L’s evidence to the effect that, as a result of exposure to parental behaviour, the children have become somewhat polarised: that is, B has accepted the father’s view of things and the two younger children (who have been primarily in their mother’s care since October 2013 when she refused to return them to the father, despite terms of an operative order which provided that they live with him) have ostensibly taken on and/or expressed views held by the mother.

9. I join in Dr L’s conclusion that statements from C and D to the effect that they never want to see their father again should be regarded as amounting to very superficial expressions of wish. I consider it highly likely that they have simply expressed wishes consistent with their mother’s views and, in doing so, have, to some extent at least, advocated for her. Accepting Dr L’s evidence, I consider it more likely than not that these expressions of wish are more in line with being seen to support their mother than an expression of any wish, genuinely and firmly held by each of these children.

10. I accept that it is highly likely that all of the children know what each of their parents thinks and/or wants about the current situation. Whilst it may be that B, also a victim of exposure to parental acrimony, has chosen the father rather than the mother so as not to be caught in the “crossfire”, I also consider it highly likely that, given my conclusions about the mother’s lack of consistent time with the children from April 2011 until about 2013, she has simply reached her own view of the mother’s disinterest in maintaining a relationship with her.

11. In arriving at these conclusions, I take into account and accept the evidence given by Mr R, a psychologist who interviewed the parties and children in 2009 and 2010/2011. In particular, I note that his second report, (compiled when the children had been living with their father for about 18 months) outlines his observation of all of the children as more settled, confident and articulate than when interviewed whilst in their mother’s primary care, that all three expressed that they enjoyed living with their father and all indicated their displeasure with their mother’s sporadic contact, noting that they missed her.

12. I accept that it is highly likely that – even with the conflict between them – the children want a close bond with each other and a relationship with each of their parents. Given B’s attitude, the only household in which this can occur is the father’s.

    The likely effect of any changes in the children’s circumstances

13. If the children move to live with their father primarily, this will be a return to the primary parenting regime which existed between about 2010 and October 2013 when it was unilaterally altered by the mother.

14. I accept Dr L’s evidence that, whilst C and D presented with some indicia of alienation from the father, this was not severe or “recalcitrant”: I find it highly likely that, given the father’s previous history of providing the children’s primary care, the children will adapt relatively quickly to living with him again, albeit that they are highly likely to experience further disruption if required to do so.

15. A return to the father’s primary care will also see the children return to a school district within which their needs are well known. For example, Ms H, currently a guidance officer at Q School (where C may well attend), has experience in supporting all of the children because she first engaged with them in 2010 when she worked as a guidance officer with the G Town District Behavioural Support Team.

16. I take into account that a move from their mother’s primary care to live with their father again will diminish the children’s opportunity to spend time with her, her husband and their older half siblings, who live with her. However, this must be balanced against the reality that such a move will reunite them with B, with whom they had lived until October 2013, when their mother failed to return them to their father’s care.

17. Given the evidence of Dr L and Mr P, I place significant weight on the importance of maintaining the children’s relationship with B and consider that, as long as they are afforded the opportunity to spend time in their mother’s household, the children will have the opportunity to maintain their relationships with their older half siblings, their mother and her husband.

    The extent to which each parent has taken the opportunity to participate in the children’s lives and maintain them, parental capacity to provide for the children’s needs and the attitude to the children and responsibilities of parenthood demonstrated by each of the parents

18. I accept Dr L’s evidence that each parent has major personality issues but note that these were assessed as not being to the point at which the children should be removed from the care of either of them. I accept that the evidence supports a conclusion that both parents have, on occasion, struggled to maintain consistency and stability in their own lives. The parental deficiencies mean that it is even more important that the children have the opportunity to obtain the very significant potential benefit of the maintenance of their relationship with B.

    The Mother

19. I accept Dr L’s evidence to the effect that it appears that, historically, the mother struggled in managing her children’s behaviour as they reached adolescence. I also accept that, given the composition of her household and the issues with which the mother’s two oldest children are said to be required to cope, it is highly likely that she is significantly burdened already. I accept Dr L’s evidence to the effect that the mother has previously experienced huge difficulty in coping with the children in numbers in the past and that a continuation of responsibility to care for C and D as they mature is highly likely to overburden her into the future.

20. Examples of historical difficulties can be found in the documents received into evidence. For example, as at 22 February 2010, the New South Wales Family and Child Services Department noted that they had received six previous reports in relation to the children and five previous reports relating to their half siblings – these reports related to the mother’s parenting skills, domestic violence in her household, drug use, a continued insistence that the children were ill despite a lack of medical evidence, a lack of school attendance on a consistent basis and that the mother’s then 13-year-old daughter was undertaking significant parental responsibilities in the household. Additionally, it was recorded that, in 2009/2010, the children had extremely poor school attendance and demonstrated poor behaviour there and that the mother was using marijuana.

21. I do not accept the mother’s explanation to the effect that the reference to domestic violence in the New South Wales records of 2010 referred to the asserted violence perpetrated upon her by the father: at that time she and the children were living in New South Wales whilst he was living in Queensland and he certainly was not interacting with them on a regular basis at that time. I also do not accept the tenor of the mother’s submission that the father was the source of all of the information recorded within Departmental records at this time. A perusal of the records in evidence clearly establishes that information contained within them emanated from a number of sources, at least some of whom are clearly identified as independent of either party.

22. The mother accepted during her evidence that it was likely that her approach to, and interaction with, Departmental Services in around 2009/2010 was likely to have alienated those service providers. Such admission provides context to the assertion contained within documents produced by the Department to the effect that it is likely that the mother will disengage from services if they do not support her view and/or assessment of the underlying cause of the children’s behavioural difficulties.

23. An example of the mother’s approach can be seen from the contents of New South Wales Departmental documents in 2009 in relation to her approach toward seeking that her oldest daughter (S) be provided with a wheelchair: despite officers observing the child as quite mobile and moving freely about her home, the mother insisted she be provided with a wheelchair, providing an excuse for her non-attendance at school that she had extremely poor mobility and needed a wheelchair.

24. I accept as more likely than not the father’s account that he was contacted by the New South Wales Department in about 2009 in relation to the care of the children. I do so because, as noted above, the reports contained within documents provided by the Department contain references to an assessment of the mother’s lack of parenting capacity at that time.

25. By way of further example of the matters outlined above, reference to New South Wales Departmental records reveals that:

    a)in April 2009, the mother refused to engage with Barnardos and other supports, and attended only one week of a 10 week program; and

    b)as at April 2009, both B and C were demonstrating major behavioural management issues, which were said to be compounded by the infrequent attendance at school;

    c)in late May 2009, the school reported that the children’s clothes were very dirty; they all smelled unwashed and looked very unkempt; despite having been informed that a child’s shirt was very dirty and needed to be changed, that child presented in the same shirt; at times, the mother also appeared unkempt and dirty; and

    d)as at June 2009:  Fusion Counselling, Brighter Futures and Barnados had been engaged but the mother did not continue with their counselling services; history indicated that the mother engaged in services in an attempt to confirm her own diagnosis of the children but, when challenged, withdraws from the services; children have poor school attendance and poor behaviour at school and the mother refuses to send her oldest daughter to school unless she has a wheelchair; and

    e)as at August 2009: B came to school smelling terribly, had appalling hygiene and wore clothes which smelled as if they had never been washed; as a result, her peers did not sit next to her and told her she smelled: she reacted and fought back; the school had attempted to speak with the mother several times but she would not answer her phone; and

    f)during an interview in early August 2009: the mother fluctuated between moods of compliance, being willing to talk, and then directing workers to leave the home – she had limited/nil insight in relation to the concerns for the children.

26. As noted, the parties entered into consent orders in April 2011 which prescribed that the children continue to live primarily with the father. During her cross-examination, the mother accepted that, in 2010 and 2011, she was putting the children’s interests ahead of her own. Despite this acceptance, she contended that her participation in the making of the April Consent Order was not part of her actions in placing the children’s interests ahead of her own. Her position was, simply, that the orders made at that time were the best that could be made in the situation at that time.

27. I am not persuaded and do not accept the mother’s evidence to the effect that she had concerns about the father’s capacity to care for the children at the time she entered into the April 2011 Consent Order.

28. I accept that the children’s time with the mother from April 2011 until September 2013 was sporadic. Each of the parties blamed the other for this situation. On balance, I consider it more likely than not that the mother failed to appear or advise the father (and/or the children) that she was going to attend for the time prescribed by the operative order: I do not accept as likely that, if the mother had text communication between herself and the father to establish that she had notified the father of time she intended to spend with the children pursuant to the orders, she would not produce that for the trial. I consider her explanation about the loss of a mobile phone to be somewhat incredible. I accept the father’s evidence to the effect that, on occasions, he had to collect the children from school at times when an implementation of the terms of the operative order would have seen them spend time with their mother; that is, I accept his evidence to the effect that he was required to collect them from school at such times because the mother failed to attend to collect the children from school as should have occurred.

29. A further factor which persuades me to accept the father’s recounting that the children failed to spend time with the mother in this period because of her non-attendance is that there were, in fact, times when the children spent holiday time with her. For example, in September 2012, B spent one week of the school holidays with her mother and C and D spent two weeks of that school holiday period with her. The fact that this occurred is, I consider, inconsistent with the mother’s assertion that the father was the party who acted to prevent weekend time between the children and her – rhetorically, I pose this question: if the father was, as the mother contends, intent on ensuring that the children did not have the opportunity to spend time with her pursuant to the operative order, why would he have facilitated the September 2012 school holiday time?

30. Additionally, whilst the mother said that she was at this time living with her then partner Mr T and that he travelled with her on occasion to see the children on weekends (only to find – according to her – that they were not produced by the father for that time), Mr T was not a witness in her case before me.

31. I am not persuaded by the mother’s evidence to the effect that her absences from the children’s lives and her failure to take up the opportunities to spend time with them in this period of time in accordance with the operative order arose only because of the father’s opposition to such time. I arrive at this conclusion because I consider it unlikely that the father would have refused to facilitate weekend time between the children and their mother in circumstances where he facilitated holiday time between the children and their mother. I consider it much more likely than not that, as the father’s evidence contends, the mother simply failed to attend on occasions with the consequence that the children were disappointed and, I suspect, on occasion, upset and hurt by her absence. In such a context, B’s disinterest and disinclination now to engage in an ongoing relationship with her mother is hardly surprising.

32. When she spoke with Mr P in June 2014, B said she had tried to call her mother but, either, the telephone was not answered or, she was able to have only a short conversation with her siblings before they told her they needed to go. She also said that they would hang up the telephone if she gave it to their father, recounting that this was because their mother told them to do that. She also told Mr P, that when she lived with her mother, the mother would not allow the children to speak with the father on the telephone.

33. I accept Dr L’s evidence to the effect that, in seeking an order that C and D have no contact or communication with the father, the mother has clearly demonstrated an absence of insight into how important the father is to and for the children. This position also, I think, makes more likely the father’s recounting – supported at least to some extent by B’s comments to Mr P – of the mother’s failure to promote the children’s communication and/or interaction with him.

34. For the reasons expressed, I do not accept the mother’s explanation that, during the time the children lived primarily with the father, she did not attend time with them because the father told her not to. I also do not accept any suggestion that, in the time since the children have lived primarily with her, she has positively promoted their relationship with their father and/or B or consistently facilitated any telephone communication between the two households. It follows that I do not accept her assertion to Mr P that she has in no way undermined or interfered with the father’s relationship with the children.

1. I consider it more likely than not that the mother is preoccupied with looking for signs of physical illness in the children as an explanation for their unruly and, on occasion, undisciplined behaviours rather than accepting that it is actually more likely that there are emotional causes for this disturbed and dis-regulated behaviour. I consider it more likely than not that she focuses on somatic and physical symptoms in herself and the children as providing explanations for their behaviours rather than accepting that exposure to the significant parental conflict and the consequences of decisions such as her unilateral decision to retain them in her care in October 2013 (and cut them off from that which had previously been known to them since no later than April 2011) is highly likely to have contributed significantly to their dis-regulated behaviour.

2. I also consider that the evidence establishes that it is highly likely that, if the children continue to live primarily with their mother, she will continue to seek out and promote the idea that they suffer from various ailments - irrespective of whether they, in fact, suffer from such ailments. Examples of the evidence relied upon in arriving at this conclusion are that New South Wales Departmental records note that:

   a)in April 2009: U, S, B and C were all assessed by a paediatrician as having none of the intellectual disability and/or impairments claimed by the mother; and

   b)in April 2009: despite a paediatrician having assessed U as not suffering from Kawasaki disease, the mother was constantly observed to tell him about that disease and its symptoms, to insist he suffered from that disease and to persist with her claims he had suffered from it in the past – U himself presented as being continually concerned he would suffer a fatal heart attack from the disease; and

   c)about May 2009: the mother reported U was suffering from juvenile depression but there had been no professional diagnosis; and

   d)as at February 2010: included within the issues identified was that: the mother does not agree with professional assessments and disengages when she does not find support from services in her diagnoses of the children’s issues; after engaging in an initial intake process, the mother disengages from available services; the mother had consistently refused to engage with community services and, at times, had been aggressive to staff; it was concerning the mother believed all of the children were ill with various ailments and that they also have intellectual disability although recent paediatrician reports state otherwise (leading to an express concern that the mother was fabricating the children’s illnesses); the mother demonstrated a lack of insight into the children’s needs and permitted her own problems to overshadow theirs - for example, by continually interrupting their therapy sessions to discuss her own issues.

3. I take into account that, by about mid-January 2014, Departmental officers had attended the mother’s home unannounced and observed the children to be comfortable there.

4. On 14 July 2015, the mother took C and D to the V Medical Centre.  When they saw Dr W – a practitioner that D had seen only once previously and C not at all – she told him that they had seen Dr N through Court in Ipswich and, since that time, had been on Lovan (D) and Risperdal (C) respectively.  I consider it clear from Dr W’s notes that he acted upon the mother’s information that the children had previously been prescribed these drugs by a paediatrician (Dr N).  He clearly also relied upon the mother’s information, recording her as talking continuously. 

5. Despite the relative absence of information, Dr W prescribed both children those medications. I consider it highly likely to be appropriate that the children be further evaluated so as to determine whether, in fact, there should be a continuation of the medication taken by each of them at the current time.

6. I accept that both C and D are likely to have suffered further trauma as a consequence of their retention by their mother in her household in October 2013 - this resulted in their unilateral removal from their father’s care and known environments and their separation from B; it is highly likely that her decision to retain them may well have contributed further to their already often difficult and disturbed behaviours.

7. The mother’s evidence leads me to conclude that she has not proactively sought out opportunities for the children in her care to remain in contact with B: at the very best, all that she has done is set up the computer so that the children are able to have some interaction; whilst she says that the relationship between the three children should be fostered, I am not persuaded she has done anything meaningful to implement this expressed sentiment. Nothing in her evidence or her behaviour in the time since the children have been primarily in her care persuades me that this is likely to change in the future.

8. A demonstration of the mother’s unwillingness and/or inability to support the children in an ongoing relationship with either their father or B may be found in the events of 31 October 2013. Having retained C and D in her care on the asserted basis that they would be at risk of harm if they returned to their father’s care, the mother took U (their older half-brother) to the local Police Station to report that, in September 2007 (some six years earlier), he was kicked by the father, who then pushed his mother into the bedroom, causing a child she was holding to fall. U was subsequently interviewed by Police in mid-November 2013, explaining that he had come forward because “I want justice and I don’t want [Mr Herbert] to have the capability to take my brothers and sisters”. Unsurprisingly, Police concluded that, based on previous reports by the mother, it appeared she was attempting to use the children to make complaints in order to further her proceedings. The relevant documents record that, when the mother was asked about her motives in assisting the children to come forward with these historic allegations, she said she had remembered she had an electronic diary with dates in it; however, whilst arrangements were made for her to present that document, it was not forthcoming.

9. I accept the evidence given by the principal of the E Town State School, where both children attended school whilst living with their mother. In particular, I note the evidence that both children were very pale with circles under their eyes and presented with highly processed foodstuffs for lunch. I also note that, when the mother met with him in mid-September 2014 to discuss D’s disruptive, disrespectful and manipulative behaviour, she told the principal that D behaved in this manner because she had a food allergy and her liver was not working properly. I also note that, despite promising to send the school a report she seemingly relied upon for these assertions, the mother failed to do so.

10. I also accept the school’s observations of C that he slept during school for long periods of time. These observations must be seen in the context of D’s comments at school to the effect that C did not sleep much at night at home because he played lots of violent games (presumably on the computer or some other gaming system) and the mother could not get him to bed. Clearly, a lack of sleep can have done nothing to assist C to function appropriately in the school environment.

11. I also accept the evidence from the classroom teacher to the effect that the mother has not taken any responsibility to engage with C to participate in the school environment: I accept the evidence to the effect that she says she will offer to assist but does not follow through with this promise. I also accept that, despite work being sent home with C, it was never returned to the school. These actions cast a shadow over the acceptance of other evidence from that teacher to the effect that the mother has a genuine interest in furthering the children’s education and supports the educational opportunities offered to them by teachers and support staff at the school. Diligence and punctuality in attending meetings is one thing: implementing matters recommended by educational professionals is another.

12. I further accept the school’s observations that both children acted in a manner that was totally disrespectful of, and to, their mother. These observed behaviours provide further weight to Dr L’s evidence about the mother’s historical difficulties in managing her children’s behaviours as they approach adolescence.

    The Father

13. I accept Dr L’s evidence and consider it more likely than not that the father is better placed to assist the children to individuate in a healthy way and not to become overly health focused. I consider that, although the father has personal limitations as identified by Dr L, he has a demonstrated history of consistently seeking out and using appropriate professional advice when needed. For example, in 2011, he sought the intervention and support of the Child and Youth Mental Health Service for both C and D.

14. I accept the evidence given by members of the teaching profession with whom the father has had interaction during the time the children live primarily with him to the effect that, whilst he may not have always initially agreed with their proposals for dealing with the children’s disruptive and unruly behaviour, he always acted to implement their recommendations and remained in contact and engaged with them. I also consider that the father has demonstrated the willingness and ability to attend at the school – often on very short notice – when contacted by the school following an episode of the children’s unruly behaviour.

15. I accept the evidence given by Ms H and Ms I about the extent to which the father has been involved in supporting the children’s education. I accept that the father has worked extremely hard in supporting the children and in forming connections with staff at the various schools at which they have attended.

16. I note that the children’s move from G Town Central School to the X School in about May 2011 was the result of the implementation of a planned strategy, presumably designed to assist and support the children, and not the consequence of the father’s unilateral determination. As Ms H notes, the children demonstrated an improvement – at least initially – in their engagement after this move was implemented.

17. I accept Ms H’s evidence to the effect that the father worked tirelessly with teaching and other school staff to support the children’s complex and high level needs from the time they were placed into his care.

18. Ms I is currently the deputy principal at the Q School (where B attended during 2014). She previously worked in the G Town District Behavioural Support Team between January 2009 and December 2013. She first met the children when all three of them were referred to the team in 2010. Her last involvement with the children was in early 2013.

19. I accept Ms I’s evidence that the father:

    a)consistently followed school recommendations; and

    b)consistently worked with the team to get the best possible outcome for the children; and

    c)was proactive in his parenting role; and

    d)had positive connections with teaching staff and the guidance officer; and

    e)consistently acted in furtherance of the goal of attempting to get the best outcomes for all of the children; and

    f)actively sought help from staff, forming very strong links with them; and

    g)worked to find ways to ensure that B was able to travel to certain venues so as to participate in modified programs; and

    h)never refused to work with the school or dismissed the need to follow school procedures even where these were unpleasant and/or intense; and

    i)always attended meetings organised by the school and to collect B when requested by the school.

20. I also accept her evidence that, even if not always agreeing with various schools’ decisions about disciplining the children, the father consistently worked with the schools in implementing those decisions.

21. I note that a welfare check undertaken by Police at the father’s home in mid-September 2013, during which the children were interviewed and assessed, resulted in a report that they were safe and well. Further, information provided in about November 2013 by a mental health social worker who had seen  D on a number of occasions was that she had never disclosed any concerning information about the father.

22. There is no doubt that the father has always sought that the children be returned to his primary care: for example, he applied for a Recovery Order only a number of days after the mother had conveyed to him that she did not intend to return the children to his care in October 2013. He has continued to prosecute this position despite the significant period of time that has elapsed since then. I accept that he has done so out of a genuine concern for the children and a belief that they should be reunited and live together as a sibship group. It is also clear that, in the weeks after the mother retained C and D in her care, the father sought the assistance of the Department and raised his concerns about the mother’s care of them.  I also accept that it is more likely than not that he continued in his (ultimately unsuccessful) attempts to speak with the children by telephone between October 2013 and February 2014.

23. I accept the father’s evidence about the extent to which he has contributed financially to this children’s support and the extent to which the mother has contributed to the children’s financial support.

    Family violence

24. On 22 August 2003, the father was convicted of breaching bail conditions and for common assault (alleged to have occurred on 28 July 2003): he was fined $450.00.[10] On 21 December 2006, the father was dealt with for breach of a domestic violence order – no conviction was recorded and he was fined $100.00.

    [10]         Exhibit 1, p 145.

25. Ms O noted, in January 2014, that there was no information available to her to suggest that family violence was a current risk factor in this matter.

26. I accept Dr L’s evidence to the effect that if the children entered into a household where there was violence against them this would be detrimental for them. There is nothing in the evidence before the Court to establish that, during the period from April 2011 to October 2013 when the children lived primarily with the father, the school raised any concerns about the manner in which the father parented the children or his discipline of them. None of the school records contain any complaint by any of the children to any education provider that the father had acted physically toward them.

27. Having already dealt with the mother’s allegation that the father physically disciplined and/or assaulted the children during their time in his care and, particularly, D during the December 2014/January 2015 school holiday period, there is no other evidence that the father has engaged in family violence at any time after December 2006.

    Whether preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children

28. The conclusions I have reached about the likely contribution of the past parenting situations to the children’s demonstrated difficulties persuades me that it is imperative to make an order that would be least likely to lead to the institution of further proceedings in relation to their future parenting arrangements.

29. The mother’s demonstrated failure to comply with the terms of previous orders persuades me that it is highly likely that, if the children continue to live primarily with her in the future, she will continue to flout orders which are intended to provide them with an opportunity to have and maintain a relationship with their father and B.

30. The intermittent nature of the children’s time with their father this year persuades me to conclude that I have no confidence at all that the mother will comply consistently with any obligation to ensure that the children spend time with their father. Given the father’s actions in 2013 (when the mother failed to return the children to him as was required by the terms of the then operative order) – namely, immediately to seek a Recovery Order for their return – I am easily persuaded that he is more likely than not to institute further proceedings in the event of the mother’s non-compliance with any order for the children to spend time with him.

    Other relevant facts or circumstances

    The mother’s failure to comply with Court orders

31. In October 2009, an order was made requiring the mother to return the children to the G Town area. She did not comply with this order. In December 2009, the Court ordered that the children be returned to Brisbane for the purpose of the Family Report interview: the mother complied with this order. The children then spent time with the father and the mother’s subsequent complaint to the New South Wales Department was found to be unsubstantiated.

32. In January 2010, the Court again ordered that the children be returned to Queensland. In attempting to explain her non-compliance with the terms of this order, the mother said she could not afford to return to Queensland at the time prescribed by the order because she was waiting to be provided with money: that is, her reason for non-compliance with the order was that she was unable to afford to move to Queensland.

33. In February 2010, the Australian Federal Police acted pursuant to a warrant, removed the children from the mother’s care and returned them to the father. The children commenced living with the father in February 2010. After the children were placed in the care of the father, the mother moved to Queensland in March 2010. Whilst she explained that in the intervening period funds had been made available to permit her to do so, I am left with significant concern that, had the children not been returned to the father, the mother would have continued to have failed to comply with the terms of the order  - as she had previously done.

Further discussion and conclusions

1. I accept the evidence given by Dr L[11] to the effect that, given the trauma, stress and change to which the children have been exposed during their lives, one of the protective factors for them is to ensure that they, as a sibling group, remain together: that is, I accept his evidence that the maintenance of the sibling relationship between B, C and D is a protective factor for them, especially where – as here – they have been exposed to significant parental dispute.

   [11]         (an adult, child and adolescent psychiatrist)

2. I also accept Dr L’s evidence that a good outcome for all of these three children would be that they live together in one residence and spend regular time with the parent with whom they do not live. I accept Dr L’s evidence to the effect that a better potential long-term outcome for the children will arise if they can be together. Given B’s present opposition to even spending time with her mother, this can only occur in the father’s household.

3. I also accept that keeping the three children with their father over the next few years is more likely than not to result in a good outcome for them – within the context of the clear and established difficulties in managing their challenging and confronting behaviours. I accept Dr L’s evidence to the effect that the children need a stable situation where they can start to heal emotionally and then be able to spend time with the parent with whom they are not living. I consider that the father is the parent better able to provide the children with a stable situation: after all, he remains living in the same city in which he and the children lived prior to the mother retaining them in October 2013.

4. I consider that there is more chance for the children to spend time with the mother and continue to have, maintain and develop a meaningful relationship with her if they live with the father than there is for them to have an ongoing relationship with him - and B - if they continue to live primarily with their mother. Given the inconsistency with which she has provided the children to spend time with their father since they have lived primarily with her, I conclude that she clearly does not really want them to see him or spend time with him. I have no confidence at all that she will facilitate the children having an ongoing relationship with their father and, given that B lives with him, no confidence that she will facilitate them having an ongoing relationship with their older sister.

1. I do not accept that maintaining the status quo – in which C and D remain living with their mother and B remains living with her father – is something which is in the children’s best interests. Whilst attendant with obvious change, I am not persuaded that it is too difficult for the children to return to the primary care arrangements in which they had lived before the mother’s unilateral actions in October 2013.

2. I am persuaded that, in all the circumstances of this case, the children’s best interests are met by enabling them to live together in a sibling group – as they were previously in their father’s care and, prior to that, in their mother’s care – rather than continuing to be separated as they are at present.

3. I consider it more likely than not that, if the children remain primarily in their mother’s care, their behaviours and problems are likely to be regarded by her as requiring a medically based solution, despite there being clear and overwhelming evidence that their emotional and behavioural problems have largely – or predominantly – arisen from their exposure to conflict and an instability in their opportunity to maintain ongoing relationships with the parent with whom they are not primarily living.

4. If the children had been regularly spending time with the father and B since their retention by their mother in October 2013 and I was confident that she would promote their relationship with both him and their older sister and I was confident she would not focus considerably upon attempting to locate a medical reason for their disruptive behaviours, it may have been that, given the time that has elapsed, it would be tolerable to maintain the children in their mother’s care rather than require that they deal with yet another change in their parenting arrangements.

5. However, while stability is certainly something which is highly likely to be beneficial – especially for these children – I am not remotely persuaded that the mother is likely to do anything consistently to support the children in an ongoing relationship with either their father or B. I arrive at this conclusion given her absence of consistent support for their time with him since they were retained by her in October 2013. Additionally, I note that, given that they lived with their father since about February 2010, the mother’s unilateral actions at that time disrupted entirely the stability the children had enjoyed.

6. When asked if she would comply with an order that the children spend time with their father in the future, the mother said “yes I always have. Well I haven’t always but, yes, I will.” In saying this, she also accepted, however, that she had frequently and – I find – consistently failed to comply with orders of the Court.

7. Nothing in the mother’s presentation during her evidence, nor the evidence before me, persuades me that she is likely to comply consistently with an order that the children spend time with their father and B into the future. Rather, I consider it more likely than not that she will use any expression by the children – no matter how trivial – as a justification for ceasing their interaction with both the father and their older sister. Her past actions persuade me that it is much more likely than not that she will not comply with the terms of an order than that she will continue to comply with them in any regular or consistent manner.

8. There are obvious consequences of this for the children. I consider it much more likely than not that, if they remain in their mother’s primary care, their interaction and communication with both their father and B will continue in the same “stop/start” manner as it has since October 2013: given the past disruptions to the children’s opportunity to interact and communicate with each of their parents at varying times and the likely causal relationship between these disrupted opportunities and their observed and demonstrated behaviours, such a consequence is unlikely to be beneficial for them.

9. Given a consideration of the problematic behaviour D has exhibited whilst in her mother’s household since September 2013, the evidence from the mother to the effect that she has improved this year does not necessarily result in a conclusion that things have improved for her in a long-term sense. However, even if it is accepted that her most recent behaviour is the start of a period of long-term improvement, the importance of re-establishing and continuing the sibship bond, in my view, outweighs such consideration.

10. For the reasons expressed above, I consider that it is in the children’s best interests that they live primarily with their father.

    When should the children return to live with their father?

11. Whilst C and D have not lived with their father since the mother’s unilateral actions in October 2013, they spent holiday time with him during the December 2014/January 2015 school holiday period and on a number of weekends earlier this year. Of course, they lived primarily with him from about early February 2010 until September 2013.

12. The final school term for this year commences on Tuesday, 6 October 2015. Given my decision that it is in the children’s best interests that they live with their father, it is desirable that their transition into his care occur as soon as is possible so as to maximise the school holiday time during which the father can assist them to adjust to living primarily with him again before school recommences.

13. For these reasons, and in the context of the children’s historical care arrangements, I consider it in their best interests that the children live with their father from noon on Friday, 25 September 2015.

    The children’s time and communication with the mother

14. The father initially proposed that there be a moratorium over the time and/or communication the children have with their mother for six months after they return to his care. It was submitted that the purpose of this moratorium was at least twofold: namely, to enable the children to settle once again into their father’s household without the highly likely interference from, and undermining by, the mother in this process and also to ensure that she simply did not withhold them again in deliberate breach of an operative order (as she has done in the past).

15. I accept Dr L’s evidence that a period of six months is too long for any moratorium. The father also accepted this evidence because his ultimate position was to adopt Dr L’s position to the effect that a period of two to three months was better and/or sufficient because:

    a)the children have a reasonably good basis of a relationship with their father; and

    b)this period of time is sufficient to allow them to repair their relationship with him and their relationship with their older sister.

16. Dr L’s evidence was to the effect that after this moratorium, the children have ‘restricted’ – by which he meant ‘supervised’ – time with the mother, at least initially, so as to ensure that their stability is maintained. He said he thought short term supervision of the mother’s time with the children necessary to monitor the content of her conversation with them so as to prevent her from undermining and destabilising them in their father’s care and to prevent her from unilaterally withholding them as she had done in the past.

17. I accept entirely Dr L’s evidence to the effect that it would be a terrible experience for the children if, having returned to their father’s primary care, their mother retained them again as she did in October 2013.

18. In weighing the impact on the children of the mother’s potential actions in potentially withholding them again after they return to the father’s primary care and the impact on them of an absence of the opportunity to spend time with her for the two to three months spoken of, I am persuaded that the potential impact of a non-return by their mother is greater than a temporary hiatus in their opportunity to spend time with her whilst they readjust to again living in their father’s household.

19. I take into account the evidence to the effect that the children are likely to cope with a moratorium over their physical interaction with their mother if they are aware that she is okay and coping. With this in mind, I had initially considered making orders which permitted the children to communicate with their mother in some way. However, given the importance of reintegrating the children into the father’s care as quickly as possible and maximising their prospects of settling again into his primary care, I have concluded that their best interests will be better met by a relatively short hiatus in this form of communication also. Once the children are settled and the school year completed, this communication can recommence.

20. The orders for the children’s time with their mother which will be made (as outlined at the commencement of these Reasons) represent my best attempt to afford the children an opportunity to continue in their relationships with both of their parents. The imposition of supervision over the children’s time with their mother will cease at the conclusion of the first term of school in 2016. Hopefully, by that time, the children will have settled into their father’s primary care. The order that the parents meet the costs of the children’s supervised time with their mother reflects my conclusion that it is important for both parents to demonstrate their commitment to the children’s ongoing relationship with her.

21. The order for weekend time once per month recognises the reality of the geographic distance between each of the households. The order requiring that the mother collect and return the children to G Town recognises my conclusion that, being the parent who is not engaged in paid employment outside the home, she has the greater capacity to undertake the travel associated with that weekend time and that the father will have the responsibility of meeting the vast majority of the children’s financial needs. The order providing that the children spend half of the school holiday periods with each of their parents recognises the importance that they be afforded the opportunity to spend some holiday time in the city in which they attend school - if their parents are able to agree changes to the holiday arrangements then, of course, that is a matter for them.

22. The order about where the children are to transition between their parents reflects my conclusion that a public place other than a Police Station is preferable to a Police Station.

23. It is trite to say that it is very damaging to the children to be exposed to negative feelings, denigration and/or vitriol by either parent toward the other: unfortunately for these children, the evidence is supportive of a conclusion that this is exactly what they have been exposed to by each of their parents whilst in their respective care. Whilst making an order now cannot, of course, erase the effect on the children of such exposure, the Court can, at least, do all that it can to prevent them from being further exposed to such damaging and harmful behaviours into the future.

24. The orders for the exchange of information continue the obligation imposed upon each party to keep the other informed about matters relevant to the children’s care. In the future, the father would be well advised to act as he did in late June 2015 when he caused his solicitors to provide the mother with information about B’s attendance on her local general practitioner and at the local Child and Youth Mental Health Service office and school counsellor.

    Parental responsibility

25. When making a parenting order I am bound to apply a presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them (“the presumption”): s 61DA of the Act. The presumption is rendered inapplicable by the matters prescribed in s 61DA(2) of the Act or may be rebutted by evidence that satisfies the Court that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them: s 61DA(4) of the Act.

26. If the presumption does not apply, then the power to make parenting orders pursuant to s 65D of the Act is ‘at large’ (albeit subject always to the best interests of [the children] being the paramount consideration – see s 60CA; s 65AA).[12] If the Court makes an order that the parties are to share parental responsibility for the children and the exercise of that parental responsibility involves making a decision about major long-term issues in relation to them, such order requires the decision to be made jointly by the parties: s 65DAC(2) of the Act.

    [12]         Cox & Pedrana (2013) 48 Fam LR 651, [19].

27. Even if the presumption applies in this case, I am easily satisfied that it will not be in the children’s best interests for their parents to have equal shared parental responsibility for the major long term issues relating to them. Regard to the significant history of conflict generally between the parties makes it abundantly clear that there is no prospect whatsoever that they can make any decisions about the children jointly. There is absolutely no way in which they could share parental responsibility for decisions about major long term issues relating to the children. There is no meaningful communication between them at all and there has not been any for a significant period of time. There is absolutely no trust at all between the parents.

28. No more need be said to underpin the conclusion that the only possible order in respect of the issue of parental responsibility in this case is one whereby the father, as the parent with whom the children will primarily live, is afforded sole parental responsibility for major long term issues relating to them.

    The father’s proposal that a Recovery Order is made and left to lie in the Registry in case the mother fails to comply with the terms of the Order

29. The father proposes that a Recovery Order issue and lie in the Registry awaiting activation in the event of the mother’s non-compliance with the terms of the Order. This is proposed as the appropriate course in light of the mother’s previous failures to comply either consistently or at all with the terms of the August 2011 Order and the February 2014 Order and that her partial compliance with the terms of the October 2014 Order was only achieved when that Order included a Recovery Order.

30. Additionally, as already discussed, the mother’s compliance with the terms of the operative order this year has been intermittent, with the children spending time with the father in February and March and April but not thereafter.

31. Counsel for the father submitted that the cost and time associated with his previous attempts to obtain a Recovery Order are such that the children’s best interests are met by making such an order and directing that it lie in the Registry, awaiting activation in the event of the mother’s non-compliance with the terms of the Order.

32. Whilst I am persuaded that it is appropriate to make a Recovery Order and direct that it lie in the Registry in the event the mother fails to comply with the order that the children live with their father from noon on Friday, 25 September 2015, I am not persuaded that it is appropriate or in the children’s best interests that any possible future occasion on which they are to be retrieved by members of the Police Service occur without proximate overview by the Court of the circumstances then surrounding any such occasion.

33. Given the history of this matter, however, I consider it appropriate to direct that any future application for a recovery order filed by the father be listed urgently for determination and that he and/or his legal representative be given liberty to appear at such hearing by telephone. My intention is to ameliorate, at least in some way, the costs associated with any future application and to attempt to minimise the delay which appears to have attended the finalisation of father’s previous application for a recovery order.

    The father’s proposal that an order be made restraining the mother from making any further application to the Court in relation to parenting issues without the leave of the Family Court of Australia being first sought and obtained.

34. The father formally sought that an order be made restraining the mother from making application to the Court for further parenting orders without first obtaining leave. Whilst the parental acrimony has been long-standing, the dispute between the parents has really only involved two distinct proceedings: namely, that commenced by the father in about 2009 and this, which commenced when the father filed an application for a Recovery Order in October 2013.

35. As I have already found, the mother has previously failed to comply with existing orders. However, she does not have a history of filing numerous applications in the Court seeking parenting orders.

36. In these circumstances, I am not persuaded to make the order sought by the father in this respect.

    Contravention Application filed 27 May 2015

37. The mother alleges that the father unilaterally took B to a psychologist/counsellor between 11 February 2014 and May 2015 and sought non-emergent medical treatment of her without her (the mother’s) consent. It is alleged that this conduct is a breach of Clauses 11 and 12 of the Order made by Judge Lapthorn on 11 February 2014.

38. The evidence relied upon by the mother as the basis for the allegations of contravention is as outlined at paragraphs 37 and 38 of her affidavit filed on 27 May 2015: namely, that she was told by C and D that B had had surgery for her ears and blood tests which allegedly show she has a disease. She also asserts that the children told her that B was seeing a psychologist and that “B said you abandoned her”.

39. I am not persuaded, in light of the evidence she relied upon, that the mother has discharged the onus of establishing that the father contravened the order in the manner she alleges. Consequently, I dismiss the Application for Contravention.

I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 24 September 2015.

Associate:      KV

Date:              29 September 2015