Higgins and MacAlpine - [2010] FMCAfam 1058

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HIGGINS & MACALPINE

[2010] FMCAfam 1058

FAMILY LAW – Parenting – four children of the relationship all with very different circumstances – allegations of alienation by both parents – three of the children in some form of counselling – eldest child spending no time with mother – youngest child has never met father – orders made for the eldest child to continue to live with the father and to engage in therapeutic intervention with a view to repairing the relationship with his mother – ordered the two middle children live with the father and spend significant and substantial time with the mother – ordered youngest child continue to live with the mother and commence spending time with her father pursuant to a graduated regime.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Chapman & Palmer (1978) FLC 90-510
Beach & Stemmler (1979) FLC 90-692
Maluka & Maluka [2009] FamCA 647

Applicant:

MS HIGGINS

Respondent:

MR MACALPINE

File Number:

MLC 7237 of 2009

Judgment of:

Bender FM

Hearing dates:

20, 21 & 22 September 2010

Date of Last Submission:

22 September 2010

Delivered at:

Melbourne

Delivered on:

23 December 2010

REPRESENTATION

Counsel for the Applicant:

Mr Whitchurch

Solicitors for the Applicant:

Cahills

Counsel for the Respondent:

Ms Hannan

Solicitors for the Respondent:

Hillier Quinn Law

Counsel for the Independent Children’s Lawyer:

Mr Tesoriero

Solicitors for the Independent Children’s Lawyer:

Townsend Wylde Lawyers

ORDERS

The father and mother have equal shared parental responsibility for the long term care, welfare and development of their children [W] born [in] 1998 (“[W]”), [X] born [in] 2000 (“[X]”), [Y] born [in] 2003 (“[Y]”) and [Z] HIGGINS-MACALPINE born [in] 2009 (“[Z]”).
[W], [X] and [Y] live with the father.
[W] spend time with the mother as agreed between [W] and his mother.
The parties do all things necessary to ensure they and [W] engage with [L] Adolescent Services to undergo intensive therapeutic counselling with a view to [W] re-establishing his relationship with his mother.
To assist the therapeutic counselling referred to in order 4 herein, the parties are to provide [L] with a copy of these orders, the Family Report of Mr H dated 21 February 2010 and the Reasons for Judgment delivered on 23 December 2010.
[X] and [Y] shall spend time with their mother as follows:
(a)from after school Friday to before school Wednesday commencing the first Friday of the school term in Term 1 2011 and each alternate week thereafter;
(b)for one week in each of the school term holidays as agreed between the parties, and failing agreement from after school on the last day of the school term to the following Friday at 5.00pm;
(c)for one half of the long summer vacation, such time to commence at 5.00pm on the first Friday after the conclusion of the school term;
(d)in 2010 and each alternate year thereafter from 5.00pm on Christmas Eve to 4.00pm on Christmas Day;
(e)in 2011 and each alternate year thereafter from 4.00pm on Christmas Day to 5.00pm on Boxing Day;
(f)in the event the birthdays of [X], [Y] or the mother fall on a day when they are not with their mother from 3.30pm to 7.00pm if the birthday falls on a school day and from 9.00am to 2.00pm if the birthday falls on a weekend or holiday;
(g)in the event Mother’s Day falls on a weekend when [X] and [Y] are with the father then [X] and [Y] will spend time with their mother on that weekend from the conclusion of school on Friday to the commencement of school on Monday;
(h)by telephone at any time, [X] and [Y] to call the mother; and
(i)as otherwise agreed between the parties.
The mother’s time with [X] and [Y] pursuant to order 6 herein shall be suspended as follows:
(a)if [X] and [Y] are in the mother’s care on their birthdays, the father’s or [W]’s birthday from 3.30pm to 7.00pm if the birthday falls on a school day and from 9.00am to 2.00pm if the birthday falls on a weekend or holiday;
(b)in 2010 and each alternate year thereafter from 4.00pm on Christmas Day to 5.00pm on Boxing Day;
(c)in 2011 and each alternate year thereafter from 5.00pm on Christmas Eve to 4.00pm on Christmas Day; and
(d)on Father’s Day, if it falls on a weekend [X] and [Y] are with their mother, from 10.00am on Father’s Day to before school Monday.
The mother’s time with [X] and [Y] pursuant to order 6(a) herein shall be suspended during all school holidays and recommence on the first Friday of each school term.
Changeover for the time [X] and [Y] spend time with their mother when not at school shall take place at the [S] Changeover Centre and when the Changeover Centre is unavailable at the [B] Police Station.
The parties shall forthwith do all things necessary to make application to the [S] Changeover Centre to enable changeover to take place at the Centre in accordance with order 9 herein.
The parties do all such acts and sign all such documents as may be required to register [Z]’s birth and register her name as [Z] HIGGINS-MACALPINE.
[Z] live with the mother.
[Z] spend time and communicate with her father as follows:
(a)for a period of one month commencing 27 December 2010 as follows:
(i)from 11.00am to 12.00 noon on Monday, Wednesday and Saturday;
(b)at the conclusion of the period referred to in order 13(a) herein, for a period of three months as follows:
(i)from 10.00am to 12.00 noon on Monday, Wednesday and Saturday;
(c)at the conclusion of the period referred to in order 13(b) herein, for a period of three months as follows:
(i)from 10.00am to 1.00pm on Monday, Wednesday and Saturday;
(d)at the conclusion of the period referred to in order 13(c) herein, for a period of three months as follows:
(i)from 1.00pm to 5.00pm on Monday, Wednesday and Saturday;
(e)at the conclusion of the period referred to in order 13(d) herein, for a period of three months as follows:
(i) from 12.00noon to 6.00pm on Wednesday and Saturday;
(f)at the conclusion of the period referred to in order 13(e) herein, as follows:
(i) from 10.00am to 6.00pm each Wednesday and Sunday;
(g)commencing in 2011, for three hours on Christmas Day, Father’s Day and [Z]’s birthday at times agreed and failing agreement from 10.00am to 1.00pm; and
(h)as otherwise agreed between the parties.
The father’s time with [Z] pursuant to orders 13(a) and (b) herein shall be supervised by a nominated person/s agreed to by the parties and failing agreement, by any of the following persons:
(a)Ms D;
(b)Ms B;
(c)Ms V; or
(d)Ms H.
When the father spends time with [Z] pursuant to order 13(a) herein, only he, [X] and [Y] (together with the supervisor) should be present and the father shall ensure neither [W] or [V] are with him.
When [W] has fully engaged in counselling with [L] pursuant to order 4 herein, he shall be introduced to [Z] and be able to attend with his father to spend time with her. [V] shall be able to spend time with [Z] at the same time as [W] commences spending time with her.
Changeover for the time the father spends with [Z] pursuant to orders 13(a) and (b) herein shall take place by the supervisor collecting [Z] from and returning her to the mother’s residence. Such time can take place at either the home of the supervisor or the father’s home but the father must ensure [V] and [W] are not there. The time spent with [Z] shall be calculated from the time of arrival and departure at the place where time is being spent.
Changeover for the time the father spends with [Z] pursuant to orders 13(c), (d), (e) and (f) herein shall take place at the [S] Contact Centre and if the Centre is unavailable, at the [B] Police Station.
The mother be restrained from bringing Mr K into contact with any of [W], [X], [Y] or [Z] either in person or by telecommunication, save for Christmas and family birthday gatherings when the mother shall ensure that [W], [X], [Y] and/or [Z] are not left alone with Mr K at any time.
Each party shall:
(a)keep the other advised at all times of their current residential address, landline and mobile telephone numbers for the children;
(b)advise each other immediately in the event that the children suffer any serious illness or injury whilst in their care;
(c)authorise any medical practitioner upon which the children may attend from time to time to communicate with each parent in respect to the children’s medical condition or requirements;
(d)provide to each other in a timely manner information in relation to the children’s health and well being; and
(e)authorise all schools, kindergartens and childcare centres at which any of [W], [X], [Y] or [Z] may attend to:
(i)provide to each parent, at their own expense, copies of all reports, notices and photograph order forms;
(ii)communicate with each parent by telephone, in writing or personal attendance, in respect to the progress of [W], [X], [Y] and [Z]; and
(iii)subject to any school policy, each parent to attend all functions to which parents are normally invited.
The parties, their servants and agents are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of their household in the presence or hearing of the children or permitting any other person to do so;
(b)telephoning the other parent, save for matters directly concerning the children; and
(c)changing the children’s school/kindergarten/childcare without consultation and agreement from the other.
The Independent Children’s Lawyer shall be at liberty to provide a copy of these orders to any one or more of the following:
(a)the Principal or delegate of the Principal of any school/kindergarten attended by the children;
(b)any medical practitioner and/or allied health professional attended upon by the children; and
(c)any counsellor of the children.
Each of the mother and the father attend and complete, as soon as practicable, a Parenting Apart Post Separation Parenting Program.
No later than June 2012, the parties attend upon a registered mediation service to discuss [Z]’s time with her father and in particular the introduction of overnight time.

AND THE COURT NOTES THAT:

A.Following the conclusion of the final hearing the parties were asked to submit to the court a list of agreed supervisors for the time between [Z] and her father pursuant to orders 13(a) and (b) herein. Correspondence received from the parties’ respective solicitors indicates the parties have been unable to reach an agreement as to the supervisors to date.

B.Whilst ideally the supervisor should be a person known to [Z], as indicated by Mr H, in the absence of agreement between the parties and in the absence of alternative nominated supervisors provided to the court by the mother, the supervisors nominated by the father have been named in the orders as suitable supervisors.

IT IS NOTED that publication of this judgment under the pseudonym Higgins & MacAlpine is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 7237 of 2009

MS HIGGINS

Applicant

And

MR MACALPINE

Respondent

REASONS FOR JUDGMENT

Introduction

This most difficult and complex matter relates to what the living arrangements should be for the parties’ four children [W] born [in] 1998 (“[W]”), [X] born [in] 2000 (“[X]”), [Y] born [in] 2003 (“[Y]”) and [Z] HIGGINS-MACALPINE born [in] 2009 (“[Z]”).
Currently [W] lives with his father and spends no time with his mother. [X] and [Y] live with each of their parents on a week about basis. [Z], who was born after separation and whose paternity was only confirmed in March 2010, lives with the mother and has never met her father.
In a Minute of Proposed Orders handed to the court on the mother’s behalf at the commencement of the final hearing, she sought orders that she and the father have equal shared parental responsibility in relation to [W], [X] and [Y], that the three boys live with her and spend time with the father each alternate weekend from after school Friday to before school Monday and in the next week from after school Monday to before school Tuesday as well as half holidays and a sharing of special occasions.
However, in closing, the mother’s Counsel amended the mother’s proposal such that she sought that no order be made in relation to [W] other than a counselling process be engaged in to facilitate a reconciliation between herself and [W].
It was also proposed on behalf of the mother and following hearing evidence from Mr H, the Regulation 7 Family Consultant who prepared a Family Report in this matter, that [X] and [Y] spend a block of four nights with their father each fortnight, rather than splitting the time over each fortnight.
In relation to [Z], the mother is seeking orders that she have sole parental responsibility, that [Z] live with her and spend time with the father as follows:
6.The Father spend time and communicate with the child [Z] as follows:
(a)at times to be arranged with the Director of [F] Children’s Contact Centre at [B] to be supervised at that place for 3 months;
(b)at the expiration of 3 months of supervised time as per 6(a) then:
(i)         each Monday for 2 hours from 3.30pm until 5.30pm;
(ii)    each alternate Sunday (when the boys are in his care) from 3.30pm until 5.30pm;
(iii)   for Christmas Day, Father’s Day and her birthday for 2 hours at times to be agreed, if no agreement then for the commencement of the father’s time with the boys.

7. For the purposes of para 6:
(a)prior to the commencement of para 6 the father shall attend counselling to address parenting issues including anger management and non denigration of the mother and her husband;
(b)prior to the commencement of para 6 the ICL shall request and discuss with the parties a Report from the Children’s Contact Centre to ensure the father has completed the 3 months of supervised time satisfactorily;
(c)changeover shall occur either at the boys school(s) or if not a school day at the [S] Changeover Centre.

There is also a live issue as to [Z]’s name. Her birth is yet to be registered. The mother seeks she be registered as [Z] HIGGINS-MACALPINE. The father seeks she be registered as [Z] MACALPINE.
The father seeks orders that the parties have equal shared parental responsibility for all four of their children and that [W], [X] and [Y] live with him.
In relation to [W], the father seeks an order that [W] spend time with his mother as agreed between [W] and his mother and that they undergo therapeutic counselling with a view to re-establishing the relationship between mother and son.
In relation to [X] and [Y], the father proposes that they spend each alternate weekend with their mother from after school Friday to before school Monday as well as half holidays and a sharing of special days.
In relation to [Z], the father proposes she live with the mother and spend time with him as follows:
7.The Father spend time and communicate with the child, [Z], for a period of three months as follows:
(a)     from 10.00am to 12.00pm on Monday;
(b)     from 3.00pm to 5.00pm on Wednesday;
(c)     on alternate Fridays and Sundays:-
(i)     from 3.00pm to 5.00pm on Friday;
(ii)    from 3.30pm to 5.30pm on Sunday.
8.     That at the conclusion of the period referred to in paragraph 7, the Father spend time and communicate with the child as follows:-
(a)For a period of three months from 1.00pm to 5.00pm each Wednesday, Friday and Sunday;
(b)On the three months elapsing in paragraph (a) for a period of three months from 9.00am to 5.00pm each Tuesday and Thursday;
(c)On the time elapsing in paragraph (b) for a period of six months from 9.00am Tuesday to 5.00pm Wednesday;
(d)On the time elapsing in paragraph (c) for a period of six months from 9.00am Tuesday to 5.00pm Thursday;
(e)     On the time elapsing in paragraph (d) as follows:-
(i)         Week one – from 9.00am Tuesday to 5.00pm Thursday;
(ii)    Week two – from 3.30pm Friday to 9.00am Monday on the same weekend that the other children are with the Father;
(f)in 2010 and each alternate year thereafter from 5.00pm Christmas Eve to 3.00pm Christmas Day;
(g)in 2011 and each alternate year thereafter from 3.00pm Christmas Day to 5.00pm Boxing Day;
(h)in the event that her birthday should fall on a day when she is not with the Father, from 3.30pm on her birthday to 5.30pm if it falls on a school day and from 9.00am to 2.00pm if it falls on a weekend or holiday;
(i)in the event that Mother’s Day should fall on a weekend when the Father has the child then the Father shall return the child by 10.00am on Mother’s Day;
(j)on Father’s Day from 3.30pm on Friday to 9.00am Monday;
(k)that on the child commencing school, for half of all school and Christmas holidays.
9.     That on the child commencing school the parties review the time that the Father spends with the child.
10.For the purposes of changeover for [Z], changeover shall occur at the [S] Changeover Centre until she commences school, at which time changeover shall occur at the school, or where not applicable, the [S] Changeover Centre.
The father also seeks orders that the mother be restrained from bringing the children into contact with Mr K who is her new husband’s eldest son. The mother opposes an order in such broad terms, but would agree to an order that she be restrained from bringing the children into contact with Mr K save at Christmas and birthday gatherings when she be in substantial attendance.

Background

The mother was born [in] 1965 and is 45 years of age. She is engaged in home duties. She re-partnered with Mr B upon separation and they married [in] 2009.
Prior to entering the relationship with the father the mother was previously married. She has two children from her first marriage [V] born [in] 1991 (“[V]”) who lives with the father in these proceedings (not [V]’s biological father) and [U] born [in] 1993 (“[U]”) who lives with the mother.
Mr B has four children from his previous marriage, Mr K aged 22 years, Ms K aged 20 years, [J] aged 17 years and [R] aged 12 years. Ms K, [J] and [R] live with the mother and Mr B.
The father was born [in] 1962 and is 48 years of age. He is engaged in home duties.
The parties commenced co-habitation in or around 1997 and separated on 15 January 2009. [V] and [U] lived with the parties during their relationship. [V] and [U] spend regular time with their father.
At the time of separation the mother was pregnant with [Z]. She had already commenced her relationship with Mr B. She moved into

Mr B’s home with [W], [X] and [Y]. At that time [J] and [R] were living in the home. [U] was on holiday in Queensland at the time of separation but upon her return moved in with her mother and Mr B.
[V] remained living with the father.
Initially [W], [X] and [Y] spent alternate weekends with their father. Over time this increased so that by April 2009 they were spending equal time with their parents on a 3 night: 4 night, 4 night: 3 night arrangement.
In May 2009 [W] “ran away” from the home of his mother and

Mr B to his father and has not spent any time with his mother since.
Also in May 2009, the parties agreed to a week about arrangement for [X] and [Y] with changeover each Wednesday after school.
In early 2009 there was an altercation between [V] and Mr B and subsequently an argument between [V] and his mother. Since that time [V] has not interacted or spent any time with his mother.

The parties’ evidence as to the circumstances of [Z]’s conception and their belief about same differ markedly. The father deposes [Z]’s was a planned pregnancy celebrated by them both, that they told the children of the mother’s pregnancy prior to separation and that at the time of separation both the mother and Mr B confirmed [Z] was his child.
The mother’s evidence is that she genuinely believed Mr B was [Z]’s father and was taken aback when the paternity testing showed that the father was, in fact, [Z]’s father.
[Y] has been evidencing challenging behaviour, especially at school. This was occurring prior to separation. His school caused him to undergo a psychological assessment and their report was released on

18 June 2009. Whilst he was not found to have an intellectual disability, he is not functioning at the level to which he is capable and he will continue to need support in the classroom and with a counsellor.
[Y]’s classroom teacher reported [Y] to be improving in his behaviours over this year but that the day of changeover between parents sees his behaviour regressing.
[W] commenced Year 7 at [school omitted] in 2010. Because of the issues surrounding his parents’ separation, the school have referred [W] to Mr P, psychologist, for counselling.
The parties’ relationship is highly conflicted. They only communicate via text message. Each holds the other responsible for the breakdown of the relationship between [W] and his mother.

The Evidence

The mother

I have set out in detail earlier in this judgment the orders sought by the mother in this matter and I do not intend to repeat them again here.
It is the mother’s evidence that the father has and is systematically undermining her relationship with [W], [X] and [Y] as well as [V].
It is the mother’s evidence that the father actively encouraged [W] to run away from her home and that it is as a direct result of his negative entrenched views of her and Mr B that her relationship with [W] has broken down completely.
The mother is also of the view that the father has manipulated [V] such that he too no longer wishes to have any relationship with her.
It was the mother’s evidence that she was the primary carer for the children during the relationship and she was primarily engaged in home duties whilst the father was working.
It was the mother’s evidence that there were ongoing issues during the course of the relationship and that she felt the father to be aggressive and controlling. The mother indicated that she and Mr B, a family friend, were attracted to each other and commenced an intimate relationship shortly prior to separation. It was her evidence that she advised the father that she was leaving him and that she, together with [W], [X] and [Y] left the family home and moved in with

Mr B and his two youngest children [J] and [R].
It was the mother’s evidence that the father was extremely angry and hurt by the breakdown of the relationship and that he sent her a series of very abusive and demeaning text messages and emails in which he indicated that he and the children would be better off without her in their lives.
It was the mother’s evidence that initially [W], [X] and [Y] were spending alternate weekends with the father, but that over time, and at the father’s insistence, that time was increased to equal shared care.
It was the mother’s evidence that [W] was unhappy with the breakdown of his parents’ relationship, and somewhat resentful of

Mr B and that he had been asking to spend additional time with his father. It was the mother’s evidence that in May 2009, after an argument with [X], [W] told she and Mr B that he was going to “the zone” but instead rode to his father’s home and has refused to spend any time with the mother since.
It was the mother’s evidence that shortly after [W] went to his father’s in 2009, she attended at his then Primary School in an effort to try and see him and to give him a letter telling him how much she missed him and how much she loved him. [W] refused to talk to her and became very distressed.
She returned to the Primary School the following day and again [W] refused to talk to her or interact with her.
It was the mother’s evidence that the father then took out an Intervention Order against her on [W]’s behalf which prevented her from going anywhere near [W] or his school.
It was the mother’s evidence that when [X] and [Y] return to her home at the end of the week with their father, they are unsettled and a little unruly but that they quickly settle down and interact happily within her very busy household.
It was the mother’s evidence that she does not think the shared care arrangement is working for either of [X] or [Y]. She is of the view that they are constantly exposed to the negative views of her and Mr B held by the father, [V] and [W] when living with the father on a week about basis and that in order to ameliorate that influence and ensure that they do not become alienated from her, as have [W] and [V], that they need to live primarily in her care.
It is the mother’s evidence that she and Mr B have recently bought a new home on 22 acres out of [B] and both [Y] and [X] love living there.
She conceded that it is a very busy home when [Y] and [X] are there. There are currently nine people living there, but it’s a happy and cohesive household with all members relating well with each other.
The mother conceded that in the 12 months after [Z]’s birth her life was pretty hectic and that the boys may not have got all the attention that they wanted. However now that [Z] is a toddler she says she is able to be much more attentive to them as individuals.
In relation to [V], it was the mother’s evidence that shortly after separation he had attended at the home of herself and Mr B in a highly inebriated state where he became both verbally and physically abusive and that she had told him he could not stay there if he was going to behave in that manner. It was her evidence that the father allows [V] to drink and to live a lifestyle that he is not allowed to live with her and that this is one of the principle reasons [V] has chosen to be so aligned with the father.
48. In relation to [Z], it was the mother’s evidence she had always believed that Mr B was [Z]’s father. She conceded that [Z] was conceived whilst her relationship with the father was still intact and was evasive when challenged about she and the father telling the younger boys that she was pregnant during their relationship and their mutual pleasure at that news.
It was the mother’s evidence that the result of the DNA testing confirming the father as [Z]’s biological father was a real shock to her and had taken some adjustment. It was her evidence that she recognised that [Z] was entitled to have a relationship with her father but that because of their highly conflicted relationship and because [Z] has never met her father she was concerned that any introduction of the father into [Z]’s life be done slowly and sensitively and with the appropriate protections in place to make sure that [Z] wasn’t exposed to the level of animosity that the father has for her and Mr B as that relationship was established.
It was for these reasons also that the mother argued that she should have sole parental responsibility for [Z] as she was of the strong view that she and the father would never be able to agree on any of the decisions relevant to [Z].
The mother was challenged as to what impact she thought her immediately leaving the father and moving in with Mr B might have had on [W], [X] and [Y]. Whilst she acknowledged that it might have been a little bit difficult, the mother evidenced absolutely no insight as to just how difficult, confusing and distressing the sudden disruption of their established family and the introduction of a new partner and his children would have been for the boys.
The mother appeared to accept no responsibility for the breakdown of her relationship with her two eldest sons and placed the blame for that breakdown entirely on the father and his deliberate undermining of their relationship with her.

Mr B

Mr B is the mother’s husband, they having married in November 2009. He is a self-employed [omitted], whose work seems to primarily involve him [working] between [B] and Melbourne.
Mr B conceded that some eight or ten years ago when living in Alice Springs, he was convicted of possessing a traffickable quantity of amphetamines. It was his evidence that at that time he was involved with people who were active in that trade, that he realised that it was not an appropriate lifestyle and was the reason that he ultimately left Alice Springs.
It was Mr B’s evidence that his children live with him as a result of orders that were made by consent in the Family Court of Australia in November 2007. The children’s mother lives in Queensland. She has mental health issues and the children rarely see her.
Mr B denied any ongoing issues with drugs since leaving Alice Springs eight years ago and it was his evidence that in relation to the 2007 proceedings as to the residency of his children, he produced some half dozen clean drug screens to the court in that period.
In relation to his eldest son Mr K, it was Mr B’s evidence that in 2008 Mr K had been convicted of having over 4,500 child pornographic photographs on his computer and as a result of same had been sentenced to three months jail and placed on the Sexual Offenders Registry.
Mr B gave evidence that Mr K had told him the photographs were not his, but he was not in a position to be confident one way or the other as to Mr K’s guilt.
It was Mr B’s evidence that Mr K has not attended the home of he and Ms Higgins, nor would he be doing so in the future. However, Mr K is invited to large family gatherings such as Christmas and orders made that the children not be brought into any contact with Mr K would result in he and the family not being able to attend large Higgins family Christmas gatherings. It was his evidence that in those circumstances orders should be made that the children not be allowed to be left alone with Mr K at those large family gatherings.
In relation to the allegations of the father that Mr B had pulled up at the traffic lights next to the father and made a gesture whereby he pulled his finger across his throat, he denied that any such incident occurred.
In relation to the father’s allegations that Mr B, [J] and [R] swear in the home in the presence of [X] and [Y], it was Mr B’s evidence that they do not swear and further do not swear in the young boy’s presence.
Mr B conceded that seven children in the household mean it is busy but that for him that’s just normal and theirs is a happy, boisterous and collegiate home environment.
In relation to [Z], it was Mr B’s evidence that [Z] sees him as her father figure and that they have a close and loving relationship. Mr B expressed concerns about a shared parental responsibility order being made as he was of the view that if he and Ms Higgins suggested a school for [Z] to attend, the father would object to it purely on the basis that the suggestion had come from them. He was of the view that it would be extraordinarily difficult for them to be able to communicate effectively regarding any decisions about [Z].

Ms S

Ms S is a primary school teacher at [omitted] Hill Primary School and was [Y]’s Grade 2 teacher in 2010. Ms S gave viva voce evidence at the final hearing of this matter.
It was Ms S’s evidence that she keeps notes about each of her pupils, including any interactions she has with their parents. Those notes had been subpoenaed for the benefit of the court hearing.
It was Ms S’s evidence that [Y]’s behaviour was very challenging, particularly in the first half of the year, but she had seen a steady improvement throughout the year such that [Y] was becoming more prepared to engage in the learning process.
67. Ms S, when specifically questioned about [Y], described him as follows:
“His learning difficulties are more concerned with behaviour, I think. He’s very bright at maths and he has excellent comprehension skills, very good vocabulary and very good understanding of words and meaning of what people are saying. If we’re playing learning games for literacy, he just refuses to participate, he refuses to have a turn and in the last – this last term, I’m just very pleased that he is actually having a go and he has shown progress because he is having a go.”
It was Ms S’s evidence that [Y]’s behavioural issues regress on Wednesdays and she became aware in Term 2 that this coincided with the day that he changed residence between his mother and his father. It was Ms S’s evidence that this behaviour was not related to which of his parents he was going to, but rather to the change of residence itself.
In relation to her interactions with each of the parties, it was her evidence that the mother would regularly attend at [Y]’s school and that she had regular interaction with her to discuss [Y] and to discuss ways that the mother could assist [Y] in his behaviours and schooling.
It was Ms S’s evidence that she had regular interaction with the father in the first half of the year but this had decreased in the second half of the year.
Ms S was questioned in relation to a couple of detailed entries in the notes that she has kept in [Y]’s file. She was asked about an incident on the Friday preceding Mother’s Day when [Y] was being quite challenging and difficult to his replacement teacher (Ms S does not usually work on Fridays but was at school catching up on paperwork). Ms S indicated that she called [Y] into her office where he started crying. She indicated that she asked him why he was crying. Her notes indicated that [Y] said that his mother does nothing for him and that she was trying to steal dad’s baby. It was her evidence that she calmed him down, gave him some money (it was the Mother’s Day stall, [Y] had been at his father’s and he told Ms S that his father hadn’t given him any money to be able to buy his mother a present) and thereafter he was really happy and selected a few little gifts to buy his mother.
Ms S was also questioned about an entry she had for [Y] on 25 August 2010 in the following terms:
“Has had a fairly reasonable week. Completing and having independent go at work, even writing. Unfortunately is changeover day. He’s made bad choices and got ALP (sic Alternative Lunchtime Program) tomorrow. Climbing, locked the pigeon holes. Has done this before, so knows better. Bullied and put-down [name omitted] by mimicking her about being a goodie and getting a sticker. Took a long time to settle and do anything worthwhile in investigations.”
Ms S was then asked to read her further entry for that day and I am going to set it out in it’s entirety as it is very telling:
“At 3.15 dad came in to see me. Said he didn’t get any info about parent teacher interviews, which were at the end of second term. Has left it long to catch up with me. I told him both [name omitted] and I had given the boys notes as it was dad’s week with the boys, but he didn’t turn up or ring with an apology. I told dad, “[Y] has been making social and behavioural progress,” but had made many bad moves and bad choices in the last month or so. Dad started to blame mum for letting the boys run wild on her week, and Mr B’s boys for being feral. I said she had been popping in to touch base with me almost every day all term, and much of last term.
Dad said, “She doesn’t bother with them,” meaning the children. I repeated that she had popped in regularly and was asking how to help him with literacy at home. Dad said that he reads to [W] at home. He started to tell me, “Mr B’s kids are feral,” because he had them at the supermarket one day and they were mimicking an old 80 year-old lady, running around and bumping into people, and put their finger up at a police car. So did [Y]. When they were at an intersection, apparently, I asked him how come he had Mr B’s kids at the supermarket, and he said something along the lines of, “I’m good friends with him,” or “He’s friends with my friend,” or something.
And then he started telling me, again, [Y] and [X] do as they like with [Ms Higgins]. I said, “Not when she’s up here. She speaks to them calmly and tells them the behaviour is wrong and hurtful.” He carried on for ages about DNA and court and [Ms Higgins] being unstable and a drug-user, and in big trouble with the law, and that she was losing custody of the kids, and told him that [Y] shouldn’t hear or know. I told him, “[Y] shouldn’t hear or know any of that.” And dad said, “[W] and [X] tell him.”
I said, “I felt [Y] misbehaves and makes bad choices, and had bad days every Wednesday because it seems the change is affecting [Y], and he does not cope.” Dad said, “It won’t be for long, because she’ll lose custody of them. I’ll have them 12 days and she’ll see them two days a fortnight.” He said, “[Y] and [X] don’t want to go to her place on a Wednesday.” I said, “[Y] has never said that at school,” and then he started telling me that [V] is suicidal and [X] is self-harming, and one of the boys has planned how to kill Mr B in detail, with several different ways. I said, “[Y] shouldn’t know any of this.” And he said, “I can’t stop the teenagers telling him.”
Told me he knew the families involved in the murder in [omitted], told me he has a friend who is an inspector or a detective, “I can’t remember which,” he said, and that he has good unofficial chats with him. I don’t know why he told me this, and what it had to do with anything. He told me how much mum swears out the front of his house when she was getting her things. Also that Mr B and [Ms Higgins] had been fighting because [Y] had fallen over, and Mr B just ignored him, so [Ms Higgins] got cross at Mr B. I said, “How do you know all that?” and he said [X] told him.”
Ms S, when questioned about what she thought the father meant in relation to the comments about the friend who is a police inspector, indicated that she didn’t see that as a threat but rather the father trying to show how well-connected he is.
Ms S did express some concern about the father’s commitment to [Y] and his education. She cited examples of [Y] being brought in late by his father and of a couple of occasions where she thought [Y] had been rewarded for bad behaviour. She made reference to an incident where [Y] was very late to school. It was her understanding that he had misbehaved and when questioned as to why he had been late, said his dad had taken him to McDonald’s. I note the father’s explanation for this is that [Y] had torn his trousers, had had to be taken home for a replacement pair and they had gone through the McDonald’s drive-through on the way back to school.
Ms S was asked in an ideal world what else she thought could be done to help [Y] improve his behaviour. Her answer was very insightful and in the following terms:
“If the parents weren’t angry with each other, I think that would help [Y]’s cause a lot. I have taught children who have had a week with mum and a week with dad, and those parents get on very amicably, and the child copes and the child is happy. In an ideal world, I think if [Y] had that situation at home he would be a lot more relaxed. He wouldn’t be an angry little frustrated child. I feel that he feels that he’s sort of being pulled from one to the other, and in an ideal situation if the parents could get on well, the child would be able to concentrate on being a child and learning and playing and having fun.”

Ms P

Ms P is a Clinical Psychologist who works for the Department of Education and has had [Y] referred to her by his school. Ms P gave viva voce evidence at the final hearing of this matter.
Ms P is in the early stages of therapeutic treatment of [Y] and I accepted her evidence that if [Y] found out that Ms P had been speaking to the court about his interactions with her, he would see that as a serious breach of trust and the therapeutic relationship would be irreparably damaged. Because of this, I made a ruling that I would limit cross-examination of Ms P to evidence of the intervention being given, but would not allow questions in relation to any disclosures made by [Y] to her or of their discussions generally.

The parties, to their credit, accepted those limitations as they too were keen for [Y]’s therapeutic interventions to continue.
It was Ms P’s evidence that she had seen [Y] for eight sessions to date and that usually they provide a short-term service of six to eight sessions. It was her evidence that because of the complexity of [Y]’s issues, she had received permission from her supervisors to work with him on a longer-term basis.
It was Ms P’s evidence that she is working with [Y] to address his behavioural issues in the classroom, and she is applying what’s called the Five Phase Kathryn Geldard Intervention. She explained that this was a play-based process. The first phase involves the child telling his story, the second phase is allowing the child to express himself and that is done through play and through drawing. It was Ms P’s evidence that she and [Y] had only just got to that second phase.
Ms P indicated that the third phase is about building self-esteem. The fourth phase is replacing unhelpful behaviour and the final phase is changing that unhelpful behaviour so that new behaviour can be implemented.
It was Ms P’s evidence that progress is being made with [Y], albeit slowly and that the feedback she has had from his classroom teacher is that there has been some improvement since they began the therapeutic intervention.

The father

As with the mother, the orders sought by the father have been set out earlier in this judgment and will not be repeated again here.
It was the father’s evidence that prior to separation the mother had been the children’s primary carer and that she had been a competent, caring and loving mother.
It was the father’s evidence that following the birth of all three children he believed the mother suffered significantly from post-natal depression, had required counselling and had been prescribed

anti-depressants. The father described the mother’s moods as being volatile, with periods of happiness and periods of depression such that she could not get out of bed. He posited a concern that she may be

bi-polar.
It was put to the father that Dr E had not identified any mental health issues for the mother and that the subpoenaed records for the mother from Centrecare where she had gone for counselling evidenced that the concerns raised by her in such counselling related to her relationship with him rather than any depressive issues. Accordingly it was put to the father that there were no confirmed mental health issues for her. It remained his evidence that he still believed that she did have mental health issues and he could not be swayed from that point of view.
It was the father’s evidence that he was extremely distressed and angry when the parties separated, and in particular when the mother immediately moved to live with Mr B.
It was the father’s evidence that [W] in particular was very unhappy with the breakdown of his parents’ relationship and was very resentful of Mr B’ role in the breakdown of that relationship.
It was the father’s evidence that [W] kept asking his mother to be able to live with his father, or at least spend more time with him and that the mother continually kept promising [W] that she would consider it until such time as [W] “voted with his feet” and ran away to live with the father.
It was the father’s evidence that [W] had run away from the mother’s home to him on two previous occasions and that both times he had been able to persuade [W] to return home to his mother. However on this occasion, given the level of [W]’s distress, the father did not think it was in [W]’s best interests to force him to return to his mother.
It was the father’s evidence that when the mother attended at school to give [W] a note, [W] had become extremely distressed and had told him that his mother was a liar and that he did not want to see her. It was the father’s evidence that he had sent a text message to the mother asking her to back off and to not go to the school and let [W] calm down. However he indicated she had ignored that text, gone to the school the next day and it was at that time he made the decision to take out the Intervention Order against the mother preventing her from attending [W]’s school because of the level of distress evidenced by [W] and the mother’s failure to take on board the necessity to “back off”.
In relation to [V], it was the father’s evidence that [V] had become extremely distressed at the breakdown of his relationship with his mother and indicated that [V] had told him his mother had sent him a text message saying that she didn’t want to have anything to do with him. He conceded that initially [V] did go somewhat off the rails and was drinking and using drugs but that in recent times and as a result of counselling and a new girlfriend, he had settled down and was in a much better place.
The father conceded that particularly last year [X] and [Y] were exposed to the negative views of the mother held by himself, [V] and [W] but that this year, and particularly since the receipt of the Family Report, he has put in place rules so that [V] and [W] are aware that they cannot speak negatively of the mother when [X] and [Y] are within their hearing.
It was the father’s evidence that [X] and [Y] are exposed to unacceptable behaviour when with their mother, particularly from

Mr B and his sons and that when they come to his home after a week with their mother, they are swearing, using the ‘f’ and ‘c’ words, and complain of bullying and being picked on by [J] and [R].
It is the father’s evidence that [X] and [Y] have both told him that they wish to live with him and he believes their wishes should be respected.
In relation to [Z], the father was adamant that the mother knew that he was her biological father and that she has been deliberately trying to deny [Z] an opportunity of having any relationship with him.
It was the father’s evidence that [V] and [W], who have also never met their sister, are particularly angry with the mother for what they see as her lying about who [Z]’s father is, for preventing them from having a relationship with their sister and for preventing their father from being able to meet his daughter.
The father accepts that he will need to be sensitively and slowly introduced into [Z]’s life. He rejected the suggestion for the necessity of supervision, particularly at a Contact Centre which would limit his time with [Z] to only two hours per fortnight.

Dr E

Dr E conducted a psychiatric assessment of both of the parties and his Report of 29 January 2010 was placed before the court by way of his affidavit sworn on 16 September 2010. Neither party sought to cross-examine Dr E.
In relation to the mother, on page 7 of his Report under the heading ‘Diagnosis’, Dr E stated as follows:
“It was difficult to arrive at a diagnosis in regard to Ms Higgins at the time of interviewing her.”
In relation to the father, on page 12 of his Report under the heading ‘Diagnosis’, Dr E noted as follows:
“Mr MacAlpine does not present with a psychiatric condition.”
Under the heading ‘Opinion’ on page 12 of his Report, Dr E stated as follows:
OPINION
1.Ms Higgins proved to be a somewhat unwilling and unforthcoming historian. Her account of issues in regard to [Z]’s paternity was typical of her approach. She could not provide a cogent account as to the reasons why it (sic she) was attracted to Mr MacAlpine. She denies that she has required psychiatric treatment in respect to the children apart from [Y]. She stated that this was a brief period only. She stated at the time of the interview that she was not suffering from any psychiatric symptoms. She is not currently receiving any counselling. Ms Higgins admitted that a number of the children were very angry with her. [W] won’t see her. [V] lives with Mr MacAlpine and has major issues with Mr B. [Y] suffers from some form of emotional and behavioural disturbance. I was left with considerable concern as to the children’s welfare, and Ms Higgins’s somewhat droll account lacked a sense of warmth, concern and bonding in respect to the children. She impressed as more focussed on beginning her new life with Mr B and [Z].
2.Mr MacAlpine provided a more detailed account. He spoke of his considerable concern in regard to Ms Higgins and says her various claims in regard to [Z]’s paternity will not bare (sic bear) analysis. He raises considerable concerns about her treatment of [V]. It is his account that the children’s disappointment in their mother is matched by their wish to reside with him. Accordingly he has reorganised his working life and is now a full time father. Mr MacAlpine described no significant past psychiatric issues and is not in receipt of psychiatric treatment at this time. He therefore wishes to pursue residence of all the children.
3.This is a matter in which serious issues have been raised in regard to the welfare of the children. The Family Court Report will be important in deciphering the children’s point of view in regard to their parents. If there appears to be some basis to the Father’s account, I would have reservations as to the Mother’s insight and ability to care for the children. A check of her medical records and attendance at the [A] Centre will be important to ascertain the true nature of any psychiatric condition that she may suffer from. If in fact she has understated the amount of treatment and involvement she has required over the years, then her ability to act in the children’s best interests in those circumstances would appear to be compromised.
As noted earlier in this judgment, the subpoenaed material from Centrecare and the [A] Centre confirmed the mother’s evidence of no significant history of psychiatric intervention and that the counselling at Centrecare was to address relationship issues with the father and was not in any way related to any mental health concerns.

Mr H

Mr H is a Social Worker and Regulation 7 Family Consultant with the Federal Magistrates Court of Australia and he prepared a Family Report in this matter dated 21 February 2010. Mr H also gave evidence at the final hearing of this matter.
In the conclusion of his Report of 21 February 2010, in paragraphs 61 through 69, Mr H noted the following:
61.If the Court finds there is some basis to the father’s account it is recommended [X] and [Y] live with Mr MacAlpine and Ms Higgins’ time with the children be concomitant on her seeking psychiatric treatment for her condition.
62.Providing this is achieved, it is recommended that

Ms Higgins spend time with [X] and [Y] each alternate weekend from Friday pm to Monday am, and half of all school holidays with the long summer break taken on a week about basis. [W] will need considerable counselling before any contact with his mother can occur, and the reintroduction of [W] to the relationship with his mother should occur in the context of his therapy with CAMHS and at the therapist direction.
63.Mr MacAlpine’s proposal for supervised time is not recommended. The children are now highly visible in the community and it is anticipated that they will be under the further care of CAMHS, the school are fully aware of the circumstances and have acted protectively in the past, both children are capable of self reporting, Mr MacAlpine is extremely sensitive to anything potentially untoward, and Ms Higgins’ time with the children is concomitant on her seeking treatment. These factors make for a high level of visibility in the community and act as a system of care and safety for the children, and it is unlikely that supervision of Ms Higgins’ time will be required under these circumstances.
64.In the circumstances of this case the current shared care arrangement is contraindicated and not recommended regardless of the out come of the Final Hearing. [X] and [Y] present as anxious and confused they are living in two households were (sic where) there is considerable acrimony and dispute between the parties, and a first step in stabilizing the children’s lives will be for them to identify a primary residence and care giver.
65.As stated previously the issue of influence is complex. The level of [V] and [W]’s hostility and antipathy towards

Mr and Ms Higgins is extreme and forms a significant part of the influence that [X] and [Y] have been exposed to.

Mr MacAlpine has struggled to ameliorate or counteract this to date and both boys have a significant influence on [X] and [Y].
66.[X] and [Y] both expressed a desire to live with their father when discussing their preference, and were able to express qualitative differences’ in the level of intimacy they experience with each parent, both children see their father as providing more emotional support. If the issue of

Ms Higgins’ mental health is not substantiated then it will be important for both boys to spend significant time with her to counter the negative influence of [V] and [W]. In this contact (sic context) it is recommended that Ms Higgins spend time with [X] and [Y] each alternate weekend from Friday pm to Wednesday am and half of all school holidays.
67.I am unable to comment in an informed way on the predicament of [Z]. The results of the DNA testing will be required to establish the paternity. Suffice to say, any arrangement for [Z] should be slow, incremental, and in line with her developmental capacity for absences from her primary attachment figure which at this point in time is

Ms Higgins.
68.In conclusion, the interview material of all the participants reveals that both parties in varying degrees, and in different ways, have failed to protect the children from the adult issues and behaviours of the separation. During the interviews both parties’ continued to disclose further allegations about the history and behaviour of the other that had not been canvassed in the affidavit material.
69.The end result of this confounds and obfuscates and adds further layers to an already complex case as both parties strive to have their view validated and accepted. The recommendations in this report seek to provide outcomes that will ameliorate the impact of the children’s experience in a context that continues to be psychologically and emotionally damaging for them.
In his evidence, Mr H confirmed his view that a shared care arrangement for [X] and [Y] was contra-indicated because of the high level of conflict between the parties and their poor management of the separation. He indicated that the boys need a home base to give them the requisite sense of stability, continuity and safety.
When questioned as to why he had formed the view that that home base should be with the father, it was Mr H’s evidence that given he had accepted there were levels of influence on both sides in different types of ways:
“The residency for the children was probably more secure, continuous and the routines at the father’s were probably more consistent and, in fact, the general physical ambience of the place was probably more conducive to the boys, full time, having a single base from their father’s.”
Mr H then stated:
“The other thing that I think swayed me in terms of the residency issue was that the children were able to talk about a qualitative difference in the parenting between their father and the mother and I think it was [X] who was best able to articulate that. They both talked about the cuddles and the hugs and the ability of the father to pay attention to them, the sense that I got of that was that the children perceived the level of nurture to be more intimate and warm with the father. I think that’s a significant aspect to take into account when you’re looking at the issue of residency.”
It was put to Mr H on behalf of the mother that the father had already alienated [W] from his mother because of his failure to shield [W] from his negative views of the mother. It was argued that to place [X] and [Y] in the father’s primary care would only lead to a similar alienation of the two younger boys from their mother, particularly given the level of exposure not only to the father’s negative views of her but also to those held by [Y] and [W].
In this context, Mr H gave evidence to the court in relation to the concept of parental alienation.
It was Mr H’s evidence as follows:
“There are three forms of alienation. The alienated child in which the resident parent, or the parent that has the care of the child actively and maliciously turns the child against the other parent. There’s what they call irrational alignment. The second category is where a child rejects one parent on the basis that that parent was abusive. That is called rational alignment. The third category is what’s termed a hybrid alienation, or a hybrid alignment, in which the child is responding to a complexity of behaviours on the one part, say, the inept parenting of one parent, and the reinforcement of a particular view by the primary care giver about the other parent. So it’s a combination of the two in that case.”
Mr H then indicated that those three spectrums of alienation are then categorised in terms of moderate, mild and severe.
When discussing this matter, it was Mr H’s evidence as follows:
“I would say this was a case of hybrid alienation, probably at the moderate to severe level. The court would need to work out where the weighting around those two arises. How much of it is the mother’s behaviour, being the history of rejection or the children’s perceived rejection through the leaving of the father, and placing them in a situation with other children, and the de facto partner, and how much of it is the father’s influence, in terms of him actively promoting a negative view of the mother would be a matter for the court to determine on the basis of the evidence.”
Mr H gave evidence that this had been a very difficult case for him in that he saw both parents as not being child-focussed, as having been somewhat neglectful and somewhat narcissistic in terms of meeting their own needs in the context of the separation. Mr H gave evidence that whilst he saw that the father had influenced the children, he also saw that the mother had influenced the children in terms of her actions in her inability to focus on the children’s needs. In that circumstance the children were feeling isolated, neglected and rejected at their mother’s which was overcrowded, stressful and full of tension in relation to step-children, a new partner and the like.
Mr H was of the view that in terms of influence, in terms of antagonism, there was little difference between the two homes because the boys were experiencing a high level of conflict and a high level of exposure to parental issues in the mother’s home as well as the father’s home. Mr H indicated that in the hybrid model, both parents shared responsibility for where the two children now found themselves and that you couldn’t point to one person solely being the alienating person. It was his evidence the alienation stems out of the behaviour of one parent and the verbal influence of the other. So in this matter the father had been more overtly verbal, whilst the children saw the mother as neglecting them because of her preoccupation with her new partner and the new baby.
Mr H again confirmed that ultimately it was the greater sense of nurturing and care that the boys were able to objectively identify to him that had persuaded him that they should live with their father but very importantly that they also spend significant and substantial time in their mother’s care.
It was Mr H’s evidence that such time should be in a single block so as to minimise [Y]’s exposure to the difficulties he has in the change between two households. It was Mr H’s evidence that many children, even where their parents have a highly cooperative and functional post-separation relationship, still have difficulty with changeover and not all issues can be ameliorated for children.

At the time Mr H interviewed the parties, the issue of [Z]’s paternity had not been resolved and therefore his Report did not focus on what would be the best arrangements for her. He was questioned at length on this issue at the final hearing of the matter.
Mr H’s recommendations in relation to arrangements for [Z] were very clear.
Mr H identified that there were two issues in relation to [Z]. The first one is [Z]’s right to know her father and the second one is that having been born into turmoil and conflict from day one, a prerequisite for [Z] is that her primary attachment to her mother be protected, nurtured and supported.
It was Mr H’s evidence that at her very young age, spending time with the father is going to create a level of anxiety for [Z] which could undermine the emerging primary attachment between herself and her mother. He indicated it was his inclination to delay the introduction of [Z] to her father until she was around two years of age. Prior to that there should be scrapbooks, photographs and some sort of narrative about [Z]’s situation, done in a very sensitive and age-appropriate way, leading into [Z] having small visits with her father. It was his evidence that such visits would need to be very incremental, need to be very short to start with and that the longer they take to engage in the process then the better outcome for the child, the father and the mother.
Mr H was questioned as to the necessity for supervision of the father’s time with [Z] and it was his evidence that that would be appropriate, but it needed to be done by someone known to the child and not have a stranger supervising [Z] who was, from her perspective, meeting another stranger.
Mr H was adamant that it was of real importance that [Z] be protected from the high level of animosity between her parents at all times.
Mr H was also questioned as to the timing of the introduction of [W] and [V] to [Z]. He was of the view that initially [Z] should be given an opportunity to be introduced to her father before being introduced to the two boys. It was Mr H’s evidence that whilst that may be distressing for [W] and [V], in this instance it was [Z] who had to be the primary concern.
Mr H also considered that [W] would need to be well enmeshed in any counselling before he was introduced to [Z] and he had some concerns about [V]’s capacity to contain his anger around his little sister as well.
In conclusion, Mr H summarised the situation as follows:
“What we’re trying to do is not overwhelm and not over stimulate the child and to introduce a whole heap of new relationships and new faces where there will be some unrealistic expectations around that introduction.”
Mr H said:
“It needs to be careful, it needs to be slow, it needs to be measured, and it needs to be thought through. The primary attachment of [Z] and her mother needs to be preserved, and let run its full course in this case.”
In relation to [W], it was Mr H’s understanding from his interaction with the mother that she was agreeable to a counselling intervention to assist in re-establishing her relationship with her son. When told that her initial proposal was that [W] come to live with her, Mr H was of the view that that would not be successful and would in fact involve [W] immediately running away and being resistant to any further relationship with his mother.
At my request, enquiries were made of Mr P, [W]’s current counsellor, as to whether he would be in a position to undertake therapeutic intervention involving Ms Higgins with a view to the reparation of the relationship. Mr P indicated that he did not believe he was able to perform that role and in those circumstances Mr H was of the view that an alternative therapeutic intervention, such as that provided by [L] in [B], would be appropriate.
Finally, Mr H was asked whether there were interventions best undertaken by the parents individually to try and assist them to firstly develop the insights necessary to appreciate the impact their behaviours are having on their children and secondly to then assist them in ameliorating those current difficulties with a view to reducing the high level of conflict and tension between them to which their children are exposed.
It was Mr H’s evidence that both parties would benefit from attending a Post-Separation Parenting Program based on the basic behavioural theory of positive and negative reinforcement. He also raised the possibility of both of them engaging in private individual counselling to assist in this regard.

Best interests of the child

Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 61da of the Act makes reference to there being a presumption of equal shared parental responsibility when making parenting orders. Subsections 1 and 2 of that section provide as follows:
1. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
The parties are in agreement that they have equal shared parental responsibility for [W], [X] and [Y].
The parties are not in agreement as to the parental responsibility for [Z].
The mother seeks orders that she have sole parental responsibility for [Z], whilst the father seeks orders that there be shared parental responsibility for [Z].
The mother argues that because of the high level of conflict between herself and the father, their inability to communicate and the overt antagonism and dislike that he shows towards her, it would be impossible to effectively communicate and consult to make the requisite decisions necessary for [Z] as she gets older.
It was argued by the mother and her husband Mr B that any suggestions made by them in relation to where [Z] goes to school or other decisions of that type would be automatically dismissed by the father simply because it was their suggestion.
The mother seemed to find no contradiction with this position and her suggestion that the parties retain equal shared parental responsibility for the three boys. The conclusion that one could draw from this position is that despite confirmation as to [Z]’s paternity, the mother and Mr B consider her to be their child and not the child of the father.
The father argued that both of the parties should be involved in making the long term decisions for all four of their children. He argued that the mother was seeking sole parental responsibility for [Z] because she was trying to exclude the father from [Z]’s life and wanted [Z] to see Mr B as her primary father figure.
143. The current reality for this family is that the father is solely making decisions for [W], the mother is solely making decisions for [Z] and the parents are still jointly making decisions for [X] and [Y] despite their highly dysfunctional relationship.
I am of the view that it is important for all four children that both parents contribute to the decisions for their long-term care and welfare, and in the circumstances believe it would be in the children’s best interests for an order to be made that the parties have equal shared parental responsibility for all four children.
Where parents have equal joint parental responsibility, section 65daa of the Act requires the court to consider the children spending equal time, or substantial and significant time, with each of their parents.
Section 65daa provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i)     days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)         the child’s daily routine; and
(ii)    occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
At this stage, the mother is seeking that the court make no orders in relation to [W]’s living arrangements. Rather she seeks that orders be made for the parties to engage in therapeutic counselling with [W] at [L] with a view to repairing her relationship with him.
The father is in agreement that orders be made for therapeutic intervention, but otherwise seeks an order that [W] lives with him to confirm the current arrangements for him.
In relation to [X] and [Y], both parties are in agreement that the current shared care arrangement is not in their best interests and neither party seeks orders for that arrangement to continue.
The father is seeking that [X] and [Y] live with him and spend alternate weekends with their mother. The mother is seeking orders that [X] and [Y] live with her and spend four nights a fortnight with their father.
In relation to [Z], both parties are in agreement that she will continue to live with the mother and have put different proposals as to a graduated introduction of [Z] to her father, who she is yet to meet.
When determining what arrangements should be put in place for a child, whether it be equal time, significant and substantial time or some other arrangement, the Act clearly sets out that the orders the court must make be in the best interests of the child or children concerned. In order to determine what is in the children’s best interests, the court must consider the matters set out in sections 60cc(2) and (3) of the Act.
Each of the matters that are set out in subsections 2 and 3 of section 60cc of the Act, where relevant, must be considered and assessed in the context of the parties’ behaviours and proposals, and a decision made as to which of those proposals, or such other proposal as the court may determine, will be in the child’s best interests.
In this matter the circumstances for each of the four children of the parties are quite different. Accordingly, when considering the factors under section 60cc of the Act, each child will have to be looked at individually to determine the orders that are in their respective best interests.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:

Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

[W] has a close, loving and meaningful relationship with his father and is very much aligned with him. Sadly, his relationship with his mother at this time has completely broken down such that he has not spent any time with her since May 2009.
There is no doubt that it would be in [W]’s best interests to repair the relationship with his mother but it is apparent that intensive therapeutic intervention is going to be required to put that in place. Further, it will require the father to genuinely support and encourage [W] to have a relationship with his mother.
[X] and [Y] have a close, loving and meaningful relationship with both of their parents. They are however caught up in the conflict that exists between the parents and have been exposed to the overt negative views of their mother held by their father and two eldest brothers.
Whilst the father has given evidence that he has put in place strategies to shield [X] and [Y] from the negative views held by himself and the two elder boys, his demeanour in the witness box, his comments to [Y]’s teacher as recently as August 2010 and his proposal that the boys only spend alternate weekends with their mother is of concern as to his capacity to genuinely promote the boys having a meaningful relationship with the mother.
[Z]’s primary attachment is to her mother. To date she has not met her father.
Mr H’s evidence was very clear that it is vital for [Z] that her primary attachment to the mother be allowed to complete its’ course up to the age of two and that any introduction of [Z] to her father must be very gradually and carefully managed in order to protect the development of that primary attachment. At the same time, it must be recognised that [Z] has a right to a meaningful relationship with her father and any arrangements put in place must balance her needs in an age appropriate and developmentally appropriate way.

Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

Both parties raise concerns about the care of the children with the other parent.
The mother was concerned that [X] and [Y] had sustained injuries whilst in their father’s care, including a broken collar bone, severe sunburn and burns from coming into contact with the Coonara Heater. The father’s explanation as to how these injuries occurred was satisfactory and gave no rise to concerns of neglect.
The father raised concerns about the care of [X] and [Y] with their mother and in particular their exposure to Mr B’ youngest sons who he accused of swearing and:
“being feral”.
I am not satisfied that either of Mr B’s youngest sons are “feral” or pose any risk to [X] and [Y].
The father was also concerned that [X] and [Y] not be brought into contact with Mr B’s eldest son Mr K because of his conviction for possessing child pornography.
I am satisfied that both parents are more than capable of caring for the children and that neither [X] or [Y] are at any risk of physical harm in the care of either of their respective parents.
However, concerns must be held in relation to the psychological health of these children because of the highly conflicted nature of the parental relationship and the parties’ inability to accept responsibility for their own behaviours and how those behaviours have contributed to the issues that exist for their children.
The father’s inability to shield his negative views of the mother from the children is of major concern. There is no doubt that this has contributed to the breakdown of [W]’s relationship with his mother.
At the same time, the mother’s inability to acknowledge the impact on the children, and [W] in particular, of her leaving their father, immediately moving in with Mr B and the blended family and the distress that that caused them is also of concern.
Both parents in their evidence wholly blamed the other for the issues that their children are having to deal with and showed absolutely no insight into the impact of their own behaviours on their children.
The court has to have real concerns as to the long-term emotional

well-being of these children if both parties fail to take responsibility for their own behaviours and the necessity for them to address them.
Section 60cc(3) of the Act sets out the additional considerations to be taken into account. Each of these will be considered in turn where relevant.

Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

Clearly [W] has expressed a very strong view that he wishes to live with his father and spend no time with his mother. Mr H, when he saw [W], described him as anxious and agitated and noted that he became breathless and displayed some mild panic at the prospect of coming into contact with his mother or Mr B.
In his evidence Mr H described [W] as being very black and white with a reductive logic around the parental separation and being heavily aligned with his father.
Mr H described [W] as being psychologically split. Psychological splitting involves [W] being unable to integrate positive and negative interpersonal experiences such that he sees his father as “all good” and his mother as “all bad”.
To assist [W] in the context of the views that he holds so strongly, intensive therapeutic intervention will be needed.
[X], when speaking to Mr H, advised him that he would prefer to live with his father for the majority of the time. In paragraph 40 of his Report, Mr H indicated that he discussed with [X] spending time with his mother, that he gave [X] several options and structures to choose from and that [X] chose the option of spending five nights with his mother each alternate weekend if he lived with his father.

178. [X] told Mr H that he is generally happy at his mother’s but he had found the move into Mr B’s home strange and confusing. [X] indicated to Mr H that his father spends more one on one time with him and that he felt his father:
“gives him more hugs and cuddles”
than the mother though noted that his father smacks him if he hurts [Y].
[X] also told Mr H that he tended to talk to his father more than his mother if he had a problem and that he finds his father’s advice more helpful.
In relation to [Y], Mr H states in paragraph 46 of his Report that [Y] indicated a preference to live with his father if the shared care arrangement ended but he was not able to state a preference for the time he should spend with his mother.
In cross-examination Mr H was specifically asked whether the reasons given by [Y] and [X] were well thought out given they were only nine and seven years of age. It was Mr H’s evidence as follows:
“[X]’s more so than [Y]’s. [X] was more able to give collateral information and connect things about why he felt that way, what happens at dad’s, what happens at mum’s. But to some extent, I think [Y] has a tendency to fall into line behind his older siblings. But certainly [X]’s narrative was quite rich in terms of the qualitative differences he experiences in the parenting.”
Mr H was then asked whether he thought the narrative [X] was describing had been coloured by the negative views of the mother’s parenting to which he was exposed in the father’s household. Mr H’s response was as follows:
“No, how I interpreted that is that in the early part of the separation when I first saw these people, the mother had been so preoccupied with her new relationship, she was pregnant, there was a fair amount of chaos going on in the household. She was also dealing with two other stepsiblings at this stage. She had an enormous amount on her plate and she had very, very high expectations of these children’s capacity to adjust to that. What I saw in that process was that the children experienced that as some level of rejection and abandonment and so naturally in their father’s household there was more time, he was more focused and centred on his loss and more focused and centred on the children. I think he was providing them with more of that emotional input at that time. There was an objective level to the differences that they were experiencing.”
In these circumstances, I am of the view that some weight should be given to the views expressed by [X] and [Y] in the context of their desire to live with their father and spend significant and substantial time with their mother.

Section 60cc 3(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child)

The nature of the children’s relationship with each of their parents has been set out in detail previously in this judgment and I don’t intend to repeat it again.
In relation to the other important people in this family, it is clear that [W] has a deeply felt antipathy towards Mr B. Prior to commencing his relationship with the mother, Mr B was a family friend and it would appear that [W] was a frequent visitor to his home as he was friends with Mr B’s son. The change in that relationship and the speed with which the mother moved in with Mr B has all led to [W] harbouring deep resentment towards Mr B for the breakup of his family. This is to a degree reinforced by the attitude of his father as well as [V].
[V] has had a physical altercation with Mr B and harbours enormous anger and resentment towards him. He too blames Mr B for the breakdown in his relationship with his mother and on the day of the Family Report interviews had to be restrained from physically confronting Mr B.
[X] and [Y] have a good relationship with Mr B, though at times appear to be a little overwhelmed by the complexities of the new blended family that is the mother’s home.
[W], [X] and [Y] are close to [V] and have a good relationship with him. The four boys seem to form a tight sibling group and in his evidence Mr H expressed some concern about the impact on all four boys if the sibling group was to some extent split if orders were made for [X] and [Y] to live primarily with the mother.
At this time [Z] has no relationship with her two older brothers nor with her father. [V] and [W] are very angry with their mother for keeping [Z] from their father and from them. [Z] will need to be protected from that anger and her introduction to her brothers in particular will have to be very carefully managed to ensure that they don’t have unrealistic expectations about [Z]’s response to them as their biological connection does not automatically mean she will see them as anything other than strangers.

Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)     has taken, or failed to take, the opportunity:
(i)     to participate in making decisions about major long term issues in relation to the child; and
(ii)    to spend time with the child; and
(iii)   to communicate with the child; and
(b)     has facilitated, or failed to facilitate, the other parent:
(i)     participating in making decisions about major long term issues in relation to the child; and
(ii)    spending time with the child; and
(iii)   communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
There has to be a real question mark in relation to the father’s capacity to facilitate the relationship between the boys and their mother.
The father, whilst professing to having moved on his life, still harbours real animosity and bitterness towards the mother for the breakup of their relationship and for refusing to facilitate any time between him and his daughter.
Particularly in the first 12 months after separation, the father made no effort to conceal his disdain of the mother from the boys and [V] and [W] in particular have become very aligned with his views of their mother.
[X] and [Y] have also been exposed to their older brothers’ negative views of their mother. It is the father’s evidence that in more recent times he has made a greater effort to shield [X] and [Y] from his negative views and has spoken to the older boys in the context of telling them they are not to demean their mother in front of [X] and [Y].
The mother’s insensitivity to the impact of her immediately assuming cohabitation with Mr B and his children on [W], [Y] and [X], as well as [V], does not reflect well on her.
It is clear from the evidence, the mother did not listen to [W], realise his level of distress at the time of separation and in limiting his time with his father against his wishes, she contributed to the breakdown of the relationship between them.
In closing her mind to the real probability that the father was [Z]’s biological father, in delaying the DNA testing to confirm paternity and her reluctance for any time to commence once paternity was confirmed between [Z] and her biological father does not show a great willingness on the mother’s part to foster a relationship between [Z] and the father.

Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

Both parties live in the [B] region so there are no geographical difficulties in relation to the arrangements for the children.
If the father’s proposal was to be put in place, the level and intensity of the relationship that [X] and [Y] would be able to have with their mother would be greatly diminished. Their time with [Z] would be greatly reduced as well.
If the mother’s proposal was to be put in place, [X] and [Y] would spend considerably less time with their brothers [V] and [W] than they do at the moment. Mr H was particularly concerned as to the impact this would have on [W] in particular, who would see this as another instance of his mother taking his family away from him.

Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

There are no practical difficulties in relation to the arrangements for the children to see each of their parents because of their geographical proximity.

Section 60cc 3(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

As I have already noted in this judgment, I am satisfied that both parents have the capacity to physically care for the children.
The same cannot necessarily be said for the capacity of the parents to care for the children’s emotional needs.
However, having said that, [Y]’s particular issues have been properly addressed by his parents and through his school and he is receiving the necessary interventions to assist with his behavioural difficulties within the school environment.
Similarly, the father has ensured that [W] has been referred to appropriate counselling because of the difficulties he’s been exhibiting this year as a result of his new school and as a result of the breakdown of the relationship with his mother.
Similarly, the father arranged for [V] to obtain counselling to address his issues arising from the breakdown in his relationship with his mother.
The reality is however that both parents have contributed and continue to contribute to their children’s levels of emotional distress. Mr H described the parents as not being child-focussed and being narcissistic. I would agree with that assessment. Neither was able to acknowledge or accept responsibility for their own behaviours and the contributions that those behaviours had made to the difficulties that their children are currently experiencing. Both blame the other for the breakdown of the relationship between [W] and his mother. Both blame the other for the communication difficulties that they have and neither seem to recognise that they were both contributors to the dilemmas and distresses that face their children.
[W], [X], [Y] and [Z] deserve better of their parents and all are at serious risk of emotional harm now and into the future if the parents don’t take very strong steps to ameliorate their high level of conflict and disdain, each for the other.

Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

The mother’s home consists of a large blended family, being Mr B, his three children, the mother’s eldest daughter, [X], [Y] and [Z].
The father’s home, by contrast, consists of [V], [W], [X] and [Y].
[X], when talking to Mr H, commented on the greater availability of his father in terms of more hugs and cuddles and ability to listen to him. This in part can be explained by the much greater pressures on the mother arising from her very busy household.

Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

Not relevant.

Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

I have no doubt that both parties deeply love and care for and about their children.
The reality however is that in recent times both have failed in their responsibilities to parenthood.
The father’s failure to shield his children from his anger, bitterness and hurt toward their mother has contributed to the breakdown in [W]’s relationship with his mother and is clearly causing real distress to [X] and [Y], as exhibited by the comments made by them to Mr H and by [Y] to his teacher. All three boys are currently in need of counselling as a result of the stressors they experience because of the parental conflict. [X] is currently seeing the school counsellor, [Y] is seeing
Ms P and [W] is seeing Mr P.
The father’s belief that the mother has mental health issues in the face of expert evidence to the contrary serves only to reinforce his need to think badly of the mother and does not assist his children in any way.
It is apparent from the comments made by [X] and [Y] that the father has failed to shield the young children from this litigation and this too is not in their best interests.
The mother’s insensitivity to the turmoil created for the children by the complete turning upside down of their world arising from the separation and her decision to move in immediately with Mr B and his children has also impacted heavily on the children, as has their perception of her unavailability to them whilst she was focussing on her new relationship with Mr B and the impending birth of young [Z].
Her expectation that the children would easily be blended into a new family constellation that comprises anywhere up to nine people also lacked insight and child-focus.

Section 60cc 3(j) any family violence involving the child or a member of the child’s family

Not relevant.

Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person

Both parties have obtained Intervention Orders, each against the other arising from allegations of abusive text messages.
In addition, as set out earlier in this judgment, the father obtained an Intervention Order on [W]’s behalf, keeping the mother away from [W]’s Primary School.
I also believe that the father obtained an Intervention Order against
Mr B arising from allegations the father made that Mr B made threatening gestures to him when both their cars were pulled up next to each other at traffic lights. Mr B denies this allegation.
The father has also taken out an Intervention Order against Mr K, though it is not clear whether such Intervention Order remains current.

Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

Given the particular circumstances of this matter, it is unlikely that such orders can be achieved at this point in time.
In particular, any orders made in relation to arrangements for [Z] will need to be reasonably conservative and can only, given her young age and the absence of any existing relationship with her father, put into place arrangements that extend a relatively short period of time into the future.
Similarly, given the complete breakdown at this time of any relationship between [W] and his mother and until the therapeutic interventions are well and truly put in place, it is difficult to know what arrangements may well be in [W]’s best interests into the future.
Finally, given the high level of conflict and antipathy between the parties at this time, there has to be serious reservations about their capacity to mediate arrangements for either of [W] or [Z] into the future, albeit it is hoped that that will be possible.

Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant

The Independent Children’s Lawyer put forward a proposal that [X] and [Y] live with the father and spend alternate weekends with the mother from after school Thursday to before school Monday. Why the Independent Children’s Lawyer proposed a four night rather than five night period with the mother, as recommended by the Family Report Writer, was not explained to the court by the Independent Children’s Lawyer.

Conclusion

This complex and distressing matter comes to this court as a result of the ramifications of a messy breakup of the parties’ relationship and in circumstances where both parents have been unable to be totally

child-focussed since that separation.
The parties’ three sons have been severely impacted by their parents’ breakup and ensuing conflict such that all three children are currently receiving counselling.
At this time, the parties’ eldest son [W] is not spending any time with his mother and has not done so since May 2009.
[X] and [Y] have been spending a week about with each of their parents and it is common ground between both parents that this arrangement is not in their best interests. This was confirmed independently by the Family Report Writer Mr H.
The parties’ 17 month old daughter [Z], who was born after separation and about whom there were issues as to paternity that were only resolved in March 2010, has spent no time with her father or with her two eldest brothers. Her very young age, the importance of her being allowed to complete the primary attachment process with her mother and the very high level of conflict that exists between her parents means that the management of her introduction to her father must be undertaken carefully, conservatively and with [Z]’s best interests in mind at all times.
It is the mother’s case that the father has alienated [W] from her and that there is a real risk of [X] and [Y] being similarly alienated as a result of their exposure to their father’s negative views of her and her parenting capacity, as well as their exposure to the negative views held by [V] and [W] of her as their mother.
Because of this the mother argues that [X] and [Y] should live primarily in her care and spend four days per fortnight with their father as well as half holidays and special days.
The father concedes that initially he was exposing the children to his anger and bitterness towards the mother and Mr B, but in recent times he has ensured that neither he nor [V] and [W] speak badly of the mother when [X] and [Y] are in his care. He argues that both [X] and [Y] are expressing a strong desire to live predominantly with him and that those wishes should be given appropriate weight by the court.
Mr H describes the circumstances in relation to this family as a hybrid alienation circumstance where the children have responded to a complexity of behaviours that involve inept parenting by one parent and the reinforcement of that view by the other parent.
It was Mr H’s recommendation that the current shared care arrangement for [X] and [Y] is strongly contra-indicated in this family because of the high level of conflict between the parents. In those circumstances and because of the qualitative difference in the parenting received as described by [X], he recommended that [X] and [Y] live with their father and spend five nights a fortnight with their mother.
This proposal accords with the preferred living arrangements of [X] and, to some degree, of [Y].

Mr H was of the view that whilst there was no doubt that there was some degree of influence from their father in forming these views, [X] in particular had very objective and independent reasons for expressing that view and that related to him feeling more nurtured and cared for by his father than by his mother. This was not to say that he did not love his mother or think that his mother did not love him, but was a practical reflection of the differences in the home environments between that of the father and that of the mother from his perspective. The mother’s home is quite chaotic and she has seven children living with her whenever [X] and [Y] are in her care.
What was apparent to me is that despite the mother’s concerns that [X] and [Y] were being alienated from her, this was not observed in any way by Mr H. The boys clearly spoke to him of loving both their parents and there has never been an issue with either [X] or [Y] refusing or resisting going into their mother’s care under the current arrangements.
Further, there has been no issue of the father in any way breaching the orders in relation to [X] and [Y].
I have real concerns about both parents’ capacity to be child-focussed and their evidence before me only confirmed those concerns.
Having considered the evidence, taken on board the recommendations of Mr H and the views expressed by [X] in particular, I have formed the view that it is in [X] and [Y]’s best interests that they live with their father and spend five nights a fortnight with their mother.
In relation to [W], it is going to be vitally important that he undertakes intensive family therapy as soon as practicable and in those circumstances I intend to make an order that he live with his father, spend time with his mother as agreed between himself and his mother and otherwise directing the parties to engage in that therapy as a matter of urgency.
In relation to [Z], I’m going to be very much guided by Mr H’s recommendations as to the best way to ensure an age-appropriate introduction of her to her father and I am also going to ensure that the appropriate safeguards take place.
However, whilst Mr H spoke of waiting until [Z] turns two before being introduced to her father, I am of the view that with the appropriate “safeguards” in place, it is important for [Z] that her relationship with her father commence now in order to allow that relationship to grow and develop.
Accordingly, I will be ordering that [Z] spend gradually increasing, frequent time with her father. Initially that time will be supervised by a family friend and will involve only the father, [X] and [Y]. Only after [W] is fully engaged in his counselling will he and [V] join the family group. Thereafter such time will move to unsupervised time and gradually increase in longevity. Once [Z] has turned three, orders will then be made for the parties to engage in mediation with a view to putting in place arrangements for [Z] to start spending overnight time with her father and brothers.
I will also be making orders for both parties to undertake a

Post-Separation Parenting Programme in the hope that this will give them both some insights into their behaviours and the impact that they are having on their children.
I will not make orders for the parties to undergo personal counselling but it is my strong recommendation that they do so and that any such counsellor be provided with a copy of Mr H’s Report as well as these Reasons for Judgment.
There were two further discrete orders that I was asked to rule on, the first being [Z]’s name and the second relating to what restraint should be placed on the mother bringing any of the children into contact with Mr K.

[Z]’s name

The case law in relation to a child’s name usually relates to circumstances where one or other of the parents is seeking a change of name. I am satisfied that the principles that have been set down in relation to change of name are equally applicable to what name a child should be given at birth when there is a dispute between the parties.
The Full Court in Chapman & Palmer (1978) FLC 90-510 set out the principles which a court is to have regard to in change of name cases and they included:
a)the welfare of the child is the paramount consideration;
b)the short and long term effects of any change in the child’s surname;
c)any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control;
d)any confusion of identity which may arise for the child if his or her name is changed or is not changed;
e)the effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage; and
f)the effect of frequent or random changes of name.
In Maluka & Maluka [2009] FamCA 647 Benjamin J sets out at paragraph 359 as follows:
359.Connor J in Beach v Stemmler (1979) FLC 90-692 suggested the Full Court’s list in Chapman v Palmer (supra) were not intended to be exhaustive and held the following additional factors could be taken into account:-
(a)the long-term advantages accruing to the child if their names were not changed,
(b)the amount of contact had by the non-consenting parent,
(c)the degree of identification that the children now have, or child now has with the non-consenting parent,
(d) the degree of identification which the child now has with the consenting parent,
(e)the degree of identification which the child will have with the new children of the consenting parent,
(f) the desire of the non-consenting parent that the children's name be restored.
Ultimately, the decision as to what name a child should have must be made on the basis of what is in that child’s best interests.
It was argued on behalf of the mother that as her surname is now Higgins and that Mr B will be a primary figure in [Z]’s life, it is important that the name Higgins be included in any name that [Z] is known by.
For these reasons, the mother seeks orders that [Z]’s name be registered as [Z] HIGGINS-MACALPINE.
The father argues that [Z] is the full sister to [W], [X] and [Y] and that she should, in those circumstances, have the same surname as her siblings.
The father further submitted that during their relationship the parties, when naming their children, had chosen their middle names as a result of family connections. The father indicated that [name omitted] is

Mr B’s grandmother’s name and he would prefer a middle name connected to the family of himself and/or the mother [Name omitted] is his mother’s middle name and the reason that he has chosen that name.
The father argued that [Z] is too young to have developed any identification with the surname Higgins and that it is important that as she achieves maturity she identifies with her siblings and her father by having the same surname.
In these circumstances, the father proposed that [Z]’s name be registered as [Z] MACALPINE.
The reality for [Z] is that she will grow up knowing that her mother is Ms Higgins, that her father is Mr MacAlpine, that her brothers have the surname MacAlpine, that her stepsiblings have the surname Higgins and that her half-siblings have the surname [omitted].
I am of the view that it will be important for [Z] to have a name that allows her to identify with both her mother and her father, and just as importantly with her brothers. In relation to her middle name, I note that all three MacAlpine boys have two middle names so that for [Z] to have two middle names will not be at all unusual in her family.
In these circumstances I am satisfied that [Z]’s name should be registered as [Z] HIGGINS-MACALPINE and will be making orders accordingly.

Mr K

The father seeks orders that restrain the mother from bringing any of his children into contact with Mr B’s son Mr K as a result of his conviction for some 4,500 child pornographic photographs on his computer.
The father argued that the children would be placed at risk if brought into contact with Mr K and that any order that the children not be left alone with Mr K would be difficult for the mother to comply with, particularly at a large social gathering where there were lots of people around and where it would be difficult to keep an eye on the children at all times.
The mother argued that Mr K does not visit their home and is not welcome to do so, but that he is invited to large Higgins family gatherings and that any order restricting her from bringing the children into contact with Mr K would prevent them from being able to attend those large Higgins family gatherings such as Christmas and special birthdays.
The mother assured the court that she would be able to ensure that the children were not left alone with Mr K and that she would comply with any orders in those terms.
Mr K’s conviction for possession of child pornography is most concerning and does not reflect well on him.
However, that such conviction automatically means that he is a risk to the children or that he is a paedophile, as claimed by the father, seems to me to be an over-reaction.
I am satisfied that both the mother and Mr B are sufficiently concerned about this conviction such that they would not leave the children alone with Mr K, but that to make an order in the terms sought by the father would be excessive and limit their capacity to properly engage in family functions.
In those circumstances, I intend to make an order that the mother be restrained from allowing any of the children to be left alone in the company of Mr K when they attend Higgins family functions such as Christmas or family birthdays to which Mr K has been invited.

I certify that the preceding two-hundred and seventy-three (273) paragraphs are a true copy of the reasons for judgment of Bender FM

Date: 23 December 2010