Huber & Huber
[2022] FedCFamC2F 162
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Huber & Huber [2022] FedCFamC2F 162
File number(s): DGC 2330 of 2018 Judgment of: JUDGE BURCHARDT Date of judgment: 23 February 2022 Catchwords: FAMILY LAW – parenting dispute about six children under 18 – total of 10 children of whom one (together with his partner) lives with the other six and the father – mother seeking all six children, or alternatively youngest three children live with her – thee adolescent children wanting to live with father and see mother according to their wishes – two of youngest three children not wanting to be separated from other siblings – youngest child (five years old) wanting more time with mother – family report strongly recommending all children live with father and that youngest three children spend structured time with mother – orders made as sought by Independent Children’s Lawyer and father. Legislation: Family Law Act 1975 (Cth) Cases cited: Goode v Goode [2006] FamCA 1346
Jones v Dunkel [1959] HCA 8
Division: Division 2 Family Law Number of paragraphs: 94 Date of last submission/s: 11 February 2022 Date of hearing: 10 & 11 February 2022 Place: Dandenong Counsel for the Applicant: Mr Devries Solicitor for the Applicant: Ressan Lawyers Advocate for the Respondent: Ms La Greca on first day of hearing, granted leave to withdraw with the Respondent then appearing in person on second day. Solicitor for the Respondent: Pentana Stanton Lawyers on first day of hearing, granted leave to withdraw with the Respondent being self-represented on second day. Counsel for the Independent Children's Lawyer: Mr Leeton Solicitor for the Independent Children's Lawyer: Bentleigh Family Lawyers ORDERS
DGC 2330 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HUBER
Applicant
AND: MS HUBER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
23 FEBRUARY 2022
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged, save for paragraphs 2, 3, 4 and 10 of the Orders dated 11 July 2018 which remain in full force and effect being Airport Watchlist Orders.
2.The mother and father have equal shared parental responsibility for:
(a)U ("U") born 2005;
(b)V ("V") born 2007;
(c)W ("W") born 2008;
(d)X ("X") born 2011;
(e)Y ("Y") born 2013; and
(f)Z ("Z') born 2015
(The children)
3.The children live with the father.
4.The children U, V and W spend time and communicate with the mother in accordance with their wishes.
5.The children X, Y and Z spend time and communicate with the mother as follows:
(a)Week one: from the conclusion of school (or 9.00 am if a non-school day) on Friday until commencement of school (or 9.00 am) on Monday, commencing in the first week of the school term on a fortnightly basis;
(b)Week two: from the conclusion of school (or 9.00 am if a non-school day) on Tuesday until commencement of school on Thursday commencing after Order 8 has been entirely complied with;
(c)During the school term and the long summer holidays at times as agreed between the parents in writing and in default of agreement, for the first half of the holidays commencing after Order 8 has been entirely complied with;
(d)On the birthdays of the children X, Y and Z and the mother's birthdays (if those children are not already in the care of the mother) at times to be agreed and in default of agreement, from the conclusion of school (or 3.30 pm if a non-school day) until 7.30 pm should the birthdays fall on a weekday or from 2.00 pm until 6.00 pm should the birthdays fall on a weekend;
(e)On Mother's Day from 5.00 pm the preceding Saturday until 5.00 pm on Mother's Day;
(f)At Christmas in 2022 from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day and in each alternate year thereafter;
(g)At Christmas in 2023 from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day and in each alternate year thereafter;
(h)At Easter 2022 from 3.00 pm on Holy Thursday until 3.00 pm on Easter Saturday and in each alternate year thereafter;
(i)At Easter 2023, from 3.00 pm Easter Saturday until 3.00 pm on Easter Monday and in each alternate year thereafter;
(j)Telephone communication at any reasonable time and
(k)At all other additional times as agreed between the parents in writing.
6.Pending compliance with Orders 7 and 8 hereof, the mother be and is hereby restrained by injunction from permitting the children X, Y and Z being in the presence of Mr B, unless there is another adult present, or leaving those children unattended by an adult other than Mr B.
7.The mother do all acts and things to ensure that the mother's partner Mr B undertakes either 4 sessions of counselling with a counsellor with family violence experience, nominated by the ICL or enrols in, attends and completes a Men's Behaviour Change Program.
8.Upon the mother providing to the father, a letter from the counsellor or a Certificate of Completion of the Men's Behaviour Change Course as proof of successful compliance with Order 7 hereof, the injunction in Order 6 hereof be discharged.
9.All non-school changeovers occur at the father's home, with the mother to collect the children X, Y and Z and any other children who may wish to attend at the commencement of their time with the mother and return the children at the conclusion of time, unless otherwise agreed in writing in advance provided that the mother shall not enter the father's house (i.e. the building itself) without the father's prior written consent.
10.Each parent be permitted to travel interstate during the time that the children X, Y and Z are in their care pursuant to these orders, including any other times as agreed between the parents in writing, provided that the travelling parent provides an itinerary to the other parent no later than 21 days prior to intended departure time, such itinerary to include travel destinations, flight details, dates and times of departure and arrival and details, accommodation details and emergency telephone numbers.
11.Each parent be permitted to communicate with the children's school(s) and to receive all communications from the school(s), including notices, school reports, school photograph order forms, at their cost and invitations to parent/teacher interviews, school functions, concerts and other events to which parents are usually invited.
12.Each parent be at liberty to attend all sporting events and extracurricular activities that the children or any of them are participating in.
13.Each parent notify the other within 48 hours of any change of residential address and/or telephone numbers including any email addresses.
14.In the case of an emergency, serious illness or injury sustained by the children or any of them, the parent with whom the children are spending time with shall inform the other parent as soon as practicable and provide particulars of any treatment received by the children or any of them including the name and address of the treatment provider including details of any hospitalisation of the children or either of them and the other parent be at liberty to attend regardless of whether the children or any of them are in the other parent's care.
15.The parents be restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or any member of the other parent's family in the presence of or hearing of the children or any of them or from permitting any other person to do so.
16.Each parent be restrained from discussing parenting matters including these proceedings in the presence or hearing of the children or any of them.
17.The parents be at liberty to provide a copy of these orders to the school(s).
18.The mother be restrained by injunction from attending the father's home without at least two hours prior written consent of the father, unless otherwise authorised by these Orders.
19.For the purposes of these Orders written notice and/or consent includes SMS-texts
20.The appointment of the Independent Children's Lawyer be discharged.
THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Huber & Huber has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
This is a parenting dispute about the best interests of six children. The matters that are in real dispute between the parties may be summarised as follows:
(a)Whether the six children should live primarily with their father or their mother.
(b)Whether the three youngest children should live with their mother in any event, even if the older three do not.
(c)Whether it is necessary to put in place protections concerning the mother's partner, Mr B.
(d)Whether it is appropriate that there be restraints on the mother's attendance at and in the father's home.
For the reasons that follow, I am going to order that, as sought by the father and the Independent Children's Lawyer, all of the children live in the primary care of their father, but that the elder three children spend time with their mother according to their wishes and the three younger children spend time with their mother on a nine/five arrangement per fortnight.
Additionally, I propose to make certain orders designed to protect the children from Mr B and to restrain the mother from unauthorised attendances at the father's home.
AGREED MATTERS
The following matters are either agreed or not the subject of material controversy.
The father was born in 1971 and the mother was born in 1978. They appear to have commenced a relationship in about 1993 and over the years have had 10 children, of whom, as earlier indicated, we are now concerned primarily with the last six.
The eldest child, Mr C, was apparently placed into the primary care of his paternal grandfather at birth and has played virtually no role in the family at all. D is described in the family report as being 24 years of age (in 2021). Ms E is presumably now 23, and Mr F is now presumably 22 (the precise dates of birth of these children do not appear to be given in the materials).
The children with whom the Court is presently concerned are U, born in 2005, V, born in 2007, W, born in 2008, X, born in 2011, Y, born in 2013, and Z, born in 2015.
The parties' relationship continued until about mid-2017, when the mother left, having formed a new relationship with Mr B.
Initially upon separation, the children appear to have lived between the parents in a roughly equal shared care arrangement, until the mother unilaterally relocated with U, V, W, X, Y, and Z to Queensland in early June 2018.
The mother did not make the father aware of where she was and ceased all contact between the children and the father.
Although the picture is not entirely clear, as some of the materials are confusing, it appears that the mother left the children with a close friend or family member in Queensland for a period of some time while she visited Country G with Z.
The father obtained a recovery order while the mother was overseas and the children were returned to him pursuant to a recovery order made on 20 September 2018. On 23 October 2018 the Court made interim orders, over the mother's objection, for the children to live with the father.
From the point at which the children were returned to Victoria to live with their father, the mother spent very little time with the children until she ultimately relocated to Victoria in June 2020. She remains in a relationship with Mr B.
The matter has been significantly delayed by COVID and other factors and there have been two family reports by Ms H. The first, dated 3 June 2019, has been overtaken by events inasmuch as it was prepared when the mother was still living in Queensland and expressing an inability to return to Victoria. The second, to which it will be necessary to return, was dated 21 March 2021. Following the release of that report on 22 March 2021, orders were made by consent on 1 April 2021.
The children were ordered to live with the father and spend time with the mother each Tuesday and Thursday from the conclusion of school until 7.30 pm and each alternate weekend from Friday to Monday. The time spent by U, W, and V was to be subject to and according to their wishes. The mother was restrained from bringing the children into contact with Mr B and FDRS was ordered. So far as I understand the matter, this may well have occurred, but it did not resolve the matter.
THE MARCH OF EVENTS AT TRIAL
It is worth recording that the orders on 1 April 2021 set the matter down for trial on 10 February 2022 (erroneously 2021 in the order itself) for two days. The mother was legally represented up until the commencement of the trial.
The first day was spent in negotiations, which clearly came close to success (as I was informed this without being told what any remaining difficulties were). The matter was then adjourned to the second day, at the commencement of which the mother's lawyer indicated that she would probably seek to withdraw. This was subsequently confirmed at about 10.30 am.
The matter was stood down to enable the Independent Children's Lawyer and the father to iron out one or two minor difficulties, a task that was indicated to be likely to be about 10 minutes. During this 10 minutes, the mother attended at the solicitor's office. It proved possible to obtain interpreters (although the interpreter for the mother was not able to join until lunchtime, and, heroically, the interpreter allocated to the father undertook the task for both parties during the morning as a faute de mieux).
The conduct of the trial was made difficult by the mother's self-representation and lack of complete familiarity with English (although she impressed me as having, generally, a sufficient understanding of English and capacity to express herself in English). I should make it clear that I was satisfied that for those parts of the proceedings which proceeded in English alone, the mother was not unfairly disadvantaged in the conduct of her case.
THE REPORT OF MS H
Ms H's report noted the history of the relationship and the separation, and the re-partnering with Mr B, and the relocation to Queensland and return (paragraph 2).
She noted that all six of the youngest children were living primarily with the father, that D remained in custody, and that Ms E had reportedly left the family home but returns to visit her siblings multiple times per week. Mr F continues to live with his father and has moved in his partner, Ms J, who is pregnant (paragraph 4).
The report noted the significant involvement of the father and the children with the Country G church in Suburb K and that they live in a house owned by a member of the congregation (paragraph 6).
At paragraph 7, the report noted:
According to the family, Ms Huber has been entering the family home each morning on school days to assist the younger children, X, Y, and Z get ready for school and occasionally transport them to school while Mr Huber or Mr F would transport the older children to school. The family also reported that Ms Huber would visit the family home approximately twice a week in the afternoons/evenings to care for the children. According to the children, they were also left in the care of Mr Huber, Mr F, Ms J, and Ms E, who was a frequent visitor to the home. Ms Huber maintains that she is the primary carer of the younger children and that the children would be neglected without her involvement. Mr Huber and the children maintain that the younger children are cared for by numerous adults in the home, while U and V indicated that they also assist in household duties.
Having traversed the history of the matter in the Court and the proposals of the parties, Ms H noted that during the interview the mother sought that the three youngest children live primarily with her, citing concerns of neglect in their father's care (paragraph 19).
The report traversed allegations of violence made by each of the parents against the other.
Although Ms H had noted the mother's assertion that Z had lived in the primary care of his paternal grandfather and eldest brother in Country G during the relationship, returning only in 2018, at paragraph 24 the father defined Z's period of time in Country G as two years.
The report noted the father's concerns about Mr B and concerns the mother might remove the younger children to Country G permanently (paragraphs 25-26).
The report noted the mother's claims that the father's care was inadequate (paragraph 27) and the father's concern about the mother's alleged gambling addiction (paragraph 28) together with the mother's countervailing claims of excessive alcohol consumption by the father (paragraph 29).
At paragraph 38 the report noted police reports about Mr B, including a sentence of three months' detention and a 12 months' community corrections order in June 2018, together with unlicenced driving and driving under the influence (paragraph 38).
The report also noted an IVO against Mr B in relation to a previous partner with the report indicating verbal abuse and damaged property, together with the ex-partner claiming that Mr B's anger was an ongoing issue (paragraph 39).
I do not propose to paraphrase the entirety of the remainder of the report. The following matters may be of some note. At paragraph 43, the report noted:
It quickly became apparent that while the current Interim Orders essentially provided for Ms Huber to spend time with the children as agreed between the parents (with Ms Huber providing Mr Huber with a minimum of 24 hours notice of time and place for this time to occur), it appears as if Ms Huber has taken upon herself to enter Mr Huber at her pleasure which has caused some conflict between the parents.
At paragraph 45, it was noted:
Mr Huber admitted he had permitted Ms Huber to occasionally spent the night at his home in order for her to spend time with the children; however, he also admitted to permitting this to avoid the high conflict he knew would occur should he not permit this, and fear for potential trouble Ms Huber may create. Both parents confirm that since Ms Huber had called the police and was removed from Mr Huber's home that she has no longer spent overnight time with children within the family home.
The report noted the mother's endeavours to emphasise the father's neglect of the children at paragraph 46 and continued in that paragraph; “Overall, Ms Huber tended to exaggerate the necessity of her involvement in the children's daily lives and downplay the care Mr Huber in the children's older adult siblings provided them".
At paragraph 47, the report relevantly said:
Ms Huber confirmed that the children's schools or their local church had not expressed concern for the children within their father's care, and she confirmed that no concerns had been raised for the children by the Department of Health and Human Services.
In paragraph 49, the report noted:
Additionally, while Ms Huber strongly advocates that the three younger children live primarily with her, Mr Huber has emphasised the close relationship the children experience as a sibling group, and he reported that the children do not wish to be separated. It is notable that despite so many children and adults living in a single dwelling, that Mr F, his partner Ms J and Ms E had all elected to remain living with their father (Ms E has recently moved out with a girlfriend) rather than live with their mother and her partner.
The report traversed an incident on 13 January 2021 when the mother attended the father’s home and became angry that the paternal aunt (whom she disliked) was there. The end result was that the mother was restrained by Victoria Police and removed by an ambulance. The report noted the mother's differing version of events recorded at paragraph 53;
During her interview, while Ms Huber clarified the reason for her immense distress on this occasion, particularly that she did not like the paternal aunt and did not like the children spending time with her, she failed to recognise how her histrionic behaviours may have distressed the children.
The report noted the mother's denials of any family violence on the part of Mr B (paragraph 54).
The report noted that the children effectively comprised three sibling groups. D, Mr F, and Ms E share a particularly close relationship, notwithstanding D's then current incarceration. U, V, and W shared a particularly close relationship, and so did the younger group of X, Y, and Z.
The interviews with the middle group (U, V, and W) made it clear that the mother generally arrived each school morning to assist the younger children to get ready for school (paragraph 63), that the mother was often angry with their father and they were exposed to her yelling and berating him (paragraph 64). They identified Z's behaviour as quite different, describing him as an angry and distressed child (paragraph 66).
In paragraph 67, the report noted:
The middle sibling group unanimously believed that some form of parenting routine or roster was required to care for their younger siblings as they were cared for by various family members on an ad hoc basis which seems to cause conflict between the parents. This sibling group believed that the younger three (3) children should spend some time with their mother away from the family home; however, they understood that their siblings wished to be raised as part of a larger sibling group.
The younger sibling group presented as anxious and shy and were reluctant to share information.
At paragraphs 72-73, the report noted:
72.The younger children indicated that they shared close relationships with their parents and other family members. While X and Y indicated that they did not wish to be separated from their older siblings and were happy to spend time with their mother on a regular basis, Z indicated that he wished to spend more time with his mother and appeared to be the only sibling who prioritised his own wishes over the needs of the large sibling group.
Children's relationships
73.All of the children interviewed identified strongly as members of a large Christian Country G sibling group. All of the children expressed the importance of living together as a large sibling group, other than Z, who indicated that he wished to spend more time with his mother.
The report noted the affectionate and close relationship between all of the children and their father (paragraph 74) and that Z tended to gravitate towards his mother during the observation session and enjoyed receiving physical affection from her (paragraph 76).
At paragraphs 84-86 in the evaluation section, the report noted:
84.Both family reports emphasise the extremely close relationship shared by this large sibling group. This is emphasised by the fact that their older adult siblings, Mr F and Ms E, have continued to either live or spend significant time in their father's home with their siblings. Interviews between the children highlight their strong identity as members of a larger family and generally express views and make decisions they believe would be best for their family rather than their individual wishes.
85.The exception to the rule appears to be Z. As explored during the first family report, Z is a child who has experienced a significantly disrupted care history. Before the parent separation in July 2017, it appears that the youngest child, Z, may have been placed in the care of his paternal grandfather in Country G for approximately two (2) years. At the time of the preparation of the previous family report, Z was primarily cared for by his older sister Ms E and was reportedly very clingy towards Ms E and his father. Since this time, it appears that Ms E has left the family home that continues to visit multiple times a week, while Ms Huber commenced caring for Z on the days he is not attending kindergarten during the latter half of 2020. The children also confirmed that Ms Huber primarily cared for the younger children during school holidays in the latter half of 2020 while their father was at work.
86.The above timeline suggests that Z continues to experience a disrupted care history, and as a consequence, he is viewed as an angry and distressed child by his siblings, which is uncharacteristic behaviour for these siblings. Z has indicated that he wished to spend more time with his mother, and his siblings agree that Z misses her.
The report went on to note the views of the middle sibling group and recommended that they spend time with their mother in accordance with their views and wishes (paragraph 88).
The report stated relevantly at paragraphs 88-89:
This sibling group report that they share a positive relationship with their mother and believe they have not been hindered from spending time with their mother when they choose to do so. U, V and W have strongly indicated that they wish to remain living primarily with their father and spend time and communicate with their mother in accordance with their views, consistent with their older siblings Ms E and Mr F (unfortunately D remained incarcerated, however, is described as an integral and much loved, family member).
This assessment has highlighted the confusion regarding who is caring for the younger children at any given time. It appears that when Ms Huber is not present in the family home that the children are jointly cared for by their father, their older adult siblings, and, to some extent, their teenage siblings; however when Ms Huber enters the home spasmodically, she tends to take over this primary role. Consequently, there appears to be no roster regarding who was responsible for the children are any given point in time. As an outcome of this assessment, it is suggested that a clear parenting plan is devised to outline what times the children will be cared for by their father (or older adult siblings) and what times they will be cared for by their mother.
The report noted the need for the Court to decide whether or not Mr B posed an unacceptable risk to the children given his violent history (paragraph 90). The report made recommendations in the alternative for the children to spend time with their mother, depending upon the Court's findings about Mr B.
Finally, at 93, the report noted:
It is noted that while Z may articulate a wish to spend additional time with his mother, given the dynamics of this unique sibling group, this assessment does not support a parenting arrangement whereby Z is separated from his siblings X and Y.
It should be noted that Ms H was called for cross-examination at the request of the mother. The mother's questions were directed to why it was that Ms H had produced a report that was negative for her. Ms H clarified that she did not see the report as being so. She was not making any particular criticisms of either parent.
STATUTORY PATHWAY
In the particular circumstances of this case and given what, on one view, are relatively confined areas of dispute, it is appropriate to advance forthwith to the statutory pathway as set out by the Full Court of the Family Court in Goode v Goode [2006] FamCA 1346 at [65].
In summary, the amendments to Part VII have the following effect:
1.Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2.The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)).
3.If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).
4.The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5.When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6.The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7.The concept of “substantial and significant” time is defined in s 65DAA to mean:
(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 and 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.
8.Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9.The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.The child’s best interests remain the overriding consideration.
PARENTAL RESPONSIBILITY
Neither party have addressed the question of parental responsibility in any detailed way. The father's case outline does not even mention the matter, however his further amended application seeks an order for equal shared parental responsibility and the family report of Ms H recommends equal shared parental responsibility.
Despite some difficulties in communication between the parents, a matter to which I will return, it is apparent that both of these parents have been heavily involved with the care and development of these children and in my view it is quite clear that the presumption should be applied.
Although each of the parents has made some allegations of family violence within the broader meaning of the definition, (section 4AB of the Family Law Act 1975 (Cth)), these matters do not rise to a point whereby the presumption is rebutted.
THE SPEND-TIME AND COMMUNICATION REGIME - THE PRIMARY CONSIDERATIONS
Everybody agrees that it is in the best interests of these six children to have a meaningful relationship with both of their parents. The father's position as disclosed to Ms H is strongly supportive of the children having a good relationship with their mother. The mother's position might be said to be somewhat more nuanced. After all, she took all six children with her to Queensland and effectively cut the father out of their lives for a period of time. Nonetheless, as I understand it, her position before the Court is that the children should spend time with the father as they wish. How this might play out is open to question given her strong criticisms of the father, but even at its highest it does not appear to be the mother's position that the children ought not have a meaningful relationship with their father.
Although, as I have already said, each of the parents has criticism to make of the other both as to family violence and more generally, once again there is nothing in the materials and the evidence given before the Court which convinces me that there is any need to protect the children from physical or psychological harm or abuse, neglect or family violence.
THE ADDITIONAL CONSIDERATIONS SECTION 60CC(3)(A)
U, V, and W expressed to Ms H quite clearly that they did not believe that they needed to be subject to any parenting orders, viewing themselves as independent adolescents who are able to care for themselves (family report paragraph 68). They expressed a positive relationship with both parents and Ms H recommended, indeed, that those wishes be adhered to.
The younger children also indicated they share close relationships with their parents and other family members. While X and Y indicated they did not wish to be separated from their elder siblings and were happy to spend time with their mother on a regular basis, Z indicated that he wished to spend more time with his mother and appeared to be the only sibling who prioritised his own wishes over the needs of the large sibling group (family report paragraph 72). It should be noted of course that whereas the middle sibling group are all well into their teens, the younger group, and most particularly Z, are significantly younger and the weight to be given to their views must be slightly more qualified.
Section 60CC(3)(b)
One of the salient features of this matter is the fact that all the children have good and secure loving relationships with both of their parents and, indeed, with the entire family group. The only exception to this pattern is Z, who has had a more troubled and dislocated upbringing, spending time with multiple carers. It is unsurprising, perhaps, that he is less well-settled and has expressed the desire to spend more time with his mother.
The other feature of the case is the strong involvement of all of the family with their Country G church, which is clearly a major support to the family, not only in spiritual but in material terms, insofar as it appears to give them assistance with accommodation.
Section 60CC(3)(c)
Both parents plainly have taken the opportunity to participate in making decisions about major long-term issues with the children and to spend time and communicate with them. Of course, the mother's unilateral relocation to Queensland (and her leaving the children on another occasion with the father for a month while she went to Country G) have interrupted matters somewhat. Likewise, her failure to see the children from 2019 until she relocated to Melbourne in 2020 has been an interruption. Nonetheless, the proof of this particular pudding is in the eating, so to speak. All the children presently have a warm and loving relationship with each of their parents, which speaks for itself.
Section 60CC(3)(ca)
Both of these parents appear to have done their best to fulfil their obligations to maintain the children. There has been some suggestion that the mother has been wasteful in gambling, and in her evidence she appeared to suggest that she plays the pokies relatively regularly. I note that U told Ms H that she provides money to her mother, presumably to assist at least in part with this. Nothing has been said as to child support and, indeed, even the incomes of the parents have not been disclosed, so far as I can recall, in any of the materials before the Court.
Section 60CC(3)(d)
The children have been living with their father since the Court made the recovery order. It is now a period of some years. The three middle children are quite clear that they wish to continue to live with their father, albeit that they will continue to see their mother regularly.
X and Y were quite clear with Ms H that they do not wish to be separated from their older siblings but were happy to spend time with their mother on a regular basis. Z wanted to spend more time with his mother but, as earlier noted, Ms H's recommendation was clearly against him being separated from his siblings also.
There is a further difficulty also arising under this heading. Whereas the father actively supports a relationship between the children and their mother, the converse is by no means so clearly apparent. The middle sibling group reported that their mother is often angry with the father and Ms H noted the mother's strenuous efforts to portray the father as neglectful and/or incompetent as a parent. The tenor of Ms H's report suggests that she did not accept these criticisms. Having seen and heard the father give his evidence, notwithstanding that he was not significantly cross-examined given the mother's self-representation, I formed the clear view that this was a man doing his best in what must be demanding circumstances. He has to work to support the children, and at the same time has to make arrangements to deal with a household for not only the six children under 18, but one who is older, and his girlfriend and impending baby, and, it would appear, Ms E, who regularly visits in any event. I think that to move the children from this settled and secure environment is a matter that tells strongly against the mother's proposals.
Section 60CC(3)(e)
Nobody has pointed to any particular difficulty or expense of the child spending time with each of the parents.
Section 60CC(3)(f)
As already indicated, the father has had the primary care of the children since September 2018. As was made clear in his final submissions by the Independent Children's Lawyer, the children are doing well at school and appear to be well-grounded and well-established. The mother's criticisms of the father's capacity to care for them must be seen against this unarguable fact. Nonetheless, there seems no reason to believe that the mother is not well-capable of providing for the children's needs, although her capacity to provide for their emotional and intellectual needs must be qualified by the unilateral relocation to Queensland and the excision by her of the father from the children's lives for a period of time.
Section 60CC(3)(g)
It needs to be remembered that all of the children with whom we are concerned (and, it would appear, their elder adult siblings) have what Ms H described as a unique sibling relationship. Notwithstanding what must be relatively demanding home circumstances (nine and now possibly 10 humans in the one four-bedroom house) it is heart-warming to note the extent of affection for all concerned within the family unit. This appears, as I say, to extend to the three other adults, including the one who is presently incarcerated but who is still regarded as a well-loved member of the family.
I note and repeat that the middle sibling group are relatively well-established into their teens and appear, from Ms H's report, to be mature for their years.
The father struck me in evidence as relatively straightforward.
They are all involved in the Country G church, as I have indicated.
There is nothing in the materials to suggest that the father has re-partnered. The mother has re-partnered with Mr B, and, of course, this is an issue that is live in the proceeding. She seems given to somewhat impulsive behaviour on occasion, such as her decamping to Queensland and, even then, going to Country G with Z.
It would appear that Z is, as I have already indicated, somewhat a slightly troubled child.
Section 60CC(3)(h)
This is not relevant.
Section 60CC(3)(i)
The mother was clear in her evidence before the Court, inasmuch as she made repeated criticism of the father's alleged drinking and concomitant violence during the relationship. Indeed, it is her position that he continues to drink to excess with his friends and devolves the child caring responsibility to the older siblings. The father denied drinking when the children were in his care, and I should make it clear that I found his answer convincing. I believe it.
The mother plainly sees herself as the primary carer, as, indeed, she was during the relationship. One of the more noteworthy facets of her evidence, however, was that she really, in effect, pays no regard to the father's likely views or, indeed, any regard to anything he might think at all. She was quite clear in her evidence that she would do what she felt was appropriate as a mother. From the answers she gave, it was quite apparent that the father's acquiescence was irrelevant.
Section 60CC(3)(j)
Both of the parents allege family violence, as I earlier indicated. The father, despite his allegations of violence, had never reported the matter to any external authority. I note that the mother had to be removed by the police via an ambulance in January 2021. The father's position was that he leaves the house when the mother arrives and tends to acquiesce in what she wants because of the fear of the arguments that will erupt if he does not. That narrative is effectively reinforced by the evidence of U, W, and V.
Having seen and heard both the mother and the father give their evidence, I have no doubt that they have had significant verbal altercations during the relationship, and, indeed, that the mother is still well capable of abusing the father now. Her ready capacity to behave in this way belies any assertion that he was effectively violent to her and/or that she has any fear of him as a result. The clear impression that I got of the mother was of a very forceful personality. It is easy to see why the father feels intimidated and avoidant as a result.
Section 60CC(3)(k)
I do not understand there to be any intervention orders presently extant, although it appears that the mother may have taken a limited one out in the past.
Section 60CC(3)(l)
Everyone agrees it is appropriate to have final orders.
Section 60CC(3)(m)
The only other relevant consideration is the question of Mr B, a matter to which I shall shortly come.
DISPOSITION OF THE ISSUES IN THE CASE
The first issue to be considered is whether the six children should live with the father or the mother and, in the alternative, whether the three younger children should live primarily with the mother.
In the circumstances I have described when dealing with the Section 60CC matters above, in the end this matter can be dealt with briefly.
The children plainly should not be separated. The only child who expressed any desire contrary to this proposition was Z, and Ms H's report recommendation is clear. He should continue to live primarily with his siblings.
Given the father's care of the children since 2018 and the very close sibling bonds, it is immediately apparent that the children's best interests will be served by them continuing to live primarily with their father.
The orders proposed by the father and the Independent Children's Lawyer will, in fact, bring structure and regularity to what has thus far been a somewhat chaotic regime and, in my view, are entirely desirable. It should be noted that these orders will provide for an increased amount of regular time for the three younger children with their mother. Plainly, the views of the middle sibling group should be respected.
SHOULD THERE BE AN ORDER EXCLUDING THE MOTHER FROM ATTENDANCE AT THE FATHER'S HOUSE, SAVE FOR THE PURPOSES OF CHANGEOVER, UNLESS SHE HAS WRITTEN PERMISSION
Plainly, this order should be made. The circumstance where the mother simply barrels into the father's house whenever she feels like it must come to an end. She has to accept that the Court is ordering that the children live in the primary care of the father and the disruptions that she has thus far provided to his parenting must come to a stop. It is not in any way in the children's best interest to have their mother in the household abusing the father.
MR B
The mother's position is that Mr B has never misconducted himself in any way with her or the children and will not do so. It is true that Mr B has been on the scene, so to speak, for a considerable period of time, and there is no recorded instance of which I am aware of him assaulting the mother or the children. Nonetheless, his police record is a very significant one.
As the subpoenaed documents show, the circumstances in which he was arrested for assault are, as Counsel for the father pointed out, significant. It is all very well to say, as the mother does, that Mr B resisted the police because he, in effect, did not understand what was going on. He in fact struck one officer and, in effect, tried to club another. Furthermore, in previous intervention order proceedings taken out against him by a former partner, he was described relevantly as having ongoing anger issues.
While, of course, that took place some time ago, as did the criminal assault charges, the concerns of the Independent Children's Lawyer and the father are, in my view, in the circumstances, entirely reasonable.
I propose to make the orders requiring Mr B to address the issues identified. I note that he was not called to give evidence, and while the mother was self-represented at the trial, she was legally represented, in effect, right up to the door of the Court. The absence of Mr B in the witness box does not go so far as to give rise to a Jones v Dunkel [1959] HCA 8 point, but it does mean that I do not have the benefit of any evidence he might have given that might have assuaged the concerns raised against him.
ANCILLARY ORDERS
A number of ancillary order are sought by the Independent Children’s Lawyer and father. No one commented on them during the trial but they are all eminently desirable and will be made.
CONCLUSION
This case has taken a long time to get to judgment. While the issues involved are of considerable significance not only to the parents but also to the children, the conclusions, in my view, are relatively straightforward.
Given the children's views (noting the lesser weight to be granted to Z's) and the extraordinarily close sibling bond, it is quite clear the children must live with the father and spend time with the mother.
The orders restraining the mother from inappropriate attendance at the father's home and requiring Mr B to at least go through what, in truth, are relatively minor steps to, as it were, regularise the matter, are all too obviously in the children's best interest. There will be orders accordingly.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 23 February 2022
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